Controlling environment agency discretion: A public law perspective

Over the past 30 years, we have seen a substantial growth in legislative measures tackling environmental harms, primary responsibility for which has been vested in executive officials and independent regulatory authorities. In 1995, the UK Government established the Environment Agency, an integrated, one-stop regulatory authority that would, through its role as educator, advisor, conservator and regulator, act as 'champion' of the environment, advancing sustainable development and other fundamental environmental objectives.1 One way in which such goals can be achieved is through the Agency's regulatory powers, which enable it to 'police' environmental regulation. In exercising such powers, the Agency operates within an intricate maze of aims, objectives, duties, purposes and other functions reflecting the broad environmental policy goals of minimising pollution, conserving natural beauty and protecting flora and fauna. Such aims thereby curtail the wide discretion allocated to Agency officers when applying the law to individual cases.2 The purpose of this article is to examine the justiciability of the Agency's aims and objectives, that is the extent to which the courts, through judicial review of Agency action or inaction, may contribute to ensuring that Agency powers are exercised in accordance with such duties. First, the article examines the aims and duties imposed by both primary and secondary legislation. It then considers, by taking established administrative law principles and examining recent case law, the extent to which failure to comply with such duties could form the basis of a judicial review challenge. Finally, the courts' suitability as a forum for checking discretion will be discussed. The main argument is not that the Agency's legislative aims have no role to play in curbing Agency discretion; rather, it is suggested that without a shift in judicial thinking, it would be difficult successfully to challenge any Agency decision on the basis that it had failed to carry out its duty.