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European Parliament agrees to expand access to courts for citizen-led climate lawsuits

05 October 2021 Kevin Adler

The European Parliament voted on 5 October to approve new rules that ease the ability of non-governmental organizations (NGOs) to sue in EU courts over environmental regulations.

The vote was 554 to 127, with 10 abstentions, and it nearly brings to an end a lengthy battle over how the Aarhus Convention is interpreted.

The Aarhus Convention, authorized under the UN Economic and Social Council in 2001, describes how the public can have a role in international regulation. It's been signed by the EU and 46 nations in Europe and Central Asia.

The issue has been how the European Commission (EC) interpreted its obligations under the convention. In 2008, ClientEarth, an NGO, filed a complaint with the Aarhus Convention Compliance Committee over the strict limits on litigation by citizens of the EU, and in 2017 that complaint was upheld by the Aarhus Convention Compliance Committee.

With the vote on 5 October, Members of the European Parliament (MEPs) agreed to amend the bloc's interpretation of the Aarhus Convention to comply with that finding. Until now, only NGOs could use the Aarhus procedure, and they could only use it to challenge a very limited number of EU decisions.

The EC's new interpretation of Aarhus will take effect after it is ratified at the meeting of the Aarhus Convention on 18-21 October.

"This is an historic moment that gives civil society a voice in the EU courts to protect the environment. Members of the public will now be able to hold EU institutions to account on their various obligations to fight climate change and biodiversity loss. It is an extra tool that will be crucial to enforce environmental laws and ensure EU decisions do not contradict the EU Green Deal," said Anne Friel, environmental democracy attorney for ClientEarth, which brought the lawsuit in 2008.

Under the new rules, groups that consist of least 4,000 EU citizens, including at least 250 from each of five member states, will now be able to request a review of administrative decisions for their conformity with environmental law. Until now, this was only possible for recognized NGOs.

"Access to justice is one of the key pillars of the Aarhus Convention," Martin Hojsik, an MEP, wrote on social media after the vote. "We as EU need to lead by example—not set conditions to fulfilling our obligations and to giving people proper access to justice on [the] environment."

To further improve access, the new rules state that "the costs of the review process should be limited," and that "EU institutions will only request reimbursement for reasonable costs in such proceedings."

The new policy balances the need for more citizen input with the need to not delay regulations unnecessarily, Rapporteur Christian Doleschal said in a statement. (As the rapporteur, Doleschal reports on the proceedings.)

"We have ensured the EU's compliance with its international obligations. We clarified that court proceedings should not be prohibitively expensive. We increased transparency," he said, then added: "We averted the danger of an 'actio popularis' where any citizen can put a stop to major EU projects and decisions via an administrative review that was intended to be a purely supplementary legal remedy. All in all, this was a very positive outcome."

Changes

The change in court access is significant, Friel said. Currently, an environmental review of an administrative act can only be requested for acts of "individual scope," that is those which directly concern a single person. Friel explained that it's basically impossible to meet that standard for an environmental law because nobody can show they are uniquely affected.

This restriction will be eliminated. "Under the new policy, it will also be possible to request a review for any non-legislative administrative act of 'general scope,'" the European Parliament said in a statement.

Friel said that future challenges could be lodged in EU courts about emissions standards on vehicles, allowable levels of pesticides, or the setting of fishing limits.

"Access to justice is a basic right in every democracy, but NGOs and members of the public have almost never been entitled to go to the EU courts to protect the environment. The parliament has made a vital step by championing this right," Friel said.

To cite an example of the convention in action, Serbia is currently developing a national waste management plan. The Aarhus Convention requires certain forms of disclosure and periods of time for public input when the regulation is being developed. Stakeholders in Serbia say those standards have been violated, and they say the proposed rules are inadequate because they do not include single-use plastics. They are using the convention's standards to push for greater consultation during rulemaking.

When the new rules are in effect, opponents who meet the parameters being put in place could challenge the waste management law more easily on both process and content.

Another example is the EU Green Deal, in which the bloc is committing to reducing emissions by 55% on 1990 levels by 2030 and climate neutrality by 2050. So, new regulations written under this law could potentially be challenged.

Seeking more reform

The MEPs, however, left intact two aspects of their interpretation of the Aarhus Convention that raises concerns for ClientEarth.

First, EU state aid decisions, such as financial support for a fossil fuel project, still cannot be challenged under the Aarhus Convention. The MEPs approved a study of that aspect of the rule under the direction of the EC, with a possible amendment coming in 2023. "Unfortunately, the EU is still undermining the convention by refusing to endorse the findings against it on state aid," Friel said. "By trying to obtain special treatment, the EU erodes the trust and cooperation between the parties and weakens the foundations of this international treaty. We call on the EU to lead by example and fulfil its own commitment to the rule of law."

Second the new policy applies only to regulations; it still prohibits challenges to EU legislation.

Posted 05 October 2021 by Kevin Adler, Editor, Climate & Sustainability Group, IHS Markit

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