An Uphill Battle for Sustainable Development: Can Public Interest Litigation Protect the Natural Environment of Hong Kong?

With the rapid increase in major development projects and cross-border infrastructure in Hong Kong, striking a proper balance between economic growth and environmental conservation has become an increasingly challenging task. There is a constant battle between different stakeholders on environmental protection issues.

When an agreement cannot be reached through the legislative and executive channels, people have resorted to taking the issues to the court. Landmark environmental judicial review cases in recent years include: Harbour Reclamation (2004), Hong Kong-Zhuhai-Macau Bridge (2011), Municipal Wastes Incinerator at Shek Kwu Chau (2014), Artificial Beach in Lung Mei (2014), and the upcoming Airport Third Runway (2015). Such litigation initiated by environmental activists is often referred to as Environmental Public Interest Litigation (“EPIL”).

EPIL is controversial because many believe that environmental controversies should be dealt with through the legislative and the executive branches, not in the court room. EPIL critics argue that the court should not be a forum to debate policy questions.

However, it is submitted that, despite its limitations and constraints, EPIL still has an important and legitimate role to play in pursuing sustainable development, in view of a political system that often fails to adequately channel the views of the public to the government.

Why is EPIL important?

Throughout common law jurisdictions, public interest litigation has been widely used as a way to protect the rights of the vulnerable groups. In the environmental sphere, EPIL has been used by citizens and green groups to challenge ineffective environmental policies and to oppose development projects that have disproportionate negative impact on public health and ecology. There is a growing demand from the public for greater accountability and transparency in government decision-making.

It is a restrictive view to think that conflicts and challenges against the government are bad. Lord Thomas Bingham, in his book The Rule of Law, stated that when judges are exercising their power to hold government accountable in law, “they are exercising a constitutional power which the rule of law requires that they should exercise.” Justice Kemal Bokhary also recognised that, “never usurping the functions of any other branches of the government, the court always guards against shirking its own duty through deference to any other branch.”

Judicial review is the hallmark of the rule of law. It is a safeguard against procedural unfairness and legal errors in government decisions. Such issues are within the court’s jurisdiction. Some have argued that EPIL is an abuse of court process. However, the court does have proper judicial rules and mechanisms to prevent frivolous claims. If a judicial review application on environmental issues has passed the leave stage, it is not fair to say that the case is an abuse of the process of the court or frivolous. In fact, it is estimated that in between 2004–2015, about 70 percent of EPIL in Hong Kong passed the leave stage. The court has the duty to review the legality of government decisions and to resolve legal disputes. The fact that these legal disputes fall within the environmental field should not make a difference.

Other critics find fault with EPIL because it causes delay in government development projects. As delays increase construction costs, these critics argue EPIL results in an exponential amount of public money being wasted. For example, the delays caused by the Hong Kong-Zhuhai-Macau Bridge EPIL resulted in a HK$6.5 billion rise in construction costs.

Nevertheless, according to Lord Bingham, costs and politicised litigation is an “inescapable consequence of living in a state governed by the rule of law.” People have the right to seek judicial review for issues of public interest and the resultant cost effect should not be a justification for depriving such a right. Even if a cost-benefit analysis is adopted, the court should still review and remove government development decisions that are in violation of environmental legislation and fair procedures. Otherwise the costs of fixing the damage to the environment and restoring public health in the long term for present and future generations can also be exponentially high.

From a wider perspective, EPIL helps to raise public awareness about environmental issues, and is sometimes an incubator for future policy change. For example, after Clean Air Foundation Ltd v Government of HKSAR [2007] HKEC 1356, the government adopted new air quality objectives with reference to the recommendations by the World Health Organization (“WHO”), even when the case did not succeed in court.

Evaluating the Effectiveness of EPIL

From the experience of recent EPIL in Hong Kong, it can be observed that several factors affected the likelihood of success of these cases, including the formulation of the case, the legislative framework in place, judicial approach and the degree of deference to government environmental decisions.

Case Formulation

In Ng Ngau Chai v The Town Planning Board [2007] HKEC 1207 and Clean Air Foundation v Government of HKSAR [2007] HKEC 1356, the applicants failed to convince the court partly because of the vague or wide formulation of the case. The former case was a challenge against the decision of the Town Planning Board to sell land in West Kowloon without height restriction, while the latter case was a challenge against the failure of the government to alleviate the problem of air pollution in Hong Kong through adopting up-to-date air quality objectives under the Air Pollution Control Ordinance (Cap. 311). Both cases were ruled inadmissible. The lesson learned is that judicial review must be formulated in terms of technical legal issues and established public law grounds, otherwise it will be regarded as a question of merit and will be struck out by the court.

Legislative Framework

The legislative standard in place and the court’s interpretative approach are also major determinants of success in EPIL. In Society for Protection of the Harbour v Town Planning Board [2004] 1 HKLRD 396, the Court of Final Appeal purposively interpreted the Protection of the Harbour Ordinance (Cap. 531) to require an “overriding public need” test to be satisfied before the presumption against harbour reclamation can be rebutted. This case demonstrated the importance of a specific legislation aimed at protecting the natural environment in Hong Kong and an interpretation that gives effect to both the text and spirit of the law.

Judicial Approach and Deference

A number of EPIL concerns the Environmental Impact Assessment (“EIA”) process. In Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 469, the issue concerned whether the EIA report on the construction of the Hong Kong-Macau-Zhuhai Bridge violated the requirements of the Technical Memorandum (“TM”) and Study Brief (“SB”) pursuant to the Environmental Impact Assessment Ordinance (“EIAO”) (Cap. 499). The applicants argued that the EIA report should adopt the more stringent stand-alone assessment of environmental impact, which required the baseline condition to be identified in order to measure the pollution footprint of the designated project, rather than using the cumulative impact assessment in the EIA report. The Court of First Instance agreed. Adopting a purposive approach to interpretation, the court stated that the cumulative impact assessment was contrary to the purpose of the EIAO to minimise environmental impact, as it treated the environment like a bucket into which pollutants might be introduced so long as there was still space in the bucket.

The Court of Appeal, however, disagreed and ruled that since there was no specific requirement for the stand-alone analysis in the TM and SB, the cumulative impact assessment adopted in the EIA report was valid. The court stated that the duty to minimise pollution was present no matter which measure was adopted. Further, what was required in the TM and SB was a matter of professional judgment and the court would be reluctant to intervene.

In the recent case of Leung Hon Wai v Director of Environmental Protection [2014] HKEC 1459, which concerned the proposed project to construct and operate the municipal wastes incinerator at Shek Kwu Chau site or Tsang Tsui Ash site, the Court of Appeal decided, inter alia, that even though the proposed marine park as off-site mitigation measure in the EIA report was subject to further study, it met the requirements of feasibility and practicality under SB and TM.

In both Chu Yee Wah and Leung Hon Wai, the issues boiled down to the proper interpretation of TM and SB. Even though this was often a matter of professional judgment, it was also a matter of judicial attitude. It is submitted that courts could be less deferential by adopting the more environmentally-friendly construction of the statute so far as possible when choosing between competing interpretations, in order to give full effect to the object of minimising pollution in the legislation.

Some Recommendations

So far EPIL has had a mixed degree of success. It is likely that the court’s current approach may have tilted the balance in favour of economic development compared with environmental conservation. The following are some recommendations for a more effective and justified use of EPIL in the future.

Litigants will have to determine the timing of their application carefully. Judicial review may cause public dissatisfaction for incurring high social costs and unexpected delay in projects, therefore it is wise to pursue EPIL only when other political channels have proved ineffective, and when environmentalists have raised public awareness and support on the issue. The question before the court must be a focused legal issue rather than a question of merit.

In some jurisdictions, EPIL is pursued in the form of human rights claims. For example, in Lopez Ostra v Spain (1995) 20 EHHR 277, the European Court of Human Rights held that nuisance caused by a waste treatment plant located close to the applicant’s house was a violation of the right to private and family life under Art. 8 of the European Convention of Human Rights. The court decided that the government had failed to strike a fair balance between the interest of economic well-being and the applicant’s right.

As Art. 119 of the Hong Kong Basic Law includes a duty on “paying regard to the protection of the environment” in formulating policies to promote and co-ordinate economic development, one of the possible future directions for environmental advocacy is to adopt a human rights approach. It would be an interesting test case to see how the court will define the proper relationship between economic development, environmental protection and human rights under the Basic Law.

Finally, EPIL is not the sole solution. There needs to be more up-to-date environmental legislation and policies for structural improvement in environmental protection. The EIA consultation process should be improved to increase public participation. This includes longer consultation period, and an effective appeal system for the public. It is important for the government to put sustainable development high on the agenda in order to effect real change in the quality of our environment.

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Faculty of Law, The University of Hong Kong, Assistant Professor