The Theories of Environmental Justice and Comparative Environmental Law
Environmental justice and EU law
Before proceeding to the analysis of the relationship between participatory parity and positive law, I should point out some basic views on environmental justice in the EU countries.
The legal rules of the EU relating to environmental protection, as well as the judgments of the ECJ, do not contain the term environmental justice.[1072] Ludwig Kramer provides an interesting notion on the (non) existence of the use of the term environmental justice in the legislation and case law of the EU. In this sense, he notes that if we were to ask someone who practises European law, but is not familiar with the discussions in the US that have been going on for the past 30 years about what environmental justice is, we would probably get the answer that it is an attempt at fair treatment of the environment inasmuch as, in the process of balancing interests in environmental decision-making, the environment is not always the loser.[1073] Discussions on the concept of environmental justice in EU are related to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Legal Protection, which has become an integral part of the EU in accordance with article 300(7) of the Treaty on the European Union. The Convention provides that everyone has the right to freely access information held by the authorities, the right to participate in decision-making about activities that may have an environmental impact from an early stage, and the right to challenge a decision that has not been made in accordance with the rules of the Convention or regulations on the environmental protection before the court or other independent public authority. Administrative authorities are obliged to make environmental information available and to create conditions for the active participation of citizens and environmental organisations in making environmental programs, plans and environmental projects. The Aarhus Convention generated the possibility of creating an open society in which decisions are made publicly, with the full participation of interested parties. In order for all members of the public to be as equally informed as the administrative authorities, the Aarhus Convention provides the right of all citizens and their organisations to freely access environmental information.The ECJ does not have any reported cases of discrimination in decision-making or implementation of environmental policy and environmental legislation on the basis of a minority background.[1074] However, there are numerous cases where the public was not allowed to participate in environmental decision-making, did not have access to environmental information or protection of rights in environmental matters. The question then arises as to how the EU members interpret the concept of participatory parity and in which cases we can say that stakeholders have an equal right to participate in environmental decisionmaking.
Public participation in environmental decision-making in comparative law and jurisprudence
In order to determine how the specific legislation regulates the public’s right to participate in environmental decision-making, we should determine the definition of “public” and the procedure for allowing public participation. We must determine who constitutes the public in a particular case, whether a particular law distinguishes between the general public and the public concerned, and whether non-governmental organisations (NGOs) are allowed to participate.[1075] Some national laws distinguish between the terms “public” and “public concerned”. Others do not. For that reason, it is important to analyse if specific national laws distinguish between the public and the public concerned. In the analysis of the public participation procedure, the assumption is that the procedure that allows public participation is a special administrative procedure that is carried out in accordance with pre-established rules and has been designed in accordance with the environmental decision-making specificities.
Public participation in German law
The analysis of public participation in environmental law should start with the conventional distinction between public participation in specific decision-making, public participation in policy-making and public participation in legislative drafting and rule-making. If we begin with the anthropocentric understanding of the environment, the public has a more important role in cases when there are direct negative effects of certain activities to health and the environment. A general impact of the activity on the public does not give the public a significant role in decisionmaking. I conclude that the generally accepted structure “ladder of public participation”[1076] in environmental law has the anthropocentric understanding of the term environment as a basis. However, introducing the possibility that NGOs, as bearers of collective interest, the interest of future generations and protection of the interests of environmental protection, participate in decision-making as a part of the public, represents penetration of the ecocentric approach into the concept of the environment in a set of procedural rules to be followed by environmental authorities.[1077]
Public participation in environmental decision-making in German law is recognised as an expression of implementing the co-operation principle.[1078] This is a principle that involves participation of institutions, groups and citizens who may be affected by the decision. The German Federal Immissions Control Act defines harmful effects on the environment as emissions which, according to their nature, extent or duration, are liable to cause hazards, considerable disandvantage or considerable nuisance to the general public or the neighbourhood.[1079] Persons who may be affected by the effect of, for example, an installation, are a part of the general public. Neighbours are persons who could be affected by the harmful effect of the installation situated in the surroundings.[1080] Neighbours includes owners and tenants of residential property as well as those who work in the sphere of harmful effect influence.[1081] In some cases, a special ad hoc group may represent the public.
To the extent that provision is made in any authorisation for the issue of ordinances and general administrative regulations that the parties concerned shall be heard, an ad hoc group will be constituted from time to time from among representatives of the scientific community, those directly affected, trade and industry and the traffic sector, in so far as involved, and the supreme land authorities responsible for emission control shall be heard.[1082]
When the protection of nature is in question, the legal system in Germany provides an opportunity for involvement of associations. The Federal Nature Protection Act of 2002 stipulates that if an environmental association is recognised by the Ministry of the Environment and its sphere of tasks defined in its charter is affected by the project, the association has the right to state its opinion and to inspect the relevant expert opinions.[1083] The Federal Nature Protection Act of 2002 provides a right for recognised associations to bring an action even where they are not affected by the measures to which they object.[1084]
In the particular licensing procedure, the competent authority must give public notice of the project. The application and the supporting documents must be available for public inspection for one month, from the day of notification.[1085] The public and neighbours are able to lodge objections against the project within two weeks from the expiry of the inspection period.[1086] The public authority responsible for issuing the license must discuss the objections not only with those who raised them, but also with the applicant for the project.[1087] The final decision includes a written statement of the grounds for the decision. It should be delivered to the applicant and any person who lodges an objection.[1088] The public must be notified of the final decision. The public notice contains instructions about the place and time where the public may inspect the final decision.[1089] The term for inspection is two weeks.
The German Environmental Impact Assessment Act stipulates that the competent public authority must grant a hearing to the general public about the environmental impact assessment of the project. The public should be heard for a second time if the public authority asks a project developer to alter the project’s documents and there are fears of additional or other significant effects on the environment.[1090]In 2006, by adopting the Act Concerning Supplemental Provisions on Appeals in Environmental Matters Pursuant to EC Directive 2003/35/EC (the Environmental Appeals Act), Germany transformed European law into national legislation.[1091] The Federal Nature Conservation Act was amended, and, in 2009, the Act to amend nature conservation and landscape preservation law came into effect.[1092] The procedures of associations’ recognition are stipulated by the Environmental Appeals Act. Recognised environmental associations may contest decisions from purely environmental perspectives. It is not necessary for environmental associations to show that their own rights have been infringed.[1093] An association’s appeal is justified if the decision, made by the public authority, or failure to take such decision, “violates statutory provisions that protect environment, establish environmental rights, and are of importance for the decision, and the violation involves issues of environmental protection that are among the objectives to be promoted by the association according to its bylaws”.[1094] [1095] Public participation in Serbian law The Serbian Law on Environmental Impact Assessmentj3 regulates the integral system of environmental protection, which provides the right to live in a healthy environment, as well as a balanced relationship between economic development and environmental protection. In addition, the environmental protection system is comprised of measures, conditions and instruments for the sustainable management of natural resources and for the prevention, control, reduction and recovery of all forms of environmental pollution. Laws governing the right of public participation in decision-making on specific activities use the terms the “public” and the “public concerned”. The public consists of one or more individuals or legal persons, their associations, organisations or groups.[1101] The public concerned consists of the public affected or likely to be affected by the project, including NGOs that deal with environmental protection and are registered with the competent authority.[1102] There are two conditions relating to the legal capacity of NGOs in the cases in which they participate in the environmental impact assessment as the public concerned. The first condition refers to the obligation of the NGOs to engage in environmental protection. The second condition is registering NGOs with the competent authority. The public concerned is entrusted with significant influence on the process of decisionmaking, especially by the delegation of powers to directly participate in the decision-making process, and the right to file an appeal or a lawsuit. The Law on Environmental Impact Assessment, in article 2, paragraph 1, item 8, identifies, as authorities and organisations concerned, those bodies and organisations of the republic, autonomous provinces and local governments and enterprises, which are authorised to determine the conditions for granting licenses, permits and approvals for the construction of facilities, planning and development, environmental monitoring, performance of activities and protection and use of natural and man-made resources. It may be noted that the terminology in Serbian legislation defines the concept of the public and the public concerned in accordance with provisions of the Aarhus Convention.[1103] The public participation procedure in practice of the ECJ and the Aarhus Convention Compliance Committee As mentioned earlier, a procedure that allows public participation is a special administrative procedure. Only a procedure that is carried out in accordance with pre-determined rules and conditions may result in the application of participatory parity. A prerequisite for the equal public participation in environmental decision-making is an equal opportunity of access to all information that may be relevant for environmental decisionmaking. Even though everyone should have free access to environmental information, there are a lot of exemptions.[1104] The judgment of IFAW International Tierschutz-Fonds gGmbH v European Commision provides an example.[1105] IFAW International Tierschutz-Fonds gGmbH is a nongovernmental organisation, active in the field of the preservation of animal welfare and nature conservation. When the Commission gave a positive opinion on the Airbus company project on building a private airport in a Natura 2000 area, the NGO requested access to various documents received by the Commission from the German authorities related to the examination of the industrial project. The NGO was particularly interested in a letter which the then German Chancellor Gerhard Schroder had written to the President of the Commission in 2001. Although the Commission granted access to some documents, it refused access to this letter. This decision was upheld by judgment of the General Court,[1106] but it was annulled on appeal by the Court of Justice.[1107] In 2008, the NGO repeated its request for access to the documents. The German authorities stated that “disclosure of the German Chancellor’s letter would undermine the protection of the public interest as regards the international relations and the economic policy of the Federal Republic of Germany within the meaning of the third and fourth indents of article 4(1)(a) of Regulation No 1049/2001”8 The Court of Justice found that the General Court should have consulted the Schroder letter. Without such consultation, the General Court was not in a position to assess if access to the document could have been validly refused by the German authorities.[1108] [1109] It thus set aside the judgment of the General Court and sent the case back for a new decision. Adequate public participation in environmental decision-making exists only when the public is allowed to participate in decision-making from an early stage, when it can affect the content of the decision. An example of ineffective public participation can be found in the case of granting a permit to a waste disposal incinerator located in Fos-sur-Mer, in the south of France. In this case, a French municipal authority made two decisions about the installation without the involvement of the public. In 2003, it decided about the incineration as a method of waste disposal, decided on the location of the incinerator, and held a public tender. In 2005, the public authority decided on the award of the contract, which included further modalities of processing the waste, after which public participation took place. The question that arises is: was the public participation too late, since not all opinions had been informed on time and there was no public debate, but only a public inquiry? In 2009, the Aarhus Convention Compliance Committe found that “all options were still open when the Prefect authorised the project in 2006. One of the main arguments was that in fact 50 decisions per year were handed down by the Prefect and this shows that the Prefect is in the position to decide on the subject matters of the case”.[1110] Public participation makes sense particularly when the public influences the decision-making about activities that affect the environment, in coordination with the government. In this sense, the public should have been involved in decision-making about the incineration as a method of waste disposal, as well as determining the location. The right to public partcipation must be equaly recognized in earlier and in later stages of the environmental decision-making. Some national legislations give extensive opportunity for public participation at an early stage of decision-making, but give an opportunity to the public to dispute the final court decision under very restrictive conditions. This approach is criticised by the ECJ in the case of Djurgarden-Lilla Vartans Miljoskyddsforening v Stockholm kommun municipality genome dess marknamnd.[1111] The opportunity of equal participation in environmental decisionmaking means the possibility of timely access to environmental information and timely notice of the proceedings in which the public can participate. Participatory parity cannot be achieved if the public is not adequately informed about the process of environmental decision-making. Participatory parity cannot be achieved if the process does not determine a reasonable deadline for public participation, sufficient for stakeholders to access environmental information, review the experts’ opinions on the effects of certain actions and to consider alternatives to making decisions. A decision of the Aarhus Convention Compliance Committee provides an example. In 2009, a Spanish NGO, Platforma Contra la Contaminacion de Almendralejo, submitted a communication claiming that public authorities failed to provide environmental information in a prompt manner in a reasonable time. Because of that, the public did not have enough time to access the information and project documentation. The Committee found that Spain failed to comply with articles 4(1)(b) and 6(6) of the Aarhus Convention, as public authorities did not allow access to information in the requested form. The Committee found that requiring members of the public who were interested in participation to travel 30-120 km to read project information on two computers was an “inhibitive condition”.[1112] The importance of establishing a reasonable period of time for public participation is emphasised in the European Parliament resolution of 14 June 2012 on public consultations and their availability in all EU languages.[1113] The resolution, among other things, states that: the public involvement is a fundamental component of democratic governance, whereas well designed and communicated public consultations are one of the main tools giving substance to the EU’s policy of transparency, and whereas to date their potential for bridging the communication and information gap between citizens and the EU has not been fully exploited... The Commission should ensure that all consultations are understandable to ordinary citizens and are carried out over a sufficiently long period of time to allow for increased participation.[1114] In the participation procedure, the public, for example, in the environmental impact assessment procedure, has a right to comment, to state opinions, to view analyses of the impact that the particular project has on the environment and to object to the implementation of the proposed activities.[1115] A competent administrative authority is obliged to take into account the views presented to the public, which means that the competent authority must explain a decision that rejects an opinion, comment or complaint.[1116] The European Ombudsman has an important role in controlling the regulation of administrative authorities’ work, particularly in terms of the regulation of the procedure of public participation and taking into account the opinions expressed. For example, in the case of the proposed enlargement of Vienna Airport, the European Ombudsman conducted an investigation on the environmental impact assessment in late 2011. On this occasion, special attention was given to the question of whether the public was allowed to participate in the environmental impact assessment. In 2006, 27 citizens submitted an initiative to the Commission fighting against the negative consequences of the expansion of the airport. The Commission concluded that an environmental impact assessment was not obligatory, but agreed with the Austrian authorities that an ex-post environmental impact assessment should be carried out. In 2008, complainants turned to the European Ombudsman, claiming that the public authority in charge of the ex post environmental impact assessment was the same authority that had granted permits and that the public did not have access to the ex post environmental impact assessment. With respect to these allegations, the Commission informed the Ombudsman that it would close the infringement case against Austria only upon establishing that the Austrian authorities had taken the necessary steps. As the review procedure was ongoing, the Ombudsman closed the case. But, in 2010, the complainants turned to the Ombudsman for the third time. After this inquiry, the Ombudsman found that there had been nothing to suggest that the complainants’ arguments had been discussed in writing with the Austrian authorities. The Ombudsman concluded that the Commission did not take his finding from the previous inquiry into account. Instead, the Commission waited for the final report to be submitted by the Austrian authorities. The Ombudsman made the following recommendation: The Commission should reconsider its approach in regard to the handling of the complainants’ infringement complaint concerning Vienna Airport and address the deficiencies highlighted by the Ombudsman. This means that the Commission’s further actions in the infringement proceedings should take into account the obligation of the national authorities to ensure that (i) the complainants have access to a review procedure.[1117] It is important to stress that the ex-post environmental impact assessment was discussed in Commission v Ireland by the ECJ. “Paragraph 57 of the judgment indicates that ‘regularisation’ after the event, of otherwise operations or measures, may be permissible in certain exceptional cases. The ECJ did not elaborate on these aspects of its ruling and it is not clear what exceptional circumstances might be acceptable in this context.”[1118]