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The European Parliament, Council of the EU (Council), and the
European Commission (EC) are coming closer to resolving a
longstanding barrier that members of the public and nongovernmental
organizations (NGOs) incur when seeking to challenge EU regulations
in the bloc's courts.
Presently, individuals are barred altogether from enforcing
environmental law before EU courts, while NGOs can go to court only
in very specific cases, such as to challenge certain chemical
approvals. NGOs cannot attack other decisions, such as those
involving harmful pesticides or excess GHG emissions, nor can they
bring other broad-reaching environmental litigation citing public
interest. However, companies can file lawsuits with the court
system by arguing their financial interests could be harmed.
EU member nations have opposed expanding the interpretation of
the right-to-sue, stating that the ability to sue member nations is
sufficient and that NGOs have the ability to appeal
administratively to have an EU court hear a case. They have also
said that a wider application of the right-to-sue would place an
immense new burden on regulators.
For more than a decade, public interest groups have charged the
policy violates the Aarhus Convention, which set out rules for
challenging environmental law violations. The Aarhus Convention,
authorized under the UN Economic and Social Council, was negotiated
through the EC and has been signed by the EU and 46 nations in
Europe and Central Asia. It's been in force since 2001.
In 2017, the Aarhus Convention Compliance Committee agreed with
a complaint filed by nonprofit ClientEarth that the EU's policy on
legal challenge to environmental law was in violation of the
convention, setting the review in motion.
With the next meeting of the Aarhus Convention signatories
coming this fall, the parties are on the clock to come up with a
solution. In May, the parliament passed a report that outlined its
plan to open the EU courts to NGOs, offering significantly more
access than proposed by the Council late last year. Ultimately, the
parliament, whose members are elected by the citizens of the EU,
and the Council, whose members are government representatives from
the EU, must reach agreement on a new litigation policy that will
meet the standards of the convention. The EC, which is the EU's
administrative body, is the chair of the negotiations, and has
formally proposed the legislation to change the policy.
Negotiations
Speaking with IHS Markit in early June, Anne Friel,
environmental democracy attorney for ClientEarth, called the
parliament's May proposal "quite significant."
"The parliament's [May] report ...
is a vast improvement on the Commission's proposed reform of the
Aarhus Regulation and would bring the EU closer to compliance with
international law on access to justice under the Aarhus
Convention," said ClientEarth, which brought its complaint in
2008.
"Access to justice is a basic right in every democracy, but NGOs
and members of the public have almost never been entitled to go to
the EU courts to protect the environment. The parliament has made a
vital step by championing this right," ClientEarth continued.
The way things stand at the moment, Friel said there are three
options for individuals to bring environmental cases to the Court
of Justice of the European Union. The first is with a direct
challenge, but current EU policy makes this impossible because the
plaintiff must show that he or she is affected in a unique and
peculiar way as opposed to all other persons, which is impossible
in environmental cases.
The second route is that a national court of an EU member state
can send a question to the EU court. At its strongest, that
referral could be accompanied by a recommendation to strike what
the national court believes could be an unlawful EU act. "When the
EU signed the Aarhus Convention, they realized that probably wasn't
going to cut it ... and came up with the third route," Friel
explained.
Under the third route, a plaintiff can petition the EU to review
whether an institution is in breach of an environmental law. If
that review is rejected, the plaintiff can go to the EU court. But
this route is currently only available for a very limited set of
decisions, such as certain chemical approvals.
The parliament's framework would "make the third route usable,"
said Friel. "They reached a good position that complies with
international law."
As examples, if the parliament's stance becomes the new policy,
Friel said citizens and NGOs could file suit against EC approvals
of funding for coal-fired power plants or of rules that permit
production of vehicles with emissions above legal limits. Citizens
and NGOs also could challenge subsidies granted to industries on
the grounds that those industries are harming the environment and
interfering with achieving decarbonization targets. "This is
essential to the delivery of the EU Green Deal," Friel said.
The European Green Deal is a package of policies and investments
that will allow the EU to cut emissions as pledged under the Paris
Agreement and the 2030 Climate Target Plan, putting it on track for
climate neutrality by 2050.
But there's no guarantee the new proposed rules will be adopted
because the parliament's position clashes with the Council's.
From Friel's perspective, the EC's position, which was announced
in December 2020, does not meet the Aarhus Convention's standards.
"They have tinkered around the edges" since then, she said, "but
haven't changed enough. So now, based on these two negotiating
positions, they will try to thrash out a deal."
The EC issued a report in 2020 that
identified what it called the two shortcomings in the current
regulation that will be at the heart of the discussions:
"The current possibilities for administrative review under the
regulation extend only to administrative acts of individual scope
and do not include acts of general scope. This has been identified
as the main limitation for NGOs seeking to challenge administrative
acts at EU level."
"The current scope only covers acts 'under' environmental law.
Article 9(3) of the convention uses a different wording, referring
to acts 'which contravene provisions of (…) law relating to the
environment'. Although the current wording in the regulation, as
interpreted by the case law of the Court of Justice, is broad,
there are doubts as to whether its scope accurately matches that of
Article 9(3) of the convention."
The parties are expected to consider a broader definition of
"administrative act" to enable NGOs to seek an administrative
review of any legally binding EU regulation that might contravene
environmental law (with a few exceptions). They will also discuss a
broader scope of what is considered a potential violation to allow
for challenges to rules and regulations that were not adopted as
environmental laws, but which could result in violations of EU
environmental law.
Those types of adjustments could go a long way towards
correcting what legal scholar Markus Gehring described as years of
resistance by EU bodies and courts. "Yet in spite of its clear
obligations, EU courts have consistently debunked pleas for
softening of requirements in direct actions against EU acts in
environmental law. The internal review procedure set out by the
2006 Aarhus Regulation has also been interpreted so restrictively
that its added value in striving for better access to courts in
environmental matters remains ephemeral," Gehring wrote in 2020.
Aarhus Convention meeting
The Aarhus Convention countries will hold a meeting in October,
and pressure is on the parties to come up with an agreement by that
time. The parliament and the Council will have to reach a
compromise, which will then have to be passed by a vote of each
body. With the Aarhus Convention as "one of the rare functional
compliance mechanisms in international law," according to Friel,
the position of the EU to uphold it will weigh heavily on all the
47 signing nations, some of which do not have domestic rule-of-law
as strong as EU member countries.
Neither the Council nor the EC would provide a comment to IHS
Markit on the negotiations, but on 11 June ClientEarth noted that
EU Commissioner for the Environment Virginijus Sinkevičius
expressed reservations about the parliament's plan during a meeting
of the EU Environmental Council, again citing the increased
workload on regulators.
However, other representatives appear to favor the parliament's
position. "As Luxembourg's Minister Ms. Carole Dieschbourg said in
the meeting, not only the EU's credibility but the survival of the
Aarhus Convention as a whole is at stake. Member states must
clearly position themselves on the side of international law
compliance and environmental protection," Friel said.
At the Council meeting, Austria, Belgium, Denmark, and the
Netherlands also publicly expressed support for changing its policy
to align with the Aarhus Convention.
Impacts
While the new policy would open new doors for litigation, the
current policy has not stopped parties from challenging companies
and governments in national courts for lack of progress on
decarbonization and GHG emissions reductions. Most notably, the Hague District Court on 26 May
ruled Shell Group's Netherlands-based parent company, Royal Dutch
Shell, owed the Dutch people an unwritten standard of care based on
international human rights law through their obligations under the
Dutch Civil Code, and must deepen the group's CO2 emissions cuts in
2030 to a net 45% below 2019 levels across the group's "entire
energy portfolio."
But other situations have illustrated the limitations of the
lack of a cross-EU litigation option. In March, the European Court of Justice
dismissed a case in which families and indigenous Saami youth from
France, Germany, Italy, Portugal, Romania, and outside the EU
sought a ruling that the EU's target of a 40% GHG reduction by 2030
was insufficient to protect them from the impacts of climate
change. The case was dismissed because the court ruled that
citizens cannot challenge EU legislation unless they are affected
in a "unique and peculiar" way.
"Unless citizens and NGOs are provided access to the EU courts,
through the revision of the Aarhus Regulation, the EU courts would
keep closing doors to people hit by the climate and other
environmental crises as they fear it would open the floodgates to
numerous cases that citizens would bring in order to challenge the
EU on environmental grounds," said Harriet Mackaill, governance
policy officer at Climate Action Network Europe.
The impact goes beyond carbon emissions to include dangerous
chemicals, fishing quotas, and water quality. Environmental issues
are interconnected, but litigants cannot make challenges to change
those regulations or enforce those laws either. "It's impossible to
bring these types of cases to the EU, and the EU is responsible for
a lot of the decisions that really have an impact on global warming
and biodiversity loss; it's a huge gap because states can only be
held accountable for their part," Friel said.
Just like environmental impacts know no boundaries, national
courts in Germany, France, Ireland, and elsewhere are looking
closely whether their governments have a duty to comply with EU
environmental rules, Friel said. Again, however, that cannot be
raised to the court of the entire EU under the current policy.
The other issue is that EU laws filter down to national laws,
thus enhancing their impact—for better or worse. This makes it
even more important that the laws can be challenged at the EU
level. "By some estimates, 80% of national laws on industrial
waste, habitat protection, and other environmental issues flow down
from EU laws," explained Diane Vandesmet, strategic communications
officer for ClientEarth.