Who’s standing in the way of environmental justice?

The European Union has been severely criticised for failing to accept UN findings that it is in breach of international law on environmental justice.

The UN Economic Commission for Europe’s Aarhus Convention Compliance Committee, made up of respected, independent experts on international law, published its ruling earlier this year. It found that EU laws do not go far enough to ensure that citizens have access to the European courts to challenge environmentally sensitive decisions.

The European Union’s response since the ruling was issued has astonished legal experts and campaigners alike, who point out that it undermines the EU’s position as a defender of the rule of law on the international stage.

At  the Meeting of the Parties of the Aarhus Convention (MoP), held in Montenegro in September, EEB Secretary General Jeremy Wates delivered a strongly-worded statement to the several hundred assembled delegates on behalf of the European ECO Forum, a coalition of environmental NGOs. The statement pulled no punches in its criticism of the EU’s position:

“The hypocrisy in the EU’s stance is palpable. Every single finding of non-compliance since the establishment of the compliance mechanism in 2002 has been endorsed […] with the full support of the EU. […] Only now, when the non-compliance concerns the EU itself, has the EU seen fit to challenge the output of the Committee”

As a bloc of 28 countries, the EU has always enjoyed an automatic majority among the by now 46 voting Parties to the Convention, a position of strength which it has previously used to ensure the expert Committee’s findings of non-compliance against other countries were always endorsed.

In an unprecedented move, the EU urged other parties to stop short of “endorsing” the findings against it and instead to simply “take note of” the Committee’s ruling. The Convention’s other parties were unwilling to accept this significant weakening and instead, when the EU refused to agree to any substantive change to its position and effectively presented the other Parties with a ‘take it or leave it’ choice, opted to leave the non-compliance to be discussed again at the next meeting in 2021.

The original complaint against the EU dates back to a formal Communication from EEB member ClientEarth to the Aarhus Convention Compliance Committee back in 2008. Anaïs Berthier, the ClientEarth lawyer that filed the original complaint back in 2008 – the year the organisation’s Brussels office was opened – said:

“Providing members of the public, including NGOs, the right to challenge public authorities’ decisions before the Courts is one of the most efficient ways to ensure the correct implementation of environmental law. It’s one of the first things we did as we wanted to be able to litigate and challenge the EU’s institutions’ decisions before the Court of Justice of the EU.”

The Aarhus Convention is widely considered a remarkable achievement in international law. It grants essential rights to help deliver environmental justice. Parties to the Convention must ensure that citizens are consulted and involved in decisions that affect the environment but they must also ensure that citizens are able to challenge decisions that have already been made.

Both the EU and its 28 Member States signed up to the Convention and committed to implement it into their legal systems.  However, the European Commission argues that the EU is a unique legal entity and that because citizens could challenge decisions through their national courts, there is no need to grant direct access at the European level. This argument was rejected by the independent legal experts on the compliance committee.

EEB Policy Officer Margherita Tolotto, who has spent the last years working on Aarhus implementation, said:

“If a business believes its interests or rights are being undermined by a damaging decision at the European level, they are able to challenge the injustice directly, by taking a case to the Court of Justice of the EU. There’s no reason why the same right shouldn’t be enjoyed by environmental NGOs, working on behalf of citizens and our environment – indeed, the findings of the Compliance Committee are that EU citizens should already have this right enshrined by the EU’s commitments under the Aarhus Convention.”

Environmental NGOs have been calling for greater access to justice at the European level for many years and were delighted to read the Compliance Committee’s ruling when it was delivered in March this year. The Committee published a 24-page dense legal text, which while never likely to appeal to a mass readership, represented an important milestone for all those working on the Aarhus Convention and its implementation.

Yet just when a step towards the full and correct implementation of the Convention seemed assured, and the doors to justice could finally be opened, the European Commission made a proposal that the Committee’s findings should simply be rejected.

Responding to the Commission’s initial proposal in a joint letter in July, the EEB, ClientEarth and Justice & Environment were unequivocal about what the EU rejecting the finding of non-compliance would mean:

“It would seriously weaken the status of the Convention’s exemplary compliance mechanism, emboldening other countries in the wider region with poor human rights records to challenge the findings of the Committee when they are found in non-compliance. It would thereby severely weaken the implementation of the Convention itself, setting back almost two decades of progress in promoting environmental democracy throughout the continent of Europe and Central Asia.”

EU Ministers responded to the warning by unanimously rejecting the Commission’s proposal and instead reaching a compromise whereby the MoP would “take note” of the findings, rather than “endorse” them. However, this proposal failed to win over the other parties to the convention at the meeting in Montenegro in September. Instead, a formal decision about the EU’s non-compliance will have to wait four more years.

In the meantime NGOs will continue to fight for environmental justice and push for the full implementation of the Aarhus Convention at both national and EU level. The EU meanwhile faces serious questions about why it worked so hard to block legal rights that enforce democratic accountability and help protect the environment, and which should already be guaranteed to all Europeans.