Our legal intern Luca Brocca writes about access to justice in environmental matters, the main legal instruments that protect it, and the obstacles to its implementation, through the analysis of concrete cases that illustrate the state of affairs in this area.
According to international and European human rights law, the concept of access to justice obliges states to guarantee every individual the right to turn to a court – or, in certain circumstances, to an alternative dispute resolution body – to obtain a remedy when it is determined that the individual’s rights have been violated. Thus, it is also a right that helps individuals enforce other rights. The general concept of access to justice encompasses several human rights, such as the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and Article 47 of the EU Charter of Fundamental Rights, and the right to an effective remedy under Article 13 of the ECHR and Article 47 of the EU Charter. Access to justice is both a process and a goal, and of critical importance to individuals seeking to benefit from other procedural and substantive rights they have, both at a national and international level. 1
As for the access to justice in the area of environmental law, it has some particular aspects that distinguish it from other areas of EU law. Although a substantive human right to the environment does not currently exist as such at the international level, the promotion of procedural and participatory rights can be an effective means of securing environmental protection. Access to justice in environmental matters can be defined as a set of guarantees that gives non-governmental organizations and individuals a possibility to challenge in court the legality of decisions, acts, or omissions that harm the environment.2
In recent decades, there has been a growing recognition that the protection of the environment is a fundamental social need. Environmental protection is a public concern, and environmental degradation and destruction have an impact on the overall quality of life. Consequently, environmental policies and legislation directly affect every individual, group and organization, and environmental interests are collective, diffuse, and highly fragmented.
The European Union is a world leader when it comes to protecting the environment, but despite the large number of laws, environmental benefits often go unrecognized due to poor implementation in member states.
While the ECHR does not guarantee a right to a healthy environment, ECHR rights – such as the right to life under Article 2 and the right to respect for private and family life under Article 8 – may come into play in environmental cases. The former article is closely related to this matter, as it entails that the government must take appropriate measures to protect life by enacting laws to protect people and, in certain circumstances, by taking steps to protect people when their lives are in danger.3 Similarly, Article 8 of the ECHR recognizes a right to respect one’s “private and family life, his home and his correspondence,” subject to certain limitations that are “in accordance with law” and “necessary in a democratic society.”4 Again, the relationship to the environment is implicit but clear. 5
This blog post will examine how access to the courts and the ability to challenge decisions that impact the environment is crucial to achieving the proper implementation of EU law, and how even the best environmental laws become almost meaningless if they are not properly implemented and enforced. In order to do so, it will make reference to some of the main judgments given by the ECtHR and ECJ on the matter and it will highlight the relevant EU and international law that helps citizens of the European union access justice in a rapid and economical way also in this peculiar area of law.
I. Tătar v. Romania and the right to respect for private and family life
Severe pollution can affect individuals’ well-being and prevent them from enjoying their homes, negatively impacting their private and family lives. A clear example of this is the case of Tătar v. Romania6. In this case, the plaintiffs lived in a residential area near a facility used to extract gold ore for a mine. They filed several complaints about the risks they were exposed to due to a company’s use of a technical process involving sodium cyanide. Although the authorities assured the plaintiffs that sufficient safety precautions were in place, in 2000 a large amount of polluted water entered various rivers, crossed several borders and affected the environment in several countries.
Invoking the right to life enshrined in Article 2 of the ECHR, the applicants complained that the technological process used by S.C. Transgold S.A. Baia Mare had put their lives in danger and that the authorities had done nothing despite Vasile Gheorghe Tătar’s numerous complaints. In its admissibility decision of July 2007, the Court ruled that the applicants’ complaints should be examined under Article 8 of the ECHR, the right to respect for private and family life. Indeed, the Court’s final decision was based on the latter Article: it held that environmental pollution can affect a person’s private and family life by harming his or her well-being, and that the State has a duty to ensure the protection of its citizens by regulating the authorising, setting-up, operating, safety, and supervision of industrial activities, particularly those that are hazardous to the environment and human health.
The Court found that a preliminary environmental impact assessment carried out in 1993 by the Romanian Ministry of the Environment had shown the risks to the environment and human health associated with the activity and that the operating conditions established by the Romanian authorities were insufficient to exclude the possibility of serious harm. The Court concluded that the Romanian authorities had not fulfilled their duty to adequately assess the risks that the company’s activity could entail and to take appropriate measures to protect the right of the persons concerned to respect for their private life and home within the meaning of Article 8 and, more specifically, of their right to a healthy and protected environment. In a nutshell, in this case, as in many similar others, one can notice some barriers to accessing justice in environmental law.
II. Barriers to accessing justice
Three main obstacles can be identified that impede access to justice in environmental matters.7
First and foremost is the time factor, as court proceedings can be lengthy, and much time can elapse before a final judgment is issued. In addition, it should be noted that the time barrier is also supported by a very strict formalism that is sometimes followed by the courts. This points to a particularly strict interpretation of procedural rules that can deny applicants the right of access to a court.
In cases where there is an urgent need to prevent or stop environmental damage, this may mean that even if the court rules favorably, the environmental damage will not be restored. An example of this is the case of the Białowieska Forest8. In this case, Poland had failed to meet its obligations to preserve natural habitats, in particular to protect the Białowieska Forest, and the court ordered the immediate cancelation of the illegal logging permits. The origins of the case date back to March 2016, when the Polish Minister of Environment tripled logging limits and maintained measures to prevent beetle infestations and forest fires, despite warnings from scientists across Europe that this would be very harmful.9 In July 2017, the case was referred to the Court of Justice, which issued an injunction prohibiting logging in the entire Białowieska Forest, except in cases involving public safety.10 Nevertheless, trees continued to be cut down every day. The final ruling was not issued until April 2018, and in the meantime great damage was done to the Białowieska Forest.
The second factor contributing to the obstruction of access to justice in environmental claims is money, because the financial capacity of plaintiffs can be a major obstacle to achieving justice. In some cases, environmental groups or individuals are asked to pay huge sums of money for legal proceedings. The ECJ has given a very narrow interpretation of Article 11(4) of the Environmental Impact Assessment (EIA) Directive11, according to which court proceedings must not be excessively expensive. The ECJ noted that this rule applies only to procedural aspects related to the public participation requirements of the EIA Directive, and not to the general need to keep court costs low, which is a matter for each national court to decide. Not only does this rule create uncertainty for an EU-wide standard where national judges must decide whether costs are “prohibitively expensive” but its unpredictability may discourage litigants from filing an environmental claim at all. To address this problem, cost-recovery measures should be introduced in all Member States, preferably at the EU level through a Directive on access to justice in environmental matters, so that there are no cost disparities between Member States that still hinder access to justice. In addition, legal aid should be provided to all persons litigating in the public interest, and Member States should ensure that their laws allow NGOs to recover legal costs if they win a case.
The last factor is that of repercussions, which refers to the use of intimidation and retaliation tactics by companies or investors against NGOs, civil society, or individuals. Strategic Litigation Against Public Participation (SLAPP) is a commonly used term for civil lawsuits brought by companies or investors against individuals who have been openly critical of the company’s work by, for example, obtaining a court ruling that a project development is illegal, publishing information that damages the company’s image, or exposing its involvement in environmentally harmful activities.
While intimidation tactics were once more common in the human rights context, they are now also increasingly used by companies and investors against environmental activists and NGOs in Europe, and the NGO community in general is increasingly vigilant in these cases.
The MEPs’ proposal for an anti-SLAPP directive is welcomed. Representatives of the major parties in the European Parliament propose, among other things, a registry of companies that pursue such abusive claims. It is fundamental that no one fears consequences for attempting to protect the environment through free speech or other legal means.
III. The Aarhus Convention
These three barriers to access to justice have been addressed in different ways at both the European and international levels. A clear example is the Aarhus Convention12, a multilateral environmental agreement that improves citizens’ ability to access environmental information while ensuring that it is transparent and reliable. The Convention is widely regarded as the primary legally binding instrument that sets the ground rules for promoting citizen participation in environmental issues.
Indeed, the Convention recognizes that achieving an environment adequate for the health and well-being of present and future generations requires what it calls the “three pillars”: access to information, public participation, and access to justice, i.e. the removal of barriers to justice, as mentioned in previous paragraphs. It also addresses the prosecution, punishment, and harassment of persons seeking to exercise these rights.13
Therefore, the Convention is a remarkable achievement not only in terms of environmental protection, but also in terms of the promotion and protection of human rights.
The Convention touches on the fundamental values of democracy and the rights of people to protect their well-being. It is, as Mary Robinson describes it, “truly a trailblazer.”14 Some authors emphasize that the adoption of the Aarhus Convention in 1998 was the last important stage in the codification of international environmental law, and the scenario that international environmental law can provide a normative response to global challenges is less and less realistic.
Article 1 of the Convention sets out its objective: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”15
The seventh and eighth recitals in the preamble reaffirm this goal and complement it with the duty of every person to protect and improve the environment for the benefit of present and future generations. While the Aarhus Convention is not the first international legal instrument to recognize the right to a healthy environment, it appears to be the first hard law text to recognize the rights of future generations.16
The Convention does not intend to grant a general and unlimited right of access to all information held by public authorities that has a connection, however minimal, to an environmental factor.17 Articles 4(3) and (4) provide a number of grounds for refusing requests for access to environmental information. The grounds for refusal are to be interpreted restrictively, taking into account whether the request is “formulated in too general a manner,” and whether the disclosure would adversely affect public security. In case of ambiguity, these provisions should be interpreted in a way that favours transparency and access to information.
The third pillar of the Convention is closely linked to the other two. Access to justice promotes the ability of citizens to assert their right to information and participation. Article 9 requires Parties to ensure access to justice in three areas: in cases of requests for information under Article 4, in cases of specific decisions under Article 6, and in cases of challenging breaches of environmental law in general.
The Aarhus Convention has also been a source of inspiration for the adoption of relevant EU secondary legislation in this area.
IV. Relevant EU Law
EU secondary legislation contains rights of access to justice, and some provisions of the Aarhus Convention can be found in Directive 2003/4/EC18 (related to the “access to information” pillar), Directive 2003/35/EC19 (related to the “public participation” pillar and the “access to justice” pillar), and Regulation (EC) No. 1367/200620 (which applies the Aarhus Convention to EU institutions and bodies). The rules on access to justice are now found in Article 11 of the EIA Directive, which applies to a wide range of defined public and private projects, and in Article 25 of the Industrial Emissions Directive21.
One case that illustrates the practical application of the EIA Directive is the “Trianel case.”22 In this case, Trianel was granted a permit to build and operate a coal-fired power plant in Lünen, Germany. The proposed power plant was to be located near five special areas of conservation under the Habitats Directive. An NGO applied for the permit to be annulled on the grounds that it violated the provisions of German law transposing this directive. The German court held that an NGO cannot bring an infringement action under German law because its own rights must be violated in order to bring an action before a court. The court referred a question to the ECJ for a preliminary ruling on whether this undermined the Directive’s provisions on access to justice. The ECJ concluded that the Directive precludes legislation that does not allow non-governmental organisations that advocate for environmental protection to have access to justice in cases such as this.
In summary, access to justice in environmental matters is still severely limited. This is mainly due to the formalities that must be observed in order to bring a claim before a court in this field. However, thanks to a better implementation of EU law by Member States and to a more frequent use of the Commission’s power to initiate infringement proceedings against a state that does not transpose EU law (or does not transpose it correctly), better access to justice can be achieved in a shorter time. Given the current critical environmental situation, EU member states must be more willing to take action, and the Commission will ensure that this happens by using its powers. The goals and priorities that the EU has set for itself in the environmental field cannot be achieved without a comprehensive contribution from all Member States in allowing reasonable and lawful access to justice to individuals and NGOs.
13 James; et al. Revill. Tools for Compliance and Enforcement from beyond WMD Regimes (2021).
17 Attila Panovics, The Aarhus Convention Model, 2016 HUNGARIAN Y.B. INT‘l L. &EUR. L. 251 (2016).