POJ Comparative

POJ Comparative

Removing financial and other barriers for effective remedies in EIA procedures Thomas ALGE Justice & Environment OEKOBUERO 19. October 2009 Overview of the presentation 1.Introducing Justice and Environment 2.Aarhus Convention and EIA Directive

3.Potential barriers on Access to Justice 4.Justice outside national legal systems 5.Conclusions Justice and Environment Association of 12 European public interest environmental law organisations Established 2003 Use law to protect people, the environment and nature Implementation and enforcement of

the EU legislation www.justiceandenvironment.org J&E full members EELC - Estonian Environmental Law Center, Estonia EMLA - Environmental Management and Law Association, Hungary EPS - Environmental Law Service, Czech Republic OEKOBUERO Coordination Bureau of Austrian Environmental NGOs - Austria PIC - Legal Information Centre for Nongovernmental Organizations,

J&E associate members The Association for Environmental Justice, AjA (Spain), Centre for Legal Resources, CRJ (Romania), Front 2142 (Macedonia), Independent institute for environmental issues, UfU (Germany), Milieukontakt International (Netherlands) Zelena Akcija (Croatia) J&E major expertise

Aarhus Convention EIA/SEA Climate Change Environmental Liability and Crime Air and Noise Nature protection J&E activities on EIA + Aarhus Coordinated national, comparative and European legal analyses and case studies since 2006 Strategic litigation Legal advice to public concerned

Position papers for national and European decision makers Best practice collections Conferences and workshops J&E 2009 Access to Justice focus Activities Based on outcome of previous studies Concentrate on selected aspects of AtJ (standing conditions and effectiveness of judicial review Compare approaches in different countries

Assessing EU Aarhus regulation Recommendations for actions and national and EU level Promote discussions among legal 2. Aarhus Convention and EIA directive Aarhus Convention Three pillars, on access to Information Public participation, including EIA procedures (Article 6 of the Convention) Justice, (Article 9 of the Convention)

The Aarhus Convention Art 9 Art. 9(1) - judicial protection in cases that relate to access to environmental information Art. 9(2) - members public concerned shall have the right for judicial review related to the acts, omissions, decisions subject to Art. 6 of the Convention. Art. 9(3) - members of the public , when they meet the criteria, if any laid down in national law shall also have access to review procedures to challenge acts and omissions by private persons and public authorities

which contravene provisions of its national law relating to the environment The Aarhus Convention Art 9 Article 9 par 2 Members of the public concerned a) Having a sufficient interest or alternatively b) Maintaining impairment of a right objective of giving public concerned wide access to justice NGOs always fulfil a) and b) Have access to review procedure before a judicial

to challenge the substantive and procedural legality of any decision, act or omission .. subject to the provisions of Article 6 of the Convention The Aarhus Convention Art 9 Art. 9 par 4 remedies according to previous paragraphs shall be adequate and effective, fair, equitable, timely,

and not prohibitively expensive and include injunctive relief as appropriate Art 9 (5) - parties shall consider establishment of assistance mechanisms to remove or reduce financial and other barriers AtJ in EIA Directive PP Directive 2003/35 amending EIA Directive 85/337/EC to transpose Aarhus Article 6 and 9 par 2, 3 and 4 of the Convention

More or less literal transposition of Convention in Art 10a of EIA Directive But some provisions vague or missing, e.g. AtJ to challenge public participation provisions vs Convention refers also to permitting decisions (Art 6 par 1) Art 9/4 and 5 provisions on adequate, effective remedies Injunctive relief Financial assistance AtJ in EIA Directive Further potential frictions Article 6 par 1a Aarhus

1. Each Party: (a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I; Article 2 par 1 and 2 EIA Directive 1. Member States shall adopt all measures necessary to ensure that, before consent is given, 2. The environmental impact assessment may be integrated into the existing procedures for consent to projects, or AtJ in EIA Directive Relationship EIA directive and Aarhus Convention

EIA directive does not provides for a permitting procedure, but EIA and PP to be reflected in permitting decision Same counts for Access to Justice Aarhus Convention Compliance Committee on the issue (Cases 2006/16 Lithuania and 2006/17 European Community) AC is mixed agreement (ratified by EC means binding for MS) Community law to be interpreted in accordance with AC (or directly applied if appropriate) EIA permit and Access to Justice only after construction has started in compatible with AC

3. EIA related AtJ obstacles Review of EIA screening decision Review of EIA and its permitting decisions Impairment of rights doctrine vs Article 9 par 2 Scope of review: Procedural vs substantive law Prohibitive costs Effective Remedies Barrier 1: EIA screening Article 4 EIA directive provides possibility for screening procedure

whether EIA is necessary or not Relevant in particular for Annex II projects, in many MS also for amendment and cumulative effects of projects In many MS no Access to review screening decision Problematic if you can not invoke EIA obligation for certain project as public concerned Barrier 1: EIA screening Screening decision is in any case decision in the sense of Article 9 par 3

of AC, because Act of public authority Contravene provision of national (or European) law Should be subject to review by members of the public Could also be seen as Article 6 related Aarhus decision Article 9 par 2 would be applicable Barrier 1: EIA screening Recent ECJ verdict on screening (ECJ C75/08, of 30. April 2009, Christopher Mellor)

Authority is obliged, upon request, to communicate reasons for determination that EIA is not necessary This answer must enable parties to decide whether to appeal against determination, meaning Sufficiently reasoned to make decision on appeal, including Barrier 2: EIA vs permitting decision EIA is not necessarily permitting decision Relationship of PP and AtJ of both procedures not always clear for authorities

and judges In CR and SR not possible to appeal EIA outcome because courts argue it is not a decision Contradicts not only Art 10a EIA directive that does not necessarily refer to permitting decisions But likely also Article 9 par 2 Aarhus, since EIA statement (outcome) is an act Barrier 2: EIA vs permitting decision MS have to provide mechanisms to overcome this problem either by legislation

or practice In Austria EIA is by the same time permitting decision Barrier 3: Standing and Impairment of rights Article 6 AC + 10a EIA provide for AtJ for members of the public concerned; Standing can be limited by establishing criteria such as Impairment of rights or sufficient interest; however Obligation to provide wide access to justice and in addition

NGOs always fulfil the requirements Austria: Neighbours have only standing if property and health rights are impaired Germany: NGOs have to prove impairment Barrier 3: Standing and Impairment of rights Germany, Slovenia, Malta: Difficulties for NGOs to obtain standing due to restrictive and comprehensive criteria Czech Republic: Procedural rights of NGOs need to be impaired + participation in previous permitting procedures

ACCC (Belgium): AtJ should be presumption, not exclusion Estonia and Hungary provide wide standing for public concerned Barrier 4: Limited scope of review Some countries limit scope of review, partly based on limited standing standpoint Confusing provision in Art 10a (challenge public participation provisions) Austria: neighbours can only invoke property and health

Czech Republic: Limitation to their procedural rights Similar situations in several countries Positive again Hungary, Estonia Austria: NGOs have ex-lege right to invoke Barrier 5: Prohibitive costs J&E Price of Justice Report 2009 The AC provides in different Articles

free of charge Inexpensive reasonable costs not prohibitively expensive Court and administrative fees are normally not problematic, but Loser pays principle Cost of evidence (in Austria up to 20.000 EUR in EIA). Barrier 5: Prohibitive costs J&E Price of Justice Report 2009 Legal aid available in most countries

Not always for NGOs Subsistence of persons to be endangered Not so much used in field of environment Does not solve problem of costs for evidence Barrier 5: Prohibitive costs J&E recommendations Procedures should be free of charge or inexpensive

In particular with regard to evidence costs System of waivers and allowances for court fees should be applied Loser pays principle only with strong restrictions (e.g using caps, excluding certain parities from recovery (like governmental bodies) Legal aid also for NGOs Environmental cases Barrier 6: Effective remedies Case example Austria (S1 West motorway)

Motorway EIA permit issued in May 2006 Appeal to Court in June 2006 Scheduled constructions start in autumn 2006 Court abolishes EIA permit in July 2007: Construction far proceeded, irreversible damage Court enables developer to obtain new permit until 31. Dec 2006 New EIA permit issued on 28. December 2007 Appeal against decision in February 2008 Court confirms EIA permit in summer 2008 Motorway open for traffic late 2009 Barrier 6: Effective remedies Access to Justice shall be

Adequate and effective Injunctions when appropriate What is meant by adequate and effective remedies? Measures can fully compensate past damage or at least prevent future damage Measures should be capable of efficient enforcement ACCC: system where (the only) access to justice in relation to EIA permit is only provided after the construction started contradicts EIA directive and 4. Justice outside national law

European Ombudsman Petition to European Parliament Complaint to EC Espoo and Aarhus Compliance Committee Last resort For strategic issues in particular Normally not remedy for case, but legal clarification 5. Conclusions Barriers on Access to Justice deprive from different issues, such as Legislative gaps or vagueness Incorrect practice and interpretation

Lack of know how Political pressure Conservative legal traditions 5. Conclusions Lawyers and NGO should aim to Raise issues in procedures and strive for progressive case law Use ACCC case law for interpretation of the Convention Initiate discussions among lawyers, in particular judges Lobby for legislative clarifications Call upon European Commission to raise

pressure on Member States and provide guidance on Access to Justice Thomas ALGE Justice and Environment OEKOBUERO www.justiceandenvironment.org www.oekobuero.at www.participate.org [email protected] ACCC case law: http://doku.cac.at/case_law_accc.pdf www.unece.org/env/pp

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