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European bodies agree on policy for wider access to EU courts for environmental suits

13 July 2021 Kevin Adler

Members of the European Parliament (MEPs) and the European Council reached an agreement on amending the Aarhus Regulation, and thereby enabling members of the public and nongovernmental organizations (NGOs) to sue in EU courts when calling for environmental law to be enforced.

The agreement ends an impasse between the parliament and the Council last month in which the parliament's proposed new rules were seen as more supportive of public input, while the Council's were seen as a more modest change from prior policy.

Under the draft new policy, which must be ratified by both the European Parliament and the Council, groups of individuals consisting of at least 4,000 citizens, including at least 250 from five different member states, can file a lawsuit in the EU courts. They must cite "specific concerns about certain administrative acts' compatibility with environmental law, [and] will now also be able to request a review of administrative decisions for their conformity with environmental law," according to a statement from the parliament on 12 July.

Assuming the agreement is ratified, it will resolve a lawsuit filed in 2008 by ClientEarth, a Brussels-based NGO, which said it faced too many barriers to bring lawsuits on behalf of the public interest. ClientEarth could sue in the court of a specific country, and then ask that court to move the litigation to the EU Court of Justice, which was rarely successful. Or, it could go directly to the EU court to ask for a review of whether a breach of environmental law had occurred, but that was restricted to a limited set of issues, primarily approvals of certain chemicals.

In 2017, the Aarhus Convention Compliance Commission ruled in ClientEarth's favor, setting in motion tripartite negotiations involving the parliament, the Council, and the EU that has yielded the agreement. The Aarhus Convention has been signed by 47 nations, making it one of the wider applications of international law.

It will be a major change in policy, the parliament noted in the statement: "Today, it is only possible to request a review of administrative acts, which specifically contribute to the pursuit of environmental policy objectives. With this deal, any administrative act that contravenes EU environmental law may be subject to review, irrespective of its policy objectives."

ClientEarth attorney Anne Friel issued a statement indicating that the group is satisfied with the proposed new policy. "The EU has finally decided to lift the main obstacles preventing people and NGOs from challenging unlawful EU decisions that affect people's health and the environment. This is crucial to empower people and civil society to enforce environmental laws and ensure EU decisions do not contradict the EU Green Deal," she said.

Under the old policy, an NGO such as ClientEarth could sue an individual company in EU court for violating an environmental law or regulation, but could not sue over the law or regulation itself, she said.

If the new policy is enacted, Friel explained to Net-Zero Business Daily last month, NGOs could file suit against approval of funding for coal-fired power plants or about rules that permit production of vehicles with emissions above legal limits.

"We are very pleased that the EU institutions have finally decided to allow the public to access EU courts in line with international law," she said. "The EU makes big promises on environmental protection and democratic accountability. It must lead by example."

The new policy contains several other access and transparency measures. The policy expands the challenges to both national and EU-wide laws and regulations. It prohibits EU institutions from seeking reimbursement beyond "reasonable costs" in such proceedings. And it mandates that EU institutions publish all requests for reviews and their decisions about the requests.

However, ClientEarth said that more could have been done. In particular, Friel noted that the plan keeps intact a restriction on challenges in EU court of state aid decisions, leaving that to a study committee for further recommendation in 2023.

After a year in which COVID-19 relief funds and the EU Green Deal have directed tens of billions of euros to energy, climate programs, and environmental projects, Friel said the courts are a crucial backstop to ensure those funds are being spent wisely. "The EU must stop subsidizing the economic activities that contribute most to the climate and biodiversity crises we are facing. Allowing the public to challenge state aid authorizations that break environmental law is vital to this fight," she said.

The parliament-Council agreement still needs to be formally approved by both the parliament's Committee on Environment, Public Health and Food Safety as well as the full plenary and the Council. But, if all goes according to plan, the new policy will be presented and accepted at the next Aarhus Convention meeting in October.

"This deal will ensure the EU's compliance with its international obligations," said MEP and Rapporteur Christian Doleschal in a statement. "Our solutions ensure respect for the EU treaties and provide legal certainty. We clarified that court proceedings should not be prohibitively expensive. We increased transparency."

At the same time, he noted that the agreement limits complaints to acts of "general scope," rather than "individual scope" affecting one person. "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," Doleschal said.

Posted 13 July 2021 by Kevin Adler, Editor, Climate & Sustainability Group, IHS Markit

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