In March 2023, the European Commission proposed the Critical Raw Materials Act (CRMA) with an aim to boost the domestic production of materials deemed critical to the green and digital transition, thus reducing dependency on other countries. Setting too much store by this autonomy drive would be naïve, since the EU only has limited reserves of these materials in its territory. And yet, the Commission looks ready to dismiss communities’ concerns in the name of getting ahead. In this article, we consider how environmental rights, such as those enshrined in the Aarhus Convention, can ensure the race for raw materials doesn’t derail the just transition.
Margarida Martins and Ruby Silk report.
Speed limits
The CRMA draft law establishes a list of “strategic raw materials” (among others, lithium, cobalt, manganese, and copper) that are subject to a domestic production target and accelerated permitting procedures. It is the manner in which the Commission plans to speed up permitting which is most concerning for communities’ rights as well as environmental protection.
As the plans stand, these projects will benefit from fast tracked permitting and some will be considered of ‘overriding public interest’, which could give them priority, for example, over EU nature protection laws and local or regional laws. There is no obligation for all the projects to comply with EU due diligence law, to carry out Environmental Impact Assessments (EIAs), or to gain community consent.
It is the manner in which the Commission plans to speed up permitting which is most concerning for communities’ rights as well as environmental protection.
We have already seen this worrying trend in the RePowerEU plan, which includes provisions that allow developers to build renewable energy projects without EIAs, access to justice or public consultations. As well as undermining democracy and the rule of law (as these rights stem from the legally binding Aarhus Convention on environmental rights), curtailing these rights is proven to lead to less effective, just and environmentally-friendly legislation.
In both cases, accelerated permitting processes are based on the false premise that public involvement is a hindrance to a timely green transition (when in reality the obstacles are quite different!).
To avoid public backlash, messy lawsuits, and, in the longer-term, causing damage to people’s lives and the environment, it is critical that environmental rule of law is respected in the CRMA, including the environmental rights manifested in the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.
Access to information
It is paramount that environmental information related to a mining project be publicly available, accessible and actively disseminated by the competent national authorities. Transparency and access to the relevant information is a prerequisite for the public to be able to exercise the other two Aarhus rights – public participation and access to justice – and is therefore a cornerstone of climate and environmental governance.
Right to be heard
Extractive projects regularly face a lot of local resistance, and rightfully so, since the public affected is very often left out of the decisions that will have a huge impact on their lives. Involving the public in decision-making is not only a requirement of the Aarhus Convention, but can also increase public acceptance of a project.
Involving the public in decision-making is not only a requirement of the Aarhus Convention, but can also increase public acceptance of the project.
Presumed public consent alongside the absence of public participation or substandard public participation processes – or exercises in ‘citizenwashing’ – are guaranteed to inspire further resistance in the future, in addition to political disillusion. An example of this happened recently in Portugal, in Covas do Barroso, where the local community was given only 10 days to reply to a public consultation within an Environmental Impact Assessment (EIA) process for a mining project. The mining company had been given three years to make their case. Similarly, the Commission’s CRMA proposal makes reference to “facilitating public acceptance” (as opposed to ensuring acceptable projects!) which raises concerns about their commitment to really listen to the public.
Right to say no
In addition to the Aarhus rights that must be ensured in this legislation, the right to say no should also be guaranteed. The right to say no is the collective and inalienable right of local communities affected by mining projects to have a say on whether extractive activities will start or continue in the territories or lands they live in. Including the right to say no would guarantee a level playing field so that those affected could engage in decision-making from a position of security, also helping to temper strong initial backlash.
Including the right to say no would guarantee a level playing field so that those affected could engage in decision-making from a position of security…
Currently, there is no real ‘right’ to say no outside of iterations of the indigenous right to free, prior and informed consent (FPIC), which is recognised by the UN Declaration on the Rights of Indigenous Peoples — it is a right that civil society is asserting, and that decision-makers should embrace and implement whenever an extractive project exists or is planned.
Right to go to court
Access to justice is an environmental right and a democratic tool recognised in the Aarhus Convention and is key for the enforcement and correct implementation of the law as well as the other Aarhus rights. It is essential that members of the public, including environmental NGOs, have access to their national courts to challenge the legality of decisions, acts or failures to act of the competent authorities under the CRMA. For example, if the national authorities do not allow for a sufficient time-frame for consulting the public concerned on the environmental impact assessment report, the public must be able to demand the respect of this right in court.
Securing a just transition for all
The draft law will still be negotiated between the European Parliament and Council, with negotiators hoping to find an agreement before the end of the year.
EU institutions must first and foremost recognise that reduction is the key to a sustainable future; the EU should aim to decrease raw material consumption by at least 10% by 2030 and implement recycling strategies, strong circular economy measures and coherence with Due Diligence.
Where mining for raw materials is necessary, it is crucial that the highest environmental and social standards are in place. These measures must ensure that proposed and ongoing projects pose little to no risk to the surrounding environment and biodiversity, inform local and Indigenous Peoples and effectively include them in the decision-making process.
For more information on these demands, read this civil society Position Paper.
For more information on the right to say no, see here the EEB’s legal toolbox for communities affected by mining in the EU.
