Fighting Dirty Limited, R (on the application of) v Environment Agency

Environmental judicial review claims attract the ordinary public law unreasonableness standard, but the intensity of scrutiny is context-sensitive. An Aarhus claim does not automatically require heightened review. Careful scrutiny may be appropriate where environmental protection, important interests or serious environmental risks are involved. The latitude afforded to the decision-maker may nevertheless remain broad where the decision concerns policy, legislative change, political prioritisation, collaboration between public authorities, or predictive and complex matters.

A regulator did not act unlawfully by removing an unachievable implementation date from its environmental strategy without setting a replacement date. The regulator’s commitment to regulatory change was necessarily provisional where implementation depended on legislative powers held by another public authority. A separate impact assessment of the timing decision was not required where the regulator already understood the environmental risks and had considered them in the strategy.

The claimant, an environmental campaign group, sought judicial review of the Environment Agency’s decision in August 2023 to reissue its Strategy for Safe and Sustainable Sludge Use without the previous 2023 Target Date for moving regulation of agricultural sludge from the Sludge (Use in Agriculture) Regulations 1989 into the Environmental Permitting (England and Wales) Regulations 2016.

The 2023 date had become unachievable because legislative implementation required action by the Environment Secretary. The claimant argued that removing the date without replacement was unreasonable, involved an unexplained evidential gap, and failed to take account of environmental impacts. The central issues were the intensity of reasonableness review in an environmental Aarhus claim and whether the Agency had acted unlawfully in omitting a replacement timetable.

1. Claim dismissed. The Agency’s reissue of the Sludge Strategy without a replacement Target Date involved no breach of its public law duty to act reasonably. The claimant was ordered to pay the defendant’s costs of £10,000 within 28 days.
2. Environmental judicial review may warrant careful scrutiny, but an Aarhus claim does not impose a fixed or uniformly heightened intensity of review. The court must assess the context. Serious environmental risks, the importance of the issue and the need for environmental protection may support closer scrutiny. Conversely, legislative or political content, policy complexity, predictive judgment, collaborative decision-making and institutional limitations may support a broad latitude.
3. The Agency acted under section 37(1)(a) of the Environment Act 1995, in furtherance of its functions under section 4(1). That power enabled it to promote regulatory change and publish a strategy, including a timetable, although the legislative powers needed to implement the preferred change belonged to the Environment Secretary. There was no statutory or policy duty to publish a Target Date.
4. The Target Dates were aspirational and necessarily provisional. The Agency could not commit the Environment Secretary to legislative action. The two-year movement from the 2021 date to the 2023 date also showed that the Agency had not assessed the regulatory need as an imperative environmental emergency.
5. Removing the unachievable date did not amount to adopting the previously rejected Do-Nothing option. The Strategy was reissued, its substantive assessment of the need for regulatory change was retained, and the Agency continued to express its commitment to the preferred regulatory option.
6. The Agency’s collaborative engagement with the Department was reasonable. A replacement date could have undermined inter-authority cooperation, misrepresented the Agency’s control over implementation, or created an unjustified impression about the timing of legislative change. There was no unexplained evidential gap or leap in reasoning.
7. The challenge based on failure to assess environmental impacts of the timing decision also failed. The Agency already understood the environmental implications of the regulatory change through the Strategy, working groups and repeated inputs to the Department. A separate impact assessment concerning the omission of a Target Date was unnecessary.
8. Permission to appeal was refused. The judge was not persuaded that the Agency’s collaborative process, the assessment of urgency, or consideration of the wider institutional context disclosed a realistic prospect of success.

First-instance judicial review in the High Court (Administrative Court). Permission to appeal was refused.