UN to EU: Open Up Right to Challenge Environmental Decisions

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By Stephen Gardner

The European Union should amend its legislation so that individuals and campaign groups can go to the Court of Justice of the EU to challenge environmental decisions from EU bodies, according to a ruling by a United Nations panel.

The Compliance Committee of the UN Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters said the EU “fails to comply” with a provision of the convention under which individuals should be able to take environmental decisions to court in a way that is “fair, equitable, timely and not prohibitively expensive.” The committee issued its finding March 17.

The Aarhus Convention establishes certain rights for individuals, companies and groups to question environmental decisions from regulatory authorities.

At present, the law that implements the Aarhus Convention for environmental decisions from EU bodies (the Aarhus Regulation, (EC) No. 1367/2006) allows only decisions that are addressed to a specific company or organization to be challenged by that company or organization. It does not allow individuals or environmental groups to challenge decisions of “general scope,” meaning decisions that potentially could affect many individuals or a large number of organizations.

The UN finding is not binding, but the European Commission, the EU’s executive arm, should look at it “as an opportunity to show that they’re hearing some of the concerns from the citizens” about the accountability of EU decision-making, Anaïs Berthier, a senior lawyer in Brussels with the nonprofit environmental law organization ClientEarth, told Bloomberg BNA March 20.

Questioning Decisions

If the commission does propose changes to the EU Aarhus Regulation in line with the Aarhus Compliance Committee’s findings, then it would give individuals “legal standing” in the EU courts, but “the argument that the court will be flooded by cases is not realistic,” Berthier said.

The costs and complexity of building a case against an EU environmental decision would limit the number of cases taken to the EU Court of Justice, she said.

The Aarhus Compliance Committee’s finding relates only to EU-level environmental decisions and not to decisions from individual EU countries. EU environmental decisions cover areas such as authorizations for pesticides and genetically engineered crops and setting permitted levels of chemicals in products such as food and toys.

ClientEarth brought its case against the EU’s implementation of the Aarhus Convention to the Aarhus Compliance Committee in 2008. The committee took nearly a decade to finalize its findings because its assessment was put on hold for several years while a case on access to justice in environmental decision-making made its way through the EU courts.

In January 2015, the EU Court of Justice ruled that individuals and organizations did not have the right to challenge in the EU courts’ decisions of general scope taken at the EU level. That lawsuit related to decisions on pesticide residues in food, and to extensions the European Commission granted to member countries to comply with air quality standards.

The Aarhus Compliance Committee said it was “surprised” at the EU Court of Justice’s reasoning in the January 2015 ruling, and “it remains the case” that the EU did not correctly implement the access to justice provisions of the Aarhus Convention.

Next Steps

The parties to the Aarhus Convention, including the EU, will meet in September to endorse Aarhus Compliance Committee decisions, including the decision on the EU, among other actions.

So far, no recipient of an Aarhus Compliance Committee decision has rejected it, and should the EU do so, it would send a “dangerous signal” that the bloc “has a highly selective approach when it comes to the rule of law,” ClientEarth said in a March 20 statement.

European Commission environment spokesman Enrico Brivio said March 20 that the commission had “taken note of the view” of the Aarhus Compliance Committee.

“We will be examining the opinion. Up to now, the commission is sure that it acted according to a solid legal basis,” Brivio said.

To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

For More Information

The Aarhus Compliance Committee finding on the EU is available at http://bit.ly/2nssare.

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