EHJ August 2002, volume 110/08, pages 252-253 Tina Garrity dissects the new working document on access to environment injustice

Getting businesses to take their environmental responsibilities seriously and making sure that EU citizens have effective redress against those who pollute is one of the key challenges facing the Commission. There is now a substantial body of EU legislation in place governing environmental protection, but it is dependent for its success on effective enforcement by public authorities. Since the EU signed the UN convention on access to information, public participation in decision-making and access to justice in environmental matters (The Aarhus Convention) in 1998, the Commission has been trying to find ways of increasing involvement by ordinary citizens in the legal processes surrounding environmental protection.

PROGRESS SO FAR
Some progress has already been made. A proposal to update the 1990 directive on access to environmental information (EHJ, April 2001, page 130) to take account of the Aarhus Convention is currently making its way round the EU institutions. Last year, the Commission published a recommendation on minimum criteria for environmental inspections (EHJ, June 2001, page 194) which, among other things, calls for inspection plans to outline procedures for responses to complaints and accidents and for reports to be made publicly available.

It also stresses that investigations should enable enforcement actions or sanctions to proceed, if appropriate. However, it is only a recommendation and member states are not obliged to follow it. If member states do not take their obligations to implement and enforce EU environmental law seriously, there is not much at present that ordinary citizens can do other than to lodge a complaint, but that may be about to change.

ARTICLE 9
One of the requirements of the Aarhus Convention is that signatory countries must improve access to justice in environmental matters. Article 9 of the convention requires that the contracting parties ensure, within the framework of their national legislation, that any person who considers that their request for information under the convention has been ignored, wrongfully refused (whether in part or full), inadequately answered or otherwise not dealt with in accordance with the provisions of the Convention, has access to a review procedure before a court of law or another independent and impartial body established by law.

In addition, they must ensure that members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of national environmental law.

WORKING DOCUMENT
In order to ascertain how best the EU should implement this article, the directorate-general of the Commission responsible for the environment (DG3) earlier this year drew up a working document on access to justice in environmental matters. The document is intended to launch consultations on access to administrative or judicial proceedings in environmental matters in the member states.

In particular, it seeks opinions on the idea of giving representative groupings legal standing to start such proceedings. In composing its paper, DG3 took account of a number of reports produced by the European Council of Environmental Law and the European Environmental Law Association, among others.

These studies concluded that, while the ability of the public and public interest groups to participate in environmental proceedings varies widely from one EU country to another, in general they do not have sufficient access to national courts and other national out-of-court proceedings.^1,2,3 In many member states they have to prove a "sufficient interest" or a "right" to be able to take action. Such interests or rights are usually of a type which is easier to satisfy for a property-owner or economic operator, but often impossible for environmental interest groups.

Furthermore, appropriate procedures in environmental matters may not exist to enable environmental interests to be protected. Additionally, the costs of instituting actions, such as court fees, legal expenses, expert testimony or financial securities may be prohibitive and create a barrier to making use of standing rights. The studies showed however, that the experience gained so far with legal standing for environmental NGOs indicated that such an instrument can enhance compliance with and implementation of environmental law. Where environmental NGOs did institute proceedings, these proceedings were generally well prepared and based on sound argument, they said.

NEW LEGISLATION
In order to implement the Convention, the working document suggests a new piece of EU legislation which would give certain members of the public access to a court or another independent and impartial body to review any acts and omissions by public authorities or other legal and natural persons, which contravene provisions of environmental law.

Administrative acts potentially subject to review would include decisions on plans or programmes covered by environmental law. An administrative omission would be one where a public authority, having a legal obligation to act under environmental law, failed to do so. Public authorities would include the government and other public administrations at national, regional and local level. The term "public" would mean one or more natural or legal persons, and their associations, organisations or groups.

The ability to take action would be restricted to those having a sufficient interest in instituting environmental proceedings or, alternatively, those maintaining the impairment of a right, where the administrative procedural law of a member state requires this as a precondition for instituting environmental proceedings. The legislation would be drafted to apply to both EU and domestic environmental law, but member states wishing to exempt their domestic law would be able to opt-out in this respect (the working paper does point out, however, that member states often embody EC directives in existing national environmental legislation so that it is not always easy to distinguish EC-derived environmental law from national environmental law). A definition of what constitutes environmental law is suggested.

Member states could choose to require that any members of the public with the relevant legal standing who considered that a public authority had breached environmental law must, as a first step, lodge a request for action to the public authority before having access to environmental proceedings. Members of the public would be able to give notice to any third person, natural or legal, contravening the provisions of environmental law or not respecting the conditions of a permit based on environmental law where such persons were identifiable.

This would "enable" the competent authority or other legal and natural person to repair the situation. The competent authority would be obliged to consider such a request for action, unless it were clearly unsubstantiated, and inform the public concerned within 60 days of its decisions and the reasons therefore. Where, despite due diligence it could not do so, it would have to explain why and give a date for decision.

The working document goes on to look at the role of citizens' groupings, environmental NGOs and legal standing of municipal or regional administrative bodies. Finally, the legislation would require each member state to ensure that information about access to environmental proceedings was provided to the public. They would also have to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to proceedings in environmental matters.

European Commission. Env. A3 - Environmental Governance. Working document (11-04-02): Access to justice in environmental matters http://europa.eu.int/comm/environment/aarhus/110402consultation_en.pdf

References

1. Non-judicial resolution of disputes in environmental law (study in both English and French) http://europa.eu.int/comm/environment/aarhus/accesstojustice.pdf 141 pp
2. Complaint procedures and access to justice for citizens and NGOs in the field of the environment within the European Union http://europa.eu.int/comm/environment/impel/access_to_justice.pdf 169 pp
3. Complaints and appeals in the area of the environment in the member states of the European Union http://europa.eu.int/comm/environment/aarhus/complaintsappeals.pdf 80 pp