ABSTRACT
Given that much of the environmental law in force in member states such as the United Kingdom emanates from the European Community, it is necessary to appreciate the role of the courts, both at the centre - the European Court of Justice - and in the member states. Towards the end of this chapter some consideration is given to one of the critical consequences of the role of the European Court of Justice: the further development of legislation as a result of its decisions. Clearly, in the case of a member state like the United Kingdom there are categories of municipal law to be applied and enforced which have no connection with the law of the European Community: the law governing statutory nuisance in Part III of the Environmental Protection Act 1990, for example. However, the weight and status of European Community law on the environment necessarily focuses much of the attention of this chapter on the status of and interplay between national courts and the European Court of Justice in the interpretation, application and enforcement of the law. Those processes of interpretation, application and enforcement direct attention in turn to the essential character of Community environmental law, as seen already in earlier chapters. Above all, Community law here is not directly applicable normally, given the overwhelming emphasis on directives and decisions as the vehicles which carry policy into law. It is against this background that the courts can often address their task without necessary and direct reference to certain primary and directly applicable Treaty provisions such as those which seek (through Article 28 of the Treaty) to proscribe trade barriers for example. Accordingly the concern of the courts dealing with matters of environmental law extends from questions of the legality of the subject legislation, through the interpretation of that legislation, to the legality of its transposition and enforcement in member states. This though is a fairly crude representation of the courts' role in relation to environmental law, not least because there are other factors which shape the operation of the judicial function. In the first place, it will be seen that in some instances there is a formally prescribed distribution of functions, usually where the European Court of Justice enjoys jurisdiction (or ultimate jurisdiction) in respect of a legally defined function.
