Article: The Timing Rules in Judicial Review and the Practical Difficulties they Cause Environmental Interest Groups: The Need for Reform

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This article explores the practical difficulties environmental interest groups face in undertaking judicial review, and considers how, and why, judges respond to such difficulties when they exercise their discretion under judicial review’s timing rules. It considers whether the dominant sceptical/unsympathetic judicial response to these difficulties is compatible with European law and looks at options for reform of the timing rules.

INTRODUCTION
In the last 20 years, environmental interest groups (“EIGs”) have increasingly used judicial review.1 The increase in the volume of such litigation hides the fact that many EIGs still face significant problems in launching such proceedings. Such problems could be taken into account by judges when they consider whether the group has acted in time in
launching its claim. This article explores whether this has been the case, and sees whether the general judicial approach to these difficulties complies with current, and potentially future, European law.  The first section of this paper describes judicial review’s timing rules. It explains how certain judicial approaches to these rules, that previously created difficulties for EIGs, are no longer followed. The second section examines the judicial treatment of EIGs’ claims that practical problems prevent them from acting ‘promptly’. The third section explains why courts have generally been unsympathetic to, or sceptical of, such claims. The fourth section examines the compatibility of the current timing rules with Community law and the European Convention on Human Rights. It will consider the likely impact of the UN ECE’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’) on Community law.2 The final section explores some of the suggestions as to how the timing rules can be changed to ensure that these practical and compatibility issues are properly accounted for.

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