Opole University1 Jerzy Jendrośka Procedural environmental rights: current status, recent trends and key challenges Annual EELF Conference 2016 Procedural Environmental Rights: Principle X in Theory and Practice September 2016 Wrocław, Poland

Opole University2 Content Genesis, developments and role of the Aarhus Convention Legal framework in Europe Transparency Participation Access to Justice Conclusions

3 Jerzy Jendrośka Roots Administrative traditions Concepts of open society (Karl Popper), participatory democracy and III sector Protection of rights Better governance Right to environment Role of the public in environmental protection - Rio Declaration

4 Jerzy Jendrośka Principle X Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings,including redress and remedy, shall be provided.

Development of legal framework Trends in international law Community law –Directive 90/313 access to environmental information –Directive 85/337 EIA –Directive 96/61 IPPC UNECE Aarhus Convention 1998 UNEP Bali Guidelines 2010 Failed attempt for a global convention LAC negotiations Opole University5

Aarhus Convention Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – adopted and signed in Aarhus (Denmark) Maastricht Recommendations on Public Participation 2014 Aarhus Convention Implementation Guide 2000 and 2013 –Available online and in hard copies –C-182/10 Solvay and Others and C-279/12 Jerzy Jendrośka 6

Opole University7 Aarhus Convention – status and role Aarhus Convention main features –Binding –Rights-based approach –Detailed obligations –Scope: regional (47 Parties in UNECE) Aarhus Convention as benchmark? – Based on certain legal traditions –Do not address certain issues important for other regions (indigenous people)

Aarhus Compliance Committee Structure and role Triggers – role of communications form the public Procedure Legal effect –endorsement by MOP –„subsequent legal practice” Opole University8

Aarhus Convention in EU Part of the acquis Member States implement Aarhus via EU law Dual role of European Commission and ECJ enforcers subjects of obligations Opole University9

Legal Framework in Europe International law –Aarhus Convention –ECHR (jurisprudence) EU law –EU institutions: Aarhus Regulation 1367/2006 –Member states A2Info: directive 2003/4 Public participation: several directives A2Justice: CJEU jurisprudence National law Jerzy Jendrośka 10

Direct effect of Aarhus Convention Direct effect at EU level –Case C-240/09 Lesochranarske: art.9.3 has no direct effect but standard test of direct effect applicable Direct effect in Member States –no direct effect because of article 3.1 („Each Party shall take the necesary legislative, regulatory and other measures..”) – verdicts in Czech Republic and Poland –each provision separately judged (ie. paragraphs 1,2,3 and 7 of Art.6 produce direct effect according to Conseil d’Etat in France) Opole University11

Jendrośka Jerzmański Bar i Wspólnicy; 2 Transparency and access to information (A2I) - introduction Concept Origins – US Freedom of Information Act (FOIA) of 1966 Two legal regimes in Europe –general law on access to public information –law on access to environmental information Passive vs active disclosure of information

A2I in Europe Directive 1990/313 – env.info Aarhus Convention – env.info Art. 255 TEC – public info Regulation 1049/2001 – public info Directive 2003/4 – env.info Art.15 TFEU – public info 2010 – Tromso Convention – public info Jendrośka Jerzmański Bar i Wspólnicy; 3

Transparency – key issues No need to state the interest Access to environmental information vs general access to information –Aarhus Convention vs Tromso Convention –Aarhus Regulation vs Regulation 1049/2001 Specific issues –Costs and form of information (ACC/24/Spain) –Raw data as information - (ACC/53/UK) –Exemptions Opole University14

Exemptions Confidentiality of proceedings of public authorities(ACC/51/Romania and Case C-204/09, Flachglas Torgau – must be expressly provided) Internal communications(ACC/51/Romania) Copyright and EIA Report (ACC/15/Romania) Need for restrictive interpretation of exemptions and balancing of interests (ACC/51/Romania) Opole University15

Public participation pillar Decisions on individual activities/projects „which may have a significant effect on the environment” – Art. 6 GMO decisions – Art. 6 bis Plans/programs „relating to environment”– Art. 7 Policies „relating to environment” – Art. 7 Normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8 Jerzy Jendrośka 16

Specific decisions – activities covered Art.6.1 a) - list of activities in Annex I –based on EIA Directive Annex I and IPPC Directive –any other activity subject to domestic EIA (point 20) Art. 6.1 b) - other activities „which may have a significant effect on environment” –language to cover EIA Directive Annex II projects –„Parties shall determine...” = screening Changes and extensions Reconsiderations and updates Jerzy Jendrośka 17

Strategic decisions – art. 7 NOT only those subject to SEA! Strategic decisions covered by art.7: –Those which „may have a significant effect on the environment” and require SEA –Those which „may have a significant effect on the environment” but do not require SEA, for example: those that do not set framework for development consent –Those which „may have effect on the environment” but effect is not „significant”, for example: those that determine the use of small areas –Those aiming to help protecting the environment Jerzy Jendrośka 18

EU Directives EIA Directive –art. 6 of the Aarhus Convention –Transboundary procedure under Espoo SEA Directive –art. 7 of the Aarhus Convention –Domestic and transboundary procedure under SEA Directive Other Directives: IED/IPPC, Public Participation, Seveso III, Water Framework, GMO Directives, etc. Jerzy Jendrośka 19

Public participation and environmental assessments (EIA/SEA) Public participation and transparency – mandatory elements of EIA/SEA –but apply much broader than EIA/SEA! –EIA or SEA not always required with public participation Public participation and access to justice Jerzy Jendrośka 20

Participation – key issues Activities covered Article 6.1 (b) Public participation – general rules and features Subjects of obligations and rights Foreign public and relations between Aarhus and Espoo obligations Opole University21

Activities covered Article 6 vs article 7 activities – no label in domestic law Decisions to permit (Espoo final decision, development consent) Concept of specific activities - projects Life-time extension - interpretation of the concept of project vs art.6.10 of the Aarhus Convention – ACC/41/Slovak Republic –Case Rivne under IC Espoo –physical change vs change in the environment and change in legal conditions (opinion of AG Kokott in C-416/10 Krizan –Controversial verdicts of CJEU (C-121/11, Pro-Braine and Others and C- 275/09, Brussels Hoofdstedelijk Gewest and Others, Opole University22

Art. 6.1 (b) „Each Part [s]hall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end,Parties shall determine whether such a proposed activity is subject to these provisions” Objective criteria or discretionary power of Parties? In EU: – mandatory screening for Annex II of EIA Directive projects (ACC/45/UK, ACC/50/Czech Republic, ACC/60/UK) –screening related to appropriate assessment under Habitat Directive (Maastricht Recommendations on Public Participation) –decisions on individual projects under Seveso III Directive –for any other proposed activities „which may have siginificant effect on the environment” -? Opole University23

Who is obliged Obligations related to access to information and public participation put on public authorities –Broad definition in Aarhus Convention –Public authority vs competent authority Possible delegation of tasks (see Maastricht Recommendations on Public Participation) Problems in countries with developers responsible for public participation in EIA Jerzy Jendrośka24

Who has rights Definitions from Aarhus – now included into other international and EU instruments Public –One or more –Natural or legal persons, and –their associations, organisations or groups (in accordance with national legislation or practice) Public concerned –Affected or likely to be affected, or –Having an interest –Including NGOs: Promoting environmental protection Meeting any requirements under national law Public concerned vs „the public” (or „every person”) in the context of various stages of the procedure Jerzy Jendrośka25

Public concerned Obligation to identify public concerned Affected or likely to be affected –Relation to impact described in EIA/SEA documentation technical guidance with assumed range of impact –Criteria for identifying range of impact Not only routine impact but also impact related to accidents (AC/71/ Czech Republic) Approach to „having interests” –Not only legal or factual interests –Everyone who shows interest Jerzy Jendrośka26

General rule – „early public participation” Each Party shall provide for early public participation, when all options are open and effective public participation can take place” (Art.6.4) Does „early…when all options are open” –relates to sequence of decisions (Delena Wells case)? –relates to particular decision (scoping in EIA)? –both? Can public participation after construction is finished be considered „early” (C-215/06 EC vs Ireland – for EIA and ACC-17 for IPPC) Concept of tiered decision-making (para of PP Rec) So called O option (para 16 of PP Rec) Jerzy Jendrośka 27

General rule – reasonable time- frames The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making” (Art.6.3) Phases –Notification –Inspection of relevant documents –Submission of comments –Consideration of comments (ACC/C/3 Ukraine) Fixed vs diversified time frames (CCC/C/16 Lithuania) Timing –traditional holiday season (ACC/C/24 Spain) Jerzy Jendrośka28

Reasonable timeframes -change of approach Approach –(original EIA Directive) „appropriate time limits for the various stages of the procedure in order to ensure that a decision is taken within a reasonable period” –(EIA Directive after Aarhus) „Reasonable time- frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision- making subject to the provisions of this Article. Jerzy Jendrośka29

Foreign public Art. 3.9 – Within.. this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities. Obligation to translate the notification and other documents into English? – (ACC/15/Romania) Espoo and Aarhus (ACC/71/Czech Republic) Temelin NPP, Hinkley Point NPP cases (Acc/91/UK and ACC/92/Germany) Opole University30

Jendrośka Jerzmański Bar & Partners; 31 Acces to Justice Art.9.1-3: redress in 3 situations Art.9.4: requirements concerning – remedies – procedures Art.9.5: practicalities –information –assistance

Jendrośka Jerzmański Bar & Partners; 32 Art.9.1,2 and 3: redress Art.9.1 (relation to Art.4) : –redress in case of abusing right to information Art.9.2 (relation to Art.6 and possibly other provisions) : –redress in case of abusing right to participate and/or –basis to challenge substantive and procedural legality Art.9.3 (relation to Art.1) : – separate right to file a public interest law suit –only enforcement action or catch-all provision?

Access to Justice – harmonization of laws in EU Member States Art.9.1 – Access to Information Directive Art.9.2 –EIA Directive (art.6.1 a) –IED (IPPC) Directive ((art.6.1 a) –Seveso III Directive ((art.6.1 a or b?) Art.9.3 –Directive 2004/35 on Environmental Liability –draft Directive on Access to Justice –Verdict in Case C-240/09 Lesochranarske: Jerzy Jendrośka 33

Access to Justice – standing at EU level ECJ interpretation of „directly and individually concerned” scrutinised by ACC (ACC/32/ EC part I) –„if the jurisprudence of the EU Courts…were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned would fail to comply with article 9, paragraphs 3 and 4, of the Convention” –„a new direction of the jurisprudence of the EU Courts should be established in order to ensure compliance with the Convention” Preliminary ruling „neither in itself meet the requirements of access to justice in article 9 of the Convention nor compensate for the strict jurisprudence of the EU Courts” Opole University34

Access to Justice – standing at EU level Part II The Committee finds that the Party concerned fails to comply with article 9, paragraphs 3 and 4, of the Convention with regard to access to justice by members of the public because neither the Aarhus Regulation nor the jurisprudence of the ECJ implements or complies with the obligations arising under those paragraphs (ACC/32/EU – part II of 2016) Opole University35

Jerzy Jendrośka36 ACC cases - access to justice Often problem with jurisprudence and not legislation Overview of cases –Art.9.1 – relatively rear (mostly timeliness) –Art Lack of access to justice in individual cases Lack of effective access to justice –Art general legislative failures –Art. 9.2 and 3 - criteria for standing for NGOs and some individual members of the public (tenants) –Art Costs Effective remedies Timeliness

Access to Justice – standing, scope of the review and costs Problems in legislations based on „protection of rights” with addressing –procedural legality (ACC/31/ Germany) –substantive legality (ACC/50/Czech Republic) –general environmental issues (ACC/48/ Austria) Screening decisions and Art. 9 (ACC/50/Czech Republic and (ACC/48/ Austria) „Sufficient” vs „substantial’ interest (Case C- 427/07 Commission vs Ireland) Opole University37

Conclusions – procedural rights in EU Implementation problems in EU Role of EU in promoting Aarhus principles externally Need for European Commission and ECJ to apply Aarhus internally Opole University38

Conclusions – procedural rights generally Seems to be no chance for binding global principle X Convention Aarhus Convention –„child” of its time –impossible now Scope – –addressess „old” problems –Annex I not designed to cover shift from regulatory to economic instruments development of environmental law (product control etc Opole University39