1. Thomas ALGE Justice & Environment OEKOBUERO 19. October 2009 Removing financial and other barriers for effective remedies in EIA procedures

2. 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

3. 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

4. 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, Slovenia Via Iuris - Slovakia

5. 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)

6. J&E major expertise Aarhus Convention EIA/SEA Climate Change Environmental Liability and Crime Air and Noise Nature protection

7. 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

8. 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 professionals, in particular judges

9. 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)

10. 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“

11. 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

12. 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

13. 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

14. 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 “

15. 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

16. 3. EIA related AtJ obstacles Review of EIA screening decision Review of EIA and it’s permitting decisions Impairment of rights doctrine vs Article 9 par 2 Scope of review: Procedural vs substantive law Prohibitive costs Effective Remedies

17. 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  PP provisions only applicable if EIA

18. 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

19. Barrier 1: EIA screening Recent ECJ verdict on screening (ECJ C-75/08, 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  Added factors parties are not aware of  Any necessary additional information

20. 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” relating to Art 6  Furthermore critical as to “effective” and “timely” remedies, if longer time period between permit and EIA

21. 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

22. 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 of rights  EU regulation: Only NGOs have standing

23. 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  Similar Hungary, NL, IT, IR, UK

24. 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 any environment related law in EIA and IPPC permits

25. 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).

26. 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

27. 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  Evidence and related cots

28. 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

29. 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 Article 9 par 2 of AC

30. 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

31. 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

32. 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

33. Thomas ALGE Justice and Environment OEKOBUERO www.justiceandenvironment.org www.oekobuero.at www.participate.org thomas.alge@oekobuero.at ACCC case law: http://doku.cac.at/case_law_accc.pdf www.unece.org/env/pp