The 'Greening' of European Habitats jurisprudence?
| Author | Ronan Lambe |
| Position | Senior Sophister student, Trinity College, Dublin |
| Pages | 283-286 |
THE
'GREENING'
OF
EUROPEAN
HABITATS
JURISPRUDENCE?
R
V.
SECRETARY
OF
STATE FOR
THE
ENVIRONMENT,
TRANSPORT
AND
THE
REGIONS, EX
PARTE
FIRST
CORPORATE
SHIPPING
L
TD
The
stated
aim
of
the
European
is
to
promote the
maintenance
of
bio-diversity,
taking
account
of
economic, social, cultural
and
regional
requirements,
by
creating
a
coherent European
ecological
network (Natura
2000).2
Therein
lies
the
ideological fault-line
at
the
heart
of
the directive
(and
a
good
deal
of
modem Environmental
legislation)
namely,
the
desire to protect
the environment,
but
on
the
other
hand
allow
for sustainable
development.
This
conflict has been
responsible
for
some
judicial
unease
over
the
years.
In
the
case
of
R
v.
Secretary
of
State
for
the
Environment,
ex
p.
First
Corporate
Shipping
Ltd.,
3
the
Court
of
Justice
took
the opportunity
to
state
clearly
how
the
Directive
should
be
interpreted,
in
a
result
that
was heralded
by
some
as
a
'greening'
of
European
habitats
jurisprudence.
The
Facts
First
Corporate
Shipping (FCS) was
the
statutory
authority
for
the
port
of
Bristol.
In
this
capacity
it
owned much
of
the
land in the
Severn
Estuary,
around
the
entrance
to
the
port
and had
plans
to
further
develop
the area's
commercial
potential
.
The
Secretary
of
State
for
the
Environment
had
classified
much
of
the
inter-tidal
area
of
the
estuary
as
a
Specially
Protected
Area
(SPA)
under
the
5
He
then
informed
FCS
that
he
intended
to
classify
the
Severn
Estuary
as
a
site
eligible
for
designation
as
a
Special
Area
of
of
the
FCS
strongly
objected
to
this further
classification,
feeling
that
the
Secretary
of
State was
interfering
with
their
property
rights
without
just
cause.
In
reality
somewhere
between
3000
and
5000
jobs
depended
on
the
port and
the proposed expansion.
FCS
initiated
litigation
in
the
High
Court
where
they applied for
leave
to
challenge
the
decision
of
the
Secretary
of
State
by
way
of
judicial
review. They
relied
on
Article
2(3)
of
the
Directive, which
provides that
"measures
taken pursuant
to
1
Council
on
the
Conservation
of
Natural
and
Semi-Natural
Habitats
and
of
wild
Fauna
and
Flora,
OJ
L.206,
7.
2
Third
and
sixth
recitals in
the Preamble
to
the
Directive.
3
[200
11
CMLR
19;
[2001]
AER
(EC)
177.
4
To this
end
FCS
had
invested,
in
partnership
with
other
undertakings, almost
£220m
in
capital
in
developing
the
port's
facilities.
5
Council Directive
on
the
Conservation
of
Wild
Birds ,
OJ
L.103
of
27
April,
1979.
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