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EU rulemaking bodies might open door to citizen-led climate lawsuits

17 June 2021 Kevin Adler

The European Parliament, Council of the EU (Council), and the European Commission (EC) are coming closer to resolving a longstanding barrier that members of the public and nongovernmental organizations (NGOs) incur when seeking to challenge EU regulations in the bloc's courts.

Presently, individuals are barred altogether from enforcing environmental law before EU courts, while NGOs can go to court only in very specific cases, such as to challenge certain chemical approvals. NGOs cannot attack other decisions, such as those involving harmful pesticides or excess GHG emissions, nor can they bring other broad-reaching environmental litigation citing public interest. However, companies can file lawsuits with the court system by arguing their financial interests could be harmed.

EU member nations have opposed expanding the interpretation of the right-to-sue, stating that the ability to sue member nations is sufficient and that NGOs have the ability to appeal administratively to have an EU court hear a case. They have also said that a wider application of the right-to-sue would place an immense new burden on regulators.

For more than a decade, public interest groups have charged the policy violates the Aarhus Convention, which set out rules for challenging environmental law violations. The Aarhus Convention, authorized under the UN Economic and Social Council, was negotiated through the EC and has been signed by the EU and 46 nations in Europe and Central Asia. It's been in force since 2001.

In 2017, the Aarhus Convention Compliance Committee agreed with a complaint filed by nonprofit ClientEarth that the EU's policy on legal challenge to environmental law was in violation of the convention, setting the review in motion.

With the next meeting of the Aarhus Convention signatories coming this fall, the parties are on the clock to come up with a solution. In May, the parliament passed a report that outlined its plan to open the EU courts to NGOs, offering significantly more access than proposed by the Council late last year. Ultimately, the parliament, whose members are elected by the citizens of the EU, and the Council, whose members are government representatives from the EU, must reach agreement on a new litigation policy that will meet the standards of the convention. The EC, which is the EU's administrative body, is the chair of the negotiations, and has formally proposed the legislation to change the policy.

Negotiations

Speaking with IHS Markit in early June, Anne Friel, environmental democracy attorney for ClientEarth, called the parliament's May proposal "quite significant."

"The parliament's [May] report ... is a vast improvement on the Commission's proposed reform of the Aarhus Regulation and would bring the EU closer to compliance with international law on access to justice under the Aarhus Convention," said ClientEarth, which brought its complaint in 2008.

"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," ClientEarth continued.

The way things stand at the moment, Friel said there are three options for individuals to bring environmental cases to the Court of Justice of the European Union. The first is with a direct challenge, but current EU policy makes this impossible because the plaintiff must show that he or she is affected in a unique and peculiar way as opposed to all other persons, which is impossible in environmental cases.

The second route is that a national court of an EU member state can send a question to the EU court. At its strongest, that referral could be accompanied by a recommendation to strike what the national court believes could be an unlawful EU act. "When the EU signed the Aarhus Convention, they realized that probably wasn't going to cut it ... and came up with the third route," Friel explained.

Under the third route, a plaintiff can petition the EU to review whether an institution is in breach of an environmental law. If that review is rejected, the plaintiff can go to the EU court. But this route is currently only available for a very limited set of decisions, such as certain chemical approvals.

The parliament's framework would "make the third route usable," said Friel. "They reached a good position that complies with international law."

As examples, if the parliament's stance becomes the new policy, Friel said citizens and NGOs could file suit against EC approvals of funding for coal-fired power plants or of rules that permit production of vehicles with emissions above legal limits. Citizens and NGOs also could challenge subsidies granted to industries on the grounds that those industries are harming the environment and interfering with achieving decarbonization targets. "This is essential to the delivery of the EU Green Deal," Friel said.

The European Green Deal is a package of policies and investments that will allow the EU to cut emissions as pledged under the Paris Agreement and the 2030 Climate Target Plan, putting it on track for climate neutrality by 2050.

But there's no guarantee the new proposed rules will be adopted because the parliament's position clashes with the Council's.

From Friel's perspective, the EC's position, which was announced in December 2020, does not meet the Aarhus Convention's standards. "They have tinkered around the edges" since then, she said, "but haven't changed enough. So now, based on these two negotiating positions, they will try to thrash out a deal."

The EC issued a report in 2020 that identified what it called the two shortcomings in the current regulation that will be at the heart of the discussions:

  • "The current possibilities for administrative review under the regulation extend only to administrative acts of individual scope and do not include acts of general scope. This has been identified as the main limitation for NGOs seeking to challenge administrative acts at EU level."
  • "The current scope only covers acts 'under' environmental law. Article 9(3) of the convention uses a different wording, referring to acts 'which contravene provisions of (…) law relating to the environment'. Although the current wording in the regulation, as interpreted by the case law of the Court of Justice, is broad, there are doubts as to whether its scope accurately matches that of Article 9(3) of the convention."

The parties are expected to consider a broader definition of "administrative act" to enable NGOs to seek an administrative review of any legally binding EU regulation that might contravene environmental law (with a few exceptions). They will also discuss a broader scope of what is considered a potential violation to allow for challenges to rules and regulations that were not adopted as environmental laws, but which could result in violations of EU environmental law.

Those types of adjustments could go a long way towards correcting what legal scholar Markus Gehring described as years of resistance by EU bodies and courts. "Yet in spite of its clear obligations, EU courts have consistently debunked pleas for softening of requirements in direct actions against EU acts in environmental law. The internal review procedure set out by the 2006 Aarhus Regulation has also been interpreted so restrictively that its added value in striving for better access to courts in environmental matters remains ephemeral," Gehring wrote in 2020.

Aarhus Convention meeting

The Aarhus Convention countries will hold a meeting in October, and pressure is on the parties to come up with an agreement by that time. The parliament and the Council will have to reach a compromise, which will then have to be passed by a vote of each body. With the Aarhus Convention as "one of the rare functional compliance mechanisms in international law," according to Friel, the position of the EU to uphold it will weigh heavily on all the 47 signing nations, some of which do not have domestic rule-of-law as strong as EU member countries.

Neither the Council nor the EC would provide a comment to IHS Markit on the negotiations, but on 11 June ClientEarth noted that EU Commissioner for the Environment Virginijus Sinkevičius expressed reservations about the parliament's plan during a meeting of the EU Environmental Council, again citing the increased workload on regulators.

However, other representatives appear to favor the parliament's position. "As Luxembourg's Minister Ms. Carole Dieschbourg said in the meeting, not only the EU's credibility but the survival of the Aarhus Convention as a whole is at stake. Member states must clearly position themselves on the side of international law compliance and environmental protection," Friel said.

At the Council meeting, Austria, Belgium, Denmark, and the Netherlands also publicly expressed support for changing its policy to align with the Aarhus Convention.

Impacts

While the new policy would open new doors for litigation, the current policy has not stopped parties from challenging companies and governments in national courts for lack of progress on decarbonization and GHG emissions reductions. Most notably, the Hague District Court on 26 May ruled Shell Group's Netherlands-based parent company, Royal Dutch Shell, owed the Dutch people an unwritten standard of care based on international human rights law through their obligations under the Dutch Civil Code, and must deepen the group's CO2 emissions cuts in 2030 to a net 45% below 2019 levels across the group's "entire energy portfolio."

But other situations have illustrated the limitations of the lack of a cross-EU litigation option. In March, the European Court of Justice dismissed a case in which families and indigenous Saami youth from France, Germany, Italy, Portugal, Romania, and outside the EU sought a ruling that the EU's target of a 40% GHG reduction by 2030 was insufficient to protect them from the impacts of climate change. The case was dismissed because the court ruled that citizens cannot challenge EU legislation unless they are affected in a "unique and peculiar" way.

"Unless citizens and NGOs are provided access to the EU courts, through the revision of the Aarhus Regulation, the EU courts would keep closing doors to people hit by the climate and other environmental crises as they fear it would open the floodgates to numerous cases that citizens would bring in order to challenge the EU on environmental grounds," said Harriet Mackaill, governance policy officer at Climate Action Network Europe.

The impact goes beyond carbon emissions to include dangerous chemicals, fishing quotas, and water quality. Environmental issues are interconnected, but litigants cannot make challenges to change those regulations or enforce those laws either. "It's impossible to bring these types of cases to the EU, and the EU is responsible for a lot of the decisions that really have an impact on global warming and biodiversity loss; it's a huge gap because states can only be held accountable for their part," Friel said.

Just like environmental impacts know no boundaries, national courts in Germany, France, Ireland, and elsewhere are looking closely whether their governments have a duty to comply with EU environmental rules, Friel said. Again, however, that cannot be raised to the court of the entire EU under the current policy.

The other issue is that EU laws filter down to national laws, thus enhancing their impact—for better or worse. This makes it even more important that the laws can be challenged at the EU level. "By some estimates, 80% of national laws on industrial waste, habitat protection, and other environmental issues flow down from EU laws," explained Diane Vandesmet, strategic communications officer for ClientEarth.

Posted 17 June 2021 by Kevin Adler, Editor, Climate & Sustainability Group, IHS Markit

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