“Our environmental democracy programme is really about ensuring better enforcement and implementation of the Aarhus Convention, which provides the public with the rights of access to information and public participation in the decision making process, and access to justice in environmental matters,” Berthier says. According to the UN Economic Committee for Europe (UNECE), which administers the 1998 treaty, it provides “the only legally binding global instruments on environmental democracy”.
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ClientEarth argued that the EU's interpretation of the convention through its 2006 Aarhus Regulation left citizens and NGOs facing near impenetrable barriers to challenging EU decisions in the European courts in Luxembourg. A decade on, the complaint ClientEarth lodged with the Aarhus Convention Compliance Committee (ACCC) appears to be bearing fruit.
The Compliance Committee ruled in March 2017 that the EU was in violation of the Aarhus Convention, as its legislation denied NGOs the chance to directly challenge decisions by EU institutions at the General Court and Court of Justice. The EU executive initially stood its ground, questioning the findings of the committee, but last year the EU Council instructed the Commission to review the effectiveness of the Aarhus Regulation. The EU executive quietly published its report last month.
“For the first time ever the Commission has recognised the truth that there are difficulties, that NGOs have never been able to fulfil the conditions that are imposed by the treaty and enjoy legal standing before the courts,” Berthier said. “There is not a single case where a European citizen or NGO has been able to challenge a decision of a European institution except in access to documents cases,” she said.
The way the Aarhus Regulation is drafted now means that NGOs are only allowed to challenge acts of ‘individual scope’, such as acts addressed to one particular company, she said. “That's the main obstacle that NGOs face to have decisions of EU institutions reviewed.”
It means, for example, that campaigners were unable to directly challenge the re-authorisation of the controversial herbicide glyphosate in the EU courts, as the relevant legislative act is general in scope, applying to all firms marketing or manufacturing the substance in Europe. However, even the individual scope offered by the Aarhus Regulation has proved limited as interpreted the EU courts.
The General Court rejected ClientEarth's 2016 challenge to an authorisation for three companies to use the endocrine-disrupting phthalate DEHP. “In its verdict, the General Court confirmed that NGOs and members of the public could not have access to a procedure to directly annul the authorisation of DEHP granted by the Commission,” Berthier said.
And the narrow interpretation of scope is not the only problem for would be litigants – the other is in the definition of what ‘acts’ by EU institutions can be challenged: namely that they must be adopted specifically under EU environmental law.
“That may sound logical, but the reality is that certain institutions have been interpreting that criteria in a way that restricts the type of acts that can be challenged,” Berthier said. Measures adopted via any number of regulations or directives could have serious environmental consequences regardless of the category of the legislation used, she argues.
But all this could be about to change: government ministers have set a deadline of 30 September 2020 to propose revisions to the Aarhus Regulation “where appropriate”, in an EU Council decision – a rarely used procedure that Berthier describes as a “first in environmental matters”. The governments of France, Italy, Luxembourg and Spain even complained that the decision had been too soft on the EU executive, leaving leeway for it to argue no change is needed.
With the Commission having submitted its report last month, the ball is once again in the court of the EU Council, where government delegates are now debating whether to instruct the Commission to prepare legislative proposals based on the outcome of the study.
Despite being a lawyers’ collective, ClientEarth views the litigation route as a last resort. “I think we can say that the EU has the most advanced and comprehensive environmental legislation in the world, and the bulk of it is good,” Berthier says. Reviews of EU legislation suggest that this view is widely shared: recent months have seen environmental campaigners argue against reforms to the EU's Birds and Habitats (collectively, Nature) Directives and the Water Framework Directive, aimed at protecting biodiversity and water quality – just two areas where the EU is failing to meet its own targets.
“We resort to litigation when we see that economic and financial interests are overriding the public interest – when the authorities and decision makers are failing to ensure the protection of the public and the environment, and when there is no point in further discussion,” Berthier said.
To date, ClientEarth has lodged 36 complaints with the Commission about non-compliance with EU law, launched 20 cases against the EU executive itself at the European Court of Justice, and made 10 complaints to the EU ombudsman against the actions of either the Commission or the Council.
In addition to this European-level work, the group has brought 201 cases to national courts, 82 of which are related to the coal industry, including a recent case involving Poland's huge Belchatów power plant. A further 62 are related to breaches of clean air legislation, an area where breaches of EU law are so commonplace that the Commission has been forced adopted a tougher approach.
“The legislation we have in place is not correctly implemented, it is not being enforced by governments,” Berthier says. “That’s why we have to ensure that members of the public have access to justice to enforce this legislation.”