When our governments make decisions that harm people and the planet, we must be able to challenge them. But this depends on having access to national courts. It is crucial that access to justice is built into climate laws and the updating of laws under the Fit for 55 Package presents an important opportunity to do so, write Margarida Martins and Ruby Silk.
What is access to justice?
What if citizens could take their governments to court and force them to make good on their climate commitments? With access to justice, they can. This is exactly what happened in the Urgenda Climate Case against the Dutch Government. Dutch citizens established that their government had a legal duty to take more effective action on climate change and, in a historic victory for climate justice, the court agreed.
Access to justice is a democratic tool that people and NGOs can use to hold their governments and authorities accountable. In environmental and climate matters, it guarantees citizens the ability to ask review bodies or courts to verify whether a public authority has respected the rights and fulfilled the requirements created by environmental and climate laws. But the right to access to justice cannot be taken for granted.
Is access to justice guaranteed?
The Aarhus Convention and its three pillars – access to information, public participation and access to justice – are the cornerstones of environmental and climate governance. Both the EU and all its Member States are parties to the Convention and therefore have an obligation to implement all pillars.
In reality, however, environmental and climate governance at the EU and national levels is far from ideal, with access to justice being the most poorly implemented pillar of the Aarhus Convention. At the EU level, the Aarhus Regulation (the law through which the Aarhus Convention is implemented for the EU institutions) was recently revised to allow for better public scrutiny of EU acts affecting the environment, but it still fails to guarantee access to justice for all decisions relevant to environmental policy. At the national level, rules on access to justice are hopelessly fragmented and no harmonising EU law, such as a specific directive on access to justice, exists to address this problem.
Are climate goals bound to fail without access to justice?
Sometimes when people take to the streets to protest climate inaction, or vote for greener policies and demand change, political promises are made. Sometimes, laws, based on these promises, are put in place. But often these laws don’t create the change they ought to, and protestors are forced to take to the streets again.
If citizens don’t have the power to take their governments to court, then laws cannot be properly enforced. Without access to justice the best climate law in the world has no bite and the cycle depicted above repeats itself. For climate law to work national authorities must be accountable to their citizens in courts.
The Paris Agreement, for example, contains many unenforceable commitments, rendering it toothless. The fact that even the EU is not meeting its commitments under the Agreement proves the harmful consequences of laws that don’t provide for access to justice. Without the possibility to challenge decisions that could harm the environment, the EU’s climate commitments and ambitions, including the entire European Green Deal, will also be undermined.
Picking up the pieces: institutions’ inaction on access to justice
To date, the EU has not issued legislation that would provide a general framework for access to justice across the Member States and allow citizens challenge infringements of all environmental laws.
In 2020, the Commission published a Communication on access to justice in the EU and the Member States. Rather encouragingly, it included a commitment to introduce access to justice provisions in every new legislative environmental proposal, calling on the Council and Parliament to support this. This would clarify and make explicit the obligation that Member States have to grant the public the ability to challenge decisions that affect the environment and climate. Currently, the EU institutions are not adhering to this commitment.
The Fit For 55 Package is the most comprehensive review ever on EU rules on climate policy, and an opportunity for EU institutions and civil society to cooperate. Sadly, in the Fit for 55 Climate Package, access to justice provisions have been left out of many of the legislative proposals and civil society has been left to pick up the slack in fighting to get them in. Access to justice provisions would add resources for enforcement and enable more immediate action against breaches of environmental law. It would also mean that citizens could hold their own national authorities accountable in their own courts, for commitments that national politicians made in Brussels.
“In light of this year’s IPCC report, the Fit For 55 Package has become more important than ever. But the package’s promises will not be fulfilled if the legislation doesn’t allow people and NGOs to take action when their country is not hitting the mark.”said Frederik Hafen, Policy Officer for Environmental Democracy at the EEB.
Good governance: Enforcement, accountability and democracy
Just as we cannot build a fence with wood planks alone, without nails or a hammer (or gavel), environmental laws do not stand up without good governance, including access to justice. Climate and environmental laws must have strong governance frameworks – underpinned by the principles of the Aarhus Convention – to ensure that the EU and the Member States, who will need to implement the legislation, can be held accountable on their obligations.
As demonstrated by the success of the Urgenda Climate Case, the role of NGOs and individuals in enforcement through the courts can be far-reaching, but it depends on citizens having effective rights in national procedural rules. To this end, including a standalone provision on access to justice in all EU climate legislation will be key.