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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT

applicants possess a property interest in the subject matter of the litigation as a con- dition precedent for standing. On the other hand, the Cayman Islands courts have very recently pronounced upon the standing requirement in the context of planning leg- islation in a way that should give hope to the green constituency.

5.3

Should the Boyce Test Apply? Whether the Boyce v. Paddington

Borough Council test, developed in the context of a private action for public nui- sance, is appropriate to determine standing for judicial review of environmental deci- sion-making, seems debatable. It appears entirely reasonable that in nuisance, where the plaintiff is attempting to recover com- pensation or to halt damage to an interest in land, that special loss should be the measure of compensation and of whether an injunction is appropriate. But in situa- tions where the applicant sues to ensure sound environmental management, the paramount concern is the vindication of the public interest. This is reflected in the fact that the remedy sought tends to be one of the prerogative remedies rather than an award of damages. From this it would seem to follow that the criterion of standing based on special loss and injury might not neces- sarily be appropriate to review actions.

The latter considerations appear to have led to the relaxation of the standing requirement in some non-Caribbean juris- dictions, notably, United Kingdom (R. v. Pollution Inspectorate, ex p. Greenpeace (No. 2), ; R. v. Secretary of State for Foreign Affairs, ex p World Development Movement. ) and the United States (Sierra Club v. Morton; United States v. Students

Challenging Regulatory Procedures (SCRAP)).

Agency

5.4

Relationship Between Judicial Review And Environmental Management

It is not being contended that judi- cial review will necessarily ensure sound environmental management and conse- quent elimination of risks to environmental security. Even if the recent more liberal approach to standing was adopted in the Caribbean, there would still remain clear limitations to what judicial review could achieve. As Thorton and Beckwith state, in judicial review actions, the role of the court is confined to ensuring that public authori- ties perform their functions properly. The court cannot substitute its own views on the merits of a decision for the views of a pub- lic authority.

The institutional constraints on the court means that it cannot hope to have access to the same information. The impor- tance of the recent trend in liberalizing the standing requirement is that the courts themselves are enabled to perform their role of keeping administrative bodies within the limits of the powers assigned. Easier access also comports with international admonitions, found in Principle 10 of the 1992 Rio Declaration, that governments should provide ‘effective access to judicial proceedings’ for litigation of environmental issues.

Far from being the epitome of ‘black-letter law, the criminal law provides many opportunities for the exercise of judi- cial discretion in ensuring minimum condi- tions of environmental integrity.

6.1

Establishing Violation For example, the exercise of dis-

cretionary judgment may be critical in rela- tion to determination of violations. The weight that a judge places on environmen- tal protection influences that judge’s deci- sion of such issues as interpretation of criminal statutes, the need to prove mens rea, as was so startling demonstrated in

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