Summer Kern: Access to Justice in environmental matters is widely acknowledged as being by far the weakest, least implemented part of the Convention
The Aarhus Convention, which was signed in 1998 and entered into force in 2001, has represented something quite incredible from its very first inception, namely an instrument linking environmental rights and human rights. The Convention is essentially built on three pillars: (1) access to information; (2) public participation in decisions on specific activities; and (3) access to justice.
The very special nature of this Convention has been underscored and strengthened by a special compliance review mechanism, by which not only Parties (countries) to the Convention or other bodies, but also members of the public, can bring forward questions and issues about compliance with the Convention to a special committee composed of experts acting in their personal capacity.
In the nearly 20 years since its inception, the Convention has grown to include 47 Parties, stretching from Iceland in the west, to Kazakhstan in the east. Its compliance mechanism has to date handled more than 150 cases, and moreover in a huge number of cases made not only important findings concerning the compliance with the Convention, but this has led to very concrete results, bringing transparence and environmental democracy where this was lacking. This has also served as a model for other instruments, and for regions beyond the UNECE.
Access to justice – the so-called third pillar of the Convention – is widely acknowledged as being by far the weakest, least implemented part of the Convention. This is not just a problem in and of itself, but undercuts the implementation of the other two pillars, namely access to information and public participation. Where there is no legal recourse to challenge violations of these provisions, they can easily become meaningless, pure paper promises. But the access to justice pillar goes further than these two pillars – and should allow members of the public to also challenge acts and omissions by private persons and public authorities which contravene provisions of national law relating to the environment.
All of this sounds really abstract. Basically, it is about whether NGOs or individuals can make the government live up to its promises to clean the air so that people’s health isn’t damaged; to ensure that traffic and waste don’t overwhelm cities; to ensure that polluters have to pay for the damage they caused.
Barriers to access to justice must be considered depending on who, what and how can challenge before the court
Some countries go quite some ways in acknowledging the role of NGOs and others in protecting the environment, and regularly allow lawsuits alleging violations of laws related to the environment. Thus for example countries like Estonia, Portugal, and even France and the UK have more relaxed standing requirements. In other words, they are not so strict about “who” can bring a challenge.
Yet to be fair, all of these countries have other problems and hence can’t really be described as evidencing “Best Practices” in every respect. Ultimately, there are many different barriers concerning access to justice, and they are not only about “who” can bring a challenge.
In a way, the main barriers in access to justice can be roughly categorized under “who”, “what” and “how”.
WHO can bring a challenge. This has always been a huge problem for Austria, for example, where standing requirements (who can go to court) are very strict. This has meant that NGOs for example have very limited access to justice rights; they can only bring legal challenges in the EIA and limited IED contexts. There have historically been similar restrictions in other countries, like Czechia, Germany, and Poland. Some of these countries have since seen a significant broadening of access to justice rights (though in some cases these might have since been narrowed) but likely in all of these cases, restrictions have not been entirely eliminated.
WHAT can be challenged. This is about what kind of decisions, acts or omissions (failing to do something) can be challenged. This can be a very complicated question.
Sometimes this is tied in national laws to the question of WHO can challenge. So for example, a person whose health or home could be affected by a factory – a neighbor – might be able to bring a legal challenge against the factory; in other words, they could be accepted as a WHO. But they still might not be able to challenge all effects this factory might have on the environment. So for example this neighbor might still not be able to challenge violations of water law requirements. This might be the case in, i.e., Germany.
Other times the question of what can be challenged might have a different source. It might be that for some other reason it seems like no court has competence to review the claim. This is another way of limiting the WHAT that can be challenged. This happens in a number of countries, including possibly Bulgaria.
The question of HOW things can be challenged has a few aspects. Here the UK is a good example. There they don’t have such a big problem in terms of WHO can bring a challenge, but the costs of bringing a challenge to court can be enormous – this condition, this HOW, can bring claimants to bankruptcy and is thus a huge barrier to the exercise of access to justice rights, which in principle, seem open. Other examples include cases where people bring a legal challenge and even, after years spent arguing before the courts, win. Yet the forest is cut down, the major highway built. Any win is thus empty. A paper win at best.
First step in improving access to justice is to acknowledge barriers
First off, countries and individual actors should recognize that where the Aarhus Convention has been actually implemented, and specifically where NGOs have been given effective access to justice rights, this has led to better results overall. Not just for the environment, but this has helped economic actors and others enormously in terms of legal certainty. There seems to be a lot of fear-mongering going on – the argument that giving NGOs access to justice rights will necessarily lead to blocking all projects, and lengthened procedures in all cases is however simply not borne out. NGOs very selectively involve themselves at any rate. Moreover, having clear rules for their participation and judicial review will not lead to increased litigation, as the EC’s own analysis has shown.
Second, and a related point, countries should look beyond their borders and be prepared to learn from other examples. There are indeed good practice examples which can be learned from and adapted.
Finally, there are a lot of resources out there which provide clear guidance. Some of these sources countries just can’t ignore, like the CJEU Opinions in C-243/15 and C-664/15. These cases are in their narrow sense about nature protection and water law, but it is pretty clear from these cases what is generally expected from Member States. If any doubt persists, then the Commission’s Notice on Access to Justice in Environmental Mattersprovides further guidance, as do the extensive and consistent Findings of the Aarhus Convention Compliance Committee.
The story has been first published in Environmental Law Newsletter (in Estonian) in February 2018 issued by Estonian Environmental Law Centre.