06/28/2012 11:03 am ET Updated Aug 28, 2012

What Judges Don't Know

If foxes know many things and hedgehogs one big thing, what do judges know? The law? That would be a reasonable assumption. But in the U.K. and the rest of Europe, when it comes to the environment, judges often don't know the law. And they can be wilful in remaining ignorant.

Let me offer a case in point. At ClientEarth, we've been working to clean up the air in London for three years now. The bad news is that more people die of air pollution in the U.K. than in traffic accidents. As many people die of the long-term impacts of air pollution now as died from short-term exposure in the days of London's infamous "pea soup" fogs. The modern form of pollution is harder to perceive than the old pea soupers. It is like most contemporary environmental problems -- our senses are not well designed to detect them. If we could sense climate change like we do rain, climate sceptics would have no place to hide.

The air pollutants felling people in London are subtle: tiny particles from diesel engines, invisible toxic gases. The good news is that there is law designed to protect people. Like most environmental law in European countries, it originated in Brussels. The European Commission designed an air quality system based on the World Health Organization's safe levels. All the European countries agreed to the law, and the law was then sent to the parliaments of the member countries, who transposed it into their own national law. So the Parliament sitting in London passed the European measures into the law of the U.K.

So there is air pollution law in the U.K. This is handy, since almost 5,000 people die of air pollution in London every year, the same air as the Olympic athletes will be breathing. The dying is happening because the U.K. authorities have not enforced the law.

So we took a case to the High Court and argued that the government has a clear duty to enforce the law and protect the health of its citizens; the young people whose lungs will never grow to full size as well as older people dying of strokes, heart attacks and lung cancer.

The government admitted it was violating the law. That, at least, was honest. You would expect the judge to then enforce the law and direct the government to do its job. But the judge refused. He believed that he had no power to enforce the law because it originated in Europe. He said only the European government could enforce the air pollution law in the U.K.

This is a fundamental misunderstanding. The relevant treaties of the European Union make clear the member state courts must enforce the law. The law of England and the other member states now sits under European law, which English judges are bound to enforce. To put it clearly, it is a dereliction of a judge's duty to fail to enforce it. Not all English judges mistake such a fundamental point -- the House of Lords, then the highest U.K. court, issued several decisions making it clear the duties of the lower court judges.

It is not just English judges who are at fault. A colleague told me recently that a Spanish judge had told him, that he was a Spanish judge and did not care about Europe, similarly failing to understand his job is to enforce European law -- which is of course Spanish law too, the Spanish parliament having transposed it.

The ignorance of judges is a great stumbling block to the enforcement of environmental law in Europe. Citizens have no access to the European courts to enforce the law. The European government has very limited resources to do so. If the member state courts flout their duty to enforce the law, the environment and human health will continue to suffer.

Nor are European judges eager to improve their understanding. They are reluctant to have even European governmental officials offer them teachings on what the law is. The stated fear is that they will be unduly influenced. The result however is a lack of competence and consequent lack of enforcing the law.

Cardinal Richelieu observed that by not enforcing the law you legitimize the conduct you sought to prohibit.

Unfortunately, the Court of Appeal sitting in London declined to correct the lower court's error. It is indulging in 19th century thinking. Now the case sits with the Supreme Court. We hope that the Supreme Court gives the citizens of the U.K. dying of air pollution the 21st century reading of the law that they deserve.

We will see what the Supreme Court does. If they too refuse to enforce the law, will we have to wait till the current generation of judges is replaced by a new generation before judges realize what their job is with respect to European environmental law? That would be unfortunate both for the environment and for the great many people who will suffer unnecessarily in the meantime. What judges don't know can hurt you.