Important Privy Council decision on standing in environmental cases

The UK privy Council has handed down an important judgement on standing in environmental cases in Eco-Sud v. Minister of Environment, Solid Waste and Climate Change [2024] UKPC 19.  

In this case, the Minister of Environment of Mauritius had granted an Environment Impact Assessment licence under section 23 of the Environment Protection Act. for a residential development on two plots of land in close proximity to a sensitive coastal habitat which was a designated Ramsar Wetland of international importance.   Eco-Sud, an environmental NGO, had objected to the licence being granted and lodged an appeal to the Environment and Land Use Appeal Tribunal.  At a preliminary hearing, the Tribunal held that the Eco-Sud did not have standing to bring an appeal, because it had not met the criteria set out in section 54(2) of the  Environment Protection Act. In particular, the Tribunal had held that Eco-Sud had not shown that as an organisation, it was aggrieved by the granting of a licence, nor that the granting of a licence was likely to cause Eco-Sud undue prejudice. The Tribunal dismissed Eco-Sud's appeal, and Eco-Sud appealed to the Supreme Court of Mauritius to challenge the Tribunal's decision.  The Supreme Court of Mauritius allowed Eco-Sud's appeal, and held that the test for standing which the Tribunal had applied was too restrictive. In environmental appeals, a more liberal approach to standing was required, as identified by the UK Supreme Court in the case of Walton v The Scottish Ministers [2012] UKSC 44. 

The UK Privy Council, accepting Eco-Sud’s arguments, firmly rejected the Minister’s appeal against the decision.  The UKPC judgement contains helpful analysis of the principles of statutory construction in approaching cases on standing in environmental cases, taking a purposive approach, as well as some pertinent remarks on the facts of the case.  It was regarded as an absurdity if a body such as Eco-Sud did not have standing in such cases because the test of prejudice was confined to economic prejudice and prejudice to a private interest. It would also circumvent the purpose for which the Environmental protection Act had been enacted.  The test as put at para. 90 is that: “Persons with a genuine interest in aspects of the environment that they seek to protect and who have sufficient knowledge of the subject will be able to show that a decision to approve the issue of an EIA licence is likely to cause them undue prejudice in relation to their interest in that aspect of the environment.”  The case will be a very helpful precedent in jurisdictions with similar provisions on standing.

Stephen Tromans KC represented Eco-Sud in the Privy Council, appearing with Anne-Sophie Jullienne of the Mauritius Bar. The legal team for Eco-Sud also included Sanjay Bhuckory SC (who represented Eco-Sud in the Supreme Court of Mauritius), Peter Lockley and Sanjana Bhuckory.