Cardiff University, Wiley Journal of Law and Society

Cardiff University
Environmental Rights: European Fact or English Fiction?

Author(s): Christopher Miller
Source: Journal of Law and Society, Vol. 22, No. 3 (Sep., 1995), pp. 374-397
Published by: Wiley on behalf of Cardiff University
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JOURNAL OF LAW AND SOCIETY
VOLUME 22, NUMBER 3, SEPTEMBER 1995
0263-323X
Environmental Rights: European Fact or English Fiction?
CHRISTOPHER MILLER*
INTRODUCTION
Living on the eastern seaboard of a vast and sparsely popula

replete with natural resources, it is unlikely that the draug
Constitution of the United States of America gave any thoug
mental constraints which might prejudice the enjoyment of the
liberty and the pursuit of happiness'. It was the familiar Old
- corrupt jurists, dogmatic clerics, autocratic kings - to these h
which they were most anxious to address. When, nearly two
later, the United Nations declared, among other things:
Men and women of full age, without any limitation due to race, nationa
have the right to marry and to found a family.'
the cited limitations refer to social constructs not physical f

memories of the Holocaust and the many atrocities commit
Second World War were the principal motivations of the U
ration of Human Rights, and therefore the absence of any
ecological constraints is hardly surprising. It required the emer
1960s, of the environmental movement before the inalienability
to reproduce was questioned:
To couple the concept of the freedom to breed with the belief that eve
equal right to the commons is to lock the world into a tragic course of
By the time of the 1972 United Nations Conference on the Hu

ment, the idea that an acceptable environment might constitute
for the enjoyment of certain human rights no longer seemed c
Man has the fundamental right to freedom, equality, and adequate co
in an environment of a quality that permits a life of dignity and well-b
Fifteen years later and after the next conference of a similar sta
mental quality had itself been elevated to the status of a '
human right:
* Senior Lecturer in Environmental Management, European Stu

Institute, University of Salford, Salford M5 4WT, England
374
? Blackwell Publishers Ltd. 1995, 108 Cowley Road, Oxford OX4 1JF, UK and 238 Main Street, Camb
All human beings have the fundamental right to an environment adequate for their
health and well-being.4
Following the enormous intellectual activity directed towards environ-

mental issues in recent years, it is now possible to identify two distinct mean-
ings of the of the term 'environmental rights'. First, it tends to be applied
to a broad range of legal rights related to an individual's use of and access
to various aspects of the physical world. Within United Kingdom jurisdic-
tion, the provenance of this particular conception in certain ancient rights
and privileges associated with interests in property is evident. But if it is
now meaningful to talk of 'a right to breathe clean air' or 'a right to swim
in clean water', then such rights must be seen as a sub-category of civil rights
enjoyable by all citizens irrespective of any property qualification.
The second conception of environmental rights is ecocentric rather than
anthropocentric; they are not human rights but rights - above all the right
to a continued existence unthreatened by human activities - attached to non-
human species, to elements of the natural environment and to inanimate
objects. The kinship between these two seemingly unrelated conceptions will
be considered later. The principal aim of this paper is to examine critically
the first conception, namely, the heterogeneous array of rights recognized
in those branches of law most immediately connected with the physical
world.
Attention will be focused primarily on the atmosphere for two reasons.
Firstly, the atmosphere can claim to be the definitive example of what econo-
mists refpr to as a 'common property resource'. The atmosphere cannot in
any sense be owned; and its quality is an important determinant of public
health. A right to breathe clean air cannot be reconciled with the use of the
atmosphere as a 'sink' for the free disposal of gaseous wastes. Moreover,
we believe that conflicts over the use of common property resources lie at
the heart of the environmental debate.
Secondly, it was the recent postulation, not only by Friends of the Earth
but also the British Labour Party,5 of a 'right to clean air' that first prompted
the author's curiosity. In particular, it raised a question which underpins
this paper: at what point is it meaningful to speak of the existence of an
environmental (or, for that matter, any other fundamental) right: when it is
first declared by a supra-national body like the United Nations; when it is
implemented in national law; or only when that law has been found to offer
effective remedies to those whose right has been infringed?
ENVIRONMENTAL RIGHTS: THE ENGLISH TRADITION
According to Purdue:
The form of environmental law is a pragmatic mixture of chiefly judge-mad
and statutory systems of regulation carried out by public bodies. In this the
no means unique but more important is the lack of a coherent set of principles
375
? Blackwell Publishers Ltd. 1995
We would go further and argue that the tendency to include more and more
concerns under the environmental label frustrates the identification of a
category of rights which is sui generis in that it is quintessentially and
explicitly environmental in character. This task is not merely of academic
interest since it has, we shall argue, important implications for the role of
the state in environmental intervention.
If the environment is indeed, as Einstein is reported to have asserted,
'everything that's not me',7 then it is not surprising that it is possible to identify
an environmental dimension within many branches of the law. For purposes
of exposition, we shall refer to five (see Table 1), but these by no means
exhaust the possibilities. If we consider those aspects of these and other areas
of law most concerned with the exigencies of our immediate physical
surroundings, then our first (anthropocentric) conception of 'environmental
rights' can be understood as the totality of rights conferred by both common
law and statute within these areas (depicted by the hatched area in Table 1).
There is, we shall argue, little to recommend this indiscriminate and
eclectic approach. It results in so amorphous an array that the application
of the adjective 'environmental' does little to advance understanding of the
subject. Secondly, and more importantly, many of the putative environ-
mental rights which emerge from this process have proven ineffective in
securing redress in respect of those contemporary environmental ills of most
immediate impact upon human health and well-being.
1. Tort: a source of environmental rights?
Following the example set by many authors of textbooks, we shall begin by

considering certain torts as the source and origin of environmental law. It
is not difficult to list those venerable cases of action in trespass, nuisance,
and negligence by which redress was sought by those whose enjoyment of
land or property was impaired by the effects of their industrial neighbours.
A riparian owner's entitlement to 'water of his stream in its natural flow,
without sensible diminution or increase, and without sensible alteration
in its character or quality'8 has an obvious claim to be recognized as an
'environmental right', even if the term was not in common or legal parlance
in 1893. But closer inspection of the circumstances of these cases reveals
that they were largely concerned with forms of pollution - noise, odour,
vibration, smoke or fume - whose adverse effects were upon land or prop-
erty. These effects, in so far as they related to public health, were immediately
tangible and not dependent upon subsequent medical diagnosis or epidemio-
logical evidence. In contrast, it is the concern with poorly understood and
as yet unrealized effects which characterizes contemporary concern over
pollution of the atmosphere by, for example, oxides of sulphur and nitrogen,
ozone, dioxins, benzene, and other volatile organic compounds. Moreover,
the reduction of this uncertainty and the research effort which that entails
have important implications for some of the most powerful sectors of
376
modern industrial economies, namely, the power utilities and the motor
industry. Any 'right to breathe clean air' must, if it is worthy of that desig-
nation, be enforceable despite such uncertainty.
In the Budden case,9 a group of parents living near an urban motorway
took action in negligence against BP Oil in respect of the alleged impairment
of their children's intellectual development due to the effect of lead additives
in petrol. Curiously, the epidemiological evidence for and against this claim
appears to have received little scrutiny in open court: Megaw LJ is reported
to have said that 'it had to be assumed [sic] that the children had suffered
some injury caused in part by the fact that the companies' petrol included
lead'.10 The Court of Appeal's reason for dismissing the action was that an
injunction, forbidding the addition of lead compounds to petrol, would
negate the emission limit (0.4 grams/litre) contained in a statutory instrument
in compliance with an EC directive.11 Such an undermining of the sovereignty
of Parliament would amount to 'a constitutional anomaly which would be
wholly unacceptable'.12
A more recent negligence case - the accidental contamination of the
Camelford water supply with aluminium sulphate'3 - has also attracted the
environmental label but, like the benzene contamination of 'Perrier water',
it fits equally well within the 'consumer protection' tradition. The water sup-
ply system, wherein South West Water's duty of care was allegedly breached,
is no more and no less 'environmental' than Stevenson's bottling plant upon
which the hapless snail trespassed.14
There are numerous cases involving harm to health and injury in the
workplace which have resulted in successful claims in tort by employees. In
many of these cases, for example, crush injury by falling loads, amputation
by unguarded machinery, res ipsa loquitur; others, such as bladder cancers
among workers in the rubber industry exposed to beta-naphthylamine,'5
have hinged upon judicial assessment of uncertain epidemiological evidence.
The successful claims cited in the textbooks tend to be those in which in a
specific toxic chemical can be readily identified as the causative agent of a
relatively rare pathological condition. Actions by employees, however suc-
cessful, do not necessarily advance the cause of third parties. Establishing
a link between asthma and emissions from a major chemical installation still
seems problematic.16 Even actions by lung cancer victims resident near (but
never employed in) a Leeds asbestos works are vigorously contested.'7 Little
heuristic purpose is served, we would argue, by imputing a spurious environ-
mental dimension to that body of law, concerned with health and safety at
work, which can be more usefully understood within the context of rights
which exist between employer and employee.
Some reference must be made at this point to the recent House of Lords
ruling18 which establishes that foreseeability of damage is now to be taken
as a prerequisite of liability under the rule of Rylands v. Fletcher. The circum-
stances of the case (inundation of a mine following the construction of a
reservoir) in which the rule was first enunciated and those (contamination
377
of an aquifer by certain organohalogen compounds linked, albeit inconclu-
sively, with leukaemia) of the recent case represent perfect exemplars of what
might be termed respectively classical and modern environmental problems.
Further reference to foreseeability is made below; for the moment, it suffices
to say that, notwithstanding Lord Goffs concession that 'the storage of sub-
stantial quantities of chemicals on industrial premises should be regarded
as an almost classic case of non-natural use [of land]',19 Cambridge Water
Co. v. Eastern Counties Leathers represents a further erosion of the limited
role of tort as a source of environmental rights which are distinguishable
from traditional property rights.
To summarize: successful actions in tort in respect of chronic health
detriment to third parties from pollutants dispersed into the environment,
under conditions which fall short of accidents, remain conspicuous by their
absence. It might be argued that academic reviewers place excessive emphasis
on reported cases, and that the true efficacy of tort in such cases lies in the
apprehension of large damages which encourages out-of-court settlements
(as in Camelford). However, such settlements, which may be just and even
economically efficient, serve to vitiate the establishment of precedents; they
are therefore inherently antagonistic to the emergence of legal rights.
2. Statutory intervention in the environment
It is necessary to remember that it was the failure of tort to deter activities

which we currently label 'pollution' which prompted the emergence of a
succession of increasingly more stringent criminal sanctions. The twin forces
of urbanization and industrialization meant that waterways polluted with
sewage and an atmosphere obscured by the discharges from a multiplicity
of chimneys, both industrial and domestic, became commonplace features
of daily life for the majority of the population. In 1821, an Act of Parlia-
ment20 sought to facilitate prosecution in public nuisance by those aggrieved
by smoke emission from steam engines. But subsequently, the state's role in
safeguarding the quality of rivers and the atmosphere gradually developed
into one in which local authorities and central inspectorates enforced an
ever more prescriptive body of statutes. The term 'public health' displaced
'sanitary', and was in turn displaced by 'environmental', from the titles of
the principal statutes; but their goal remained the same: reducing pollution
to some socially acceptable level.
It should be recalled that Edwin Chadwick, like other sanitary reformers,
was a disciple of the founder of utilitarianism, Jeremy Bentham, for whom
the notion of moral rights, existing prior to and independently of codes of
law, was 'nonsense on stilts'. Despite arising at a time of political and social
reform, which saw, among other things, the repeal of the Combination Acts,
Catholic Emancipation, and the extension of the Franchise, sanitary reform
(like the amended Poor Law) was characterized by the extinction rather the
creation of individual rights.
378
The restrictions imposed by the Factory Act of 183321 on the hours worked
by children were justified by their contribution to overall welfare, even though
they entailed limitations on adult labour - something which Chadwick, and
other proponents of laissez-faire, believed should be determined solely by
market forces.22 The long opposition to the statutory control over emissions
of domestic smoke reflected the deeply rooted sense of an Englishman's
'right' to a 'pokeable, companionable fire'.23
The history of town and country planning has been described as one in
which landowners' rights to develop their land as they might wish has been
progressively 'nationalized'.24 Confirmation that the local planning authority's
obligation is a utilitarian one - allocating land uses so as to promote aggre-
gate utility with no 'duty of care' to protect the interests of any given
individual - follows from recent case law.5
We must not allow this unpromising perspective on individual rights
in the nineteenth-century United Kingdom environmental legislation t
dissuade us from a diligent search within the current corpus. Following
Purdue,26 we must look for'... the right to information about environmental
data, the right to public participation in decision making and the right fo
individuals themselves to be able to initiate prosecutions and enforcemen
procedures'.
Section 20 of the Environmental Protection Act 199027 can be said to
confer a right of public access to information on integrated pollution control.
But this right of access is no different in principle from the right to read
registers of planning applications or information collected under successive
Companies Acts. The information may refer to atmospheric or water pol-
lution but little purpose is served by labelling this an 'environmental right'.
By the same token, we would be reluctant to apply the term 'environmental'
to public law rights simply because of the existence of successful attempts
by local amenity groups or environmental lobbyists to invoke such rights
to pursue their particular aims. Failed attempts must perforce strengthen
this reluctance. A recent ruling28 in the High Court, in a judicial review of
the Secretary of State's refusal to require an environmental assessment before
approving the construction of a motorway through Twyford Down, estab-
lished that the 1985 directive on environmental assessment29 was capable of
direct effect (see below). But the challenge by parish councillors and repre-
sentatives of amenity groups fell because they had not suffered specific harm
as a result of the project. More recently, Mr Justice Otton held that, since
many of Greenpeace's members lived in or near Cumbria, this body (and
Lancashire County Council) had 'bona fide interest in the activities carried
out by BNFL at Sellafield' and therefore standing to seek a judicial review30
of the authorization of trace-active commissioning of THORP. However,
the substantive grounds of Greenpeace's challenge of the authorization of
the full authorization31 - that the THORP plant had not been 'justified' in
the terms of a EURATOM directive32 - were not upheld.
379
Twyford Down and THORP - a 'roads versus landscape' conflict and the
use of the marine environment as a sink for radioactive waste - are set to
become classic causes celebres within the environmental canon. But these
two rulings, whilst further blurring the boundary between private and public
law, were still concerned with legal technicalities not fundamental or novel
principles. Had the outcome in either been different, we would still argue
that no new species of right had thereby been recognized by United Kingdom
law.
Under English law, individuals may initiate proceedings in the criminal
courts. They need not have suffered as a result of the offence nor need they
demonstrate any particular interest. This ancient right is subject to the dis-
cretionary power of the Attorney General to terminate proceedings. The
criminal provisions of environmental statutes sometimes contain additional,
specific restrictions of the general right of individuals: for instance, the
consent of the Attorney General was required before individuals could
prosecute offenders under the Rivers (Prevention of Pollution) Act 1951; in
private prosecutions, under the Alkali Act 1906 and later the Health and
Safety at Work Act 1974 in respect of industrial air pollution, the consent
of the Director of Public Prosecutions was required.
A general right, the enjoyment of which is restricted rather than facilitated
by statute, seems an unlikely source of a new class of environmental rights.
But why restrict discussion to the rights of private individuals to prosecute
- what of the rights of those accused of environmental crimes? Again the
rights of habeas corpus and trial by jury apply to anyone charged with
depositing controlled waste on land not subject to a waste management
licence,33 but do these ancient common law rights therefore merit the
environmental label?
It is possible to point to one time-honoured defence, specific to pollution
law, which might be said to constitute an environmental right. A demon-
stration of the use of 'best practicable means' (BPM) to prevent the emission
of smoke was a sufficient defence for early Victorian industrialists charged
under the Smoke Nuisances (Metropolis) Act 1853. As Ashby34 points out,
BPM began as a defence but by degrees became the foundation of United
Kingdom pollution control for more than a century until supplanted by
BATNEEC (best available techniques not entailing excessive cost). BPM still
survives as a defence in summary proceedings in statutory nuisance (s. 80
of the Environmental Protection Act 1990).
But these are minor points when compared with the basic principle of
English law that an individual may do anything that is not specifically pro-
scribed. We agree with McLoughlin35 that pollution control laws have tradi-
tionally served to protect the interests of polluters rather than those suffering
the effects of, for example, emissions to the atmosphere of noxious vapours,
which survive the application of BPM, and similarly lawful discharges, that
is, ones which meet consent conditions, to rivers. We also concede that
increased rights of access to information, under s. 20 of the Environmental
380
Protection Act 1990, could encourage more frequent private prosecutions
under this Act (which, it should be noted, does not include a provision requi-
ring the consent of the Attorney General or Director of Public Prosecutions).
The prospect of the payment of costs has always been a powerful dis-
incentive to private prosecutions. Whether the increased availability of infor-
mation is viewed by private individuals or, more pertinently, environmental
pressure groups as sufficient to overcome the cost deterrent when contem-
plating actions against multi-national chemical companies remains to be
seen.36 It could be that easier public access to data, coupled with increased
media attention, on atmospheric and aquatic discharges will force the regu-
latory agencies to pre-empt private intervention by pursuing their own
prosecutions and placing less emphasis upon extra-legal persuasion.
Our cursory examination of the civil and criminal provisions of a range
of public and private law related to the physical environment yields, we
conclude, few if any candidates for membership of a category of rights which
are quintessentially environmental in character and which do not sit easily
within some other, existing category (represented by the opaque area in
Table 1). We reserve judgement on the right of access to information, whilst
noting that it represents a departure from traditional English practice and
that its provenance37 lies in the environmental programme of the European
Community. It is necessary now to examine the claims of this supra-national
body to be the source of other rights to which the label 'environmental' can
profitably be attached.
ENVIRONMENTAL RIGHTS: THE EUROPEAN DIMENSION
It was only with the Single European Act in 1987 that the Co
environmental legislation - comprising nearly two hundred d
through which the policy objectives of (now) five Community
grammes were implemented - was placed upon a legitimate and
basis. The Treaty of Maastricht reinforced this basis by ensuri
unashamedly green concept - 'sustainable and non-inflationar
respecting the environment' - was cited within the very aim
European Union (of which the Community is the principal elem
theless, the environmental concerns of Maastricht were in pr
ordinate to the wider economic and social objectives. Were it n
depth of the United Kingdom government's antipathy to the Co
Social Chapter,39 culminating in the celebrated 'opt-out' at Maastric
perhaps the Westminster Parliament's acceptance of concepts as
traditional British approach to pollution control as the 'precau
principle', the presupposition in favour of 'high levels of prote
the 'integration'40 of an environmental dimension in all areas of Co
policy, might have been less easily obtained.
381
The recency of the Community's candour with regard to its environmental
aspirations may explain why it is possible to examine the impact of case law
on its environment programme but, given the absence of substantive 'green'
issues within the seminal cases, not the converse. Thus when considering the
consequences of developments in Community law in creating 'environmental
rights' which could be recognized in English courts, it is necessary to observe:
(i) that the majority of European Court of Justice case law originated
in member states with a written constitution and a legal system
(for example, Roman law, the Code Napoleon) markedly different
from that of the English common law tradition;
(ii) that these cases arose from conflicts with little or no substantive
environmental content; and therefore
(iii) anticipation (whether by politicians, administrators or academic
observers) of their implications for United Kingdom policy is
essentially an inductive process.
1. Direct effect of environmental directives
Member states enjoy discretion in the manner in which they achieve the
stated objectives of any directive. But Article 189 of the Treaty of Rome
states that compliance, which may be via administrative action rather than
legislation, within a specified period of time is a binding obligation. Where
a directive has been inadequately implemented or where compliance has
been delayed, then European Community case law has established that an
individual may still be able to rely upon provisions of a directive in a national
court. To be 'directly effective', the provision of a directive must be precise
and unconditional and must confer some right upon that individual. This
summary of the definition of 'direct effect' was articulated by one author-
itative source41 who then listed, under three headings, examples of environ-
mental directives which arguably satisfied these criteria, namely:
(i) maximum values, maximum concentrations, and limit values;

(ii) prohibitions;
(iii) obligations to act.
The Community's water quality limits and those on atmospheric pollu-

tants (sulphur dioxide and particulates,42 lead,43and nitrogen dioxide44) fall
within the first heading. Being quantitative in character, they are precise and
the obligation to meet them is unconditional; they are therefore, according
to Kramer, 'directly applicable'45 even though each member state has scope
for discretion in choosing the means (for example, emission limits; pollution
taxes; subsidies for smokeless fuels; reduced excise duty for unleaded petrol)
by which their aims are met.
The directive on environmental impact assessment,46 obliging authorities,
before approving certain types of major projects, to carry out an assessment
382
of its environmental impacts, clearly falls under the third heading. The
European Court of Justice recently ruled47 that Article 4 of 75/442/EEC, the
framework directive on waste, was insufficiently precise to confer rights on
individuals: it simply calls for a programme which ensured that health and
environment were adequately safeguarded, rather than prohibiting landfill
as an unsafe form of disposal. It is probable therefore that another
'framework' directive, namely, 84/360/EEC on air pollution from industrial
sources48 requiring national plans and programmes for reduction in emis-
sions, would be judged similarly. However, subsequent 'daughter' directives,
in which detailed requirements tend to be specified, are more likely to be
directly effective. The planning literature49 now includes a description of an
attempt by a local residents' group in the north-east of England to cite a
combination of direct and indirect effects of EEC Directive 84/360 to restrict
the discretion of the Secretary of State for the Environment. It centred upon
an appeal against planning consent for a turbine fuelled by gas from a coal
carbonization plant - one of Tyneside's most notorious sources of air
pollution. The legality of the minister's decision to grant planning consent
without requiring the pollution abatement measures demanded by the
residents, would have been challenged in the High Court had the plant not
closed (for reasons unrelated to the action pending). The residents' counsel
were prepared to argue that the duty upon the Secretary of State, as upon
any emanation of the state, to meet the objectives of this directive obliged
him to make the planning consent (had the court chosen to remit the decision
to him) conditional upon significant reductions in emissions of smoke and
sulphur dioxide.
2. Francovich liability
In one of the early landmark cases50 heard by the European Court, it was
established that Community law can give rise to rights for individuals. The
existence of a right conferred upon individuals by a directive is, as we have
seen, a necessary but not a sufficient condition of that directive having direct
effect. But the latest addition to the range of remedies available to individuals
aggrieved at their member state's defective implementation of Community
directives is not confined to those which are capable of direct effect. The
Francovich51 ruling extends and refines the principle52 that national courts
must ensure real and effective protection for an individual's Community
rights:
where... a Member State fails to fulfil an obligation imposed upon it by Article 189(3)
of the Treaty to take all the necessary steps to achieve the result required by the Directive,
that provision of Community law, to be fully effective, must give rise to liability for
damages provided that three conditions are fulfilled:
1. The result required by the Directive must include the conferring of rights for the
benefit of individuals;
2. The content of these rights must be determinable by reference to the provisions of
383
the Directive; and
3. There must be a causal link between the breach of the obligation of the state and
the damage suffered by the person affected.53
The impact of Francovich (which arose from Italy's failure in regard to a

directive on protection of employees against employer insolvency) on
Community environment law has been the subject of inconclusive specula-
tion in the literature.54 Lord Slynn, a former Advocate General, claims that
'the Francovich decision may have a significant effect in the application of
environmental rules';55 whilst an academic lawyer has adopted a more
cautious approach and, by reference to the directive on environmental assess-
ment, points to the reluctance of English courts to recognize 'environmental
interests as such as rights'.56 In contrast, a Dutch academic concludes from
an analysis of recent decisions of the European Court of Justice that rights
of individuals 'may follow from the general protective aim of environmental
Directives and even from all kinds of formal and procedural obligations'.5
Of these rulings, one concerned with limit values on air quality standards
for, among other things, sulphur dioxide and particulates contained a
passage:
whenever the exceeding of the limit values could endanger human health, the pers
concerned must be in a position to rely upon mandatory rules in order to be able
assert their rights58
prompting the view:
This demonstrates that rights can also be bestowed on private individuals by quali
standards that have a very general protective aim.59
This view is consistent with Kramer's60 identification (see above) of t

directives on sulphur dioxide and bathing water as among of that class
directives, establishing limit values on environmental quality, which
capable of having direct effect. But whatever the intentions of the Co
mission, we shall argue, that there remain many obstacles to the effect
enjoyment of a 'right to breathe clean air' and of 'a right to bathe in cl
seawater'.
3. Francovich liability and EC directives on air and water quality
That exceedences of directive 80/779/EEC have occurred in the United

Kingdom is apparent from Table 2. Apart from Northern Ireland w
special circumstances apply, they have tended to occur in towns in or
coalfields where the practice of giving concessionary coal to mi
dampened enthusiasm for the introduction of smoke control areas under
Clean Air Act of 1956.61 Compliance with the limit values on smok
sulphur dioxide finally became obligatory on 1 April 1993. However,
the closure of so many mines in recent years, far fewer exceedences w
now be expected to arise. Table 3 gives further information on the
384
exceedences inferred from data recorded at a monitoring site at Hetton-le-
Hole, a mining village in the north east of England.
The use of a limit value based upon the 98 percentile (in effect, the value
which appears seventh in the year's daily averages listed in descending order
of concentration) is a recognition of the existence of 'episodes' in which
meteorological conditions can lead to short periods of very high pollution.
The near violation of the SO2 limit in South Shields (249 (tg m-3 in January
1982) is probably an example; but it is still a pale imitation of the notorious
London smog of 4-8 December 1952, when low temperatures and anti-
cyclonic conditions conspired to generate far higher concentrations, leading
to an excess mortality estimated at around 6,000 in the south-east of
England.62 But the difficulties in identifying a link between respiratory mor-
bidity and current levels of air pollution were apparent in a recent study63
in South Tyneside, the borough which includes South Shields and the
Monkton coking works to which reference64 has already been made in this
paper. Here the epidemiologists were able to identify a statistically significant
trend between daily SO2 concentrations and the proportion of respiratory-
related consultations recorded in general practitioners' surgeries in the
immediate vicinity of the coking works. But the methodology had intrinsic
limitations: the statistical test for trend could not address the problem of
'lag' between exposure to high pollution and consultation, that is, a doctor's
appointment over respiratory distress could well occur after the 'high pollu-
tion' day which might have caused it. The absence of any similarly significant
trend with smoke concentration should also be noted.
These issues would be of more than academic interest were failure
adequately to implement directive 80/779 ever to be the subject of Francovic
litigation in an English court. Exceedence of the smoke limit value migh
plausibly be said to arise out of the Secretary of State's failure to use hi
discretionary power under Section 8 of the Clean Air Act of 196865 to direct
the local authority to initiate a smoke control programme. If, as some ha
argued, directive 80/779/EC is one which confers a right upon individua
then anyone who can demonstrate harm as a result of such an exceedenc
would appear to have grounds for seeking compensation from the State.
But it is difficult to hypothesize an environmental case in which the facts
bore parallels with those that led to the original Francovich decision. Onc
Signor Francovich had demonstrated his standing, it followed (indeed it was
almost tautologous) that he had suffered a financial loss in circumstance
which the original directive was designed to mitigate. But does the exce
dence of an air quality directive's limit value automatically imply harm o
does the burden of proof remain with the plaintiff? Condition 3 of Francovich
liability (reproduced above) implies the latter. In which case, do the limit
tions of epidemiological knowledge effectively confine standing to thos
with pre-existing respiratory conditions such as bronchitis, emphysema o
asthma? Who exactly can claim to have suffered from the exceedence
indicated by data from monitoring station X; if I live closer to station Y
385
whose data have never exceeded the limit values (that is, stayed within the
hatched area of Table 3), is my standing thereby negated?
When the state breaches its duty to protect the atmosphere - by ensuring
compliance with a particular limit value - the problem of identifying the
offender from a multiplicity of pollution sources no longer arises. But it is
replaced by the problem of a potential multiplicity of pollution victims, each
seeking compensation for respiratory morbidity. In this regard, directive
85/203/EEC is a more fruitful object of speculation. It sets a limit value (98th
percentile of hourly mean values, recorded throughout the year, of 200 ,ig
m-3) for nitrogen dioxide. Petrol-engine vehicles form the principal source
of this respiratory irritant, which is also the raw material in the photo-
chemical production of ozone (see below) and many other toxic pollutants.
Official statistics (see Table 4) would suggest that exceedence is not common-
place; however, by its very nature, exceedence is far more likely to occur in
large urban centres.
The possibility of those millions (or even that minority who are prone to
asthma) who live or work in central London seeking Francovich damages
from HM Government in respect of harm to health from exposure to nitro-
gen dioxide concentrations in excess of the EC limit value is a consequence
of the view that this directive confers a right upon individuals. If such a
prospect seems nonsensical, it does at least remind us that a 'right to breathe
clean air' cannot be achieved without prejudice to that most cherished
modern expression of the right to liberty, namely, the right to drive wherever
and whenever a car-owner wishes.
It is perhaps easier to imagine claims for compensation being made by
those who suffer ill-health after swimming in waters which breach directive
76/160/EC,66 which sets nineteen physical, chemical, and microbiological
standards to be met in areas of sea and fresh water where bathing is tradi-
tionally practised. Breaches of the standard for coliforms (bacteria indicative
of untreated sewage) would seem (see Table 5) commonplace all along the
coastline of England and Wales. It is necessary to note that bathing water
quality has been reported to be one of those areas in which the United
Kingdom government is anxious to apply the subsidiarity principle.67
The breaches recorded in samples taken from Blackpool and Southport
beaches were the subject of the more recent68 of the two occasions on which
the European Court has held the United Kingdom to have failed to fulfil a
Community obligation towards the environment. Moreover, there are
reports69 of civil actions under domestic law by water sports enthusiasts,
who suffer recurring intestinal disorders and eye infections, alleged to be
caused by exposure to bacteria in inadequately treated sewage discharged
to coastal waters. The prospect of Francovich actions in such cases has been
raised by one academic reviewer, who counters the suggestion that this
directive does not confer rights upon individuals by pointing to the court's
assertion that its aims included 'the protection of public health'.70
386
It is not difficult to envisage pressure groups, like 'Surfers against Sewage',
being able to prepare cases in which the balance of probability lay with the
claim that their members' health, and the enjoyment of their sport, had been
prejudiced by a particular water company's illicit discharges. The problem
of a multiplicity of potential victims of contaminated coastal waters and
bathing lakes may not be as stark as that of a polluted atmosphere, but it
is not entirely absent. Dispersion and tidal mixing of marine discharges are
inescapable physical phenomena. Their effects make fatuous the idea of one
beach being effectively immune from compensation claims, whilst swimming
from another can lead to action against HM Government for a stomach
upset. The burden of proof, which may again involve a contest between epi-
demiologists, remains with the plaintiff. Recent research appears to suggest
that the risk of contracting diarrhoea and sore throats is independent of
measured levels of coliforms and enteroviruses, for which limit values are
specified in the 1976 directive, but is related to strains of virus to which the
directive makes no reference.71
Conferring rights on individuals via directives on environmental quality
may give them standing in an expanded range of actions for breach of statu-
tory duty. And there is a sense in which 'direct effect' can be said to promote
ultimate subsidiarity, namely, the empowerment of the citizen. But, as
Weatherill and Beaumont have observed:
Direct effect recognizes that Community law rights may be enforceable at national level,
but leaves the development of remedies in support of those rights to the national legal
order. This non-interventionist approach has the result that remedies for violation of
Community law may vary state by state.72
The existence of Community law rights addresses none of the problems

which have made the burden of proof in modem environmental cases so
onerous when seeking remedies in the English civil courts. However, it is
the suggestion - that the objective of'protection of public health' in directive
76/610/EC (and by implication, in any other with a similar aim) implies a
right on individuals - that is most difficult to reconcile with the English
experience of state intervention in public health which, as we have argued
above, is characterized by the restriction of individual rights. The most recent
attempts by HM Government to address modern forms of air pollution do
not seem to depart from that tradition.
The latest directive concerned with the health effects of an atmospheric
pollutant, namely, ozone,73 lays down, not mandatory limit values as in those
air quality directives74 promulgated in the 1980s, but a concentration
(expressed as hourly average) above which the public should be informed.
A recently published consultation paper suggests that the United Kingdom
government would be unlikely to support any strengthening or extension of
the current regime of mandatory standards on ambient concentrations of
atmospheric pollutants. In a wide-ranging review of United Kingdom air
quality, the Department of the Environment's support for standards is less
than wholehearted:
387
... in spite of valuable work by the European Community and [World Health
Organization], there are grounds for doubt whether existing standards and guidelines
will provide a coherent basis for understanding the effects of pollution, developing action
to combat it, and guiding air quality management in Britain and Europe as we move
into the 21st century.75
Throughout this document, the emphasis is upon the cost-effective manage-

ment of air quality. And while the protection of health is recognized as the
primary motivation of that managerial role by various agencies of the state,
there is no allusion to individual rights or grounds for compensation for
health detriment attributable to some failure of that role.
When passing the 1970 Clean Air Act, the United States Congress declared
that every citizen has a statutory right to be protected from 'any known or
anticipated adverse effects',76 but the subordination of this lofty ideal to the
exigencies of economic realities has been well described by Mackay.77 He
argues that the United States Environmental Protection Agency, although
a product of the 'rights revolution' of the 1960s, has been forced to adopt
an approach much closer to United Kingdom pragmatism as exemplified by
the Alkali Inspectorate's pursuit of 'best practicable means'. Initial indica-
tions are that the obligation on the United Kingdom's proposed Environ-
ment Agency 'to take into account costs which are likely to be incurred and
the benefits that are likely to accrue'78 from any action against polluters
means that this latest amalgamation of enforcement agencies is unlikely to
result in major changes to the status quo.
The distinction which Dworkin has drawn between rights and goals may
be of relevance here: a right stems from a political principle, whereas:
a goal is a non-individuated political aim, that is, a state of affairs whose specification
does not ... call for any particular opportunity or resource or liberty for particular
individuals.79
Clean air, like other social welfare aspirations, is best understood as a goal
but, since it refers to a common property resource, the achievement of that
goal may entail the suspension, but never the extension, of individual rights.
Directives like 80/779/EEC on air pollution and 76/160/EEC on bathing water
impose an obligation on member states to pursue policies directed against
environmental threats to public health. An individual may have a legitimate
expectation that the obligation be honoured; but with due respect to Kramer,
an expectation does not necessarily imply a right.
ECOCENTRIC PRINCIPLES AND RIGHTS
If, as Dworkin argues, 'a right stems from a political principle

for environmental rights should perhaps have begun with an
of the relevant principles from which such rights might emerge.
frequency with which it is cited, the 'polluter pays' principle80 is
starting point. However, this is little more than an allocative d
388
adjunct to economic efficiency: it simply requires environmental costs to be
'internalized' along with labour, raw materials costs, and so on. In practice,
it amounts to a presumption against the use of subsidies by the state or,
following this principle's inclusion in the Treaty of Maastricht, the European
Community to finance pollution control technology.
The German Vorsorgeprinzip appears in the English version of the Maas-
tricht Treaty as the 'precautionary principle' but it defies precise translation.
According to one recent interpretation, it embraces six basic concepts, some
of which have parallels in the United Kingdom tradition and others which
reflect awareness of the uncertainties in contemporary scientific understand-
ing of the long term effects of pollution:81
(i) preventative anticipation

(ii) safeguarding of ecological space
(iii) proportionality of response or cost-effectiveness of margins of error
(iv) duty of care or onus of proof on those who propose change
(v) promoting the cause of intrinsic natural rights
(vi) paying for past ecological debt.
Here then is a powerful and comprehensive principle which, in conjunction

with the right to information on discharges and rights conferred by other
directives, would at first glance appear to endow United Kingdom subjects,
and other citizens of the European Union, with something akin to the United
Nations' 'fundamental right to an environment adequate for [human] health
and well-being' which formed our starting point. In other words, we might
have identified the basis of a set of rights, which are not obviously derivatives
of other categories of pre-existing legal rights and which offer protection
against modern environmental problems. However, before claiming to have
reached our destination in the shadowy centre of Table 1, two caveats must
be made. First, a Vorsorge-driven set of rights could be, in essence, so eco-
centric as to exclude it from the broad class of human or civil rights with
which our discussion has been concerned. Secondly, and echoing Weatherill
and Beaumont quoted earlier,82 it still requires national courts to recognize
such principles and their associated rights, before they can be enjoyed. The
few available indicators of English judicial attitudes are not encouraging.
A recent case in the High Court concerned a judicial review of regulations,
made by the Secretary of State for Trade and Industry, in connection with
high voltage electric cables.83 The applicants, concerned at reports of a link
between juvenile leukaemia and exposure to electromagnetic fields, argued
that the precautionary principle obliged the minister to make new regulations
which would reduce the risk, albeit speculative, associated with high voltage
power cables. Mrs Justice Smith argued that Article 130r stated that
Community policy on the environment must be based upon, among other
things, the precautionary principle, but it was for the Council of Ministers to
implement that policy by various measures, some of which might be binding
389
on member states. Sympathetic interpretation (sometimes referred to as
'indirect effect') required her to interpret national legislation so as to be
consistent with EC law but not EC policy 'still less a statement of principles
to underlie a future policy'.84
One can easily imagine future cases in which defendants' counsel cite
Cambridge Water Company v. Eastern Counties Leather85 and point to the
unforeseeability of the environmental damage which, according to the
plaintiffs counsel, arose in circumstances which, in addition to being tor-
tuous, violated the precautionary principle. An important ruling in the Court
of Appeal, on planning approval for a clinical waste incinerator, recognizes
but fails to grasp the nettle of reconciling the needs of a modem industrial
society with the awareness of the incomplete state of our understanding of
that society's impacts on the environment:
Public concern is, of course, and must be recognized by the Secretary of State to be, a
material consideration for him to take into account. But if in the end that public concern
is not justified, it cannot be conclusive. If it were, no industrial development - indeed
very little development of any kind - would ever be permitted'.86
Permission for the incinerator was ultimately granted but the questions of 'who
should justify?' and 'by what criteria?' were left unresolved. But these questions,
in so far as they were raised in these cases, are still couched in anthropocentric
terms, namely, to what extent can we tolerate human activities, the environ-
mental consequences of which may threaten human health and well-being?
The question: 'Should trees have standing?'87 has prompted a continuing
debate in the literature88 on the notion of non-anthropocentric rights, that
is, rights attributed to non-human species and inanimate objects. Although
the notion of ecocentric rights formed part of the motivation this paper, its
primary aims have been to clarify what an anthropocentric environmental
right might be and then to examine the several technical, political, and legal
obstacles to its recognition in United Kingdom law. But in doing so, the
benefits for public (that is, human) health which would follow from treating
the atmosphere (if not, coastal waters) as a legal entity endowed with a right
not to be polluted have become apparent. Of course, attributing rights to
endangered species, trees, national parks, the atmosphere or the oceans is a
philosophical exercise; the extent to which the state is prepared to act and
to legislate as if such rights existed is a political decision.
A regulatory approach which placed the onus upon a would-be polluter
to demonstrate the harmlessness - understood to mean an absence of irre-
versible effects on natural ecosystems - of any proposed discharge seems the
very antithesis of the traditional English approach. But such a 'presumption
of guilt' perhaps represents the closest that an industrial state could come
to actualizing an ecocentric right of the atmosphere not to be polluted.
Insofar as Vorsorge subsumes the notion of a 'presumption of guilt', a
regulatory regime with Vorsorge, rather than economic efficiency, as its
driving principle might be seen as the first step towards a state's acceptance
of its role as the guarantor of ecocentric rights. It could well be that the
390
right of British subjects 'to breathe clean air' ultimately depends upon other
EC member states' resolve to endow their forests with that same right!
NOTES AND REFERENCES
1 United Nations General Assembly, Universal Declaration of Human Rights

York).
2 G. Hardin, 'The Tragedy of the Commons' (1968) 162 Science 1243.
3 Principle 1 of the 'Stockholm Declaration' in the Report of the United Nations Conference
on the Human Environment, 5-16 June 1972 (1973), (UN doc A/Conf. 48/14/Rev.1).
4 World Commission on Environment and Development, Our Common Future (1987) 348.
5 A Friends of the Earth's advertisement claims that 'clean air is a basic human right'; whilst
a 'right to clean air' is included in the Labour Party's proposal for a 'Charter of
Environmental Rights' in: Labour Party, In trust for tomorrow: Report of the Labour Party
Policy Commission on the environment (1994).
6 M. Purdue 'Integrated Pollution Control in the Environmental Protection Act 1990: A
Coming of Age of Environmental Law?' (1991) 54 Modern Law Rev. 534.
7 Quoted in Royal Commission on Environmental Pollution, Tenth Report (1984) 1.
8 Young & Co. v. Bankier Distillery Co. [1893] A.C. 691.
9 Budden v. BP Oil (1980) 124 Sol. J. 376.
10 id.
11 Directive 85/210/EEC (OJ L96 3.4.85).
12 Budden, op. cit., n. 9.
13 R. Macrory, 'Exemplary damages in environmental litigation' (1992) 208 END
38.
14 Donoghue (or M'Alister) v. Stevenson [1932] A.C. 562.

15 Cassidy v. Dunlop Rubber Co. Ltd. (1971) 11 K.I.R 311; Wright v. Dunlop Rubber Co. Ltd.
(1972) 13 K.I.R 255.
16 'Battle over the breath of life' Guardian, 3 July 1991.
17 'Residents threatened with legal action over asbestos clean-up', (1992) 211 ENDS Report
9. See, also, Gunn v. Wallsend Slipway and Engineering Co. Ltd. in the Times, 23 January
1989, in which it was held that an employer's duty of care did not extend to the family of
an employee (whose wife's fatal lung cancer was alleged to have been caused by asbestos
fibres brought into the home on her husband's clothing).
18 Cambridge Water Company v. Eastern Counties Leather plc (1994) 6 J. of Environmental
Law 137.
19 id.
20 An Act for giving greater facility in the prosecution and abatement of nuisanc
from furnaces used in the working of steam engines, Public General Acts of 18
Geo. 4, c.41.
21 Factory Act 1833, Public General Acts of 1833 3 & 4 Will. IV, c.103.
22 U. Henriques, The Early Factory Acts and their Enforcement (1971).
23 E. Ashby and M. Anderson, The Politics of Clean Air (1981) ch. 5.
24 J.B. Cullingworth, Town and Country Planning in Britain (1964).
25 Ryeford Homes Ltd. v. Sevenoaks District Council (1989) New Law J. 255.
26 Purdue, op. cit., n. 6.
27 Environmental Protection Act 1990 Public General Acts and Measures 38 & 3
c.43.
28 Twyford Parish Council and others v. Secretary of State for Transport (199
Environmental Law 273.
30 Otton J., R. v. H.M. Inspectorate of Pollution and the Ministry of Agriculture, Fisheries
391
and Food (ex parte Greenpeace) (unreported case, Q.B.D., 29 September 1993).
31 Potts J., R. v. H.M. Inspectorate of Pollution and the Ministry of Agriculture, Fisheries and
Food (ex parte Greenpeace and Lancashire County Council) (unreported case, Q.B.D., 4
March 1994).
32 Directive 80/836/Euratom (OJ L246/11).
33 The offence which led to the first unsuspended custodial sentence for a serious
environmental crime in the United Kingdom, (1992) 214 ENDS Report 42.
34 Ashby and Anderson, op. cit., n. 23.
35 J. McLoughlin and E. Bellinger, Environmental Pollution Control (1993).
36 'Greenpeace's expensive lessons over ICI prosecutions' (1994) 234 ENDS Report 46.
37 Directive 90/313/EEC (OJ L158/56).
38 Article 2 of the Treaty of Rome 1957 as amended by the Treaty on European Union signed
at Maastricht on 7 February 1992.
39 The extent to which other member states of the EC consider the physical conditions of
the workplace as falling within the remit of social policy together with hours of work,
minimum wage, holidays, and so on - as distinct from the British approach which treats
'health and safety at work' primarily as a quasi-environmental concern of a specialist body
of technologists, the Health and Safety Executive - is interesting.
40 Article 130r(2) of Treaty of Rome 1957, as amended by the Single European Act signed
in 1986 and by the Treaty on European Union signed at Maastricht on 7 February 1992.
41 L. Kramer, 'The Implementation of Community Environmental Directives within Member
States: Some Implications of the Direct Effect Doctrine' (1991) 3 J. of Environmental Law
39.

43 op. cit., n. 11.
44 Directive 82/884/EEC (OJ L378 31.12.82)
45 Kramer, op. cit. n. 41, p. 44.
46 op. cit., n. 29.
47 Case 236/92, 23 February 1994, Comitato de Cordinamento per la Difesa dela Cava and
others v. Regione Lombardia and others. This decision prompted one commentator to
observe that this court 'has yet to hold that a provision of an environmental directive has
direct effect' (R. Macrory, 'Direct effect of waste directives' (1994) 232 ENDS Report 44).
49 C.E. Miller, 'Coke, Smoke and National Sovereignty' (1993) 36 J. Environmental Planning
and Management 149.
50 Case 26/62 Van Gend en Loos [1963] E.C.R. 1.
51 Case C6/90 Francovich v. Italian Republic [1992] E.C.R. 1-5357.
52 Case 106/77 Simmenthal SpA (No.2) [1978] E.C.R. 629; Case C- 213/89 R. v. Secretary
of State for Transport, ex parte Factortame Ltd. [1990] E.C.R. 1-2433.
53. op. cit., n. 51, paras. 39-40.
54 J. Steiner, 'From direct effects to Francovich: shifting means of enforcement of Community
Law' (1993) 18 European Law Rev. 3; M. Ross, 'Beyond Francovich' (1993) 56 Modern
Law Rev. 55.
55 Lord Slynn, 'The European Community and the Environment' (1993) 5 J. of Environmen
Law 261.
56 J. Alder, 'Environmental Impact Assessment - The Inadequacies of English Law' (1993

5 J. Environmental Law 203.
57 J. Jans, 'Legal Protection in European Environmental Law' (1993) 2 European Environ-
mental Law Rev. 151.
58 Case C-361/88 Commission of the European Community v. Germany [1991] ECR 1-2567 a
2601, quoted in Jans, op. cit., n. 57.
59 Jans, id., p. 158.
60 Kramer, op. cit., n. 41.
61 Clean Air Act 1956 Public General Acts and Measures of 1956 4 & 5 Eliz. 2, c.52.
392
62 Ashby and Anderson, op. cit., n. 23.
63 R. Bhopal et al., The Monkton Coking Works Study (1992).
64 Miller, op. cit., n. 49.
65 Clean Air Act 1968 Public General Acts and Measures of 1968 16 & 17 Eliz. 2, c.62.
66 Directive 76/610/EC (OJ L31 5.2.76).
67 Financial Times, 8 December 1992, at 2.
68 Case C56/90, 14 July 93 Commission of the European Communities v. United Kingdom of
Great Britain and Northern Ireland (1994) 6 J. of Environmental Law 125.
69 'Windsurfer sues over virus in sea' Guardian, 17 September 1993.
70 op. cit., n. 68, at p. 134.
71 'Surfers face viral infection risks from sewage pollution' (1994) 235 ENDS Report 9.
72 S. Weatherill and P. Beaumont, EC Law (1993) 423.
73 Directive 92/72/EEC (OJ L297/1).
74 Directives cited in n. 11, n. 42, and n. 44.
75 Department of the Environment, Improving Air Quality: A Discussion Paper on Air Quality
Standards and Management (1994) para. 3.6.
76 Clean Air Act 1970, s. 109(b)(1-2) 42 U.S.C. 7409(b) (1-2).
77 M.B. Mackay 'Environmental rights and the US system of protection: why the US
Environmental Protection Agency is not a rights-based administrative agency' (1994) 26
Environment and Planning 1761.
78 Environment Agencies Bill 1994.
79 R. Dworkin, Taking Rights Seriously (1977) 90.
80 Organization for Economic Co-operation and Development, The Polluter-Pays Principle:
note on the implementation of the polluter-pays principle (1974).
81 T. O'Riordan and J. Cameron, (eds.), Interpreting the Precautionary Principle (1994) 17.
82 Weatherill and Beaumont, op. cit., n. 72.
83 R. v. Secretary of State for Trade and Industry (High Court, 3 October 1994, unreported).
84 id.
85 Cambridge, op. cit., n. 18.
86 Glidewell LJ in Gateshead M.B.C. v. Secretary of State for the Environmen
Appeal, 12 May 1994, unreported).
87 C. Stone, Should Trees Have Standing? (1975).
88 W. Aiken, 'Human Rights in an Ecological Era' (1992) 3 Environmental Value
393
TABLE 1: ENVIRONMENTAL RIGHTS: Implicit and Explicit
J-///.j. 'environmental' by association

explicitly 'environmental'
TOWN & COUNTRY

PLANNING
PROPERTY P
HI
CONSUMER HEALTH &

PROTECTION SAFETY A1
WORK
394
TABLE 2: Smoke and sulphur dioxide: exceedences of limit values
Directive 80/779/EEC
Local Monitoring 1983/4 1984/51 1985/6 1986/7 1987/8 1988/9 1989/90 1990/1
authority site (site no.)
Barnsley Barnsley (9)

Goldthorpe (1) x
Grimethorpe (2) x
Wombwell (2) x
Bassetlaw Langold (1) x
Copeland Whitehaven (2) x
Crewe and
Nantwich Crewe (17) x
Doncaster Askern (6) x
Askern (8) x
Doncaster (27) x
Doncaster (29) x
Doncaster (32) x x
Mexborough (19) x
Moorends (1) x
Easington Seaham (2) x x
Easington (1) x
Mansfield Mansfield
Woodhouse (2) x
Newark and
Sherwood New Ollerton (2) x
Sunderland Hetton-le-Hole (3) x x x x
Houghton-le-
Spring (2) x
Sunderland (8) x x x
Wakefield Castleford (9) x
Featherstone (1) x x
Wansbeck Ashington (4) x x
Belfast Belfast (11) x
Belfast (12) x x
Belfast (13) x
Belfast (17) x
Belfast (33) x
Belfast (39) X
Belfast (42) x x
Derry Londonderry (8)

Newry and
Mourne Newry (3) x x x
Newry (4) X x
13 6 10 6 9 3 3 3
No pollution levels above t

coal burning during the m
x: Exceedences of Directive limit values.
[Source: Digest of Environmental Protection and Water Statistics No. 14

1991 (HMSO, London, 1992) 1.3, p.6]
395
TABLE 3: Smoke and sulphur dioxide: 98th percentiles at two sites in NE
England (1981-90)
Sulphur dioxide
400-
350
300
250
200
150
*
100
50
smoke
100 200 300 400
* Hetton-le-Hole o South Shields
Using data from Warren Spring Laboratory's network of smoke and sulphur dioxide mon
98 percentile of the (365) values of 24 hr average smoke (horizontal axis) and sulphur dioxid
axis) concentrations for each year from 1981-90 are plotted. By drawing the EEC/80/779 li
- LVsmoke = 250; LV02 = 350, if 98 percentile smoke < 150; LVs0 = 250, if 98 percentile sm
(units are u g m-3) - as solid lines on this graph, exceedences are then represented by poi
lie outside the shaded area. Hetton-le-Hole's four exceedences listed in Table 2 now app
four points lying, to the right of the graph, in the area indicating excessive smoke. For co
similar data from a monitoring site in South Shields, an urban centre some thirty miles to
are also plotted.
396
TABLE 4: Trends in the 98th percentile of hourly average No2 concen-
trations (ppb) at selected sites: 1976-90.
300
C- Directir e limit value ----- Central London West London
*.... Glasgow -- Manchester -I- Walsll
250 - Billingham - Stevenage -- Cromwell Road
\
A
.:m 200-
\ J
150- \\-
/ ^'
5W
iO- / - \ _
100-
- - -, - .-- I I -t I
o i . . T I 1 1 $ I
1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990
[Source: Digest of Environmental Protection and Water Statistics N

1991 (HMSO, London, 1992) 1.3, p.9]
TABLE 5: Bathing water surveys: 1988-91
Compliance with EC Bathing Water Directive' coliform standards2
Identified bathing waters3 Number complying Percentage complying
1988 1989 1990 1991 1988 1989 1990 1991 1988 1989 1990 1991
Northumbria 19 32 32 33 9 20 21 21 47 63 66 64
Yorkshire 22 22 22 22 21 18 17 19 95 82 77 86
Anglian 28 28 29 33 19 23 27 29 68 82 93 88
Thames 2 3 3 3 - 3 3 2 - 100 100 67
Southern 65 65 66 67 27 45 48 45 42 69 73 67
Wessex 38 38 39 39 30 31 39 36 79 82 100 92
South West 109 132 133 133 92 113 118 105 84 86 89 79
Welsh 48 48 50 51 37 40 35 45 77 83 70 88
North West -33 33 33 33 6 11 10 10 18 33 30 30
England and Wales 364 401 407 414 241 304 318 312 66 76 78 75
Scotland 23 23 23 23 12 16 12 15 52 70 52 65
Northern Ireland 16 16 16 16 14 16 15 16 88 100 94 100
United Kingdom 403 440 446 453 267 336 345 343 66 76 77 76
76/160/EEC
2 At least 95 per cent of samples must have counts not exceeding the mandatory limit val
and faecal coliforms
3The increase in 1989 is due to subdivision of some bathing waters.
[Source: Digest of Environmental Protection and Water Statistics No. 14

1991 (HMSO, London, 1992) 3.1, p. 36]
397

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1. Direct effect of environmental directives

(i) maximum values, maximum concentrations, and limit values;

The Community's water quality limits and those on atmospheric pollu-

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The impact of Francovich (which arose from Italy's failure in regard to a

prompting the view:

This view is consistent with Kramer's60 identification (see above) of t

3. Francovich liability and EC directives on air and water quality

That exceedences of directive 80/779/EEC have occurred in the United

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The existence of Community law rights addresses none of the problems

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Throughout this document, the emphasis is upon the cost-effective manage-

ECOCENTRIC PRINCIPLES AND RIGHTS

If, as Dworkin argues, 'a right stems from a political principle

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(i) preventative anticipation

Here then is a powerful and comprehensive principle which, in conjunction

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NOTES AND REFERENCES

1 United Nations General Assembly, Universal Declaration of Human Rights

14 Donoghue (or M'Alister) v. Stevenson [1932] A.C. 562.

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42 Directive 80/779/EEC (OJ L229 30.8.80).

56 J. Alder, 'Environmental Impact Assessment - The Inadequacies of English Law' (1993

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J-///.j. 'environmental' by association

TOWN & COUNTRY

CONSUMER HEALTH &

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Barnsley Barnsley (9)

Bassetlaw Langold (1) x

Copeland Whitehaven (2) x

Doncaster Askern (6) x

Easington Seaham (2) x x

Sunderland Hetton-le-Hole (3) x x x x