Green group loses court challenge

Clean air campaigners have failed in their bid to have the government's environmental policies declared unconstitutional.

Mr Justice Michael Hartmann in the Court of First Instance yesterday dismissed an application for a judicial review into the government's handling of air pollution and related issues.

The applicants, the Clean Air Foundation and its founder, Gordon Oldham, had claimed that by failing to implement appropriate or effective pollution-fighting strategies, the government was violating its Basic Law duty to protect the lives of Hong Kong people.

It was alleged the government had failed to, among other things: maximise the use of public transport and mitigate resulting pollution; mandate higher standards for diesel vehicles and reduce the use of sulfur-rich fuels; and offer subsidies for the extension of rail connections to reduce road traffic and its pollution.

They had sought declarations to the effect that the government had a duty under the Basic Law and Bill of Rights to protect people from the effects of air pollution and that existing legislation was not up to the job.

Mr Justice Hartmann accepted there was likely a prima facie case for arguing that the government does have a duty to safeguard people from the effects of air pollution, but how best to implement those safeguards was not an issue that was within the powers of the court to decide.

However, Mr Justice Hartmann said in his judgment he believed the application was 'in reality an attack on government policy'. He noted that the supervisory role of the courts did not extend to matters of policy.

The application was 'fundamentally misconceived', he said.

'It is clear that it seeks to review the merits of policy in an area in which government must make difficult decisions in respect of competing social and economic priorities and, in law, is permitted a wide discretion to do so.

'Whilst issues of importance to the community may have been raised, it is not for this court to determine those issues. They are issues for the political process.'

A spokesman for the Environmental Protection Department said: 'We welcome the court's judgment. The HKSAR Government is determined to improve the air quality in Hong Kong and will continue to do so.'