ENVIRONMENT AGENCY R (MATTHEW RICHARDS) V [2021] EWHC 2501

Just weeks before COP26, the High Court ruled on a landmark case, clarifying important legal principles applicable in environmental / industrial pollution cases involving both Article 2 and Article rights. 8, including that a reduction in life expectancy is considered a “real and immediate danger to life” for the purposes of the operational obligation of Article 2. However, although the Hon. Judge Fordham found that the Environment Agency had failed to comply with its operational obligations to the claimant under section 6 of the Human Rights Act 1998 in respect of concerning Articles 2 and 8, he refused to declare a violation. Instead, he made the following statement:

“In order for the Environment Agency to comply with its legal obligations, the Agency must implement the opinion of Public Health England as expressed in the fourth PHE risk assessment (published on 5 August 2021), by designing and applying and continuing to design and apply such measures which, in the regulatory judgment of the Agency, will achieve and effectively achieve the following results with respect to the site’s hydrogen sulfide emissions Walleys Quarry Landfill: (1) reduction of off-site odors in order to achieve, as soon as possible and thereafter, the World Health Organization half-hour average (5PPB ); and (2) reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA reference value (1PPB) as the value of Guidance acceptable to health for long-term exposure.

WHAT WAS THE CONTEXT OF THE DECISION IN ENVIRONMENT AGENCY R (MATTHEW RICHARDS) V?

The Claimant, M, was a five year old boy who lived near a landfill that emitted hydrogen sulfide. M was born prematurely and suffered from bronchopulmonary dysplasia (BPD). His respiratory health was extremely poor. A consultant respiratory pediatrician instructed by Mas an expert witness concluded that his premature birth and borderline disorder did not explain the severity of his current state of health. The consultant’s opinion was that the site’s environmental exposure to hydrogen sulfide was significantly detrimental to M’s health and quality of life, and that continued exposure was likely to lead to him developing lung disease. chronic obstructive pulmonary disease (COPD) which would shorten his life.

On August 5, 2021, Public Health England (PHE) published a Health risk assessment of air quality monitoring results from March to June 2021 with regard to the landfill. The report showed that 2021 emissions were above the World Health Organization’s half-hour average benchmark of 5 parts per billion (5PPB) and above the benchmark of the World Health Organization. US Environmental Protection Agency (EPA) 1 part per billion (1PPB). PHE recommended that all measures be taken to reduce odors off-site as soon as possible so that the WHO half-hour guideline is met. Additionally, hydrogen sulfide concentrations in the local area are expected to be reduced for 2022 to be below the US EPA benchmark (1PPB).

M said the Environment Agency failed in its obligation under section 6 of the Human Rights Act 1998 to protect his right to life under section 2 of the European Convention on Human Rights (ECHR) and the right to respect for private and family life under art. 8. He also argued that the Agency failed in its common law public law obligations to act reasonably and take reasonable steps to obtain all relevant information.

WHAT WAS THE DECISION?

Much of the first part of the judgment concerns M’s medical condition and his prognosis if he continues to be exposed to pollution from landfills. Evidence presented and analysis of the case law of the European Court of Human Rights, including Brincat vs. Malta (No. 60908/11) (unpublished) convinced the Court that the “positive operational duty” that the Environment Agency had under section 2 had been triggered. The test provided for in Brincat was that the applicant must establish either:

  1. Their condition is an inevitable precursor to the diagnosis of a relevant disease, or
  2. Their current condition puts their lives in danger.

M satisfies the first condition. BPD was an unavoidable precursor of a disease that would reduce life expectancy, and the inevitability factor was attributable to continued exposure to hydrogen sulfide emissions at current levels.

The harmful effects of pollution have also been proven in relation to the s.8 rights of M. The deputy. Justice Fordham said:

“Based on all the evidence, about Mathew, and the shows, and the implications of the shows for Mathew, I am convinced that there is a direct effect on home, family life and privacy. of Mathew about the adverse effects of severe environmental pollution. .

“This will require urgent and continued action which I believe will make a very real difference to the air Mathew and his community breathe.”

COMMENT

The deputy. Judge Fordham’s ruling will now no doubt be relied on by potential claimants seeking to hold the Environment Agency, local authorities and other regulators to account for the effect of pollution on their human rights. In most such cases, years of unsuccessful complaints by the complainant to the competent authority will have preceded the dispute. This case warns these authorities that positive steps must be taken sooner to avoid costly legal action and the associated damage to reputation.