A shared report by the RSPB, the Environmental Law Foundation (ELF), and Friends of the Earth England, Wales and Northern Ireland suggests that potential cases addressing issues such as loss of green spaces, wildlife habitats, and the climate crisis have been dropped due to concerns over expenses, even when they stand a good chance of succeeding.

The number of environmental judicial review applications may have decreased by half within a decade.

The report authors attribute the decline to recent modifications to legal cost regulations, which permit defendants and interested parties, typically the developer behind a project or scheme, to apply to raise the default caps in environmental cases. In one instance, the cost cap for a case initiated by ClientEarth was elevated from the standard £10,000 to £25,000.

Katie de Kauwe, an environmental lawyer at Friends of the Earth, said: “Our legal system provides an important means to check the abuse of state power. It is through taking a legal challenge that Friends of the Earth and sector allies established last year that the government had breached the Climate Change Act.”

She added: “It is therefore deeply concerning that individuals and community groups are sometimes prevented from taking strong environmental cases because of the cost risks of doing so. Justice should not be a privilege for those who can afford it; it should be a right for everyone.”

The default caps leave unsuccessful individuals in environmental cases responsible for up to £5,000 of the public authority’s legal costs they are challenging. Community groups and NGOs are liable for up to £10,000. The report, released today, claims that by permitting the caps to be increased, the government is generating risk and uncertainty that many claimants may be reluctant to accept, even though their cases are in the public interest.

Carol Day, a consultant solicitor for the RSPB, said: “Everyone should have the right to seek justice and have their voice heard when an issue needs investigation. The Aarhus convention seeks to ensure that legal action is not confined to those with the deepest pockets, but this report shows that more must be done to enable people to hold public bodies to account on issues such as air and water pollution, biodiversity protection and climate change.”

The report’s suggestions include adopting Northern Ireland’s cost model, where the default cap can only be reduced, not increased, thereby providing claimants with certainty regarding their legal expenses.

A Ministry of Justice spokesperson commented: “It is misleading to suggest reforms have impacted the ability to bring successful environmental judicial reviews, which have remained steady in recent years.”