EU Environmental Law, Trier, 27-28 May 2019

II. LEGAL UPDATE / CASE STUDY ON:

ENVIRONMENTAL IMPACT ASSESSMENT (EIA)

Dr Matthias Keller

(Admin. Court Aachen / AEAJ)

With financial support from the Justice

Programme of the European Union

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Q&A on EIA

By the way:

What it is the translation of EIA in your (legal) mother tongue?

In German it is “Umweltverträglichkeitsprüfung” or “Umweltprüfung”.

What is the background of EIA?

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Short version: a means of sound decision-making.

Longer version: Principle 17 of the Rio Declaration

The United Nations Conference on Environment and Development (UNCED), which took place in Rio de Janeiro in June 1992, dedicated Principle 17 of the Final Declaration to EIA:

“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”

How did the EIA legislation evolve (I)?

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• 1969: The USA introduced EIA laws and procedures under the National Environmental Policy Act (NEPA) which became effective on January 1, 1970.

• 1985: The European Union, at the time still the European Economic Community (EEC), approved a first Directive on EIA that covered only “projects” (not “plans and programmes”).

• 1997:Directive 97/11/EC brought the Directive in line with the United Nations Economic Commission for Europe (UNECE) Espoo Convention on EIA in a Transboundary Context.

• 1998: The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).

How did the EIA legislation evolve (II)?

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• 2001: Directive 2001/42/EC (SEA Directive) filled a gap by regulating the (Strategic) Environmental Assessment of “plans and programmes”.

• 2003: Directive 2003/35/EC sought to align the provisions on public participation with the Aarhus Convention.

• 2006: Regulation 1367/2006 applied the Aarhus Convention to EU institutions and bodies, but not to the Member States.

As early as in 2003 the Commission had tried to fill this gap by a proposal of an “Access to Justice Directive” addressed to the Member States. This proposal was withdrawn after it had remained for over a decade without any agreement in the Council where the representatives of the Member States are an essential part of the EU legislation process.

How did the EIA legislation evolve (III)?

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• 2009: Directive 2009/31/EC amended the Annexes I and II of the EIA Directive, by adding projects related to the transport, capture and storage of carbon dioxide (CO2).

• 2011: Directive 2011/92/EU codified the initial EIA Directive of 1985 an its three amendments.

• 2014: In order to improve the EIA’s effectiveness and efficiency, Directive 2011/92/EU was amended by Directive 2014/52/EU.

This legislation reflects the current legal situation.

There is no official consolidated version of the EIA Directive.

However, there is an informal one by the EU Commission.

Available at: http://ec.europa.eu/environment/eia/pdf/EIA_Directive_informal.pdf.

How does the EIA operate?

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.

Source: Stephano Ampatzis, p. 45:

http://ec.europa.eu/environment/eia/pdf/EIA_Directive_informal.pdf.

Can EIA requirementsbe invoked in court proceedings?

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.Yes, access to justice for the public concerned is a fundamental pillar of the

concept established by Article 9 of the Aarhus Convention where court

proceedings are a means to reach a better enforcement of environmental law.

The point of reference for activities

that are subject to public participation

is Article 9(2) in conjunction with Article 6 of the Aarhus Convention.

This guarantee of access to justice has been adopted

by Article 11 EIA Directive, other EU Directives and laws of the Member

States. Only here, in the legal context of public participation requirements, the

EU has reached a harmonisation by pieces of EU secondary law. Cf.:

Article 25 of the IED Directive, 2010/75/EU;

Article 6 (2) of the Access to Environmental Information Directive, 2003/4/EC;

Article 13 of the Environmental Liability Directive, 2004/35/EC;

Article 23 of the Seveso III Directive, 2012/18/EU.

Does Article 11 EIA Directivedemand a “green actio popularis”?

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.No, not at all.

Article 11(1) EIA Directive allows Member States to avoid an actio popularis in

environmental matters and to confine the standing of claimants to those who

can demonstrate

“a sufficient interest, or alternatively, the impairment of a right”.

The two possible restrictions on standing take into account different traditions

of administrative justice.

Especially in Central Europe (eg.: Austria, Czech Republic, Germany) the

concept of administrative justice as a redress for the impairment of subjective

(public) rights (“recours subjectif”) has a long history, only disrupted by

totalitarian legal thought. Whereas other Member States follow more or less

the traditional French system where a qualified interest is sufficient to start

judicial proceedings and invoke public law (“recours objectif”).

Which countries have problems to grant standing to NGOs?

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.

When it comes to the question which country has to take measures in order to

ensure standing of environmental NGOs in – nota bene – all sectoral EU

environmental laws, a 2017 EU Environmental Implementation Review (EIR)

by the Commission

Available at: http://ec.europa.eu/environment/eir/pdf/full_report_en.pdf, p. 24

issues a list of Member States of both legal traditions

(rights based and interest based):

Austria, Belgium, Bulgaria, Czech Republic, Germany, Hungary, Italy, Poland,

Sweden, Slovenia and Slovakia.

How far does the procedural autonomy of the Member States go?

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.Not very far….

The principle of effectiveness

requires access to justice and does not allow

to let “EIA/SEA rights” without judicial protection.

Otherwise domestic law would not be in compliance with the principle of

effective judicial protection set out in the EU Treaties and with the

requirements enshrined in Article 47 of the Charter of Fundamental Rights of

the European Union.

How can gaps in granting access to justice be filled? (“Brown Bears I judgment”!)

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.National procedural law may be open to an interpretation in the light of

Article 9(3) Aarhus Convention with its broad guarantee of access to justice.

The national concept of administrative act may be widened by interpretation

and - as a result - include acts of general scope like plans and programmes.

By doing so the national judge can rely on the Brown Bears I judgment where

the CJEU encouraged domestic courts to interpret their national law in

accordance with the objectives of Article 9(3) Aarhus Convention

“to the fullest extent possible”

C-240/09 Lesoochranárske zoskupenie (“LZ I”),

ECLI.EUC 2011:125, para 30 (“Brown Bears I”).

How can gaps in granting access to justice be filled? (“Brown Bears I judgment”!)

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.National procedural law may be open to an interpretation in the light of

Article 9(3) Aarhus Convention with its broad guarantee of access to justice.

The national concept of administrative act may be widened by interpretation

and - as a result - include acts of general scope like plans and programmes.

By doing so the national judge can rely on the Brown Bears I judgment where

the CJEU encouraged domestic courts to interpret their national law in

accordance with the objectives of Article 9(3) Aarhus Convention

“to the fullest extent possible”

C-240/09 Lesoochranárske zoskupenie (“LZ I”),

ECLI.EUC 2011:125, para 30 (“Brown Bears I”).

How can gaps in granting access to justice be filled? (“Brown Bears II judgment”!)

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.

An approach under the “Brown Bears II judgment”:

This approach asks whether a permit was wrongfully issued without the

“opinion of the general public” required by the directly applicable Article 6(3) of

the Habitats Directive. The CJEU reasons that such a case must be read and

understood in the Aarhus Convention context where access to justice is

clearly granted to invoke provisions on public participation (Article 6(1)(b) and

Article 9(2)). Such a NGO right to bring actions is protected under Article 47 of

the Charter of Fundamental Rights and to be effectively enforced by national

courts.

The line of reasoning was developed in a case where an environmental NGO

challenged a permit. As Article 6(3) of the Habitats Directive is relevant for

“plans and permits” there is no reason why it should not apply to cases where

an environmental NGO challenges a plan under the SEA Directive.

C-243/15 Lesoochranárske zoskupenie (“LZ II”), ECLI.EUC 2016:125, para

52 (“Brown Bears II”).

With financial support from the Justice

Programme of the European Union

Thank you!