Environmental Rights in Europe and Beyond Volume Volume 11: Swedish Studies in European Law 9781509911110, 9781509911127, 9781509911097

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ENVIRONMENTAL RIGHTS IN EUROPE AND BEYOND The growing awareness of an impending environmental crisis coupled with a series of national and regional environmental disasters led, in the 1960s and 1970s, to the birth of the global environmental movement and the widespread recognition of the need to protect the environment for both current and future generations. Against this backdrop the concept of ‘environmental rights’ surfaced as a means by which claims relating to the environment could be formulated in legal terms and thereby safeguarded. In the decades that followed, this concept has come to encompass many different variations of legal rights, which this book seeks to investigate and assess.

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Environmental Rights in Europe and Beyond Swedish Studies in European Law Volume 11

Edited by

Sanja Bogojević and Rosemary Rayfuse

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/ doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Bogojević, Sanja, 1982-, editor.  |  Rayfuse, Rosemary Gail, editor. Title: Environmental rights in Europe and beyond / Edited by Sanja Bogojević and Rosemary Rayfuse. Description: Portland, Oregon : Hart Publishing, 2018.  |  Series: Swedish studies in european law ; Volume 11 Identifiers: LCCN 2018012571 (print)  |  LCCN 2018012915 (ebook)  |  ISBN 9781509911103 (Epub)  |  ISBN 9781509911110 (hardback : alk. paper) Subjects: LCSH: Environmental law—Europe.  |  Civil rights—Europe.  |  Environmental protection—Europe. Classification: LCC KJC6242 (ebook)  |  LCC KJC6242 .E59 2018 (print)  |  DDC 344.404/6—dc23 LC record available at https://lccn.loc.gov/2018012571 ISBN: HB: 978-1-50991-111-0 ePDF: 978-1-50991-109-7 ePub: 978-1-50991-110-3 Typeset by Compuscript Ltd, Shannon

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Foreword The Right Time for Environmental Rights This superb collection of essays on environmental rights in Europe and beyond arrives at a critical moment for the environment and for rights. The global environment faces the catastrophic reality of climate change even as it continues to confront the more traditional but also serious risks posed by toxic chemicals, air and water pollution, habitat destruction, and resource extraction. The general framework of rights that has developed in countries around the world faces fresh challenges from citizens and leaders who have begun to bristle at rights-based constraints in a world marked by global terrorism, massive human dislocations brought on by chronic warfare and resource shortages, and entrenched economic insecurity. The relatively ­nascent regime of environmental rights, in other words, is now both unprecedentedly important for the survival of the environment as we know it and yet newly vulnerable to the gimlet-eyed scrutiny being given to other rights-based frameworks. Advocates for environmental rights should see legal opportunity rather than legal peril in this moment. The profound risks our environment now faces have recently persuaded courts to recognise rights-based claims to force more aggressive government action on those risks. In the ­Netherlands, for example, the District Court of The Hague has ruled that the Dutch government violated the ‘duty of care’ embedded in the Dutch Constitution by failing to take sufficiently ambitious action to address climate change. In the United States, a federal district court has ruled that ‘the right to a climate system capable of sustaining human life is fundamental to a free and ordered society’, and thus declined to dismiss a claim that the federal government violated constitutional due process by helping to create and then failing to adequately mitigate the problem of climate change. The ultimate success of rights-based theories in securing more robust action on climate change remains uncertain, but the preliminary victories of advocates of rights-based theories for addressing climate change are nonetheless striking. Likewise, renewed attention to the place of rights in our troubled world may bolster the movement toward environmental rights. To be sure, much of this recent attention has been sceptical of rights-based regimes, and indeed, broad scepticism about rights may have contributed in part to ­ Donald Trump’s election as President in the United States and the

vi  Foreword United Kingdom’s vote to exit the European Union. Yet the US election and the Brexit vote have brought a new focus on the large differences between rights-based legal frameworks and legal frameworks that may be changed on the whim of the current executive or party in power. For example, even as President Trump’s executive orders on immigration fall to court rulings based on their inconsistency with constitutional rights, his executive orders calling for deregulation and regulatory inaction threaten to proceed with little or no interference from the courts. Environmental lawyers are surely watching these developments with a renewed appreciation for the potential of rights-based frameworks to usher in durable progress. Thus, the installation of administrations and policies hostile to rights-based frameworks may, counterintuitively, nudge environmental lawyers on a path that points toward, not away from, rights-based frameworks for their own work. Lisa Heinzerling Justice William J Brennan, Jr, Professor of Law Georgetown University Law Center Washington, DC. June 2017

Preface In 1972 Christopher Stone published his now famous article in which he asked ‘Should trees have standing’?1 The article launched a global debate on the nature of legal rights and who—or what—was capable of possessing them. To Stone the answer was clear. The environment and its natural objects were, indeed, capable of holding legal rights and those rights were not merely reducible to the interest of other (human) beings. The question that remained was who could enforce them on behalf of the environment. Here, Stone adopted the idea of a guardian: a competent national or international institution specifically charged with representing the interests of the environment in the courts. In the ensuing years, despite many imaginative attempts, including that of Anthony D’Amato and Sudhir K Chopra claiming a right to life for whales,2 the notion of rights of the environment has run headlong into the anthropocentric conception of rights: rights held by humans and relating to their enjoyment of the environment. Generally summed up in the still-contested notion of the human right to a clean or healthy environment, such rights can only belong to and be enforced by humans acting on their own behalf. Recently, developments in a number of jurisdictions, including Ecuador, India and New Zealand, have indicated that in some cases legislators and courts are willing to imbue nature with rights. Similarly, procedural environmental rights have emerged, most evidently in Europe, as have environmental rights framed as principles, and constitutional privileges. These trends have led to the belief that an ‘environmental rights’ revolution is on its way. Nevertheless, as the now burgeoning literature on environmental rights attests, difficulties relating to the identification of environmental rights, who or what holds them, how, where, why, and in what circumstances they can be implemented, and by whom they can be enforced remain. It was a desire to better understand the meaning, scope, application and effect of environmental rights that gave rise to this volume. More precisely, the origins of this book stretch back to our first meeting in 2012 at the Law Faculty of Lund University where we had just taken up positions, one as a 1 First published as CD Stone, ‘Should Trees have Standing: Towards Legal Rights for Nature’ (1972) 45 Southern California Law Review 450. Later published as a book, now revised and updated and in its third edition, CD Stone, Should Trees Have Legal Standing? Towards Legal Rights for Natural Objects (3rd edn, Oxford University Press, 2010). 2  A D’Amato and SK Chopra, ‘Whales: Their Emerging Right to Life’ (1991) 85 ­American Journal of International Law 2, and more recently, A Staker, ‘Should Chimpanzees Have Standing? The Case for Pursuing Legal Personhood for Non-Human Animals’ (2017) 6 ­Transnational Environmental Law 485.

viii  Preface con-joint visiting professor, and the other as a senior lecturer. After ­working together on a number of teaching and research projects we decided to tackle an examination of the current status of environmental rights, with particular but not exclusive focus on the EU, and the continuing challenges and problems associated with the concept. To that end, we organised a conference held at the Faculty of Law at Lund University in April 2016 at which the authors and other conference participants discussed and debated the issues. It was immediately clear that the term ‘environmental rights’ meant different things to different people. Nevertheless, everyone could recognise elements of what might constitute or purport to constitute environmental rights in different contexts. The concept thus served as an essential linking point between the various contributions. As in any project of this nature, many thanks are due. First and foremost, we offer our thanks to the Law Faculty at Lund University, which is where this project and the ongoing collaboration between the editors first took root. While it is always invidious to mention a few names only, we would particularly like to thank Hans-Henrik Lidgard and Christina Möell, as two supporting forces in the initial stages of this collaboration and Mia Rönnmar and Xavier Groussot, who have each played significant roles in sustaining and strengthening it. To us, Lund remains a place of heartfelt collegiality. We are also extremely grateful to the Ragnar Söderberg Foundation for the very generous sponsorship that enabled this book to become a reality. The Swedish Research Council/Vetenskapsrådet has similarly supported the collaboration between the two editors in this regard and the Swedish Network for European Legal Studies co-sponsored the conference from which this book resulted. We are thankful to both. In addition, we express our gratitude to Cornelia Larsson in assisting with the conference organisation, and to Pernilla McAlevey, whose sad and premature passing we learned of in the final stages of the preparation of this manuscript. We direct deep thanks also to UNSW Law and Oxford Law Faculty and Lady Margaret Hall for enabling this ongoing cooperation between Lund, Oxford and UNSW to flourish. We are grateful to Ulrika Carlsson for her tireless editorial assistance in preparing the draft manuscript. We similarly thank Hart Publishing for its support for this volume and for the helpfulness of its staff, particularly Emily Braggins. Of course, this book would never have been possible ­without the commitment and hard work of the authors and so our final and deepest thanks go to each of them for their original and thought-provoking contributions. Sanja Bogojević and Rosemary Rayfuse Oxford and Sydney September 2017

Contents Foreword by Lisa Heinzerling������������������������������������������������������������������� v Preface���������������������������������������������������������������������������������������������������� vii List of Contributors��������������������������������������������������������������������������������� xi Table of Cases���������������������������������������������������������������������������������������� xiii Table of Legislation������������������������������������������������������������������������������ xxiii Part I: Environmental Rights: Hopes, Fears and Realities 1. Environmental Rights in Europe and Beyond: Setting the Scene��������� 3 Sanja Bogojević and Rosemary Rayfuse 2. Pitfalls in Promoting Environmental Rights�������������������������������������� 27 Colin T Reid 3. Environmental Rights in Marine Spaces������������������������������������������� 49 Richard Barnes Part II: What Kinds of Environmental Rights in the EU Context? 4. Substantive Environmental Rights in the EU: Doomed to Disappoint?���������������������������������������������������������������������������������� 87 Chris Hilson 5. Environmental (Property) Rights in Market-based Management���� 105 Sanja Bogojević 6. Environmental Rights and Principles: Investigating Article 37 of the EU Charter of Fundamental Rights��������������������������������������� 133 Eloise Scotford 7. Article 11 TFEU and Environmental Rights������������������������������������ 155 Julian Nowag Part III: Courts and Environmental Rights 8. Green Courts as the Providers of Environmental Rights? The Case of the Swedish Land and Environment Courts���������������� 177 Anders Bengtsson 9. EU Environmental Rights as Human Rights: Some Methodological Difficulties Facing European Courts����������������������������������������������� 201 Eduardo Gill-Pedro

x  Contents Part IV: Whose Environmental Rights? 10. The Rights of Environmental Investors: The Case of Renewable Energy���������������������������������������������������������������������� 229 Anatole Boute 11. Pulling the Trigger: ENGO Standing Rights and the Enforcement of Environmental Obligations in EU Law��������������������������������������� 253 Jan Darpö Index����������������������������������������������������������������������������������������������������� 283

List of Contributors Richard Barnes, Professor of Law, The School of Law and Politics, University of Hull, United Kingdom Anders Bengtsson, Senior Judge, Land and Environment Court, Växjö, Sweden Sanja Bogojević, Fellow and Associate Professor of Law at Lady ­Margaret Hall and University of Oxford, United Kingdom Anatole Boute, Associate Professor of Law, Faculty of Law, The Chinese University of Hong Kong, People’s Republic of China Jan Darpö, Professor of Environmental Law, Faculty of Law, Uppsala University, Sweden Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of Law, Lund University, Sweden Chris Hilson, Professor of Law, Faculty of Law, University of Reading, United Kingdom Julian Nowag, Senior Lecturer, Faculty of Law, Lund University, Sweden Rosemary Rayfuse, Scientia Professor in International Law, Faculty of Law, UNSW Sydney; Con-joint Professor and Kerstin Hesselgren Visiting ­Professor (2017–18), Lund University, Sweden; Visiting Professor ­University of Gothenburg, Sweden Colin T Reid, Professor of Environmental Law, Dundee Law School, ­University of Dundee, United Kingdom Eloise Scotford, Professor of Environmental Law, UCL Centre for Law and Environment, University College London, United Kingdom

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Table of Cases European Union C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland EU:C:1996:404������������������������������������������������������� 214 Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA Ltd and Others v Secretary of State for Health and Others [2005] ECR I-10423��������������������������������������������������������������������������������������� 170 C-183/95 Affish BV v Rijksdienst voor de Keuring van Vee en Vlees [1997] ECR I-4315����������������������������������������������������������������������������������������� 170 C-617/10 Åkerberg Fransson EU:C:2013:105���������������������������������������������������� 194 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen EU:C:1963:1��������������������� 207, 210 Joined Cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic EU:C:1991:428������������������������������������������������� 211 T-461/93 An Taisce and WWF v Commission [1994] ECR II-733���������������� 164–65 C-325/94P An Taisce and WWF UK [1996] ECR I-3727����������������������������������� 164 C‑128/09 Antoine Boxus and Willy Roua v Region Wallonne [2011] ECR I-09711��������������������������������������������������������������������������������������� 256 Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and Willy Roua v Region Wallonne [2011] ECR I-09711������������������������������� 265 C-127/07 Arcelor Atlantique et Lorraine and Others, EU:C:2008:728��������� 115–17 C-321/15 ArcelorMittal Rodange et Schifflange SA, EU:C:2016:516����������������������������������������������������������������������� 114, 116, 118, 240 T-16/04 Arcelor SA v European Parliament and Council of the European Union [2010] ECR II-00211������������������������������������������������� 233 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland v Minister van Volkshuisvesting [2000] ECR I-4475�������������������������������������� 144 Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00, T-141/00 Artegodan v Commission [2002] ECR II-4945�������������������������������� 145 C-176/12 Association de médiation sociale v Union locale des syndicats CGT [2013] EU:C:2013:491����������������������������������������������������������������������������������� 151 C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia [2016] EU:C:2016:978����������������������������������������������������������������������������������� 151 C-161/04 Austria v Parliament and Council [2006] ECR I-7183���������������� 139, 170 C-442/14 Bayer CropScience SA-NV, Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden EU:C:2016:890����������������������������������������������������������������������������������������������� 217 C-203/12 Billerud Karlsborg AB and Billerud Skärblacka AB v Naturvårdsverket [2013] EU:C:2013:664�������������������������������������������� 115, 233 Joined Cases C-20/00 and C-64/00 Booker Aquaculture Ltd, EU:C:2003:397����������������������������������������������������������������������������������������������� 122

xiv  Table of Cases Joined Cases C-191/14 and C-192/14 Borealis, EU:C:2016:311������������������������� 117 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029������������������������������������������������������������������������������������������� 98 C-487/06P British Aggregates v Commission [2008] ECR I-10515, 102������������ 161 C-115/09 Bund fur Umwelt und Naturschutz v Arnsberg (Trianel) [2011] ECR I-3673����������������������������������������������������������������������������������� 98, 256 C-301/12 Cascina Tre Pini, EU:C:2014:214������������������������������������������������������� 112 T-57/11 Castelnou Energía v Commission, EU:T:2014:1021������������������������������ 139 C-404/13 ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs, EU:C:2014:2382�������������������������� 40, 256, 270, 276–77 C-28/09 Commission v Austria [2011] ECR I-13525; EU:C:2011:854��������� 90, 151 C-320/03 Commission v Austria, EC:C:2005:684�������������������������������������� 167, 173 247/85 Commission v Belgium [1987] ECR 3029������������������������������������������������ 92 C-2/90 Commission v Belgium (Walloon Waste) [1992] ECR I-4431����������������� 151 C-176/03 Commission v Council (Environmental Crime) [2005] I-7879����������������������������������������������������������������������������������������� 100, 139 C-440/05 Commission v Council (Ship Source Pollution) [2007] ECR I-9097����������������������������������������������������������������������������������������� 139 C-91/05 Commission v Council (Small Weapons) [2008] ECR I-3651��������������� 147 Case 302/86 Commission v Denmark (Danish Bottles) [1988] ECR 4607���������� 151 252/85 Commission v France [1988] ECR 2243�������������������������������������������������� 92 C-265/95 Commission v France [1997] ECR I-6959������������������������������������������ 167 C-38/99 Commission v France [2000] ECR I-1094���������������������������������������������� 92 29/84 Commission v Germany [1985] ECR 1661������������������������������������������ 92, 94 C-131/88 Commission v Germany [1991] ECR I-825������������������������������������������ 93 C-58/89 Commission v Germany [1991] I-4983�������������������������������������������������� 93 C-361/88 Commission v Germany [1991] ECR I-2567���������������������������������� 93–94 C-298/95 Commission v Germany [1996] ECR I-6747���������������������������������������� 93 C-217/97 Commission v Germany [1999] ECR I-5087���������������������������������������� 93 C-431/92 Commission v Germany (Grosskrotzenburg) [1995] ECR I-2189������� 256 C-137/14 Commission v Germany, EU:C:2015:683������������������������������������������� 277 C-418/04 Commission v Ireland [2007] ECR I-10947����������������������������������������� 92 C-427/07 Commission v Ireland [2009] ECR I-6277����������������������������������� 93, 256 39/72 Commission v Italy EU:C:1973:13����������������������������������������������������������� 213 C-297/08 Commission v Italy EU:C:2010:115��������������������������������������������������� 211 C-263/02 Commission v Jégo-Quéré [2004] ECR I-3425����������������������������� 164–65 C-339/87 Commission v Netherlands [1990] I-851���������������������������������������������� 92 C-530/11 Commission v UK [2014] 3 CMLR 6; 3 WLR 853; EU:C:2014:67���������������������������������������������������������������������������� 93,112, 256, 273 C-513/99 Concordia Bus Finland Oy Ab v Helsingin Kaupunki and HKL-Bussiliikenne [2002] ECR I-7213�������������������������������������������� 139, 166 C-206/13 Cruciano Siragusa v Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo Judgment of 6 March 2014, EU:C:2014:126����������� 208 C-260/11 David Edwards v Environment Agency [2013] 1 WLR 2914������ 256, 273 C-474/10 Department of the Environment for Northern Ireland v Seaport [2011] I-10277����������������������������������������������������������������������������������������������� 151 C-237/07 Dieter Janecek v Freistaat Bayern [2008] ECR I-06221; EU:C:2008:447������������������������������������������������� 213, 217, 256, 270, 273, 276–77

Table of Cases xv C-263/08 Djurgården–Lilla Värtans Miljöskyddsförening v Stockholms kommun genon dess marknämd [2009] ECR I-9967������������������������������ 186, 256 C-540/14P DK Recycling, EU:C:2016:469��������������������������������������������������������� 118 T-475/07 Dow AgroSciences Ltd v Commission [2011] ECR II-05937�������������� 145 C-71/14 East Sussex County Council v Information Commissioner [2016] CMLR 5���������������������������������������������������������������������������������������������� 277 T-387/04 EnBW Energie Baden-Württemberg AG v Commission, EU:T:2005:412����������������������������������������������������������������������������������������������� 115 C-461/15 E.ON Kraftwerke GmbH v Germany, EU:C:2016:648����������������������� 118 C-204-208/12 Essent Begium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt, Opinion of AG Bot [2013] EU:C:2013:294��������� 151 C-112/00 Eugen Schmidberger Internationale Transporte v Austria EU:C:2003:333����������������������������������������������������������������������������������������������� 210 C-120/10 European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale and Région de Bruxelles-Capitale [2011] ECR I-07865��������������������������������������������������������������������������������� 151–52 6/64 Flaminio Costa v ENEL, EU:C:1964:66����������������������������������������������������� 207 T-257/07 France v Commission [2011] ECR II-5827����������������������������������������� 145 Joined Cases C‑6/90 and C‑9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357��������������������������������������������������������������������������� 98, 100, 274 C-535/15 Freie und Hansestadt Hamburg v Jost Pinckernelle [2016] EU:C:2016:996����������������������������������������������������������������������������������� 151 C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz [2014] PTSR 311����������������� 256 C-529/15 Gert Folk v Landeshauptmann von Steiermark, EU:C:2017:419��������������������������������������������������������������������������������������� 256, 275 C-341/95 Gianni Bettati v Safety Hi-Tech Srl [1998] ECR I-4355, 30�� 162, 169–70 C-356/12 Glatzel v Freistaat Bayern, EU:C:2014:350���������������������������������������� 150 T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205��������� 164–65 C-321/95P Greenpeace and Others v Commission [1998] ECR II-1651����� 164, 167 C-556/14P Holcim (Romania) v Commission, EU:C:2016:207�������������������������� 115 C-428/07 Horvath [2009] ECR I-6355, 29�������������������������������������������������������� 161 C-195/12 Industrie du Bois de Vielsalm, Opinion of AG Bot [2013] EU:C:2013:293����������������������������������������������������������������������������������������������� 151 C-41/11 Inter-Environnement Wallonie and Terre Wallonne ASBL v Region Wallonne, EU:C:2012:103������������������������������������������������������������������������������ 273 C-583/11 P Inuit Tapiriit Kanatami v European Parliament, EU:C:2013:625����������������������������������������������������������������������������������������� 164–65 C-237/07 Janecek [2008] ECR I-6221���������������������������������������������������������� 96, 198 C-189/01 Jippes and Others [2001] ECR I-5689, EU:C:2001:420, 80�������� 162–63, 169–70 Joined Cases C-9/97 and C-118/97 Jokela and Pitkäranta [1998] ECR I-6267����������������������������������������������������������������������������������������� 279 Joined Cases C-402/05 P and C-415/05 P Kadi, EU:C:2008:461������������������������ 112 C-292/97 Karlsson and others [2000] ECR I-2737��������������������������������������������� 166 C-570/13 Karoline Gruber v Unabhangiger Verwaltungssenat fur Karnten and Others, EU:C:2015:231��������������������������������������������������������������������������� 256 C-72/95 Kraaijeveld v Gedeputeerde Staten Van Zuid-Holland [1996] ECR I-5403������������������������������������������������������������������������� 256, 272, 277

xvi  Table of Cases C-416/10 Križan, EU:C:2013:8������������������������������������������������������������������ 112, 256 C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) [2004] ECR I-7405�������������������� 147, 262 C-240/09 Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Slovak Brown Bear) [2011] ECR I-1255���������� 97, 256–57, 260–61, 274, 277, 281 C-243/15 Lesoochranárske Zoskupenie VLK v Obvodny urad Trecin, EU:C:2016:838; EU:C:2016:491�������������������������������������������������������������������� 217 C-420/11 Leth v Austria [2013] 3 CMLR 2������������������������������������������� 98–99, 274 C-463/11 L v M [2013] Env LR 35���������������������������������������������������������������� 90–91 C-75/08 Mellor v Secretary of State for Communities and Local Government [2009] ECR I-03799������������������������������������������������������������������������������� 256, 264 T-262/10 Microban, EU:T:2011:623������������������������������������������������������������������ 164 C-201/08 Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt [2009] ECR I-8343����������������������������������������������������������������������������������������� 245 25/62 Plaumann v Commission [1963] ECR 95��������������������������� 60, 101, 164, 168 C-379/98 PreussenElektra v Schleswag [2001] ECR I-2099 231������������������������ 161 C-240/83 Procureur de la République v Association de défense des brûleurs d’huiles usagées (ADBHU) [1985] ECR 531����������������������������� 38, 151, 158, 172 C-331/88 Queen v Minister of Agriculture, Fisheries and Food and Secretary State for Health ex parte Fedesa et al [1990] ECR I-4023������������������������������ 170 C-201/02 R (Delena Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723��������������������������������������������������� 98, 256, 274 C-260/11 R (Edwards) v Environment Agency [2013] 3 CMLR 18 [33]�������������� 99 C-404/13 R (ota) Clientearth v Sec. of State for Environment, Food and Rural Affairs EU:C:2014:2382�������������������������������������������������������� 213, 217 T-37/04 Região autónoma dos Açores v Council of the European Union [2008] ERC II-00103���������������������������������������������������������������������������������������� 60 C-44/95 Regina v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds (Lappel Bank) [1996] ECR I-3805������������������������ 272 120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649��������������������������������������������������������������������������������������������� 167 T-614/13 Romonta GmbH v Commission, EU:T:2014:835������������������ 117–18, 151 C-35/76 Simmenthal SpA v Ministero delle Finanze Italiano, EU:C:1976:180����������������������������������������������������������������������������������������������� 211 C-182/10 Solvay v Region wallone [2012] 2 CMLR 19������������������������������������� 256 C-310/04 Spain v Council (Cotton support scheme) [2006] ECR I-7285����������� 170 C-287/98 State of the Grand Duchy of Luxembourg v Berthe Linster [2000] ECR-I 6917����������������������������������������������������������������������������������������� 256 C-293/97 Standley [1999] ECR I-2603�������������������������������������������������������������� 101 C-165-167/09 Stichting Natuur en Milieu v College van Gedeputeerde Staten van Groningen [2011] ECR I-4599�������������������������������� 270, 272–73, 277 C-258/11 Sweetman v An Bord Pleanála, EU:C:2013:220���������������������������������� 147 T-229/04 Sweden v Commission [2007] ECR II-2437�������������������������������� 139, 145 C-210/03 Swedish Match AB and Swedish Match UK Ltd [2004] ECR I-11893��������������������������������������������������������������������������������������� 170 C-361/88 TA Luft I [1991] ECR I-2567������������������������������������������������������������� 256 C-59/89 TA Luft II, EU:C:1991:325������������������������������������������������������������������� 256

Table of Cases xvii C‑456/13P T & L Sugars Ltd and Sidul Acucares v Commission, EU:C:2015:284����������������������������������������������������������������������������������������������� 166 C-308/06, The Queen on the Application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057��������������������������������������������������������������������� 73 C-205/08 Umweltanwalt von Kärnten v Kärntner Landesregierung [2009] ECR I-11525��������������������������������������������������������������������������������������� 279 T-178/05 United Kingdom v Commission, EU:T:2005:412�������������������������������� 115 131/86 United Kingdom v Council [1988] ECR 905������������������������������������������ 163 C-50/00 UPA v Council [2002] ECR I-6677������������������������������������������������������� 164 61/65 Vaasen—Goebbels v Beambtenfonds voor het Mijnbedrijf [1966] ECR 261��������������������������������������������������������������������������������������������� 279 C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1����������������������������������������������������������������������������������������� 167, 273 Joined Cases C-401/12 P to C-403/12 P Vereniging Milieudefensie EU:C:2015:4��������������������������������������������������������������������������������������������������� 165 Case 5/88 Wachauf v Germany [1989] ECR 2609��������������������������������������������� 166 C-60/05 WWF Italia and Others v Regione Lombardia [2006] ECR I-5083�������� 92 C-435/97 WWF v Autonhome Provinz Bozen and others [1999] ECR I-5613������������������������������������������������������������������������� 256, 272–273 C-355/08P WWF-UK Ltd, EU:C:2009:286�������������������������������������������������������� 122 Joined Cases C-402/05 and C-415/05 Yassin Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351��������������������������� 171 Opinions Opinion 2/94 on the Accession by the Community to the ECHR, EU:C:1996:140����������������������������������������������������������������������������������������������� 207 Opinion 2/13 on Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454�������������������������������������������������������������������� 207, 279 European Court of Human Rights Anheuser-Busch Inc v Portugal, Judgment of 11 January 2007, Application No 73049/01������������������������������������������������������������������������������� 239 Budayeva and Others v Russia (2014) 59 EHRR 2���������������������������������������������� 90 Beyeler v Italy, Judgment of 5 January 2000, Application No 33202/96������������ 238 Brincat and others v Malta, Judgment of 24 July 2014, Application No 60908/11������������������������������������������������������������������������������� 223 Brosset-Triboulet and Others v France, Judgment of 29 March 2010, Application No 34087/02��������������������������������������������������������������������������������� 63 Campbell and Fell v UK [1984] 4 ECHR 7819�������������������������������������������������� 278 Chassagnou and Others v France, Judgment of 29 April 1999, Application Nos 25088/94, 28331/95, 28443/95������������������������������������������� 239 Coême and others v Belgium [2000] ECHR 249������������������������������������������������ 278 Depalle v France, Judgment of 29 March 2010, Application No 34044/02���������� 63 Dubetska v Ukraine, Judgment of 2 May 2011, Application No 30499/03�������� 223 Fadeyeva v Russia (2007) 45 EHRR 10������������������������������������������� 40, 61, 88, 100

xviii  Table of Cases Fredin v Sweden (1991) 13 EHRR 784���������������������������������������������������������������� 38 Guerra v Italy [1998] ECHR 7����������������������������������������������������������������������������� 61 Gustafsson v Sweden (1996) 22 EHRR 409������������������������������������������������������� 278 Gratzinger and Gratzingerova v the Czech Republic, Decision of the Grand Chamber as to the Admissibility of 10 July 2002, Application No 39794/98������������������������������������������������������������������������������� 239 Hardy and Maile v United Kingdom (2012) 55 EHRR 58��������������������������������� 152 Hatton and others v United Kingdom (2003) 37 EHRR 28���������������������������������� 90 Hirsi Jamaa and Others v Italy, Judgment of 23 February 2012, Application No 27765/09��������������������������������������������������������������������������������� 63 Hutten-Czapska v Poland, Judgment of 22 February 2005, Application No 35014/97������������������������������������������������������������������������������� 243 Klass v Germany [1978] ECHR 4���������������������������������������������������������������������� 266 Kopecky v Slovakia, Judgment of 28 September 2004, Application No 44912/98������������������������������������������������������������������������������� 239 Kyrtatos v Greece, Judgment of 22 May 2003, Application No 41666/98����������� 62 Langborger v Sweden (1989) 12 EHRR 416������������������������������������������������������ 278 Le Compte a.o v Belgium (1983) 5 EHRR 533�������������������������������������������������� 278 Lopez Ostra v Spain [1994] ECHR 46��������������������������������������������������������� 61, 152 Mangouras v Spain, Judgment of 28 September 2010, Application No 12050/04��������������������������������������������������������������������������������� 61 Maurice v France, Judgment of 6 October 2005, Application No. 11810/03������������������������������������������������������������������������������������������� 239–40 Medvedyev and Others v France (2010) 51 EHRR 39����������������������������������������� 63 Moreno Gomez v Spain, Judgment of 16 November 2004, Application No 4043/02��������������������������������������������������������������������������������� 223 Matos e Silva Lda v Portugal (1997) 24 EHRR 573��������������������������������������������� 38 Norris v Ireland [1988] ECHR 22���������������������������������������������������������������������� 266 Okyay and Others v Turkey (2006) 43 EHRR 37������������������������������������������������ 90 Öneryildiz v Turkey (2005) 41 EHRR 20������������������������������������������������������������� 40 Pine Valley Developments Ltd and Others v Ireland, Judgment of 29 November 1991, Application No 12742/87���������������������������� 239–40, 243 Posti and Rahko v Finland, Judgment of 24 September 2002, Application No 27824/95������������������������������������������������������������������������������� 239 Sokołowski v Poland, Decision on Admissibility of 7 July 2009, Application No 39590/04������������������������������������������������������������������������������� 239 Sramek v Austria (1984) 7 EHRR 351��������������������������������������������������������������� 278 Steele & Morris v UK (2005) 41 EHRR 403������������������������������������������������������ 279 Taskin and Others v Turkey, Judgment of 10 November 2004, Application No 46117/99������������������������������������������������������������������������������� 223 Taşkin and Others v Turkey (2006) 42 EHRR 50������������������������������������������������ 90 Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309����������������������������������� 38 Van Marle e.a v The Netherlands, Judgment of 26 June 1986, Application Nos 8543/79, 8674/79, 8675/79, 8685/79���������������������������������� 239 Västberga Taxi AB v Sweden [2002] ECHR 36985/97��������������������������������������� 266 Yumak and Sadak v Turkey, Judgment of 8 July 2008, Application No 10226/03������������������������������������������������������������������������������� 205 Zander v Sweden [1993] ECHR 59�������������������������������������������������������������������� 279

Table of Cases xix National Courts Belgium Belgian Constitutional Court, Arrest no 92/2006 of 7 June 2006, Application No 3715�������������������������������������������������������������������������������������� 240 Belgian Constitutional Court, Judgment no 8/2014, 23 January 2014, Application Nos 5558 and 5561��������������������������������������������������������������������� 241 Canada Montana Band of Indians v R [1991] 2 FC 30 (Fed CA)�������������������������������������� 80 Germany Bundesverwaltungsgericht, Judgment 2013-09-05 in case BVerwG 7 C 21.12����������������������������������������������������������������������������������������� 258 India MC Mehta v Union of India AIR (1988) SC 1086����������������������������������������������� 49 Netherlands Gerechtshof te S-Gravenhage Judgment of 11 October 2007 in case X and Stichting Natuur & Milieu v the Netherlands, No 06/1560 KG��������������� 245 Philippines Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994) 33 ILM 173�������������������������������������������������������������������������� 49 South Africa Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46�������������������������������������������������������������������� 41 Sweden Administrative Court of Appeal in Stockholm, 18 July 2007, 6306-06�������������� 197 Administrative Courts, RÅ 2010 ref. 62������������������������������������������������������������� 197 Nykomb Synergetics Tech. Holding AB v Republic of Lat., SCC Case No. 118/2001, Award (Stockholm Chamber of Commerce 2003)������������������ 249 Supreme Court, NJA 2010, p 168���������������������������������������������������������������������� 194 Supreme Court, NJA 2010 s 419������������������������������������������������������������������������ 200 Supreme Court, NJA 2013, 502 and 746����������������������������������������������������������� 194 United Kingdom Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 173��������� 116 Bowden v South West Water [1998] Env LR 445������������������������������������������������� 99

xx  Table of Cases Infinis Energy Holdings Ltd v HM Treasury & Anor [2016] EWCA Civ 1030��������������������������������������������������������������������������������� 242 Monsanto v Tilly [1999] EWCA Civ 3044��������������������������������������������������������� 111 R (Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908���������������� 31 R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28��������������������������������������������������������������������� 40, 96, 256 R (Fisher) v English Nature [2004] EWCA Civ 663��������������������������������������������� 32 R (Mott) v Environment Agency [2016] EWCA Civ 564������������������������������������� 32 R v Secretary of State for the Environment, ex parte Friends of the Earth [1994] 2 CMLR 760����������������������������������������������������������������������������������������� 95 R (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 663������������������������������������������������ 32 The Secretary of State for Energy and Climate Change and Friends of the Earth and others [2012] EWCA Civ 28������������������������������������������������ 245 United Kingdom Association of Fish Producer Organisations v Secretary of State for the Environment, Food and Rural Affairs [2013] EWHC 1959���������� 32, 122 African Court of Human and Peoples’ Rights Centre for Minority Rights Development (Kenya) and Minority Rights Group international on behalf of Endorois Welfare Council v Kenya, AfCHPR Communication 276/2003�������������������������������������������������������������������������������� 49 Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, AfCHPR, Communication 155/96������������������� 9, 49 Arbitration Awards/Arbitral Tribunals Abyei Arbitration (Government of Sudan v Sudan People’s Liberation Movement/Army), Final Award of 22 June 2009, RIAA, vol XXX������������������� 70 Charanne B.V. Construction Investments S.A.R.L. v Spain (ARB 062/2012), 21 January 2016��������������������������������������������������������������������������������������������� 248 Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention between Ireland and the United Kingdom of Great Britain and Northern Ireland, Final Award, Decision of 2 July 2003, RIAA XXIII pp 59–151������������������������������������������������������������������������������������ 59 Isolux Netherlands, BV v Kingdom of Spain, SCC Case V2013/153������������������ 229 Territorial Sovereignty and Scope of the Dispute [Eritrea/Yemen—Phase I], RIAA, vol XXII������������������������������������������������������������������������������������������������ 69 Human Rights Committee (International Covenant on Civil and Political Rights) Apirana Mahuika et al v New Zealand, CCPR/C/70/D/547/1993������������������ 80–81 Lubicon Lake Band v Canada, Communication No 167/1984 (26 March 1990) UN Doc Supp No 40 (A/45/40)������������������������������������������������������������������������ 80 Inter-American Commission of Human Rights Maya Indigenous Community of the Toledo District v Belize [2004] IACHR Case 12.053, Report No 40/04, OEA/Ser.L/V/II.122 Doc 5 rev 1��������������������� 49

Table of Cases xxi International Court of Justice Anglo-Norwegian Fisheries case (1951) ICJ Rep 116������������������������������������������� 69 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Rep 1974���������������������������������������������������������������������������������������������������� 70 Gulf of Maine case (1984) ICJ Rep 246��������������������������������������������������������������� 69 International Centre for Settlement of Investment Disputes CME Czech Republic B.V. v Czech Republic, 9 ICSID Rep. 121������������������������ 247 CMS Gas Transmission Co. v Argentinean Republic, ICSID Case No ARB/01/8, Award of 12 May 2005���������������������������������������������������������������������������������� 247 Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v Kingdom of Spain, ICSID Case No ARB/13/36�������������������������������������������� 229 Electrabel S.A. v Hungary, ICSID No ARB/07/19, Award of 30 November 2012������������������������������������������������������������������������������������ 247 Middle East Cement Shipping & Handling Co., S.A. v Arab Republic of Egypt, ICSID Case No ARB/99/6, Award (12 April 2002) 7 ICSID Rep 173 (2005)��������������������������������������������������������������������������������� 247 Técnicas Medioambientales Tecmed, S.A. v United Mexican States, ICSID Case No ARB(AF)/00/2, Award (29 May 2003), 43 ILM 133 (2004)������������� 247 Total, S.A. v Argentinean Republic, ICSID Case No ARB/04/1, Decision on Liability (27 December 2010)������������������������������������������������������������������������� 250 International Tribunal for the Law of the Sea Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS Case No 21, 2 April 2015������������������������������������������������ 68 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011������������������������������ 56 Permanent Court of Arbitration In the Matter of Arbitration (The Republic of The Philippines and the People’s Republic of China) Award on Jurisdiction and Admissibility 29 October 2015���������������������������������������������������������������������������������������������� 69 In the Matter of the Arctic Sunrise Arbitration (Netherland v Russia), PCA Case No 2014-02, Award on the Merits (14 August 2015)���������������������� 56 In the Matter of the South China Sea Arbitration, (The Republic of The Philippines and the People’s Republic of China) Award of 12 July 2016������������������������������������������������������������������������������������������������� 70 Peter Allard v Government of Barbados, PCA Case No 2012-06, Decision on Jurisdiction of 13 June 2014��������������������������������������������������������������������������� 230 UNECE (Compliance Committee) ACCC/C/2010/48 Austria���������������������������������������������������������������������������������� 276 ACCC/C/2011/63 Austria�������������������������������������������������������������������� 266–67, 276 ACCC/C/2005/11 Belgium��������������������������������������������������������������������������������� 266 ACCC/C/2008/11 Belgium��������������������������������������������������������������������������������� 266

xxii  Table of Cases ACCC/C/2011/58 Bulgaria��������������������������������������������������������������������������������� 266 ACCC/C/2010/50 Czech Republic������������������������������������������������������� 265–66, 275 ACCC/C/2006/18 Denmark������������������������������������������������������������������������������� 266 ACCC/C/2004/06 Kazakhstan��������������������������������������������������������������������������� 266 ACCC/C/2007/20 Kazakhstan��������������������������������������������������������������������������� 266 ACCC/C/2008/32 Part II European Union��������������������������������������������������������� 281 ACCC/C/2008/33 United Kingdom�������������������������������������������������������������������� 276 C/33(2008) Findings and Recommendations of the Aarhus Convention Compliance Committee with regard to Communication ACCC/C/2008/33 concerning compliance by the United Kingdom������������������������������������������������ 59 United Nations Commission on International Trade Law Eureko B.V. v Republic of Poland, 12 ICSID Rep 335, para 144 (UNCITRAL Arb. 2005)�������������������������������������������������������������������������������� 247 Int’l Thunderbird Gaming Corp. v The United Mexican States, UNCITRAL, Award (26 January 2006)������������������������������������������������������������������������������� 249 Pope & Talbot, Inc. v Canada, Interim Award, 40 ILM 258 (NAFTA/UNCITRAL Arb. 2000)������������������������������������������������������������������� 247 Saluka Invs. BV v Czech, Partial Award (UNCITRAL Arb. Trib. 2006) 15 ICSID Rep 274 (2010)������������������������������������������������������������������������������� 249

Table of Legislation International Agreement Between India and Sri Lanka on the Boundary in Historic Waters Between the Two Countries and Related Matters 1974, reproduced in UN National Legislation and Treaties relating to the Law of the Sea, ST/LEG/SER.B/19 (1980)��������������������������������������������������������������������������������� 69 Agreement for the Establishment of the Indian Ocean Tuna Commission 1993, 1927 UNTS 329����������������������������������������������������������������������������������������������� 57 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3��������������������������������������������������������������� 56 Convention for the Conservation of Antarctic Marine Living Resources 1980, 1329 UNTS 47������������������������������������������������������������������������������������������������� 57 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 September 1953 (ECHR)��������������������������������������������������� 10, 61, 88, 179, 230 Convention for the Protection of the Marine Environment of the North-East Atlantic 1998, 2354 UNTS 67�������������������������������������������������������������������������� 58 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998, 2161 UNTS 447����������������������������������������������������������������������������������������� 59, 87 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries 1980, 1285 UNTS 129��������������������������������������������������������� 57 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries 1978, 1135 UNTS 369����������������������������������������������������������������������� 57 Convention on the Conservation and Management of Fishery Resources of the South East Atlantic Ocean 2001, 2221 UNTS 189��������������������������������� 57 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 2000, 2275 UNTS 43����������� 57 Convention on the Protection of the Marine Environment of the Baltic Sea Area 1992, (Helsinki Convention) 2009 UNTS 197�������������������������������������������������� 58 Convention on the Protection of the Marine Environment of the North-East Atlantic 1992, 2354 UNTS 67�������������������������������������������������������������������������� 53 International Convent on Civil and Political Rights 1966, 999 UNTS 171����������� 53 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3����������������������������������������������������������������������������������������������������� 53 International Convention for the Conservation of Atlantic Tunas 1966, 1969 UNTS 63������������������������������������������������������������������������������������������������� 57

xxiv  Table of Legislation Maritime Labour Convention 2006, 45 ILM 792������������������������������������������������ 66 Treaty Australia and Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Straits, and related matters 1978, Australian Treaty Series 1985 No 4������������������������������������������������������������������ 69 United Nations Climate Framework Convention on Climate Change 1992 ‘UNFCCC’), 1771 UNTS 107��������������������������������������������������������������������������� 14 United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992) UN Doc A/CONF.151/26��������������������������������������������������������������������������� 8, 143 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3�������� 53–54 United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (25 June 1998) 2161 UNTS 447������������������������������������������������������������������������������� 14, 165, 202 United Nations Environment Programme, ‘Declaration of the United Nations Conference on the Human Environment’ (16 June 1972) UN Doc A/CONF.48/14, 11 ILM 1461 (‘Stockholm Declaration’)��������������������������� 4, 143 United Nations Framework Convention on Climate Change, Paris Agreement, UN Doc (12 December 2015) FCCC/CP/2015/L.9/Rev.1���������������������������� 14, 46 World Commission on Environment and Development, ‘Report of the World Commission on Environment and Development: Our Common Future’ (20 March 1987) UN Doc A/42/427 (‘Brundtland Report’)���������������������������� 143 World Summit on Sustainable Development, ‘Johannesburg Declaration on Sustainable Development’ (4 September 2002) UN Doc A/CONF.199/20������ 143 European Union Treaties Charter of Fundamental Rights of the European Union [2000] OJ C364/01����������������������������������������������������������������������������������� 38, 205 Maastricht Treaty [1992] OJ C224/1����������������������������������������������������������������� 158 Treaty on European Union (TEU) [2016] OJ C202/13��������������������������������������� 205 Treaty on the Functioning of the European Union [2012] OJ C326/47����������������������������������������������������������������������������� 22, 60, 155 Directives Access to environmental information Directive 90/313/EEC [1990] OJ L158/56������������������������������������������������������������������������������������������� 93 Air quality (sulphur dioxide and suspended particulates) Directive 80/779/EEC [1980] OJ L229/30������������������������������������������������������������������������������������������� 93 Directive 96/62/EC on ambient air quality assessment and management [1996] OJ L296/55����������������������������������������������������������������������������������������� 213 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40������������ 89, 214, 254 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1������������������������ 97, 254

Table of Legislation xxv Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitat and of wild fauna and flora [1992] OJ L206/07����������� 32, 125, 216, 261 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7 (Birds Directive)���������������������������������������������������������������������������������� 92, 125–26 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56������������������ 43, 255 Fish and Shellfish Waters Directive 78/659/EEC [1978] OJ L222/1���������������������� 93 Fish and Shellfish Waters Directive 79/923/EEC [1979] OJ L281/47�������������� 93, 99 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L327/1������������������������������������������������������ 93, 123 Groundwater Directive 80/68/EEC [1980] OJ L20/43������������������������������������������ 93 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 Amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community [2009] OJ L140/63����������������������������������������������������������� 233 Council Directive 96/61/EC concerning integrated pollution prevention and control [1996] OJ L257/26������������������������������������������������������������������������ 99 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, OJ L24/8 and Directive 2010/75/EU of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L334������������������ 255 Lead in air Directive 82/884/EEC������������������������������������������������������������������������� 93 Nitrates Directive 91/676/EEC [1991] OJ L375/1���������������������������������������������� 101 Directive 77/452/EEC on nursing qualifications [1977] OJ L176/1���������������������� 92 Directive 2003/4/EC on public access to environmental information [2003] OJ L41/26������������������������������������������������������������������������������������ 59, 89, 97, 215 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice [2003] OJ L156/17��������������������������������������������������������������� 59, 89, 93, 215, 254 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61 [2003] OJ L275/32��������������������������������������������������������������������������������� 115, 234 Surface Water for Drinking Directive 75/440/EEC [1975] OJ L194/26���������������� 93 Surface Water for Drinking Directive 79/869/EEC [1979] OJ L271/44���������������� 93 Directive 2006/12/EC on waste [2006] OJ L114/ 9�������������������������������������������� 211 Regulations Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies, OJ L264/13�������������������������������������������������������������������� 16, 59–60, 89, 215, 255

xxvi  Table of Legislation Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy [2013] OJ L354/22����������������������������������������������������������������������������������� 120–22 Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries recourses under the Common Fisheries Policy [2002] OJ L358/59����������������������������������������������������������������������������������������� 120 Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015 as regarding the landing obligation [2015] OJ L133/1��������� 120 Decisions Council Decision 2005/370/EC on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1��������������������������������������������������������������������������������������� 59, 89 Decision 2015/1814/EU of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC [2015] OJ L264/1��������������������������������� 236 National Bolivia Ley de Derechos de la Madre Tierra 2010�������������������������������������������������������������� 5 Canada Oceans Act 1996�������������������������������������������������������������������������������������������� 53, 79 New Zealand Te Urewera Act 2014��������������������������������������������������������������������������������������������� 5 Sweden Act on the European Convention for the Protection of Human Rights and Fundamental Freedoms (1994:1219)������������������������������������������������������ 193, 198 Act on Judicial Review of Certain Government Decisions (2006:304)���������������� 183 Act on Land and Environment Courts (2010:921)������������������������������������� 178, 186 Act on Natural Resources (1987:12)������������������������������������������������������������������ 180 Administrative Procedure Act (1986:223)���������������������������������������������������������� 179 Code on Judicial Procedure (1942:740)������������������������������������������������������ 178, 186 Court Matters Act (1996:242)������������������������������������������������������������������� 178, 187 Environmental Code (1998:808)���������������������������������������������������������������� 177, 259 Government Bill, Prop. 1997/98:45�������������������������������������������������������������������� 184 Government Bill, Prop. 2006/07:98�������������������������������������������������������������������� 181 Governmental Bill, Prop. 2009/10:215����������������������������������������������� 178, 181, 184 Governmental Ordinance (SFS 1988:1388)�������������������������������������������������������� 186 Governmental Ordinance (SFS 2013:251)���������������������������������������������������������� 186

Table of Legislation xxvii Governmental Report (DS 2016:25)����������������������������������������������������� 196–97, 200 Ordinance on Environmental Supervision (2011:13)������������������������������������������ 179 Planning and Buildings Act (2010:900)����������������������������������������������� 177, 181–82, 187, 192, 197 Public Access to Information and Secrecy Act (SFS 2009:400)��������������������������� 189 Public Water Supply and Wastewater Systems Act (SFS 2006:412)��������������������� 181 Property Formation Act (1970:988)������������������������������������������������������������������� 177 Report SOU 2008:106 on Trust for the Courts�������������������������������������������������� 178 Swedish Water Supply and Sewage Tribunal Act (SFS 1976:839)����������������������� 181 The Instrument of Government (SFS 1974:152)����������������������������������������� 179, 191 Water Act (SFS 1918:523)���������������������������������������������������������������������������������� 180 United Kingdom Environmental Protection Act 1990������������������������������������������������������������� 43, 181 Marine and Coastal Access Act 2009������������������������������������������������������������� 54, 79 National Parks and Access to the Countryside Act 1949�������������������������������������� 31 Wildlife and Countryside Act 1981���������������������������������������������������������������� 31–32 United States Outer Continental Shelf Lands Act 1953�������������������������������������������������������������� 75 Sulphur Dioxide Allowance Program for Existing and New Units [42 USC 7651b]���������������������������������������������������������������������������������������������� 129 Constitutions Constitution of the Republic of Ecuador������������������������������������������������ 5–6, 35–36 Constitution of the Republic of Hungary 2011���������������������������������������������������� 40 Constitution of the Republic of Latvia����������������������������������������������������������������� 40 Constitution of the Slovak Republic��������������������������������������������������������������������� 40 Constitution of the Republic of South Africa����������������������������������������������������� 135 Constitution of Spain������������������������������������������������������������������������������������� 37, 39

xxviii 

Part I

Environmental Rights: Hopes, Fears and Realities

2 

1 Environmental Rights in Europe and Beyond: Setting the Scene SANJA BOGOJEVIĆ AND ROSEMARY RAYFUSE

I. INTRODUCTION

I

N 1972 A report commissioned by the Club of Rome, entitled Limits to Growth, warned that the rapid growth in global population, energy use, resource depletion and food production could not be sustained indefinitely and would eventually confront the earth’s biophysical limits.1 Fast-forward to today and the evidence that we are rapidly overshooting the earth’s planetary boundaries is increasing. In 2012 the United Nations Environment Programme declared that the drivers of environmental change are ‘growing, evolving and combining at such an accelerating pace, at such a large scale and with such widespread reach that they are exerting unprecedented pressure on the environment’.2 These drivers are largely human in origin. Indeed, our effect on the earth has been so profound that ­scientists have proposed that we have now entered a new geological era, the ­Anthropocene, an epoch that recognises that humans are now the principle agents of environmental and geological change capable not only of fundamentally altering the earth and its ecosystems, but also of causing our own mass extinction.3

1  DH Meadows, J Randers and WW Behrens III, The Limits to Growth: A Report for the Club of Rome’s Project on the Predicament of Mankind (Universe Books, 1972). See also DH Meadows and J Randers, Limits to Growth: The 30-Year Update (Universe Books, 2004). 2  United Nations Environment Programme (UNEP), Global Environment Outlook-5: Environment for the Future We Want (2012) 23, available at www.unep.org/geo/sites/unep.org.geo/ files/documents/geo5_report_full_en_0.pdf. 3 J Zalasiewicz et al, ‘The Working Group on the Anthropocene: Summary of Evidence and Interim Recommendations’ (2017) 19 Anthropocene 55. The term ‘Anthropocene’ was first coined in PJ Crutzen and EF Stoermer, ‘The Anthropocene’ (2000) 41 Global Change ­Newsletter 17. For further discussion of the concept see LJ Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart Publishing, 2016) 4; M Hodson and S M ­ arvin, ‘Urbanism in the Anthropocene: Ecological Urbanism or Premium Ecological Enclaves?’ (2010) 14 City 299.

4  Sanja Bogojević and Rosemary Rayfuse The growing awareness of this impending environmental crisis coupled with a series of national and regional environmental disasters led, in the 1960s and 1970s, to the birth of the global environmental movement and the widespread recognition of the need to protect the environment for both current and future generations.4 Against this backdrop the concept of ‘environmental rights’ surfaced as a means by which claims relating to the environment could be formulated in legal terms and thereby safeguarded.5 As Douglas-Scott explains, dealing with the environmental crises by introducing the concept of rights, ‘introduce[d] a feeling of safety, of strength’ on the basis that rights are ‘supposedly strong things, not to be invoked lightly, or used when a weaker measure will do’.6 However, rights—and here environmental rights are no exception—are notoriously difficult to define.7 ­Moreover, relying on rights in the environmental context where understandings of environmental problems are not settled8 means that ‘environmental rights’ as a concept is open to contestation both as to its content and ambition. The succeeding chapters in this book deal with various aspects of this contestation. The purpose of this present chapter is to set the scene by briefly outlining the contours of the vast and sometimes conflicting scholarly landscape concerning environmental rights, in order to provide a framework of analysis for the chapters that follow. II.  FRAMING ENVIRONMENTAL RIGHTS

In talking about environmental rights, environmental law scholarship adopts a range of different frames that determine what is relevant to the discussion and how to make sense of such rights. Typically, agreed frames for how we understand and act in the world in relation to environmental law are in ‘constant state of flux and contestation’,9 and frames applied to environmental rights are no exception. Still it is useful to outline how environmental rights are projected so as to better understand the hopes, fears and realities associated with this particular regulatory concept. With this

4  See eg Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (16 June 1972) (Stockholm Declaration). 5  For an account of the role of law in dealing with environmental crisis, see J Thornton and M Goodman, Client Earth (Scribe Publications, 2017). 6 S Douglas-Scott, ‘Environmental Rights: Taking the Environment Seriously?’ in Conor Gearty and Adam Tomkins (eds), Understanding Human Rights (Mansell Publishing, 1996) 423, 423. 7  ibid 424. 8  E Fisher, ‘Environmental Law as “Hot” Law’ (2013) 25 Journal of Environmental Law 347. 9 ibid.

Environmental Rights in Europe and Beyond: Setting the Scene 5 aim, three frames often used to describe, as well as promote, environmental rights are outlined: rights of nature, human rights to the environment, or environmental participatory rights. Although these frames are fluid, meaning that they overlap, they each give rise to distinct discussions, offering different conclusions regarding the nature, content and meaning of environmental rights. A.  Environmental Rights as Rights of Nature Rights of nature refers to the eco-centric framing, famously articulated by Stone in 1972,10 which sees the environment as capable of holding its own legal rights. This frame posits that, just as legal categories have been extended to include rights and interests of, for example, minorities, women and corporations, it should also be expanded to the natural world. In 2008 Ecuador became the first country to include in its Constitution specific ­recognition of inalienable rights of nature, granting ‘the right to integral respect for [Nature’s] existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’.11 Several countries have followed suit, including Bolivia12 and New Zealand,13 and in 2017 the High Court in Uttarakhand in India granted certain rivers and g­ laciers the same legal rights as humans.14 Analogous initiatives have also been pursued in the EU by the non-governmental organisation (NGO) ‘Nature’s Rights’, which has relied on the European citizens’ initiative mechanism,15 inviting the European Commission to propose legislation that would create rights of nature.16 Despite these examples, however, this deeply eco-centric approach remains, in large part, highly contested and of limited application.17 To begin with, 10 First published as CD Stone, ‘Should Trees have Standing: Towards Legal Rights for Nature’ (1972) 45 Southern California Law Review 450. Later published as a book, now revised and updated and in its third edition: CD Stone, Should Trees have Legal Standing? Towards Legal Rights for Natural Objects (3rd edn, Oxford University Press, 2010). For later attempts to persuade, see A D’Amato and SK Chopra, ‘Whales: Their Emerging Right to Life’ (1991) 85 American Journal of International Law 21. 11 Article 71 of the Constitution of the Republic of Ecuador; translation taken from the Political Database of the Americas, available at: http://pdba.georgetown.edu/Constitutions/ Ecuador/english08.html. 12  Ley de Derechos de la Madre Tierra 2010, revised in 2012. 13  Te Urewera Act 2014, s 3(3). 14  For an overview of the decisions of the High Court of Uttarakhand, see E O’Donnell, ‘At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India’ (2018) 30 Journal of Environmental Law (in press). 15  See Article 11(4) of the Treaty of the European Union [2008] OJ C115/13. 16  Text of the draft EU directive prepared by Nature’s Rights is available at natures-rights. org/ECI-DraftDirective-Draft.pdf. 17  cf DR Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press, 2017) chapter 1.

6  Sanja Bogojević and Rosemary Rayfuse differences of opinion exist as to what constitutes ‘nature’ and whether, for example, animals are included.18 Moreover, disagreement persists concerning the guarantees that eco-rights are able to secure. In the Ecuadorian Constitution, for example, nature is granted ‘the right to be restored’, and the state is obliged to ensure this is accomplished by establishing ‘the most effective mechanisms to achieve the restoration’ and adopting ‘adequate measures to eliminate or mitigate harmful environmental consequences’.19 Rights of nature may, however, also be conceptualised as the right of ‘nonuse’, where the environment is left to perform its natural functions and to regenerate without any human intervention.20 While clearly related in their eco-centric view of environmental rights, these two approaches presuppose starkly different conceptions of the appropriate role of the state in upholding environmental rights. Contestation over the meaning and extent of rights of nature also ties into the complexities involved in their enforcement. In Ecuador, for example, the relevant constitutional amendments strengthened the position of individuals and communities to enforce the rights of nature, which has led to so-called judicial success stories.21 Rights of nature, however, are not always coupled with representational rights, nor, when vindicated, are the obligations imposed on the state necessarily clear. The decision of the High Court of Uttarakhand in India, for example, required government officials to take action to ‘promote the health and well-being’ of the natural objects. Clearly, however, fulfilment of this responsibility may take many different forms.22 Ultimately, various understandings exist concerning both the content and the implications of rights of nature. As outlined by Reid in Chapter 2 of this volume, the fact that certain Constitutions include rights of nature does not resolve potential conflicts with other constitutional rights, such as the rights ‘to safe and permanent access to healthy, sufficient and nutritional food, preferably produced locally’, to ‘adequate and decent housing’ and ‘to have goods and services of the highest quality and to choose them freely’, each of which will make demands on the natural environment.23 On this view, creating rights of nature can certainly improve the constitutional position of environmental matters but it does not necessarily guarantee that the

18 See A Staker, ‘Should Chimpanzees Have Standing? The Case for Pursuing Legal ­Personhood for Non-Human Animals’ (2017) 6 Transnational Environmental Law 485. 19  Article 72, Constitution of the Republic of Ecuador (n 11). 20  JG Laitos, The Right of Nonuse (Oxford University Press, 2012) 3. 21  E Daly, ‘The Ecuadorian Examplar: The First Ever Vindications of Constitutional Rights of Nature’ (2012) 21 Review of European, Comparative & International Environmental Law 63. 22  O’Donnell (n 14). 23  Articles 13, 30 and 52, Constitution of the Republic of Ecuador (n 11), as outlined in Reid, Chapter 2 in this volume, 36.

Environmental Rights in Europe and Beyond: Setting the Scene 7 e­ nvironment will take priority.24 Moreover, granting priority to the environment may not even be the prime objective of rights of nature. For example, as Sanders explains, the legal personality that was given to Te Urewera, which is land formerly compromising a national park in Aotearoa New Zealand, and the Whuanganui River, also in New Zealand, was ­created to regulate human relationships relating to nature and to acknowledge colonial wrongs to indigenous groups, rather than to regulate nature itself.25 What follows is that in debating eco-centric rights, questions concerning representation, humans’ relationships with nature and the state, as well as the manner in which disagreement in such relationships is resolved and with what consequences, are all pressing, complex and unresolved questions. In summary, Stone’s article was controversial when published and it is still divisive today. Outstanding issues relating to rights of nature include questions as to how they ought to be enforced, by whom and with what consequences. B.  Environmental Rights as Human Rights to the Environment In contrast to the previous frame of rights of nature, rights to the environment refers to the anthropocentric approach, which seeks to reformulate and expand existing human rights and duties in the context of environmental protection.26 The overarching idea is that the role of humans is central to both the problem and the solution to the environmental crises. This is reflected in the recognition, in the Preamble to the 1972 Stockholm Declaration on the Human Environment,27 of man as ‘both creature and moulder of his environment’. Here the environment is described as being ‘essential … to the enjoyment of basic human rights—even the right to life itself’ and its protection and improvement, which is a ‘major issue affecting the wellbeing of all’, has become an ‘imperative goal for mankind’. The need to link environmental protection with human rights arises largely because of the pervasive influence of local and global environmental conditions on the realisation of human rights.28 Whereas international environmental law seeks to protect nature, either for itself or for the benefit of humans, primarily through the regulation of inter-state behaviour, human

24 

Reid, Chapter 2 in this volume. Sanders, ‘“Beyond Human Ownership”? Property, Power and Legal Personality for Nature in Aotearoa New Zealand’ (2018) 30 Journal of Environmental Law (in press). 26  Similar distinction outlined in D Shelton, ‘Human Rights, Environmental Rights and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103, 117. 27  Stockholm Declaration (n 4) paras 1 and 2. 28  P Cullet, ‘Definition of an Environmental Right in a Human Rights Context’ (1995) 13 Netherlands Quarterly of Human Rights 25. 25 K

8  Sanja Bogojević and Rosemary Rayfuse rights law centres on the fundamental aspirations of individual human beings. Given the different, albeit complementary, foci of the two areas of law, inclusion of an environmental dimension in the human rights discourse is seen as necessary to ensuring the full enjoyment of human rights.29 Two different approaches have been taken to achieve this integration: pursuit of the recognition of a new, autonomous right to the environment, and the amplification of existing human rights, including the rights to life, health, private life and property, which can be applied when environmental ­problems animate human rights concerns.30 Each of these approaches is reflected in the various chapters in this volume. i. Environmental Rights as an Autonomous Human Right to the Environment The notion of an autonomous human right to an environment of a particular quality has its origins in Principle 1 of the Stockholm Declaration, which recognised that ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’.31 This was the first acknowledgment at the global level of the concept of environmental rights, with environmental quality being seen as a prerequisite for achieving ‘adequate conditions of life’. At the time, some argued that Principle 1 of the Stockholm Declaration created an autonomous individual right to environmental quality.32 ­However, despite attempts by the World Commission on Environment and Development and others to secure recognition of a fundamental human right to an adequate environment,33 this conceptualisation of environmental rights was not repeated in the 1992 Rio Declaration.34 Indeed, no provision in the Rio Declaration explicitly addresses human rights. Rather Principle 1 of the Rio Declaration merely articulates a strongly anthropocentric r­ ationale for environmental protection and sustainable development pronouncing

29  AE Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 European Journal of International Law 613. 30  S Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Human Right to a Healthy Environment under International Law’ (2002) 16 Tulane Environmental Law Journal 65. 31  Stockholm Declaration (n 4) paras 1 and 2 (emphasis added). 32  LB Sohn, ‘The Stockholm Declaration on the Human Environment (1973) 14 Harvard International Law Journal 423. 33  For a history of these efforts see M Déjeant-Dubois and M Pallemaerts, Human Rights and the Environment (Council of Europe, 2002). 34 Rio Declaration on Environment and Development (14 June 1992), UN Doc A/CONF.151/26/Rev.1 (Rio Declaration).

Environmental Rights in Europe and Beyond: Setting the Scene 9 that ‘Human beings are at the centre of concerns for sustainable development’ and that they ‘are entitled to a healthy and productive life in harmony with nature’. Some commentators saw this as reflecting uncertainty as to the place of human rights law in the development of international environmental law.35 Others considered it a welcome development, arguing that the elaboration of a right to a decent, satisfactory or adequate environment was undesirable as it was too uncertain to be of normative value, inherently anthropocentric and unnecessary given the vast body of international environmental law.36 In many respects that uncertainty and discord continues today, at least to the extent that there still exists no globally applicable right to an adequate environment. A draft Declaration of Principles on Human Rights and the Environment adopted by the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities in 1994 which proposed that ‘All persons have the right to a secure, healthy and ecologically sound environment’37 has never been followed up on, and the recognition at the international level of an autonomous substantive right to an adequate environment has languished. At the regional level, too, the existence of an autonomous right is debatable. Article 24 of the 1981 African Charter on Human and Peoples’ Rights38 does articulate a qualitative right stating that ‘All peoples shall have the right to a general satisfactory environment favourable to their development’. This has been interpreted by the African Commission on Human and Peoples’ Rights as imposing an obligation on the state to take reasonable measures to ‘prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources’.39 However, the right is a collective one, not an individual one. Moreover, it is open to opposing interpretations as to whether environmental quality is a prerequisite of or subordinate to the imperatives of development.40 For its part, Article 11 of the 1988 Additional Protocol to the American Convention on Human Rights in the area of economic, social

35  D Shelton, ‘What Happened in Rio to Human Rights?’ (1992) 3 Yearbook of International Environmental Law 75. 36 AE Boyle, ‘The Role of International Human Rights Law and the Protection of the ­Environment’ in Alan E Boyle and Michael R Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1996) 43. 37 UN ECOSOC, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Final Report to the Special Rapporteur, 59 (6 July1994), UN Doc E/CN.4/Sub.2/1994/9 Annex I. 38  African (Banjul) Charter on Human Rights and Peoples’ Rights, adopted 27 June 11981, OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), entered into force 21 October 1986. 39  Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic, and Social Rights v Nigeria (27 October 2001). The text of the decision is available at http://www.achpr.org/communications/decision/155.96/. 40  Déjeant-Dubois and Pallemaerts (n 33) 15.

10  Sanja Bogojević and Rosemary Rayfuse and cultural rights41 establishes an individual right affirming that ‘Everyone shall have the right to live in a healthy environment and to have access to basic public services’. However, this right appears to be narrowly focused on human health. In the European context, the 1950 European Convention on Human Rights (ECHR)42 makes no mention whatsoever of any right to any environment while Article 37 of the Charter of Fundamental Rights of the European Union (EU Charter)43 merely requires ‘a high level of environmental protection and the improvement of the quality of the environment’ to be integrated into EU policies and ‘ensured in accordance with the principle of sustainable development’.44 In the absence of an autonomous individual right to an adequate environment at the international and regional level, the development of such a right has largely taken place in the domestic constitutions of states.45 As described by Boyd: From Argentina to the Philippines, something remarkable is happening. In communities, legislatures, and courtrooms all around the world, a new human right is blossoming from seeds planted decades ago. The constitutional right to live in a healthy environment represents a tangible embodiment of hope, an aspiration that the destructive, polluting ways of the past can be replaced by cleaner, greener societies in the future.46

However, even here, considerable circumscription is necessary. As Boyle notes, many of these formulations, even where they address the responsibilities of government, do not create an autonomous right to an environment of any particular quality and do not necessarily create any justiciable or enforceable right, although they may encourage courts to give vigorous environmental interpretations to other human or constitutional rights or other general law.47 The extent to which any constitutional formulation explicitly mandates a stronger rights-based interpretation will therefore always depend on the precise scope and extent of the protection afforded to the environment.

41  Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (16 November 1999), A-52. The text is available at www.oas.org/juridico/english/treaties/a-52.html. 42  Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 September 1953. 43  [2012] OJ C326/391. 44  For an in-depth analysis, see Scotford, Chapter 6 in this volume. 45 JR May and E Daly, Global Environmental Constitutionalism (Cambridge University Press, 2015) chapter 1. 46 AE Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press, 2012) 3. 47  AE Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471, 479–82.

Environmental Rights in Europe and Beyond: Setting the Scene 11 ii.  Environment Rights as Existing Human Rights While the existence of an autonomous right to an environment (however defined) and the development of a law of environmental rights remains contested, there is no doubt that there has been a ‘“greening” of human rights law’48 brought about by a ‘reformulation and expansion of existing human rights and duties in the context of environmental protection’.49 At the international level, a 2009 Report of the Office of the High Commissioner of Human Rights (OHCHR) notes that While the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognise the intrinsic link between the environment and the realisation of a range of human rights, such as the right to life, to health, to food, to water, and to housing.50

The 2015 report of the UN Human Rights Council’s Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment notes ‘a growing level of consensus about how human rights norms apply to environmental issue’ and ‘agreement that environmental degradation can and does interfere with the enjoyment of wide range of human rights’.51 It goes on to note that states have ‘substantive obligations to adopt institutional frameworks to protect against environmental harm that may infringe on enjoyment of human rights’ as well as ‘heightened obligations to protect those how are most vulnerable to harm’.52 This greening of human rights law has also occurred at the regional level. In the European context, for example, even though the ECHR ‘is not designed to provide a general protection of the environment as such and does not expressly guarantee a right to a sound, quiet and healthy environment’,53 in its ever-burgeoning environmental jurisprudence, the European Court of Human Rights has recognised that claims relating to the environment are relevant to the interpretation of various rights, including the right to respect for private and family life, the right to peaceful enjoyment of possessions and property, and the right to a fair hearing.54 As noted above,

48 

Boyle (n 29) 614. Shelton (n 26) 117. 50 UN HRC, Report of the OHCHR on the Relationship between Climate Change and Human Rights (15 January 2009), UN Doc A/HRC/10/61 para 18. 51 UN HRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (28 December 2015), UN Doc A/HRC/31/53. 52 ibid. 53  Manual on Human Rights and the Environment, Council of Europe, Doc No. DH-DEV (2005). 54  As discussed in Hilson, Chapter 4 in this volume. 49 

12  Sanja Bogojević and Rosemary Rayfuse the EU Charter also includes ‘environmental protection’ and ‘improvement of the quality of environment’ as part of the EU’s corpus of fundamental rights.55 Similar approaches have also been applied to interpretations of the African Charter, of Human and Peoples’ Rights and the Inter-American Convention on Human Rights.56 Indeed, so pervasive has this interpretative practice become that commentators have suggested we are experiencing an ‘environmental rights revolution’.57 There are, of course, good reasons for considering environmental protection as relevant to human rights. There is no point in guaranteeing a right to life in an environment that is fundamentally anathema to that life. Thus, commentators suggest, an environment adequate for human health and well-being is a basic corollary of other rights and equally deserving of protection as a fundamental right.58 By clothing environmental concerns in a human rights cloak, it is presumed that they will be taken seriously rather than handled as simple trade-offs.59 Given states’ obligations to control pollution affecting health and private life, at the very least treating environmental issues as a human rights issue can help to secure higher standards of environmental quality and make governments directly accountable for their failure to regulate and control environmental nuisances.60 Interpreting environmental concerns in the context of existing human rights can also help to highlight the human rights dimension of global environmental problems, such as global warming, where it can be used, for example, to improve climate policy and mobilise international climate action.61 Thus, positing environmental protection as a human rights issue is not merely a ‘tangible embodiment of hope’ as described by Boyd, above, but also a strategic choice.62 Regardless of the reasons for this reformulation of human rights law as including environmental concerns, as this discussion demonstrates, environmental rights operate at different jurisdictional levels: international, regional and national. Therefore, the roles entrusted to environmental rights as human rights will vary depending on context, as will their precise form

55  For discussion, see S Bogojević, ‘EU Human Rights Law and Environmental Protection: The Beginning of a Beautiful Friendship?’ in Sionaidh Douglas-Scott and Nicolas Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017) 449. 56  See eg Boyle (n 29) 614. 57  Boyd (n 46). 58  Atapattu (n 30). 59  T Hayward, Constitutional Environmental Rights (Oxford University Press, 2005) 5. 60  Boyle (n 29) 613. 61  E Cameron and M Limon, ‘Restoring the Climate by Realizing Rights: The Role of the International Human Rights System’ (2012) 21 Review of European, Comparative & International Environmental Law 204. 62  P Burdon, ‘Environmental Human Rights: A Constructive Critique’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar Publishing, 2015) 61, 77.

Environmental Rights in Europe and Beyond: Setting the Scene 13 as either constitutional or human rights, although the two forms will often overlap.63 However, the relationship between environmental protection and human rights is a complicated one, particularly given that human rights derive their high status and urgency by singling out human beings as specifically worthy of protection, excluding from equal consideration anything non-human.64 In addition, human rights protection will only benefit the victim of a violation of a convention right. Thus, if those rights (such as the right to life, property, health, family life and so on) are not sufficiently affected by environmental loss then the individual will lack standing to proceed.65 This raises significant questions as to whether environmental protection really should be framed in terms of human rights, and if so, how such rights might nonetheless differ from other ‘classic’ human rights, such as property rights or the right to life. C.  Environmental Rights as Participatory Rights The third frame—that of participatory rights—focuses on procedure and providing individuals and others with the rights, opportunities and abilities to participate in environmental policy-making processes. Generally considered to encompass the rights of freedom of association, access to information, public participation in decision making and access to justice,66 participatory rights are said to ‘promote the transparency, participation and accountability’ that are the building blocks of environmental governance.67 It is perhaps because of ongoing quandaries regarding the nature and content of the two previous framings—rights of nature and a right to ­ the ­environment—that much of the development of environmental rights appears to have occurred in the area of participatory rights.68 While it may be true that ‘procedures alone cannot guarantee environmental p ­ rotection’,69 63 Kotzé, for instance, argues that ‘thin’ and ‘thick’ versions exist where thin are merely procedural or guidance and thick provide an standard equal to other constitutional rights, see L Kotzé, ‘Human Rights and the Environment through an Environmental Constitutional Lens’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar Publishing, 2015) 145. 64 C Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1 ­Journal of Human Rights and the Environment 7. 65  Boyle (n 47) 505–06. 66  D Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?’ (2006) 35 Denver Journal of International Law and Policy 129. 67  C Bruch, W Cocker and C van Arsdale, ‘Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa’ (2001) 26 Columbia Journal of Environmental Law 131. 68 Similarly argued in B Peters, ‘Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention’ (2018) 30 Journal of Environmental Law (in press). 69 M Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Alan E Boyle and Michael R Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996) 1.

14  Sanja Bogojević and Rosemary Rayfuse the converse is also true: non-justiciable and unenforceable rights will be equally meaningless. In addition, since trees do not (yet, in general) have standing, procedural and participatory rights are needed to enable individuals or others to bring claims and to participate in policy making on their behalf. Of course, human rights treaties, such as the ECHR, provide standing and other procedural rights to individuals whose convention rights have been affected. However, as noted above, these rights are only available to an affected individual.70 They do not facilitate any kind of general public interest activism capable of protecting environmental interests in the face of opposing development and economic interests.71 The need for such rights is recognised in Principle 10 of the Rio Declaration, which states that ‘environmental issues are best handled with the participation of all concerned citizens’. To that end, Principle 10 requires states to provide to all individuals both appropriate access to the information they hold concerning the environment and the opportunity to participate in decision-making processes. States are to facilitate and encourage public awareness and participation by making information widely available and to provide effective access to judicial and administrative proceedings, including redress and remedy. Similarly, more recent international environmental treaties, including the UN Framework Convention on Climate Change,72 as well as the Paris ­Agreement,73 call for the widest participation possible relating to processes on climate change.74 The most important articulation of these rights in legally binding form is now found in the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters (Aarhus Convention).75 The preamble to the convention specifically recalls Principle 1 of the Stockholm Declaration and Principle 10 of the Rio Declaration and acknowledges ‘that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself’. It further recognises the right of every ­person ‘to live in an environment adequate to his or her health and

70  L Loucaides, ‘Environmental Protection through the Jurisprudence of the ECHR’ (2004) 75 British Yearbook of International Law 249. 71  Hayward (n 59). 72 United Nations Framework Convention on Climate Change (UNFCCC), 1771 UNTS 107 (1992). 73  UNFCCC, Paris Agreement, UN Doc FCCC/CP/2015/L.9/Rev 1, Article 6(b). 74  For an overview of participatory rights in international environmental treaties, see Peters (n 68). 75  United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (25 June 1998) 2161 UNTS 447.

Environmental Rights in Europe and Beyond: Setting the Scene 15 well-being, and the duty, both individually and in association with ­others, to protect and improve the environment for the benefit of present and future generations’. The convention requires its states parties to guarantee the rights of access to information, public participation in decision making, and access to justice in environmental matters ‘in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’.76 Turner traces the origins of the Aarhus Convention beyond the Rio ­Declaration to the 1948 Universal Declaration of Human Rights,77 which recognises that citizens should be provided with mechanisms with which to voice their opinions in relation to decisions affecting them, to participate in decision-making processes, and to have forms of redress where those decisions have encroached upon their rights.78 In tracing the impacts of these rights, the UN HRC Special Rapporteur concludes that in the international arena, governments now have procedural obligations, including to make environmental information publicly available, to facilitate public participation in environmental decision making and to provide access to legal ­remedies.79 Boyle goes even further and concludes that through evolutionary judicial interpretation these rights have effectively been incorporated into the ECHR, at least as far as individuals and individual convention rights are concerned.80 It is clear that the Aarhus Convention is, in essence, as much a human rights treaty as an environmental one. Its critical contribution, however, is to go beyond both bodies of law to recognise the right of public participation at a stage in policy making even before any violation of any accepted substantive human right takes place. Critically, too, the Aarhus Convention provides novel mechanisms for redress which are available not only to specifically affected individuals, but also to others, including NGOs having a ‘sufficient interest’, even in circumstances where their own rights or the rights of victims of a violation are not in issue.81

76 

ibid, Article 1. United Nations General Assembly, The Universal Declaration of Human Rights (adopted 10 December 1948, Paris) General Assembly Resolution 217 A. Text available at www.un.org/ en/universal-declaration-human-rights/. 78  S Turner, A Substantive Environmental Rights: An Examination of the Legal Obligations of Decision-Makers Towards the Environment (Kluwer Law International, 2009) 11. 79  Report of the Special Rapporteur (n 51) para 3. 80  Boyle (n 47). 81 S Kravchenko, ‘The Aarhus Convention and Innovations in Compliance with MEAs’ (2007) 18 Colorado Journal of International Environmental Law and Policy 1; O Pedersen, ‘European Environmental Human Rights’ (20018) 21 Georgetown International Law Review 73; V Koester, ‘The Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters’ in Geir Ulfstein, Thilo Marauhn and Andreas Zimmermann (eds), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge University Press, 2007) 179. 77 

16  Sanja Bogojević and Rosemary Rayfuse The Aarhus Convention has been called ‘the most ambitious venture in the area of “environmental democracy” so far undertaken under the auspices of the United Nations’, capable of serving as ‘a global framework for strengthening citizens’ environmental rights’.82 In this respect, it forms a fundamental basis for discussions on how participation may legitimise environmental decision making and make environmental law more effective. However, while it tends to be assumed that environmental participatory rights operate uniformly across jurisdictions,83 it must be remembered that the Aarhus Convention applies only to its parties, which include the European Union (EU). Indeed, in the case of the EU, which has a long history of democratic deficit and poor enforcement of environmental law,84 the Aarhus Regulation,85 which implements the Convention at the EU level, establishes a direct avenue for access to justice by enabling any NGO, as defined in the Regulation, to make a request for internal review of administrative acts adopted under environmental law by EU authorities. Regardless of whether this fully constitutes ‘participatory justice’,86 environmental participatory rights found in the Aarhus Convention are transforming EU environmental law by broadening the range of actors able to rely on EU environmental law to secure environmental protection.87 This transformation, however, is undoubtedly legal context-specific.88 D.  Moving Beyond Framing It is acknowledged that the frames discussed here are not exhaustive; indeed, numerous variations in the classification, or framing, of environmental rights exist.89 Mapping these different classifications and their ­development

82 UNECE, The Aarhus Convention—An Implementation Guide (UNECE, 2000) Forward by Kofi Annan. 83  see Peters (n 68). 84  M Lee, EU Environmental Law, Governance and Decision-Making (2nd edn, Hart Publishing, 2014) chapter 1. 85  [2006] OJ L264/13. 86  E-U Petersmann, ‘Cosmopolitan “Aggregate Public Goods” Must be Protected by Cosmopolitan Rights and Judicial Remedies’ in Ernst-Ulrich Petersmann (ed), Multilevel Governance of Interdependent Public Goods: Theories, Rules and Institutions for the Central Policy Challenge in the 21st Century (EUI Working Paper RSCAS 2012/23). 87 O Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73; P Eleftheriadis, ‘Environmental Rights in the EC Legal Order’ (2007) 27 Yearbook of European Law 297, 298. 88 S Bogojević, ‘Judicial Protection of Individual Applicants Revisited: Access to Justice through the Prism of Judicial Subsidiarity’ (2015) 34 Yearbook of European Law 5. See also Darpö, Chapter 11 in this volume. 89  In PM Dupuy and J Vinuales, International Environmental Law (Cambridge University Press, 2015) chapter 10, environmental rights are distinguished based on whether they grant

Environmental Rights in Europe and Beyond: Setting the Scene 17 has also been attempted by categorising environmental rights by the ‘­generation’ of rights to which they belong.90 ‘First-generation’ rights refer to civil and political rights; ‘second-generation’ rights refer to economic, social and cultural rights; and ‘third-generation’ rights refer to collective, or solidarity rights, which confer on ‘peoples’ rather than individuals ‘a right to determine how their environment and natural resources should be protected and managed’.91 When viewed as first-generation rights, environmental rights can provide individuals, groups or NGOs access to information, judicial remedies and political processes, similar to the participatory rights frame discussed above. Viewing a healthy or clean environment as a second-generation right provides some support for the proposition that the environment should be viewed as a good in its own right because it privileges environmental quality over other non-rights-based objectives. This view shares many commonalities with the human rights frame outlined. However, as is the case with all social, economic and cultural rights, this approach leaves environmental quality vulnerable to trade-offs as against competing rights-based objectives such as the right to development.92 Categorising environmental rights as third-generation rights recognises the extension of rights to collectivities where they can be used to fulfil the function of protecting the autonomy of ethnic and religious minorities, indigenous peoples and other groups, which overlaps rights of nature framing. However, although this collective rights approach has been applied in the African93 and Inter-American94 contexts, it remains, as the Inuit Circumpolar Conference discovered when it filed its Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and

specific or general rights, while Chris Hilson, Chapter 4 in this volume, groups environmental rights according to their legal source. 90  Vasak is usually credited with being the first to propose the division of human rights into three generations. See K Vasak, ‘Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of Law to the Universal Declaration of Human Rights’ (1977) 30 UNESCO Courier 11 (UNESCO, Paris, November 1977). 91  Boyle (n 47) 472. 92  J Merrills, ‘Environmental Rights’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 663. 93  Article 21 of the African Charter of Human and Peoples’ Rights provides that ‘All peoples shall freely dispose of their wealth and natural resources’. This was applied for the first time in 2001 in the Ogoniland case, which found violations of the human rights of the Ogoni people in Nigeria arising from government development of the oil industry. See JC Nwobike, ‘The ­African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter’ (2005) 1 African Journal of Legal Studies 129. 94 See Maya Indigenous Community of the Toledo District v Belize, Case 12.052, Report No 40/04, IACHR, OEA/Ser.L/V/II.122 at 727 (2004).

18  Sanja Bogojević and Rosemary Rayfuse Omissions of the United States,95 both heavily contested96 and entirely legal context dependent.97 The difficulty with framing environmental rights in terms of the ‘generation’ to which they belong is that they do not actually fit neatly into any one category or generation but rather straddle all three.98 As will be immediately apparent, the same difficulty arises with any purported framing, including that attempted in this chapter. Indeed, what each of the frames outlined here reveals is that the concept of environmental rights is a difficult one. In essence, questions still persist as to the nature of environmental rights and the distinct environmental and non-environmental problems to which these rights are thought to respond. Questions also persist as to who holds these rights—individuals, groups, peoples, future generations, ecosystems, or a combination of some or all of these—and whether these rights may be exercised before a judicial organ or whether they merely require public authorities to develop policies to protect the environment. In addition, what correlative duties do these rights give rise to and on whom do these duties fall? Moreover, how do rights fit environmental regulation more broadly? At the most basic level, can the ‘rights-based approach’ succeed in reducing and avoiding further environmental degradation? The chapters in this volume address some of these issues in line with the framework of analysis as outlined next. III.  RIGHTS IN EUROPE AND BEYOND: FRAMEWORK OF ANALYSIS

This volume is the result of a joint effort on the part of the contributing authors and the editors to tackle an examination of the current status of environmental rights. Part I studies the use of the concept of ‘rights’ in environmental law by examining both the relevant pitfalls and potentials in this regard. In Part II the focus is on unpacking the meaning of ‘environmental rights’, with particular reference to the EU context. In Part III the role of courts in applying and developing environmental rights is scrutinised, which is followed, in Part IV, by an examination of who environmental rights ­bearers are and could be.

95 The text of the Petition is available at www.inuitcircumpolar.com/inuit-petition-interamerican-commission-on-human-rights-to-oppose-climate-change-caused-by-the-unitedstates-of-america.html. For discussion of the case see J Harrington, ‘Climate Change, Human Rights, and the Right to be Cold’ (2007) 18 Fordham Environmental Law Review 513. 96  P Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607; Boyle (n 36) 43. 97  Harrington (n 95). 98  Boyle (n 47) 471.

Environmental Rights in Europe and Beyond: Setting the Scene 19 A.  Part I: Hopes, Fears and Realities At the outset, this volume tackles the question concerning the suitability of the use of ‘rights’ in the context of environmental law. Douglas-Scott has long warned against the watering down of rights by allowing these to be used generically by both ‘those who believe in a human-centred right to the environment’ and ‘those who believe in the rights of rocks and trees’.99 Reid (Chapter 2) raises similar concerns and adds to the debate by offering alternatives to environmental rights in dealing with environmental problems. In essence, Reid argues, all a rights-based approach to environmental protection does is move the locus of the conflict between environmental and other interests to a different plane, converting it into a ‘battle between rights’ in which there is still no guarantee that protection of the environment will prevail. This simply diverts attention from the enormity of the present planetary environmental challenges facing humankind—namely, the dilemma of what can be achieved within the limited natural resources of the Earth. Rather than engaging in a rights rhetoric, Reid suggests that we need to focus on living within the capacity of the limited resources of the planet by positioning ‘ecological sustainability at the heart of our thinking’.100 To do so, he argues that ecological stability needs to be offered a status even higher than that of individual rights, either through stewardship, which imposes broad obligations on property owners, or by characterising our environmental plight as an emergency, justifying derogations from established rights. This way, the environment wins in any battle between rights. Barnes (Chapter 3) offers an alternative view of environmental rights, focusing instead on their potential to advance environmental law. He examines these rights from a specific legal viewpoint—that of the marine environment—and from this outlook identifies several opportunities where environmental rights, which currently are marginalised, could help build and develop the regulation of marine space. In fact, Barnes identifies environmental rights as both the reason for the lack of robust marine regulation, and the foundation onto which such regulation can be built. This argument is developed with reference to the notion of ‘dissonance’, which stands for man’s relationship with the marine environment, both in terms of the actual space and its governance. He argues that ‘although the absence of strong marine environmental rights is a product of dissonance, such rights, if carefully developed, could help reduce dissonance.’101 What Barnes thus highlights is the potential for environmental rights discourse to create stronger connections between environmental subject matter, legal institutions and

99 

Douglas-Scott (n 6) 425. Reid, Chapter 2 in this volume, 45. 101  Barnes, Chapter 3 in this volume, 51. 100 

20  Sanja Bogojević and Rosemary Rayfuse people. Such rights, as Barnes explains, may take different forms and may be developed internationally and regionally. Examples investigated include greater participatory rights of NGOs and non-state actors in oceans governance processes, as well as, and more substantively, engagements that could be ‘advanced through the express recognition of traditional or historic rights’.102 As Barnes makes clear, the paths to reconnecting with the marine environment through environmental rights are many, as are the conceptualisations of such rights. B.  Part II: What Kind of Rights in the EU Context? Moving on from theorising about the usefulness of the concept of rights in environmental law, Part II turns to a specific legal context, examining the availability of ‘environmental rights’ in the EU legal space. Hilson (Chapter 4) identifies from the outset the absence of environmental rights in the EU. More precisely, his study focuses on substantive environmental rights found in EU environmental secondary legislation, the EU treaties, the EU Charter, as well as the ECHR. While these rights may be finding ground in the extra-judicial context, such as in media reporting, in the courtroom, Hilson notes, they remain ‘silent’. The reasons, he clarifies, are tied to the very core of EU law and, more specifically, the concept of direct effect, which allows individuals to rely on and enforce EU law found in the treaties and EU legislation before their national courts without the precondition of existing rights. Although other legal mechanisms that give EU law effect, such as state liability, require the existence of rights, these, Hilson explains, tend to be coupled with a ‘steep barrier posed by the other conditions’ ultimately, leaving ‘[their] rights promise underdeveloped’.103 Ultimately, Hilson’s chapter makes the significant point of the importance of legal culture in appreciating the availability of environmental rights. The lack of environmental rights rhetoric in the courtroom, Hilson explains, is ‘something of a double-edged sword’.104 On the one hand, it has allowed EU environmental law to have effect even in cases that are not rights specific, but it has also meant that ‘the currency of rights framing’ that has been powerful in other areas of litigation, such as in civil and LGBT rights, has not materialised. On this note, Hilson calls on academics, NGOs, practising environmental lawyers, and judges to be ‘creative with the language of rights’105 so as to help develop strategic litigation on environmental law. 102 

ibid, 77. Hilson, Chapter 4 in this volume, 102. 104  ibid, 95. 105  ibid, 103. 103 

Environmental Rights in Europe and Beyond: Setting the Scene 21 Bogojević (Chapter 5) follows on a similar note and points to the high relevance of legal context in understanding the type of environmental rights that may possibly emerge in specific legal settings. She tests whether property rights, which exist as a human right in, for example, the EU Charter, might be considered as environmental rights in the EU context. This examination is set against the idea, long furthered by economists, that property rights are the optimal solution to the allocation of scarce resources and thus also to environmental crises. In this light, Bogojević investigates whether property rights have emerged alongside the creation of market-based management in four environmental issue areas in the EU: air pollution, fisheries, water and biodiversity.106 Perhaps unsurprisingly to EU lawyers, Bogojević’s study shows that EU constitutional law disables the EU from creating property rights. Rather, such rights creation is delegated to the Member States. Thus, what is visible are property rights deriving from domestic and not EU law. Moreover, such rights are often invoked by industry to curb environmental regulation. Bogojević thus demonstrates that the relationship between property rights, environmental rights and environmental regulation is far from straightforward and that its understanding demands digging deep into legal culture.107 Providing a close legal analysis of EU legal doctrine and culture is precisely what Scotford (Chapter 6) does by examining Article 37 of the EU Charter. This provision demands ‘[a] high level of environmental protection and the improvement of the quality of the environment’ but enjoys the status of a principle, as opposed a right. Both rights and principles, as explained by Scotford, are the subject of ‘much legal hope and aspiration’.108 The method through which to closely scrutinise Article 37, as demonstrated by Scotford, is to study it alongside environmental principles present in the EU legal order. This, Scotford argues, reveals the ‘interesting and potentially powerful roles’109 available to the judiciary when applying Article 37. More precisely, Article 37 is seen as playing a significant role in informing the legal tests to be applied by the EU courts in reviewing the lawfulness of EU and Member State actions, as well as offering the court broad discretion in interpreting EU treaties and legislation, thereby helping both to shape interpretative practice and inform the development of EU legal doctrine. In short, Article 37 is presented as possessing great capacity to act as an ‘innovative influence’ on the EU courts’ reasoning.110 Moreover, Scotford sees the fact that the EU Charter needs to be read in line with ECHR jurisprudence as offering additional possibilities to the EU court to ‘forge new transnational

106 Bogojević,

Chapter 5 in this volume, 113. ibid, 128. 108  Scotford, Chapter 6 in this volume, 143. 109  ibid, 134. 110  ibid, 144. 107 

22  Sanja Bogojević and Rosemary Rayfuse legal links to related bodies of law’,111 and similarly to interpret, for example, the right to respect for private and family life to afford environmental protection. Article 37, however, is not without limits. As an example, it is not a freestanding right to compel action either by the EU or the Member States. Nevertheless, as Scotford shows, it still leaves the EU courts with many options available to them to attune EU law to environmental protection priorities. Article 37 shares many similarities with the integration principle, found in Article 11 of the Treaty on the Functioning of the EU (TFEU).112 Both promote a ‘high level of protection’ and improvement of environmental quality, and emphasise the pursuit of sustainable development. However, as explained by Scotford, it is ‘a mistake to think that Article 11 TFEU and Article 37 are equivalent legal provisions’.113 Article 11 TFEU is worded in a way that leaves room for ‘potentially interesting interpretations and linkages to other EU legal provisions’, while Article 37 ‘is drafted in a distinctive legal form’ that requires precise legal analysis.114 In light of this difference, Nowag (Chapter 7) examines Article 11 TFEU in isolation from Article 37, investigating instead whether the integration principle, which demands that environmental protection requirements ‘must be integrated into the definition and implementation of the Union’s policies and activities’ can be read as establishing a right to environmental protection. Nowag finds that the statement could be read as creating the existence of an eco-centric right, given that the requirement is not attached to an individual but rather aims to protect the environment for its own sake.115 He also suggests that an eco-centric interpretation of Article 11 TFEU is supported by the drafting history of Article 11 TFEU and by the constitutionalising act of positioning the integration principle at the beginning of the EU Treaty. However, relying on the Dworkian notion of rights, Nowag finds that the lack of standing for individual applicants and the broad discretion granted to the courts in applying the provision, which the judiciary has exercised through a weak standard of review, places Article 11 TFEU outside the definition of rights. Rather, they are best viewed, he argues, ‘as a rule of conduct for EU institutions’,116 whose actions are reviewable by the court.

111 

ibid, 153. [2012] OJ C326/47. 113  Scotford (n 108) 137. 114 ibid. 115  Nowag, Chapter 7 in this volume, 172. 116 ibid. 112 

Environmental Rights in Europe and Beyond: Setting the Scene 23 C.  Part III: Courts and Environmental Rights The third part of the volume examines the role of courts in framing environmental rights. Here, it is important to remember that adjudication is a collective practice, embedded in a particular legal, social and political culture, rather than the act of a single judge.117 To study adjudication thus requires understanding how judging is done in any particular legal context. Here Bengtsson (Chapter 8) provides a first-hand description of deliberation at the environmental court in Sweden. Bengtsson first explains how Swedish judges in environmental courts do not traditionally ‘reason from a rights perspective’.118 In Sweden, he clarifies, citizens traditionally entrust environmental protection to the government through a social contract: [I]t is generally agreed that individuals prefer the authorities to act in response to environmental disturbance and damage, so that members of the public are not required to bear the economic risks involved in civil cases where the losing party is liable to pay for the costs of the trial.119

The fact that such an approach requires little or no need for environmental rights is clear from the Swedish Environmental Code, where there is no mention of such rights. Interestingly, Bengtsson notes that the impact of EU law, the Aarhus Convention and ECHR jurisprudence has shifted the court’s method of adjudication, noting that in ‘recent years the Swedish courts have become bolder in interpreting and challenging national ­legislation’,120 as well as enjoying ‘greater liberty’121 in applying domestic laws in light of international jurisprudence and international environmental law. As such, what this demonstrates is the important role that judges play in pushing legal developments in the domestic legal order by reflecting upon and incorporating into their judgments legal developments from elsewhere. In this way, judicial decisions also contribute to shifts in conceptualising environmental rights. In the following chapter, however, Gill-Pedro (Chapter 9) makes valuable claims regarding the limits of the validity of the EU courts to adjudicate environmental human rights. His analysis is twofold. First, he describes the EU as a ‘purposive polity’, meaning that ‘its legal norms, including its fundamental rights norms, are inevitably connected with the achievement of the objectives with which the EU has been tasked.’122 Although the ­protection 117 S Bogojević, Emissions Trading Schemes: Markets, States and Law (Hart Publishing, 2013) chapter 5. 118  Bengtsson, Chapter 8 in this volume, 198. 119  ibid, 198. 120  ibid, 199. 121  ibid, 197. 122  Gill-Pedro, Chapter 9 in this volume, 201.

24  Sanja Bogojević and Rosemary Rayfuse of the environment constitutes a part of this polity, Gill-Pedro argues that this only means that the EU can demand that ‘Member States comply with the obligations that flow from the commitments they have made as m ­ embers of the EU’.123 In other words, the EU is mainly equipped to ensure the effectiveness of EU law and not to secure substantive human rights per se.­ Gill-Pedro goes on to note that for the same reason, the EU is able to demand ‘that Member States allow individuals to challenge their failure to comply with those obligations before national courts’.124 Although this e­ nables the EU courts to insist on rights in relation to the environment, such as access to environmental information or public participation in environmental decision making, these are procedural and not of substantive human rights character.125 Second, and following from this, Gill-Pedro argues that human rights are entrenched in democratic processes and so flow from the domestic as opposed to the EU legal order. He explains this by expanding on the idea of the nature of human rights, maintaining that these are legal norms that ‘require a political community to recognise all those under its jurisdiction as equally worthy of concern and respect’.126 It is thus the said political community that decides on whom to entrust human rights protection. Presuming, as Gill-Pedro does, that environmental human rights do not contradict national democracies, he subsequently concludes that human rights must be conceived to flow from national democratic processes, ‘rather than as norms which are imposed, by the EU, on national democracies’.127 From this view, the EU has no competence to either create or rule on environmental human rights. D.  Part IV: Whose Environmental Rights? The fourth and final part of the volume examines the question of who the right-bearers of environmental rights are or ought to be. With regard to the latter, Boute (Chapter 10) makes a fascinating case for the rights of environmental investors. More precisely, his claim is that ‘investors have a crucial role to play in delivering the massive investments that are needed in the ­re-organisation of the economy towards more sustainable—and, in particular, more climate-friendly—patterns’.128 As such, his study of ­environmental

123 

ibid, 225.

124 ibid. 125 ibid. 126 

ibid, 202. ibid, 203. 128  Boute, Chapter 10 in this volume, 230. 127 

Environmental Rights in Europe and Beyond: Setting the Scene 25 rights places investors at centre stage. These investors, Boute explains, ‘face important regulatory and political risks, not least the risk of changes by the government of the regulatory and financial basis that governs environmental investments’.129 Here property rights are presented as able protectors of governments’ unilateral and often retrospective regulatory changes, which put investors at risk when investing in the green economy. At first glance, this chapter may be seen to sit uncomfortably with Bogojević’s chapter, which sees property rights as unlikely environmental rights in the EU context. What Boute calls for, however, is ‘the necessity of reconceptualising the right to property’,130 which indeed is a timely and significant appeal. In the final chapter, Darpö (Chapter 11) demonstrates the significance of procedural rights in enabling environmental NGOs to enjoy standing and in this way represent environmental concerns in the EU context. Darpö explains how, through direct effect of EU law, environmental NGOs may enjoy standing in national courts to challenge administrative decision making, as well as the possibility to invoke the obligations of that court to take into account and dis-apply any national legislation incompatible with EU norms.131 Darpö explains, similarly to Hilson, that the importance of this situation is that substantive environmental rights seldom emerge in the jurisprudence of the Court of Justice of the European Union (CJEU); the focus is rather on assessing whether obligations found in EU legislation are unconditional and clear so as to result in direct effect. Darpö usefully outlines many shortcomings in this approach, including that EU environmental law tends to be framed broadly and so often lacks direct effect and is thereby unable to grant standing to individuals. Darpö, however, points to ‘considerable imagination’132 on the part of the CJEU, and in particular its reliance on the procedural rights found in the Aarhus Convention, which the court uses to interpret obligations in EU legislation to bind Member States to ensure broad access to justice to environmental NGOs at the domestic levels. What Darpö’s discussion demonstrates is the prevalence of environmental procedural rights in the EU legal order and their importance in enabling environmental NGOs to seek environmental justice. IV.  LOOKING AHEAD

The various regulatory ideas that emerged in the 1960s and 1970s concerning how to respond to environmental crises and deal with limited resources

129 ibid. 130 

ibid, 232. Darpö, Chapter 11 in this volume, 268. 132  ibid, 280. 131 

26  Sanja Bogojević and Rosemary Rayfuse are still current today. Environmental rights, which reflect one such idea, have progressed, albeit glacially, towards establishment in a number of jurisdictions. Yet the promotion and application of such rights have taken many different forms—from that of rights of nature, to human rights to the environment, to participatory rights, with each conceptualisation framing the content, significance and implications of environmental rights differently. The vagueness of the concept ‘environmental rights’ has undoubtedly contributed to the term’s longevity in legal debates, but it has also led to the assertion of law as a failure in dealing with environmental concerns,133 and to a watering down of the notion of ‘rights’.134 What the chapters in this volume ultimately make clear is that environmental rights are ‘not a magic wand that can be waved to solve problems instantly’.135 Rather, they are regulatory constructions that demand careful legal examination regarding their objectives, application, position in their relevant legal context, and their implications. Most of the chapters in this volume are either grounded in the specific legal setting of the EU or point to the nature of EU law in explaining why certain environmental rights conceptualisations, including the right of nature, as well as the right to the environment, are missing in the EU context, while participatory rights have proven prevalent and have, together with the force of principles, helped the courts progress in their environmental legal reasoning. Wands that do not deliver magic may be thought useless, but this is not how environmental rights should be viewed. Rather, the idea of environmental rights, dating back to Stone’s inquiry into whether trees should have standing, has ignited legal imagination.136 It is this imagination that has maintained the scholarly debate on rights in environmental law for more than 60 years, has spurred policy makers at the international, regional and domestic levels to establish and observe environmental rights of differing legal natures and so develop environmental governance, and has inspired the judiciary in a vast number of jurisdictions as reflected in their legal reasoning. This is significant, as it is only with the help of imagination that we will be able to deal with the environmental problems that lie ahead.

133  A Grear, ‘Towards New Legal Futures? In Search of Renewing Foundations’ in Anna Grear and Evadne Grant (eds), Thought, Law, Rights and Action in the Age of Environmental Crisis (Edward Elgar Publishing, 2015) 283, 287. 134  Douglas-Scott (n 6) 425. 135  Boyd (n 17) xxxiii. 136  On the importance of imagination in dealing with environmental problems, see E. Fisher, Environmental Law: A Very Short Introduction (Oxford University Press, 2017).

2 Pitfalls in Promoting Environmental Rights COLIN T REID*

I. INTRODUCTION

E

NVIRONMENTAL RIGHTS ARE frequently proposed as a means of enhancing environmental protection. In the absence of the status conferred by recognition as rights, environmental interests are seen as inferior to other interests. Indeed, initiatives designed to achieve environmental benefits can be obstructed by competing interests which hold the ‘trump card’ of legal rights, both substantive (for example, the need to respect property rights) and procedural (for example, the need to provide time-consuming due process before legal rights are interfered with).1 The recognition of environmental rights seems a step forward, enabling environmental interests to compete equally with others as opposed to being a secondary consideration. The thrust of this chapter, written from the perspective of one based in the UK’s legal traditions, is that there are dangers in trying to respond by ‘levelling the playing field’ in this way. The nature of environmental concerns is such that they are not conducive to a rights-based approach, and engaging in a battle of rights will not secure the priority and respect needed to avoid continuing environmental degradation. Any discussion of rights risks becoming entangled in the deep waters of the justifications for and definitions and classifications of rights, but for present purposes a very simple approach is being taken.2 It is, I hope, not controversial to say, following the language of Dworkin,3 that rights provide a

* I am most grateful to participants at the conference in Lund and to my colleagues at Dundee Law School—Dr Oche Onazi (now University of Southampton) and Dr Kirsteen Shields—for their very valuable comments on drafts of this chapter, but retain sole responsibility for the finished version. 1  See nn 20–26. 2  Indeed, throughout this chapter a broad-brush approach is taken for the sake of argument, without reflecting fully the nuances of the various positions discussed. 3  R Dworkin, Taking Rights Seriously (Duckworth, 1977) xi.

28  Colin T Reid form of ‘trump card’ giving their holders priority over competing interests. Whether a right derives from international obligations, constitutional provisions, statute or common law, if it is legally recognised then it creates an entitlement which must be respected and which can override the otherwise legitimate and decisive arguments for acting in a way that would infringe the right. The holders of rights are in a privileged position to have their entitlements protected. Of course, rights may not be absolute, so that there may be questions about their precise extent and the qualifications that limit them. There may also be conflicts between rights, so that identifying that one party holds a relevant right may not by itself determine the outcome of any contest, although it will at least focus the dispute as one between competing rights. Nevertheless, the logic of a rights-based approach is that since rights must be respected in preference to other, lesser claims, those interests that are represented by rights have priority over others. Environmental interests have generally fallen firmly into the lesser category. Trees, birds, rivers and wild creatures have no legal rights which can be put in the balance against the rights of human beings to live and use their property as they wish. This is one of the major criticisms of legal structures by those who favour an eco-centric rather than anthropocentric view of the world. Moreover, the rights enjoyed by individuals against their neighbours and others have not been constructed in terms of environmental quality, so that it is only when environmental harm also causes direct consequences for health or property that the freedoms of others can be constrained. It is possible for the environment to be severely degraded before that threshold is crossed in a way that entitles those suffering diminished environmental quality to take action.4 Against this background, concern for the environment, whether the conservation of biodiversity or of natural resources such as water, or the maintenance (or restoration) of a decent environment for the human population, will always take second place in the legal arena. A focus on rights as presently conceived does not serve the environment well. This chapter explores how the current respect for rights can obstruct measures designed to enhance environmental protection, before examining weaknesses in the development of stronger environmental rights. Better environmental protection can be sought through the recognition of constitutional rights to a healthy environment or of private law rights designed as a means of achieving environmental gains, but both approaches have flaws. The chapter ends by arguing for the need to consider ways of ensuring prominence for environmental concerns other than by embodying them as rights competing with existing rights on equal terms.

4  J Steele, ‘Private Law and the Environment: Nuisance in Context’ (1995) 15 Legal Studies 236, 245–49.

Pitfalls in Promoting Environmental Rights 29 II.  RIGHTS AS AN OBSTACLE TO ENVIRONMENTAL PROTECTION—AN OVERVIEW

There is some evidence that at the macro level, democratic states which respect the rights of their citizens are likely to be less environmentally damaging than more autocratic states (in some respects at least).5 Yet it cannot be denied that having to respect rights does get in the way of certain measures which would slow or reverse the degradation of the environment. If an environmentally driven monomaniac dictator were in charge with absolute power and the sole objective of reducing the population’s impact on the environment, then huge inroads could be made by denying citizens the choice of where and how they can live, of whether and how they can travel, of what food they can eat and what goods they can acquire. Indeed the extreme measure of managing population numbers to reduce the exploitation of natural resources to a sustainable level would also be available. Fortunately this situation is unlikely to arise and all but the most radical policy preferences strengthening environmental concern6 give due regard to the human welfare dimension embedded in even the stronger versions of the concepts of sustainability and sustainable development.7 Without contemplating such extreme circumstances, it is nevertheless clear that respect for the rights of individuals does impede what might be effective measures to further environmental conservation. As Gearty has noted, ‘it is indeed the case that the history of human rights law is ­pockmarked by its deployment in defence of liberty against regulation, even where such regulation is manifestly in the public interest’.8 There is a ­reluctance to prevent people from exercising their choice to engage in activities even though they have harmful consequences, a reluctance which, in the environmental ­context, is perhaps most noticeable in relation to property rights, especially in land.9 Although there are arguments over how far the 5  As examples of the literature in this contested area, see NP Gleditsch and BO Sverdrup, ‘Democracy and the Environment’ in Edward Page and Michael Redclift (eds), Human Security and the Environment: International Comparisons (Edward Elgar, 2002); Q Li and R Reuvneny, ‘Democracy and Environmental Degradation’ (2006) 50 International Studies Quarterly 935; M Buitenzorgy and A Mol, ‘Does Democracy Lead to a Better Environment? Deforestation and the Democratic Transition Peak’ (2011) 48 Environmental Resource Economics 59. 6  Some views of the Deep Ecology Platform would support moves towards population control, if not direct culling: ‘The flourishing of human life and cultures is compatible with a substantial decrease of the human population. The flourishing of nonhuman life requires such a decrease.’ A Naess, Ecology, Community and Lifestyle (D Rothenberg trans) (Cambridge University Press, 1989) 29. 7  See, for example, the argument for moving from ‘sustainable development’ to ‘ecological sustainability’ as discussed in A Ross, Sustainable Development Law in the UK: From Rhetoric to Reality? (Earthscan, 2012) ch 12. 8  C Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1 Journal of Human Rights and the Environment 7, 9. 9  See generally, G Winter, ‘Property and Environmental Protection: An Overview’ in Gerd Winter (ed), Property and Environmental Protection in Europe (Europa Law Publishing, 2016).

30  Colin T Reid rights of ­landowners should be seen as conferring untrammelled dominion over the land,10 their undoubtedly extensive rights, conferring a wide (if not unlimited) capacity to do with their land as they wish, stand in opposition to measures to regulate land use in the interests of environmental goals. The impact of such considerations can be seen in relation to aspects of the law on nature conservation in the UK.11 What is noticeable is not that environmental measures have fallen foul of direct legal challenges based on landowners’ legal rights, but the ‘chilling effect’ of the regard in which such rights are held, weakening and delaying legal interventions, as discussed below in relation to nature conservation measures. In other jurisdictions, such as the USA where the protection of private property rights is more powerful, the effect is even stronger.12 The introduction of regulatory controls on land use, seeking to further the public interest, undoubtedly amounts to an interference with the landowners’ private rights to do as they wish with their land, rights otherwise subject only to the need to avoid infringing the private rights of others. In the UK, early legislation on town and country planning recognised this by entitling owners to compensation for any ‘injurious affectation’ when planning schemes restricted the permissible uses of their land.13 Revised legislation after the Second World War took away this right to compensation,14 but this approach was not extended to measures controlling land use for the purposes of nature conservation rather than for the purposes of the wider socio-economic goals of the planning system. Moreover, it was considered inappropriate to bring the vast majority of agricultural activities within the scope of the planning regime. Consequently the immense changes in agricultural practice in the second half of the twentieth century, which had such a devastating effect on biodiversity, fell predominantly within the l­ andowners’ freedom to exercise their rights as they wished.

10  For an exploration of the historical development in England, see S Coyle and K ­Morrow, The Philosophical Foundations of Environmental Law: Property, Right and Nature (Hart ­Publishing, 2004) whilst the modern call for a stewardship approach, limiting dominion to ensure concern for other interests, is expressed in W Lucy and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 Cambridge Law Journal 566. 11  For simplicity, the discussion will deal with the law in England and Wales alone rather than also the essentially parallel structures in Scotland and Northern Ireland. 12  There is a substantial, if not straightforward, volume of case law and literature on ‘regulatory takings’, discussing when regulatory intervention triggers the right to compensation under the Fifth Amendment to the US Constitution; for a recent decision and some strong reaction to it see Koontz v St. John’s River Water Management District 570 US 2588 (2013) and J D Echeverria, ‘Koontz: The Very Worst Takings Decision Ever?’ (2014) 22 NYU Environmental Law Journal 1. 13  Town and Country Planning Act 1932, s 18. 14 Town and Country Planning Act 1947; compensation was, however, still available in some exceptional cases, eg the owner could require the planning authority to buy land which was rendered ‘incapable of reasonably beneficial use’ by planning decisions, see ibid, s 19.

Pitfalls in Promoting Environmental Rights 31 The early UK conservation laws respected this pattern. Sites of Special Scientific Interest (SSSIs) are areas of land identified as being of particular conservation value, but the first legal measures imposed no restrictions at all on the rights of landowners. Instead, all that was required was that planning authorities simply be notified of such areas, without even an explicit requirement to pay special attention to their character.15 It was only under the Wildlife and Countryside Act 1981 that tighter controls were introduced, but even then a landowner could only be delayed in, not prevented from, carrying out operations that would damage the site.16 In exceptional circumstances, the owner’s control of the land could be overridden through the exercise of compulsory purchase powers (with full compensation)17 but short of that, any lasting restriction was to be achieved only by agreement with the landowner, who could recover compensation paid on the basis of the profits lost by desisting from the damaging activity.18 Protection of the landowners’ rights took precedence over protecting nature. Since then, as noted below, this position has been altered, giving biodiversity greater priority and prohibiting owners from certain activities on occasions,19 but the uphill struggle faced by any intervention that impinges on landowners’ rights is clear. Such strengthening of controls has not been without legal challenge, on both procedural and substantive grounds. In R (Aggregate Industries UK Ltd) v English Nature,20 the court agreed that in view of the impact of designation as an SSSI on the owners’ freedom to use their land, this process does interfere with the ‘civil rights and obligations’ of the owner and thus has to comply with the procedural standards of the European Convention on Human Rights (ECHR).21 It was held that although there was a lack of formal impartiality and independence at some stages, those standards were met when the overall procedure, including the availability of judicial review, was considered. Nevertheless, the need for such procedural safeguards for the rights of owners had already motivated the introduction of an appeal mechanism for situations where the owner was refused permission to carry out proposed operations.22 A challenge to the legitimacy of the

15 

National Parks and Access to the Countryside Act 1949, s 23. Wildlife and Countryside Act 1981, ss 28–33 as originally enacted. 17  This required the acquisition to be necessary in the national interest to create a National Nature Reserve (National Parks and Access to the Countryside Act 1949, s 17); see now ­Wildlife and Countryside Act 1981, s 29N. 18 The detailed position is discussed in CT Reid, Nature Conservation Law (1st edn, W Green, 1994) 160–63. 19  Contrast what is said in the preceding reference with the revised position by the date of the third edition of the book: CT Reid, Nature Conservation Law (3rd edn, W Green, 2009) 219–23. 20  R (Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908, [2003] Env LR 3. 21  European Convention on Human Rights (ECHR), Article 6. 22  Wildlife and Countryside Act 1981, s 28F. 16 

32  Colin T Reid substantive interference with the owner’s rights was launched in R (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs,23 where it was accepted that the conservation restrictions did infringe the owner’s right to ‘peaceful enjoyment of … possessions’,24 but were legally acceptable since they were a proportionate measure controlling property ‘in accordance with the public interest’ as permitted by the Convention. Other pro-conservation moves, such as reductions in fishing quotas,25 have similarly faced challenge based on the argument that they infringe the enjoyment of possessions. In R (Mott) v Environment Agency,26 the imposition of a catch limit on traditional fishermen in the Severn estuary, reducing their catch by over 90 per cent, was struck down as a deprivation of property, which would be legitimate only on the payment of compensation for the lost rights. This last mentioned case is a rare example of a rights-based claim actually defeating an environmental measure. However, anyone studying the development of nature conservation law in the UK must be struck by how strongly the existence of and respect for the private law rights of landowners has been a dominant consideration restricting the regulation of land use in the public interest.27 The ability of property owners to control what happens on their land is not necessarily a bad thing, and in the hands of owners with the relevant inclination, private rights can be used as a powerful tool to further rather than hamper environmental protection.28 Over the past half century, attitudes have changed, and the law with them, recognising that nature conservation is a public policy goal, which can provide a justification for restricting rights. Partly driven by the stricter approach taken in the Habitats and Species Directive,29 there has been a move from an essentially voluntary form of control towards a more restrictive approach, changing the basis on which compensation is paid30 and allowing activities to be stopped without agreement by the landowner.31 The rights of the landowner can now be overridden to protect biodiversity, but it has been a long journey

23  R (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 663, [2005] 1 WLR 1267; see also R (Fisher) v English Nature [2004] EWCA Civ 663, [2005] 1 WLR 147. 24  Article 1 of Protocol 1 of the ECHR. 25  United Kingdom Association of Fish Producer Organisations v Secretary of State for the Environment, Food and Rural Affairs [2013] EWHC 1959. 26  R (Mott) v Environment Agency [2018] UKSC 10. 27  CP Rodgers, The Law of Nature Conservation: Property, Environment and the Limits of the Law (Oxford University Press, 2013) especially 310–12. 28  CT Reid, ‘Employing Property Rights for Nature Conservation’ in Christine Godt (ed), Regulatory Property Rights (Brill, 2016). 29  Directive 92/43/EEC [1992] OJ L206/7. 30  Reid (n 19) 219. 31  Wildlife and Countryside Act 1981, s 28E, introduced by the Countryside and Rights of Way Act 2000.

Pitfalls in Promoting Environmental Rights 33 to reach the position where the landowner’s rights no longer have the final say. Nevertheless, the shape of the legal frameworks remains determined by the default position of deferring to private rights, with any interference requiring specific legal authority and appropriate procedural safeguards. It is this last point which is so engrained in Western legal thinking that it passes without notice. Many potentially effective environmental policies are never seriously considered because of the struggle that would be involved in overcoming existing rights to freedom of choice and property.32 Rationing certain goods and services is one example where there are clear regulatory interventions which could greatly reduce our impact on the environment but which are rarely, if ever, seriously proposed. Extreme impacts are prohibited and some lesser matters, such as vehicle emissions, are directly controlled but other measures rely on ‘nudges’, such as taxation and consumer information rather than direct controls. Individual freedom is not regarded as absolute, but it takes a lot to overcome the default position of everyone being free to do as they wish.33 Even where there are clear societal benefits, it can take considerable political commitment to introduce measures that are viewed as restricting individual rights, and this can be a major constraint on the policy options pursued.34 The law serves to protect interests and resolve conflicts between them, but only those interests which are granted legal recognition. Any interests which are not recognised are simply not considered, and have no place in legal decision making.35 This is the category into which environmental interests

32  For example, despite the introduction of some restrictions, there is still a reluctance to interfere with choice by outlawing the unquestionably harmful activity of smoking. 33  See, for example, the attitude of US Libertarian Michael Badarnik: ‘I have the right to do whatever I wish with my property. If I own a pile of wood, I can set fire to it even if it is currently nailed together in the shape of a barn. Cigarettes may not be healthy for me in the long run, but I have the freedom to smoke them anyway. Drinking alcohol may or may not have negative side effects, but even if it does, the government has no authority to prohibit you from consuming it, even if it is “in your own best interest”. Since when do we let the government decide what is or isn’t good for us? What the hell does Congress know about nutrition, anyway? … If the government can use force whenever something is “in our best interest” then government should force everyone to wake up at 6 a.m. every morning for calisthenics in the front yard. Fast food establishments should be torn down and replaced with bars that serve carrot juice and alfalfa sprouts, since—“it’s in your best interest”. This paternalistic attitude that “the government knows best” and that you are merely a helpless child is insulting and reprehensible’, see M. Badarnik, Good to Be King (Writers’ Collective, 2004). 34  As illustrated by the failure of many proposals to introduce controls on vehicle use, even congestion charging, eg in Edinburgh, see M Gaunt, T Rye and S Allen, ‘Public Acceptability of Road User Charging: The Case of Edinburgh and the 2005 Referendum’ (2007) 27 Transport Reviews 85. 35 See, for example, the long battle for unmarried fathers to gain legal status in relation to decisions affecting their children, see EE Sutherland, Child and Family Law (2nd edn, W Green, 2008) 382–403; and the lack of formal recognition of others who may have a real interest in a child, see J Masson, ‘Caring for Our Future Generations’ in Gillian Douglas and Nigel Loew (eds), The Continuing Evolution of Family Law (Family Law, 2009) 225–27; or the extensive case law on what will be legally recognised as a ‘material consideration’ that can

34  Colin T Reid have traditionally fallen. It might seem obvious, then, that the answer to this problem should lie in creating rights which allow environmental concerns to compete on a level playing field. There are merits in this approach and circumstances where it can be an effective way of ensuring that the environment is not ignored. Examples include the ways in which environmental concerns have been incorporated into water allocation processes. In South Africa, for example, rights have been created to establish a place for environmental interests in water allocations by creating ‘the Reserve’—a volume set aside to serve the environment which takes priority over private rights. Similarly in Victoria, Australia, a so-called ‘Environmental Water Holder’ has become entrusted with certain rights to water, enabling the person to become a party to allocation decisions in that jurisdiction.36 However, these are comparatively rare instances where the environmental interest is protected through clear and precise rights which operate within a specific and newly constructed legal arena. The problem with many other attempts to rely on environmental rights is that these are novel and vague and thus struggle to win out against the battle-hardened private and constitutional rights which have dominated the scene for so long.37 III.  WEAKNESSES OF ENVIRONMENTAL RIGHTS

‘Environmental rights’ is undoubtedly a vague concept and in a broadbrush chapter such as this some rather sweeping statements must be made. It is perhaps useful, however, to distinguish between two broad classes of environmental rights to be considered here and a third which is not discussed.38 The first are those which confer on individuals a general right to enjoy a good or decent or healthy environment (see the discussion on the ­formulation of such rights in Section IIIA below). These are (at least) similar to human rights and will operate at the constitutional level, as distinct from the day-to-day rules of the legal system.39 The second category are what

be taken into account in town and country planning decisions, see N Collar, Planning (4th edn, W Green, 2016) 133–49. 36  CT Reid and W Nsoh, ‘Whose Ecosystem Is It Anyway? Private and Public Rights under New Approaches to Biodiversity Conservation’ (2014) 5 Journal of Human Rights and the Environment 112, 131–32. 37  E Daly and J May, ‘Bridging Constitutional Dignity and Environmental Rights Jurisprudence’ (2016) 7 Journal of Human Rights and the Environment 218. 38  I am grateful to Sanja Bogojević for the questions, which prompted me to consider this distinction. 39 The phrase ‘environmental human rights’ might be used but is avoided since that can raise wider issues of the role of ‘mainstream’ human rights in an environmental context, rather than concentrating on rights with a specifically environmental focus; similar thinking motivates the choice of the term ‘operational rights’, as opposed to referring to ‘private law rights’, since again ‘mainstream’ legal mechanisms such as property and contract can be used

Pitfalls in Promoting Environmental Rights 35 might be called ‘operational’ rights, where more precise rights which have an environmental focus (such as rights under conservation easements or covenants)40 are conferred on the basis that they will compete against other specific rights in the everyday operation of the legal structures, essentially in the sphere of private law. These provide specific entitlements which bring environmental benefits, without having recourse to the overarching system of constitutional rights. These two categories of rights offer different potentials and challenges. An additional possibility is the recognition of rights not to be enjoyed by human parties but by nature or the environment itself.41 Such an approach overcomes the inherently anthropocentric focus of established legal systems to provide recognition for non-human interests.42 Provisions of the Constitution of Ecuador adopted in 2008, for example,43 recognise substantive rights for nature: Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.44 Nature has the right to be restored … In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.45 The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.46

Although the declaratory power of such statements is strong and they may have an influence on policy, two difficulties with such formulations may limit the direct legal significance of the rights announced. The first is that

in ­environmental contexts (as well as the fact that some of the rights involved may have their origins in public law). 40  CT Reid and W Nsoh, The Privatisation of Biodiversity? New Approaches to Conservation Law (Edward Elgar, 2016) ch 5. 41 S Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature’ (2016) 5 Transnational Environmental Law 113. 42  There are, of course, major debates over the appropriateness and meaning of rights for non-humans, whether ‘sentient rights’ rather than just ‘human rights’, see A Cochrane, ‘From Human Rights to Sentient Rights’ (2013) 16 Critical Review of International Social and Political Philosophy 655; or rights for all ‘members of the Earth Community’, see C Cullinan, Wild Law: A Manifesto for Earth Justice (2nd edn, Green Books, 2011) ch 8. 43  Constitution of the Republic of Ecuador; translation taken from the Political Database of the Americas, available at: http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html. 44  ibid, Article 71. 45  ibid, Article 72. 46  ibid, Article 73.

36  Colin T Reid such rights may come into conflict with other rights also given recognition in the same way. Other constitutional rights in Ecuador include the rights ‘to safe and permanent access to healthy, sufficient and nutritional food, preferably produced locally’, to ‘adequate and decent housing’ and ‘to have goods and services of the highest quality and to choose them freely’, all of which will make demands on the natural environment.47 Establishing these tensions as conflicts between rights may be an improvement on the previous position where environmental concerns were clearly of lower status, but does not guarantee that the environment will take priority. The second point is that other constitutional rights are conferred on individuals who are likely to be in a stronger position to assert them, whereas under provisions such as those quoted above, giving effect to the rights of nature will depend largely on interventions by the state, which has many conflicting demands on its attention. In Ecuador itself, constitutional amendments in 2010 strengthened the position of individuals and communities to enforce the rights of nature, and there have been some judicial, if not practical, success stories.48 Unless there is such express authorisation of independent parties able to vindicate environmental rights against the state, reliance on rights held by ‘Nature’ to secure environmental conservation and enhancement can be of little real value. Such rights are not considered further in this chapter. A.  Constitutional Rights Constitutional environmental rights are held by individuals, which in itself is a weakness since a focus on individual human beings is far removed from the holistic approach called for in cherishing (even from an anthropocentric viewpoint) the environment as a whole. There is a dual drawback in the emphasis both on human beings at the expense of the other members of the biotic community with which we share the planet49 and on single individuals at the expense of (even human) communities.50 Collective rights are given recognition by some of the major international human rights regimes,51 and 47 

Constitution of the Republic of Ecuador (n 43), Articles 13, 30 and 52. E Daly, ‘The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature’ (2012) 21 Review of European, Comparative and International Environmental Law 63. 49 See, for example, A Leopold, A Sand County Almanac and Sketches Here and There (Oxford University Press, 1949) 201–04. 50  ‘Indeed the subject of human rights is so focused on the singular human being that it has historically had a great deal of trouble even with the fact of there being more than one human around’, see Gearty (n 8) 7. 51 E Grant, ‘International Human Rights Courts and Environmental Human Rights: Re-imagining Adjudicative Paradigms’ (2015) 6 Journal of Human Rights and the Environment 156, 173. 48 

Pitfalls in Promoting Environmental Rights 37 there are calls for a greater recognition of the ‘collective dimension of the right to a decent and sustainable environment as an indispensable condition of human security and human welfare’.52 Nevertheless, so long as constitutional rights are held by and protect the interests of individual citizens, the interests of the community (however widely or narrowly drawn) are inevitably not the central concern. More specifically, there are currently various aspects arising from the nature and definition of constitutional rights which limit their efficacy.53 Although environmental rights are asserted in various Constitutions and declarations of rights, their form and status are often very different from the classic justiciable rights which lie at the core of most rights discourse. In the first place, environmental rights often occupy a weaker position than is the case for at least some others. Environmental concern is sometimes expressed as an objective or something which is to be dealt with by the state, rather than as an individual justiciable right.54 Even where a more personal right is conferred, it can still have less than predominant status. The Spanish Constitution does state that ‘Everyone has the right to enjoy an environment suitable for personal development’,55 but this falls within the ‘Principles Governing Economic and Social Policy’56 rather than the ‘Fundamental Rights and Public Liberties’,57 which contain the more conventional rights and freedoms to life, liberty, expression etc., or the ‘Rights and Duties of Citizens’,58 which include the right to private property.59 This places environmental concerns in a secondary position, enjoying a status lower than the ‘core’ political and civil rights, especially when the latter have the backing of established recognition at European and wider levels. Practice ­varies,60 and environmental rights are being strengthened,61 but the impression remains that the core rights are more important.62

52 F Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21 ­ uropean Journal of International Law 41, 42. For wider consideration of group or collective E rights see P Jones, ‘Group and Human Rights’ in Cindy Holder and David Reidy (eds), Human Rights: The Hard Questions (Cambridge University Press, 2013). 53  See generally A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 European Journal of International Law 613, and the key works cited therein. 54  See, for example, the various formulations in Africa gathered by the African Legal Centre, available at: africanlegalcentre.org/environmental-justice/constitutional-environmental-rights. 55  Constitution of Spain, Article 45 (taken from www.tribunalconstitucional.es/en/­constitucion/ Pages/ConstitucionIngles.aspx#I8). 56  ibid, Part I ch 3. 57  ibid, Part I ch 1. 58  ibid, Part I ch 2. 59  ibid, Article 33. 60  J May and E Daly, Global Environmental Constitutionalism (Cambridge University Press, 2015). 61  As shown in Ecuador (n 43). 62  See the discussion in Daly and May (n 37), where established human rights and environmental rights are viewed as being equally essential to respect for human dignity.

38  Colin T Reid At the European level, the key document is the ECHR, in which the environment does not feature explicitly at all.63 Environmental interests are thus inevitably in a weaker position than the rights explicitly proclaimed in the Convention. Environmental protection has been recognised as one of the ‘public interests’ which can be used to justify interference with rights where they are subject to qualification on that ground,64 and severe environmental degradation has been accepted as a way in which rights can be infringed— the right to life and the right to respect for private and family life and the home.65 Yet inevitably such indirect roles place environmental concern at a disadvantage in competing against the core rights around which the Convention is based. The conclusion of a recent study of the relationship between rights and the environment under the Convention in the context of respecting property was that states are allowed an especially large margin of appreciation where such issues arise. Although environmental concerns can be used to limit property rights, there is no entitlement to enjoy one’s possessions in an unaltered and pleasant environment.66 The position under the Charter of Fundamental Rights of the European Union is even weaker since the treatment of environmental matters does not confer any individual rights but is limited to an instruction to the Union to integrate environmental protection and enhancement into its policies.67 Environmental protection has to be integrated into EU policies and action,68 and has repeatedly been held to be a fundamental principle of EU law.69 Nevertheless, it is not embodied as a specific right, and across EU law in general, a recent study has confirmed that ‘the legal status … of the “right to property” and the “right to environmental protection” are quite different. The right to property enjoys the status of being a “fundamental right”’.70 So far, at least, environmental rights are not in a position to compete.

63  Hardly surprising for a document drafted in 1950, although some significant developments since then, such as changing attitudes to the death penalty (Protocol 6), have subsequently been incorporated through protocols. On the ECHR see Hilson, Chapter 4 and Gill Pedro, Chapter 9 in this volume. 64  Especially in the case of Article 1 of Protocol 1, the right to peaceful enjoyment of possessions; eg Tre Traktörer AB v Sweden (1989) 13 EHRR 309, Fredin v Sweden (1991) 13 EHRR 784, Matos e Silva Lda v Portugal (1997) 24 EHRR 573. 65 Eg Lopez Ostra v Spain (1995) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 357. 66  B Wegener, ‘Property and Environmental Protection in the Jurisprudence of the European Court of Human Rights’ in Winter (n 9) 39–40. 67 Article 37, Charter of Fundamental Rights of the European Union (2000/C 364/01) [2000] OJ C364/1; see Scotford, Chapter 6 in this volume. 68  Article 11, Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/49. See also Nowag, Chapter 7 in this volume. 69  eg Case 240/83 Procureur de la République v Association de défense des brûleurs d’huiles usagées (ADBHU) [1985] ECR 531, para 5. 70  J Jans and A Outhuisje, ‘Property and Environmental Protection in the Jurisprudence of the Court of Justice of the European Union’ in Winter (n 9) 54.

Pitfalls in Promoting Environmental Rights 39 Even where a clear environmental right held by individuals can be identified, there are further difficulties. This is because the content of the right is not clear and what it takes to satisfy it uncertain. As Boyle states: ‘What constitutes a decent environment is a value judgement, on which reasonable people will differ’.71 In part this is something shared with many other rights that are created by constitutional and similar documents since in comparison with private law contractual or property rights, such rights are inevitably going to appear lacking in precision. Although there will always be scope for doubt on some points, the development of private law rights and the process of refinement that occurs as such rights are exercised, argued over and litigated through decades gives them ‘hard edges’. They are intended to confer precise entitlements and obligations which are clear enough to be acted on by various parties without continual recourse to the court to ascertain their scope and meaning. In contrast, constitutional rights are consciously less exact in expression and application, capturing concepts such as rights to liberty, freedom of expression, and privacy, which it is accepted can rarely by themselves be applied without contest in difficult practical situations. The case law from courts and other constitutional actors can help to add greater certainty but there will always be more scope for argument, exacerbated in the context of international statements of rights where the doctrine of the margin of appreciation enjoyed by states adds further uncertainty in determining the boundary between justifiable and illegitimate interferences with rights.72 This is particularly the case with environmental rights, where there is likely to be less agreement on what the right contains. This is partly because of the novelty of the concept and therefore the absence of experience of argument and debate which helps to build consensus around at least the core meaning of rights. More fundamentally, though, there is an inherent vagueness in establishing what it is that the right is conferring an entitlement to and how this is to be achieved. There are so many variables that contribute to environmental quality that it will be difficult to determine when environmental degradation crosses the boundary to reach an unacceptable level. Added to this are the varied formulations of what an environmental right confers, often adding further layers of variables. The Spanish constitutional example given earlier refers to the right ‘to enjoy an environment suitable for personal development’,73 the Portuguese Constitution refers to ‘the right to a healthy and ecologically balanced human living ­environment’,74

71 

Boyle (n 53) 626. See Wegener (n 66). 73  Constitution of Spain (n 55). 74  Article 66, available at: www.en.parlamento.pt/Legislation/CRP/Constitution7th.pdf. 72 

40  Colin T Reid the ­Slovakian one to the ‘right to favourable environment’,75 the Hungarian to the ‘right to a healthy environment’,76 and the Latvian to the ‘right of ­everyone to live in a benevolent environment’.77 Not only do these establish different and inherently debatable thresholds for when the right is infringed,78 but by adopting different formulations the opportunity is lost to benefit from experience in other jurisdictions that could help bring clarity. Even if the quality of environment to which one is entitled is known, and a failure to achieve that is ascertained, there are further difficulties in working out what lies behind this and in providing remedies. Environmental ­degradation is the cumulative result of the actions of many actors, within and beyond a particular neighbourhood, state or even continent. In some cases the source of harmful pollution may be clear,79 but in many others there are multiple causes behind the poor state of the environment. In such cases, attributing cause and effect and identifying appropriate remedial action will be difficult. Again the contrast with other private law and even some constitutional rights is clear. The parties owing duties correlative to private law rights are usually clear and the remedies for breach well established, even if they often take the form of compensation for past breaches rather than requiring truly remedial or restorative action. In relation to constitutional rights, the state may be liable not only for its own actions which interfere with the rights, but also for failing to put in place adequate protective measures to prevent interference by others, and where there is a distinct episode which has breached rights, a remedy can be identified. It is much harder to do so where a continuing failure to respect rights arises from a combination of many contributory factors, some emanating from beyond the state’s borders, and which can be cured only by a long-term effort to transform the situation, involving the state and other actors and considerable deployment of resources. For example, if the current failure to meet EU air quality standards in parts of London80 amounted to a breach of a justiciable right to a decent environment, there is little a court could do to provide immediate relief. This characteristic is shared with other socioeconomic rights (as illustrated in the South African case law on the right

75  Article 44(1) of the Constitution of the Slovak Republic, available at: www.sudnarada. gov.sk/data/files/527_constitution-of-the-slovak-republic.pdf. 76  Article 18 of the Constitution of the Republic of Hungary, available at: www.constitution. org/cons/hungary.txt. 77  Article 115 of the Constitution of the Republic of Latvia, available at: www.saeima.lv/en/ legislation/constitution. 78  See also the variety of formulations used in Africa (n 54). 79  eg the rubbish tip in Öneryildiz v Turkey (48939/99) (2005) 41 EHRR 20, or the steel works in Fadeyeva v Russia (55723/00) (2007) 45 EHRR 10. 80 As discussed in recent litigation before the English and EU courts: R (ClientEarth) v ­Secretary of State for the Environment, Food and Rural Affairs (C-404/13) [2015] 1 CMLR 55 and [2015] UKSC 28, [2015] 3 CMLR 15.

Pitfalls in Promoting Environmental Rights 41 to adequate housing)81 but just serves to emphasise the difference between such rights and the harder-edged ones, whether the more established civil and political rights or those in private law.82 B.  ‘Operational’ Rights As the preceding analysis suggests, constitutional environmental rights have weaknesses, although these could perhaps be avoided by greater reliance on more operational rights. Experience here is more limited, but there is potential to embody environmental concerns in concrete rights. In particular, the developing research on identifying and valuing ecosystem services83 could be used to bring things which are currently outside the law’s consideration into the scope of interests granted legal weight. For example, at present, pollution of land, which affects only wild creatures and has no effect on the commercial value of, or economic activities on sites owned by others, will not be regarded as causing damage which has to be remedied. If the law embraced our growing appreciation of the valuable services which are derived from the ecosystem, then such damage could be regarded as infringing the rights of those entitled to enjoy such services.84 By extending the scope of recognised entitlements beyond the current limited range, environmental damage could lead to litigation based either on an expanded sense of loss of amenity or on a more specific assessment of lost services, such as those of pollinating insects.85 Forms of harm to the environment which at present attract no legal consequences could thus be brought within the law’s consideration. Further potential exists to create private rights which embody environmental concerns.86 Legal agreements can be established which pay

81  Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46. 82  M Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008). 83  See, for example, the work of The Economics of Ecosystems and Biodiversity programme, available at www.teebweb.org; UK National Ecosystem Assessment, The UK National ­Ecosystem Assessment: Synthesis of the Key Findings (UNEP-WCMC, 2011); K Mertens, ‘Ecosystem Services: The Real Value of Nature’ in Charles-Hubert Born, An Cliquet, Hendrik Schoukens, Delphine Missonne and Geert Van Hoorick (eds), The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope? (Routledge, 2015). 84 CT Reid, ‘Taking Account of Environmental Damage—A Brief Overview’ (2014) 26 Environmental Law and Management 164. 85  There would still be the limitation, though, that if the effects are felt only within the property of the owner of the source of the pollution, no rights (even these extended ones) enjoyed by others would be affected; one of the rights of the owners of any property is to damage or destroy it themselves (subject to regulatory controls). 86  Reid and Nsoh (n 40).

42  Colin T Reid l­andowners for providing ecosystem services, such as carbon sequestration. There is scope for expanding the use of conservation covenants or easements, whereby as a matter of enduring property law, not just contract, parties hold a right to insist that landowners abide by specific obligations to limit the use of their land to serve conservation purposes. Similarly, rights can be conferred on the beneficiaries of various forms of public or private law obligations accepted by landowners to secure biodiversity offsets, whereby land in one place is committed to providing conservation gains in order to balance losses arising from development elsewhere. Such entitlements are more like the concrete legal rights held by individuals in private law and thus better equipped to do battle against them on level terms. Yet, setting aside concerns that such mechanisms entail an ethically unacceptable ‘commodification’ of nature,87 there remain difficulties which suggest that they will still struggle to achieve true parity and to deliver environmental protection. This is quite apart from the struggles which any novel rights face as they find their place among the more established features of a legal system.88 Although these operational rights are likely to be more precise than the constitutional environmental rights discussed above, definition remains a problem. Despite the work done to identify and quantify ecosystem services, there will still be uncertainties in monitoring, measuring and definition to capture exactly the content of any entitlement and identify when it is or is not being satisfied. For example, is it better for the right to focus on the objective that is being sought (such as ensuring a certain population of a particular species in an area, something subject to many variables and in itself only a proxy for the health of the environment as a whole) or on the specific land management activities that must be carried out (or avoided) with a view to achieving that goal (even though they may or may not deliver the desired result)? Moreover, seeking precision in definition may not serve the overall objective of furthering conservation since in a dynamic world precise obligations which are sensible today may be less effective or even counter-productive in future; there is no point in a permanent conservation covenant conferring the right to insist that an area of salt-marsh is left uncultivated for the benefit of its plant community if sea-level rise means that the marsh is under water.89 A second issue in relation to such rights is who is to hold them. The operational rights will exist primarily in the sphere of private law and therefore

87 

ibid, ch 8. further underlying drawback is that whereas caring for the Earth is seen as requiring an approach based on ecosystems, eg as embodied in the ‘Nairobi Principles’; Convention on Biological Diversity, COP 5 Decision V/6, any approach building on rights of land ownership will be based on the legal fragmentation of the Earth into individual plots (whatever their size) whose boundaries usually pay no heed to the needs of ecosystems at different scales. 89  Reid and Nsoh (n 40) 200–01. 88  A

Pitfalls in Promoting Environmental Rights 43 will be held by individual parties, but the environmental interest they protect is public. If the rights are viewed as being wholly in the private domain, then the environment remains at the mercy of the choices of the particular rights holders whether or not to insist on their rights. It would be the neighbours who individually suffer a loss of ecosystem services from a pollution incident who could sue, but for many reasons they might choose not to. The holder of rights under a conservation covenant, whether a public authority, an NGO or an individual, may likewise decide to take no action to enforce the covenant, or may agree to its extinction, and unless special arrangements are made no one else could intervene, despite the wider impact. Where public law devices are used, again it is likely that only a specific body will have standing to intervene. The establishment of a right as a specific entitlement held by a specific party gives it strength when the holder chooses to assert it but is likely to exclude any entitlement of others also to have a role. The remedies to be provided when a right is infringed present a further challenge. The conventional remedy of damages (conventional at least in the common law world) is not likely to be appropriate where environmental rights are infringed.90 Accordingly emphasis will have to be put on measures that secure environmental remediation, but, even so, if the wrong that has been recognised is a breach of rights, the focus of the remedy will also be on the rights and their holder, rather than on the state of the environment itself, skewing the response. The complexity of the natural environment causes problems here since effective remedial measures may require long-term action with widespread consequences, such as requiring access to other land or limiting others’ exploitation of resources while recovery takes place. Legal regimes such as those for contaminated land91 or other forms of environmental harm92 do adopt this approach, but how effective they will be remains to be seen. In the face of such challenges, even the more concrete operational rights may struggle to provide effective protection for the environment and benefits for the population. IV.  ARE RIGHTS THE ANSWER?

There are various ways of responding to the conclusions reached above.93 One is to recognise the current weakness of environmental rights and work towards their strengthening. By giving such rights greater legal status, by adopting sharper definitions and by providing appropriate enforcement and

90 Law Commission, Conservation Covenants: A Consultation Paper (No. 211 2013) 65–75. 91  Environmental Protection Act 1990, Part IIA. 92  Environmental Liability Directive 2004/35/CE [2004] OJ L143/56. 93  See generally Gearty (n 9); Boyle (n 53).

44  Colin T Reid remedial procedures which will both increase their effectiveness and generate the case law and experience that in turn help to ‘harden the edges’ of the rights, there may be much that can be done to enable environmental rights to compete equally with other rights.94 A ‘level playing field’ might be constructed and environmental rights enabled to hold their own against, and where appropriate triumph over, the many other conflicting claims which are presented in the legal arena. Indeed, and as mentioned earlier, the legal moves in Ecuador to establish rights for nature to compete against other rights can be seen as an attempt to stretch existing approaches to enable priority for the environment to be increased. Any movement towards stronger environmental protection will entail conflicts and compromises with the pursuit of other goals, but converting these into a battle between rights is not the only way of tackling them and may be a distraction that diverts attention from the underlying issues themselves. The effort put in to conceptualising environmental concerns as rights may bring some benefits but ultimately may prove a failed exercise. Such a view is strengthened by the argument that even if environmental rights could be enhanced in various ways, that would still not guarantee an environmentally sound future. It would require an analysis of the fundamental nature and potential of rights well beyond the capacity of this chapter to determine whether they can ever provide a wholly appropriate vehicle for reflecting all the dimensions of environmental concern, embracing individual, collective, temporal, spatial, socio-economic and geo-physical aspects as well the interests of non-humans.95 But there is a much simpler basis for concluding that using existing rights-based approaches is not sufficient. Such is the scale of our present abuse of the planet that simply treating environmental rights on a level with other rights will not provide a way forward to a satisfactory future, or even survival. Living within the capacity of the planet is not simply one factor that is in competition with other interests of similar weight but an absolute priority on which all other human interests depend. A focus on satisfying the rights of humans (even a bundle of human rights that includes environmental ones) risks ignoring the fundamental question of what can be achieved within the limited natural resources of the Earth. To take a simple example, in increasingly arid areas with increasing populations is it possible for the right to water, upon which the right to life depends, to be satisfied even in the near future in a way that does not further compromise the e­ cosystem and condemn future generations to an even

94 

Boyle (n 53) 641–42. starting points include A Boyle and M Anderson, Human Rights Approaches to Environmental Protection (Clarendon Press, 1996) and M Maloney and P Burdon, Wild Law—in Practice (Routledge, 2014). 95  Interesting

Pitfalls in Promoting Environmental Rights 45 worse plight?96 We are ­inescapably bound by the restrictions of the world we inhabit and no assertion that we are entitled to greater rights can overcome this.97 Accordingly: [P]erhaps the most radical way forward in rights theory is to address the basic preconditions that make human life and diversity possible: the biotic, biological, environmental and ecological ground from which everything grows [and] the relational dependencies that exist between physical locales and living beings. These dependencies are largely ignored in rights discourses and instruments, yet without them life in a community (or otherwise) is unthinkable.98

Such consideration merges into the wider discussions of the contested meaning of sustainable development, and in particular the arguments that we need in order to move away from the weaker, largely ‘business-as-usual’ ideas of the concept towards the stronger versions which place ecological sustainability at the heart of our thinking.99 There is plenty of scope for argument over where such an approach might lead, but none of them envisages a situation where environmental needs simply compete equally on a level playing field with other rights. Such considerations may in turn point to two possible ways forward with respect to rights. One is to re-conceive all rights as being defined and qualified in a way that incorporates overriding environmental concerns. In relation to property, for example, the rights of the owner might be markedly altered from a position of dominion to one of stewardship100 with strong obligations to look after the property for the future and to ensure that others are not harmed, directly or indirectly, in ways that go far beyond the current regard for the narrow legal rights of others. Thus the freedom of action of the owners would be constrained by the need to consider the long-term and wider effects of any action proposed, not as an external limitation of their (almost) unrestricted powers but as an inherent aspect in defining the extent of the powers they enjoy. For example, even though it would entail no direct interference with the currently recognised rights of neighbours, a landowner might not be free to convert land to intensive agriculture if in doing so the local ecosystem would be harmed, the soil degraded and

96  See, for example, problems faced in South Africa at the end of 2015, and only intensified since then; www.gov.za/speeches/government-water-scarcity-and-drought-13-nov-2015-0000. 97  cf the discussions on how far the satisfaction of economic and social rights is constrained by the ‘available resources’, see for example P Alston and R Goodman, International Human Rights (Oxford University Press, 2013) 316–,30, noting though, the major distinction that while to a considerable extent the availability of economic resources is a matter of distributive justice under human control, the ultimate availability of natural resources is not. 98 D Fischlin and M Nandorfy, The Community of Rights: The Rights of Community (Black Rose Books, 2012) 33–34. 99  Ross (n 7) ch 12. 100 E Barritt, ‘Conceptualising Stewardship in Environmental Law’ (2014) 26 Journal of Environmental Law 1.

46  Colin T Reid water flow and quality affected, with adverse consequences for the rest of the catchment. At the same time, building on what has happened in the past half-century, there might be an increase in the scope for environmental concerns to trigger the common qualification which allows the restriction of many rights in the public interest. This already allows for a certain degree of intervention on environmental grounds, but might be enhanced, so that more intrusive restrictions become accepted as proportionate in the quest for an ecologically sustainable future. Movement in this direction has already been seen in some areas. The example given earlier101 of the development of nature conservation law, with the conservation of biodiversity gradually gaining ground against the absolute precedence of the landowners’ rights, is one manifestation of greater priority being given to environmental considerations. This shows that priorities can be altered by adjusting weightings within the existing framework of rights without dismantling the whole legal structure. The result is that environmental concerns would be reflected not as rights competing equally against the other more established rights, but as a limitation integral to the definition and exercise of all rights. Discussion about recasting property rights on a stewardship,102 or other,103 basis already exist, but a similar reconsideration might be needed for all rights. A second way forward is to accept our current environmental plight as an emergency justifying, as such, derogation from the rights that we have established. Arguably we have already reached the stage where our over-use of natural resources amounts to a ‘public emergency threatening the life of the nation’,104 so that measures necessary to respond to this can legitimately override the rights that normally provide the trump cards. Such a view can be supported by the way in which the international community viewed our position at the Paris climate conference, with the Paris Agreement ‘­Recognizing that climate change represents an urgent and potentially irreversible threat to human societies and the planet … and emphasizing the need for urgency in addressing climate change’.105 There is already a threat to our survival, which calls for a drastic response. On this basis, environmental concerns would not be encapsulated in rights which compete against other rights on level terms, but would be accepted as the justification for overriding action, with priority above and beyond what results from the more standard balancing of rights with the public interest. Rights would clearly be ranked in second place, behind the

101 

See nn 15–31. Lucy and Mitchell (n 10). 103  E Scotford and R Walsh, ‘The Symbiosis of Property and English Environmental Law— Property Rights in a Public Law Context’ (2013) 76 Modern Law Review 1010. 104  Article 15 of ECHR. 105  Preamble to Paris Agreement of 12 December 2015 (FCCC/CP/2015/L.9/Rev.1). 102 

Pitfalls in Promoting Environmental Rights 47 needs of ecological sustainability.106 The conventional legal rights which are seen as fundamental to our constitutional and legal structures would not be swept away, but would have to succumb to other measures ‘to the extent strictly required by the exigencies of the situation’.107 The ‘green dictator’ envisaged at the start of this chapter would not have unlimited power, but assertions of rights would not be allowed to obstruct the priority of securing a sustainable future for the world’s population. With a clear focus on what is needed to restore ecological sustainability, rights would no longer enjoy an unchallengeable status as trump cards. V. CONCLUSION

The views expressed here are deliberately broad brush and provocative. I do not propose an environmentally friendly but totalitarian state and do not deny the deep worth of, and utility in, respecting individual rights of many sorts, nor their value for promoting environmental gains in many circumstances. Nevertheless, since it is clear that, at present, environmental concerns lose out in the ‘rights game’, it is worth at least contemplating whether that is, or should be, the only game in town when it comes to supporting those interests and values left behind by established legal and political structures. There are ways of strengthening the position of environmental rights and creating a more level playing field, but maybe that is not the best way forward. Securing a sustainable future for the planet and its human population is essential for human well-being into the future,108 but it is arguably not possible to achieve this while at the same time granting to every individual the present level of respect to the full range of rights, in the current forms and to the current extent recognised by legal structures in developed Western countries. Existing rights might be challenged by coming up against competing rights designed to reflect environmental concerns, but there are other options in terms of recasting rights intrinsically, or resetting their priority in the grand scheme of things. All avenues are worth at least considering.

106  The potential for this to be structured as a conflict of rights between the present and future generations is not explored here. 107  Article 15 of ECHR. Exactly when this standard is satisfied and overriding action justified would, of course, be a matter of intense dispute. 108  Of course, setting this as a long-term goal may in itself be controversial to some who would see the human population as merely part of the wider Earth community and entitled to no special consideration.

48 

3 Environmental Rights in Marine Spaces RICHARD BARNES

I. INTRODUCTION

E

NVIRONMENTAL RIGHTS ARE typically regarded as an e­ xtension of human rights into environmental matters. They encompass both substantive rights, such as the right to a healthy environment, and procedural rights, which include access to environmental information, participation in decision making and access to justice. Environmental rights discourse has been used to deepen our understanding of how and why we protect the natural world. This discourse is mainly focused on rights arising from terrestrial activities.1 Similarly, leading international environmental rights jurisprudence is dominated by matters related to land use.2 Arguably this focus is the by-product of a nexus between people and lived space— a nexus that facilitates an awareness, realisation and protection of individual rights arising in terrestrial spaces. However, such a nexus appears to be either absent or under-developed in marine contexts.3 At best, g­ enerally 1  For example see WP Gormley, Human Rights and Environment: The Need for International Cooperation (AW Sijthoff, 1976); D Shelton, ‘Human Rights, Environmental Rights and the Right to Environment’ (1991) 29 Stanford Journal of International Law 103; A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1996); DK Anton and D Shelton (eds), Environmental Protection and Human Rights (Cambridge University Press, 2011). 2  MC Mehta v Union of India AIR (1988) SC 1086; Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994) 33 ILM 173; Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, AfCHPR, Communication 155/96 (2002); Maya Indigenous Community of the Toledo District v Belize [2004] IACHR Case 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1; Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, AfCHPR Communication 276/2003 (4 February 2010). 3  For example, only recently have links been drawn between the Oceans Sustainable Development Goal 14 and human rights, see J Knox, ‘Human Rights, Environmental Protection, and the Sustainable Development Goals’ (2015) 24 Washington International Law J­ournal 517. See also the linkages drawn by the Danish Institute for Human Rights, available at http://sdg.humanrights.dk/en/targets2?goal%5b%5d=83&target=&article=&combine=& items_per_page=100.

50  Richard Barnes fashioned environmental rights spill over into marine environments.4 ­Significantly, no human rights instrument explicitly refers to the oceans, but the inherent and universal nature of human rights implies they extend to ocean spaces. This is reflected in legal texts particular to marine spaces, which have little if anything to say about human rights. This chapter explores this phenomenon from an international law perspective, and explains why the marine environment seems to resist or at least exist at the margins of environmental rights discourse: why there is a ‘dissonance’ between environmental rights and human activities at sea. By understanding why environmental rights are marginalised we can begin to take steps to bring this discourse to the fore in developing the regulation of marine spaces. Arguably, this is best done by creating space for greater local engagement in marine regulation (participatory rights), and by recognising the different connections that people have with both ocean spaces and things (substantive rights). For law to be meaningful and legitimate it must connect to a sufficient degree with the values, needs and interests of the society.5 At different times and to different degrees there may arise dissonance between the idea/text of law and the reality/practice of law. In this chapter, dissonance is used to describe the gap or inconsistency between the legal actors and the laws that purport to govern their activities. Thus, some law is not seen to matter to, or to have influence over the conduct of marine activities in the way intended. If this dissonance becomes too great then law loses its authority to legitimately shape social relations and is challenged or rejected. The argument that this chapter builds on is that law must matter and be seen to matter to human action. Law and conduct shape each other. This is echoed in theories of environmental discourse. Remarking on the relationship between science and environmental discourse, Argyou argues that facts themselves are not enough to explain effective engagement with the world … What is needed above science is something that captivates peoples full being— a system of values, a moral story, an ontological master narrative within which the ecological crisis becomes not only visible, but also relevant and meaningful.6 4  For example, Herzog notes the relevance of human rights to oceans and climate issues, stating that the ‘impacts include the various ways that sea-level rise, ocean acidification, and rising surface temperatures directly threaten or hinder enjoyment of basic human freedoms and entitlements’. M Herzog, ‘Coastal Climate Change Adaptation and International Human Rights’ in Randall R Abate (ed), Climate Change Impacts on Oceans and Coastal Law: US and International Perspectives (Oxford University Press, 2015) 593, 607. 5  Meaningful here is used to convey a relationship of significance, especially between legal concepts and their practical/social function. See further J d’Aspremont, Formalism and the Source of International Law. A Theory of the Ascertainment of Legal Rules (Oxford University Press, 2011). Legitimacy (which is a mercurial and contested concept) is used to refer to the social motivation for obedience to a rule. See, for example, M Weber, Economy and Society: An Outline of Interpretive Sociology (Bedminster Press, 1968) 31–38, 212–301. 6  V Argyou, The Logic of Environmentalism. Anthropology, Ecology, and Post-Coloniality (Berghahn Books, 2005) 48.

Environmental Rights in Marine Spaces 51 Argyou emphasises the importance of communication in connecting ­people with the world. This logic applies also to law; its meaningfulness and legitimacy are also a function of communication. Accordingly, this chapter argues that environmental rights discourse, so well rooted in terrestrial contexts, currently lacks strong explanatory narratives that are suited to the marine environment. Environmental rights have an important role to play in protecting the marine environment, but to realise this we need to better align environmental rights with the nature and function of marine environments. Although the absence of strong marine environmental rights is a product of dissonance, such rights, if carefully developed, could help reduce dissonance. The growth of environmental rights discourse seeks, in part, to create stronger connections between environmental subject matter, legal institutions and people.7 This discourse can help overcome dissonance by creating meaningful narratives and relationships between people and places or things. Environmental rights are typically understood as a form of human right. By couching the environment in terms of human rights a connection is made between person and environment, one that has a strong ­meta-narrative, one that connects the environment to intrinsic human interests. However, it is not enough to simply export environmental rights into the marine; the fact that these have not evolved so far suggests that such rights require refinement if they are to be seen to matter. Whilst human rights are arguably ‘inherent’, in law they are indisputably the product of deliberative action. Drawing upon ideas from material culture studies, which emphasise the relevance and importance of ‘things’, this chapter argues that we should try to bring ‘things’ (namely the particular qualities of the marine environment) back into the foreground of regulatory discourse.8 This borrowing of ideas from material culture studies is not an endeavour without legal basis or ­relevance because international human rights jurisprudence already recognises the material basis of indigenous people’s cultural rights.9 These cases may provide important insights into how best marine environmental rights can be advanced, but this must be sensitive to the material conditions at play in the marine environment. The task of explaining how law should connect with complex marine realities is a significant one, so this chapter has the more limited ambition of mapping out the issues and potential lines of enquiry. It posits a greater

7  See, for example, E Daly and JR May, ‘Bridging Constitutional Dignity and Environmental Rights Jurisprudence’ (2016) 7 Journal of Human Rights and the Environment 218–42. 8  On material culture studies, see further Daniel Miller (ed), Materiality (Duke University Press, 2005); Dan Hicks and Mary C Beaudry (eds), Oxford Handbook of Material Culture Studies (Oxford University Press, 2010); C Tilley, W Keane, S Küchler, M Rowlands and P Spyer (eds), Handbook of Material Culture (Sage, 2013). 9  See further N Bankes, ‘Land Claim Agreements in Arctic Canada in Light of International Human Rights Norms’ (2009) 1 Yearbook of Polar Law 175.

52  Richard Barnes role for environmental rights to advance marine protection, but only if such rights are sensitive to the marine context. Section II of this chapter provides an account of the extent to which environmental rights are articulated in marine laws and jurisprudence, demonstrating this to be quite limited. ­Section III then offers some reasons why this has happened. In particular, it provides three reasons why dissonance occurs. First, it argues that there is a degree of cultural, epistemic and legal disconnect with the material nature of the marine environment. Second, this is exacerbated by the complexity of marine laws, which further dislocates law from its subjects. Third, noting that property is the principal institution connecting law with the material world, it argues that the absence of clear or well-developed property rights in marine spaces contributes to dissonance. In the final part I suggest that unless we respond to the material attributes and connections people have with the oceans, then the scope for environmental rights will remain limited. As noted above, environmental rights can help address dissonance, by establishing stronger connections between peoples, places and activities. The best way of addressing this is not to crudely import territorial approaches to environmental rights, but instead to create the deliberative opportunities for meaningful relationships with ocean spaces and activities to flourish.10 II.  THE EXTENT OF ENVIRONMENTAL RIGHTS IN MARINE SPACES

Before exploring the extent to which environmental rights are utilised in marine contexts, it is important to provide a working definition of environmental rights. Unfortunately, these elude simple definition, in part because they straddle two discrete fields of law.11 One does not need to engage in this debate to recognise that certain human rights may be contingent upon certain environmental standards, and that certain environmental standards may be advanced through human rights mechanisms. Here it is worth highlighting group rights since these may offer greater potential to engage with marine- and resource-related concerns given that the oceans and their resources are not the exclusive concern of individuals. Group rights include

10 On such connections see G Pálsson, Coastal Economies, Cultural Accounts: Human ­ cology and Icelandic Discourse (Manchester University Press, 1991); T Ingold, ‘Culture E and the Perception of the Environment’, in Elizabeth Croll and David Parkin (eds), Bush Base: ­Forest Farm (Routledge, 1992) 39–56; T Ingold, ‘Globes and Spheres: The Topology of ­Environmentalism’ in Kay Milton (ed), Environmentalism: The View from Anthropology (Routledge, 1993) 31–42. More generally, there are initiatives that advance strong narratives and learning about the oceans and governance of ocean spaces, see n 95. 11  See further, P Cullet, ‘Definition of an Environmental Right in a Human Rights Context’ (1995) 13 Netherlands Quarterly of Human Rights 25–40, A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2008) Fordham Environmental Law Review 471–511.

Environmental Rights in Marine Spaces 53 self-determination, which has a material basis (right to dispose of resources and enjoy means of subsistence),12 and indigenous rights, which also include rights to the material conditions for the enjoyment of group practices.13 Thus, for present purposes environmental rights are defined broadly as those individual or group-based human rights that afford directly or indirectly protection to the environment. This includes both procedural rights and substantive rights, and third-generation/group rights. The point here is not to collapse the environmental protection into human rights-based argument, because as Gearty notes, human rights are not necessarily commensurate with better environmental protection.14 However, the possibility of better individual or group engagement in environmental matters could enhance environmental protection, and this is something that should be addressed in marine governance. The following analysis seeks to identify any such forms of rights in texts of marine agreements or marine elements of human rights jurisprudence. Despite the potential for applying environmental rights to marine spaces, as the following review indicates, this has been quite limited in marine texts.15 The review begins with the United Nations Convention on the Law of the Sea 1982 (LOSC),16 which establishes the basic value and governance framework for our oceans, before taking in international fisheries agreements and the OSPAR Convention.17 The review is selective because most marine agreements are State centric, technical or resource focused and simply do not countenance environmental rights.18 The basic features of international marine law emerged before, and have since developed in parallel to, both international environmental law and human rights law, further marginalising environmental and human-orientated approaches.19 Space precludes a review of domestic law instruments, but given that most domestic marine law is shaped by international law, this marginal accommodation of rights-based approaches is expected to follow.20 The review then turns

12  See Article 1 of the International Convent on Civil and Political Rights 1966, 999 UNTS 171, and the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. 13  See Section IVB below. 14 C Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1 ­Journal of Human Rights and the Environment 7–22. 15 An inclusive approach is taken to ‘marine law’. In this chapter ‘marine law’ refers to international, regional and domestic instruments, although where appropriate law of the sea is used to refer to rules of international law applicable in marine spaces. 16  United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3. 17 Convention on the Protection of the Marine Environment of the North-East Atlantic 1992, 2354 UNTS 67. 18 A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 European ­Journal of International Law 613–42, 633. 19  R Barnes, ‘Alternative Histories and Futures of International Fisheries Law’, unpublished paper on file with author. 20  Even the most developed of domestic legal regimes give only marginal space to what might be construed as human rights. For example, Canada’s Oceans Act 1996 merely ­designates the

54  Richard Barnes to the Aarhus Convention. Although a significant ‘environmental rights’ instrument, it is shown to be untapped in its potential application to marine areas, something mirrored in the European Convention on Human Rights (ECHR) and its jurisprudence. Most marine spaces are ‘extra-territorial’. Given that it is only recently that human rights jurisprudence has moved beyond the territorial limits of the States, it is no surprise that we are only now developing jurisprudence on human rights at sea.21 A.  United Nations Convention on the Law of the Sea The LOSC establishes a framework for the regulation of our oceans.22 The LOSC combines a system of maritime zones/jurisdictions with a range of substantive provisions governing issues from natural resources to shipping to the protection of the marine environment. Although the term ‘right’ appears almost 100 times in the Convention, and ‘environment’ over 40 times, this is focused on States. ‘Person’ or ‘individual’ appear far less frequently and it is clear that the LOSC does not develop any meaningful notion of environmental rights as individual or groups rights. Indeed, the human and the environment are disaggregated within the LOSC. Thus concern for individual rights is limited to taking steps to ensure safety at sea with regard to labour conditions and training, labour search and rescue, and treatment of persons subject to enforcement measures.23 Discrete provisions elsewhere in the LOSC, at best, establish some broad commitments for States to take measures to protect the marine environment.24 This lack of focus in the law of the sea on human issues is matched in the literature, where only a small handful of papers address the idea of human rights at sea, most of which are critical of the marginal position individuals occupy in the law of the sea.25 oceans as common heritage in the chapeau and contains a savings clause for aboriginal rights. In the UK Marine and Coastal Access Act 2009 refers to sustainable development and has only passing reference to human health in licensing provisions and human rights in the context of damages. 21 R Barnes, ‘Law of the Sea and Migration Control’, in Bernard Ryan and Valsamis ­Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff, 2010) 103–49; J Coppens and E Somers, ‘Towards New Rules on Disembarkation of P ­ ersons Rescued at Sea?’ (2010) 25 International Journal of Marine and Costal Law 377–403; T Obokata, ‘Boat Migrants as the Victims of Human Trafficking: Exploring Key Obligations through a Human-Rights Based Approach’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach Integrating Maritime Security with Human Rights (Brill, 2016) 145–68. 22  1833 UNTS 3 (adopted 10 December 1982, entered into force 16 November 1994). 23  See LOSC, Articles 97, 98 and 73, respectively. 24  See LOSC, Article 192 and Part XII more generally on obligations to protect and preserve the marine environment. 25  BH Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 Columbia Journal of Transnational Law 399–429; I Papanicolopulu, ‘The Law of

Environmental Rights in Marine Spaces 55 As Papanicolopolou observes, individuals are ‘accessory’ to ships.26 Despite growing interest in the use of human rights in some maritime contexts, such as people trafficking, search and rescue, and migration, the LOSC does not explicitly accommodate environmental rights as defined above.27 Undoubtedly the LOSC serves human interests, but the connection between its broad human-orientated aims as articulated in its preamble and the development of people-centric rights and duties is incomplete. The LOSC’s lack of a ‘human rights dimension’ is a legacy of its formulation at a time when environmental rights were nascent. Perhaps where the LOSC comes closest to an environmental right is through the concept of the common heritage of mankind (CHM). This may be understood as a collective interest (of mankind), although one which does not fit neatly into categories of human right. By virtue of this principle the resources of the deep seabed cannot be appropriated by States or private entities, and are subject to international management, benefit sharing and peaceful use.28 Although Part XI, section 2 of the LOSC does not establish a human right as such, it connects the protection of the environment to the collective interests of mankind.29 Thus, it designates the resources as belonging to mankind (rather than States) and further requires activities within the Area to be carried out for the benefit of mankind under the ambit of the International Seabed Authority.30 This includes the adoption of necessary measures to ensure the effective protection of the marine environment arising out of any such activities.31 CHM is important because it shows the value of institutional support in cases where the underlying values are contested and traditional lines of legal authority limited (ie flag State jurisdiction).32 Some have argued that CHM represents a third-generation right or solidarity right.33 Somewhat contested, solidarity rights are a form

the Sea Convention: No Place for Persons?’ (2012) 27 International Journal of Marine and Coastal Law 867–74; T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28 Berkeley Journal of International Law 1–14; S Cacciaguidi-Fahy, ‘The Law of the Sea and Human Rights’ (2007) 19 Sri Lanka Journal of International Law 85. 26 

Papanicolopolou (n 25) 869. See papers cited in n 21. 28  LOSC, Articles 136–149. 29 Some authors associate the CHM with human rights: K Baslar, The Concept of the Common Heritage of Mankind in International Law (Martinus Nijhoff, 1998) chapter 9; VP Nanda, ‘The Right to Development: An Appraisal’, in VP Nanda, GW Sheppard Jr and E McCarthy-Arnolds (eds) World Debt and the Human Condition: Structural Adjustments and the Right to Development (Greenwood Press, 1993) 41. 30  LOSC Articles 136 and 140. 31  LOSC Article 145. 32  See Section IIIB below. 33  See SP Marks, ‘Emerging Human Rights: A New Generation for the 1980s?’ (1981) 33 Rutgers Law Review 435; RY Rich, ‘The Right to Development as an Emerging Human Right’ (1983) 23 Virginia Journal of International Law 287. See generally, P Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human 27 

56  Richard Barnes of group right encompassing broad societal goals, and which do not fit into categories of civil and political rights or economic, social and cultural rights. However, in the LOSC the concept of CHM is directed at States, and it is doubtful that the concept advances individual or collective human rights beyond policy rhetoric.34 Although the International Seabed Authority was recognised as having standing to raise questions about the responsibilities of States sponsoring activities in the Area, there is no questioning the fact that analysis of the concept of CHM by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) in its advisory opinion on the question treated it squarely as an inter-State concern.35 A slightly more accommodating view of human rights was taken in the Arctic Sunrise case, where the tribunal held that it could have regard to general international law in relation to human rights (namely Articles 9 and 12 of the International Covenant on Civil and Political Rights) to determine whether enforcement actions under the LOSC were reasonable and proportionate in response to marine protest actions by Greenpeace.36 However, this consideration of human rights in respect of the LOSC is permitted only where it is incidental to the main legal issue(s) in question.37 B.  International Fisheries Law In the fisheries sector, some instruments provide for limited access to information. Although Article 12 of the Fish Stocks Agreement38 requires

Rights Law’ (1982) XXIX Netherlands International Law Review 307. Taking the middle road: R Wolfrum, ‘The Principle of the Common Heritage of Mankind’ (1983) 43 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 312–37. 34  See, for example, Morgera who analyses CHM in LOSC in terms of inter-State benefit sharing, rather than as an intra-State concern. E Morgera, ‘The Need for an International Legal Concept of Fair and Equitable Benefit Sharing’ (2016) 27 European Journal of International Law 353–83. Also S Gorove, ‘The Concept of “Common Heritage of Mankind”: A Political, Moral or Legal Innovation?’ (1971–72) 9 San Diego Law Review 390, 393. Note, E Egede, who observes there are cultural reasons underpinning the different approaches to CHM: ‘The Common Heritage of Mankind and the sub-Saharan African Native Land Tenure System: A “Clash of Cultures” in the Interpretation of Concepts in International Law’ (2014) 58(1) Journal of African Law 71–88. 35  Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p 10. Especially paras 107–20 on the obligation to ensure responsibility and exercise due diligence over private persons. 36  In the Matter of the Arctic Sunrise Arbitration (Netherlands v Russia), PCA Case No. 2014-02, Award on the Merits (14 August 2015), paras 197–98. 37 See further R Caddell, ‘Platforms, Protestors, and Provisional Measures: The A ­ rctic ­Sunrise Dispute and Environmental Activism at Sea’ (2014) Netherlands Yearbook of ­International Law 359, 379. 38  1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3.

Environmental Rights in Marine Spaces 57 t­ransparency in decision making and Article 14(3) provides for public availability of information, the practice of Regional Fisheries Management Organisations (RFMOs) concerning procedural transparency varies considerably in quality.39 Few RFMOs explicitly adopt strong guarantees of transparent decision making.40 Likewise, although most RFMOs support the dissemination of information,41 few indicate that this will be done publicly.42 Sometimes such information is restricted on grounds of ­confidentiality.43 RFMOs have often been criticised for under-reporting key information on compliance and enforcement and a lack of transparency generally.44 While it may be challenging to prescribe absolute thresholds for 39 T McDorman, ‘Implementing Existing Tools: Turning Words into Action—DecisionMaking Processes of Regional Fisheries Management Organizations’ (2005) 20 International Journal of Marine and Coastal Law 423, 428. 40  Those that do include transparency provisions are the Fishery Committee for the Eastern Central Atlantic, the International Commission for the Conservation of Atlantic Tunas and the Indian Ocean Tuna Commission. 41  See Article IX(1)(d) of the Convention for the Conservation of Antarctic Marine Living Resources 1980, 1329 UNTS 47; Article 3(d) of the Statute of the Fishery Committee for the Eastern Central Atlantic (available at www.fao.org/fishery/docs/DOCUMENT/cecaf/CECAFstatutes1967.pdf); Article 8(b) of the Agreement for the Establishment of the General Fisheries Commission for the Mediterranean (as revised in 2015 (available at www.fao.org/3/a-ax825e. pdf); Articles XII(2)(j) and XVI(1)(a) of the Convention for the Strengthening of the InterAmerican Tropical Tuna Commission 2003 (available at https://www.iattc.org/PDFFiles2/ Antigua_Convention_Jun_2003.pdf); Article IV(2)(d) of the International Convention for the Conservation of Atlantic Tunas 1966, 1969 UNTS 63; Article V(2)(a) of the Agreement for the Establishment of the Indian Ocean Tuna Commission 1993, 1927 UNTS 329; Article IV(1) (b) of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries 1978, 1135 UNTS 369; Article 11(2) of the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries 1980, 1285 UNTS 129; Article X(2) of the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean 1992, reproduced in (1992) 22 Law of the Sea Bulletin 21; Article 6(3) of the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean 2001, 2221 UNTS 189; Article 14 of the South Indian Ocean Fisheries Agreement 2006 (available at www.fao.org/fileadmin/ user_upload/legal/docs/035t-e.pdf); Articles 10(3) and 18 of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific 2009 (available at https://www.sprfmo.int/assets/Basic-Documents/Convention-web.pdf); Articles 10(1) and 13(3) of the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 2000, 2275 UNTS 43; Article 6(f) of the 2006 Revised Statutes of the Western and Central Atlantic Fishery Commission (available at ftp://ftp. fao.org/FI/DOCUMENT/wecafc/statutes.pdf). 42  See the provisions for the Inter-American Tropical Tuna Commission (IATTC) and South Pacific Regional Fisheries Management Organisation (SPRFMO). 43  Inter-American Tropical Tuna Commission (IATTC). See also Article 6(3)(l) of the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean 2001 (n 41). 44  M Lodge, D Anderson, T Løbach, G Munro, K Sainsbury and A Willock, Recommended Best Practices for RFMOs, Report of an Independent Panel to Develop a Model for Improved Governance by RFMOs (Chatham House, The Royal Institute for International Affairs, ­London, UK, 2007); KM Gjerde et al, ‘Ocean in Peril: Reforming the Management of Global Ocean Living Resources in Areas Beyond National Jurisdiction’ (2013) 74 Marine Pollution Bulletin 540–51; E Gilman, K Passfield and K Nakamura, Performance Assessment of Bycatch and Discards Governance by Regional Fisheries Management Organizations (IUCN, Gland, 2012) section 4.5.

58  Richard Barnes the use and provision of information by RFMOs, one can reasonably draw upon the standards set forth in the Aarhus Convention as proxy for this.45 Arguably these represent emerging standards of general international law and participation.46 Using these participatory standards, a recent study by Clark et al shows there is room for improvement even using the practice of other RFMOs as a measure of what good practice can be achieved.47 Strictly speaking RFMOs do not establish individual/group rights of access to information. Nor are RFMOs required to comply with standards set out in the Aarhus Convention. However, it is clear that greater transparency and participatory decision making in RFMOs could not only enhance the accountability of RFMOs, but also connect governance institutions with groups and individuals mostly affected by their practices. C.  OSPAR Convention A number of regional seas agreements contain provisions that can be analysed in terms of environmental rights.48 Space limits analysis of these, but even looking at one of the more developed instruments, the OSPAR Convention, it is clear that environmental rights approaches play a limited role.49 OSPAR addresses environmental rights in two ways. First, it establishes a range of qualitative rights concerning the status of the marine environment, which will in turn prevent or minimise threats to human health. Although these could be associated with specific human rights such as the right to life or clean water, they are inter-State commitments with impacts on individuals and not rights of individuals or groups per se. Secondly, it establishes a clear procedural right concerning individual access to information under Article 9 of the OSPAR Convention. This provision requires Parties to ensure that their competent authorities make available relevant information to any natural or legal person, in response to any reasonable request, ­without the person having to prove an interest, without unreasonable charges, and within two months of the request. Of course, the ­effectiveness of this provision is

45 

See Section IID below. Duvic-Paoli, ‘The Status of the Right to Public Participation in International ­Environmental Law: An Analysis of the Jurisprudence’ (2013) 23 Yearbook of International Environmental Law 80–105. 47  NA Clark, JA Ardron and LH Pendleton, ‘Evaluating the Basic Elements of Transparency or Regional Fisheries Management Organizations’ (2015) 57 Marine Policy 158–66. 48 On access to environmental information, see Article 17 of the Convention on the ­Protection of the Marine Environment of the Baltic Sea Area 1992 (Helsinki Convention) 2009 UNTS 197; Article 15 of the Convention for the Protection of the Mediterranean Sea Against Pollution 1976 (Barcelona Convention), 1102 UNTS 27. 49 Convention for the Protection of the Marine Environment of the North-East Atlantic 1998, 2354 UNTS 67. 46 L-A

Environmental Rights in Marine Spaces 59 based on the assumption that such information exists. Often such information is absent and beyond the capacity of States to gather and collate. One may note that an international tribunal constituted under the OSPAR Convention adopted a narrow construction of such a right and resisted expanding its meaning beyond its textual provision.50 D.  Aarhus Convention The Aarhus Convention is the best developed and most far-reaching agreement concerning procedural environmental rights.51 It establishes a triumvirate of procedural rights: access to information, access to environmental decision making and access to justice. The Convention is not limited to particular sectors and so is applicable to the marine sector.52 That said, there have been few instances of marine issues being raised before the Aarhus Convention’s compliance mechanisms.53 The general utility of Aarhus is not in question—but the absence of cases in the marine sphere suggests a limited utility or interest in using it as a means of advancing environmental protection in the marine sphere. Arguably, this is a consequence of the lack of individual opportunities and expectations to engage in a patchwork of marine decision-making processes and a general lack of knowledge about marine environments at a national level. However, as these decision-making systems become better established, then the utility of procedural rights to hold decision makers to account is likely to develop. The Aarhus Convention has influenced EU law (and in turn domestic law of the Member States), having been adopted by a series of legislative acts.54 These laws extend its application to coastal and marine areas.55 This was

50  Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention between Ireland and the United Kingdom of Great Britain and Northern Ireland, Final Award, Decision of 2 July 2003, RIAA XXIII, pp 59–151, at paras 101–04. 51  The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998, 2161 UNTS 447. 52 This was clearly communicated by the Aarhus Convention Secretariat to the interim ­Secretariat of the Framework Convention for the Protection of the Marine Environment of the Caspian Sea following a request for advice. See TC/COP5/Inf.6, 17 March 2014. 53  See Case C/33(2008) Findings and Recommendations of the Aarhus Convention Compliance Committee with regard to Communication ACCC/C/2008/33 concerning compliance by the United Kingdom. This concerned the disposal of port-dredged materials at a marine site without an environmental impact assessment (EIA) being conducted. 54 Council Decision 2005/370/EC [2005] OJ L124, pp 1–2, implemented through Regulation (EC) No 1367/2006 on the application of the Aarhus Convention [2006] OJ L264, pp 13–19, Directive 2003/4/EC on public access to environmental information [2003] OJ L41, pp 26–32, and Directive 2003/35/EC providing for public participation [2003] OJ L156, pp 17–25. See further Darpö, Chapter 11 in this volume. 55  Article 2(1)(d) of Regulation (EC) 1367 (n 54).

60  Richard Barnes tested in Região autónoma dos Açores.56 This concerned an action for annulment of a fisheries regulation owning to alleged damage to the environment from trawling. To meet the requirements of standing, the applicants had to demonstrate a direct and individual concern in the matter, per Article 230 EC.57 Seeking to pre-empt this point, the applicants, the Autonomous Region of the Azores and three NGOs, argued that Article 230 EC must be read consistently with the Aarhus Convention, which requires each party to ensure members of the public have access to legal proceedings to challenge acts or omissions which contravene the provisions of national law relating to the environment.58 The Court summarily dismissed the claim, noting that Member States are entrusted with such competence.59 The case indicates the difficulties in demonstrating individual interests in marine matters. One might further observe the absence of ownership in marine spaces that prevents such a differential interest. However, the real challenge remains that most environmental concerns are diffuse and collective and difficult to reconcile with the so-called ‘Plaumann test’, which requires a party to establish a ‘distinguishable interest’.60 This has effectively curtailed NGO challenges to EU legislation.61 In turn this is likely to limit the scope for environmental rights in marine spaces, at least under EU law.62

56 Case T-37/04 Região autónoma dos Açores v Council of the European Union [2008] ERC II-00103. 57  Article 230 EC, of the as-then consolidated treaties, provides that ‘Any natural or legal person may … institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’. This is now Article 263 of the Treaty on the Functioning of the European Union [2012] OJ C326, pp 47–390. 58  ibid, para 90. 59  ibid, para 92. Also, as regards the Aarhus Convention, the Court noted that it was not applicable because it had not been adopted at the time the action was brought. Moreover, the conditions set for access to the courts by NGOs under Articles 10–12 of Regulation (EC) No 1367/2006 had manifestly not been satisfied. Ibid, para 93, on the basis the applicants did not follow the internal review process and because the contested measure was legislative and not administrative. 60  ‘Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons’. Case 25/62 Plaumann & Co v Commission [1963] ECR 95, 107 (emphasis added). 61  See H Schoukens, ‘Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?’ (2015) 31(81) Utrecht Journal of International and European Law 46. 62 The Court has since held that Member State courts must interpret national laws and procedural rules as far as possible in a manner consistent with Article 9(3). Case C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky [2011] ECR I-1285. However, some think this does not go far enough: R Parvoni, ‘Controversial Aspects of the Interaction between International and EU Law in Environmental Matters: Direct Effect and Member States’ Unilateral Measures’ in Elisa Morgera (ed), The External Environmental Policy of the European Union: EU and International Perspectives (Cambridge University Press, 2012) 347, 357–58.

Environmental Rights in Marine Spaces 61 E.  The European Convention on Human Rights The marginal treatment of environmental rights in marine regulatory instruments is mirrored by the paucity of human rights jurisprudence on marine environmental rights. The European Court of Human Rights (ECtHR) case of Mangouras v Spain arose out of the Prestige incident involving the spill of over 70,000 tonnes of oil, which caused major ecological harm to the coast of France.63 The issue in question was whether the Spanish authorities were justified in setting extremely high bail conditions for the master of the ­Prestige, or whether this was disproportionate and in violation of ­Article 5(3) of the ECHR.64 The Court acknowledged the use of criminal law as a means of tackling environmental harm and the growing concern about environmental offences.65 Further, [i]n view of the particular context of the case and the disastrous environmental and economic consequences of the oil spill, the courts were justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant.66

While protection of the environment was important, the environmental issues were somewhat incidental to the main issues—human rights. Indeed, the case can hardly be categorised as a case of environmental rights because the environmental concerns (ie significant harm to the marine environment) were actually juxtaposed against the human rights of liberty and security of person. This echoes Gearty’s concerns about the divergence of human rights and environmental rights,67 and speaks to the need to explore further the relationship between human rights and marine environmental concerns. Article 8 of the ECHR protects the rights to family and private life. There is an important body of jurisprudence that has used this right to guard against environmental harm.68 However, it appears that violations of A ­ rticle 8, so important in the context of land use questions, may be difficult to sustain in the marine context. While activities in marine space may affect Article 8 rights, as the ECtHR observed in Hardy and Maile v UK, interference from pollution must attain a minimum level and directly affect home, family or private life in order to make Article 8 applicable.69 In this case the risk of a 63 

Application no. 12050/04. Judgment of 28 September 2010. for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 222. 65  Para 86. 66  Para 92. 67  See Gearty (n 14). 68  See, for example, Lopez Ostra v Spain [1994] ECHR 46; Guerra v Italy [1998] ECHR 7; Fadeyeva v Russia (2007) 45 EHRR 10. More generally, K Morrow, ‘Worth the Paper They Are Written On? Human Rights and the Environment in the Law of England and Wales’ (2010) 1 Journal of Human Rights and the Environment 66. 69  Hardy and Maile v United Kingdom, Application No 31965/7, Judgment of 14 February 2012, paras 187–92. 64  Convention

62  Richard Barnes fire or explosion from the escape of liquefied natural gas (LNG) from a ship met this threshold. The complaint was not concerned with the occasion of harm, instead it focused on whether the assessment of risk from an escape of LNG had been properly conducted in accordance with Article 8. Here the Court observed that [a] governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake.70

Two consequences flow from the Court’s reasoning. First, the lack of physical proximity between where we live and marine spaces makes it more difficult to show that there is a direct link between marine pollution and adverse impact on private life. Secondly, even if there can be established a causal link, the balancing of interests remains weighted against the private interests because of the lack of proximity. Notably, the Court held there was no violation of Article 8.71 The lack of connection between the marine and family and private rights is echoed in Kyrtatos v Greece.72 This concerned the alleged deterioration of property and land in a coastal area as a result of a new urban development. Here the Applicants were unable to bring forward convincing evidence that the alleged harm to wildlife in an area of swampland was of such a nature as to have affected their rights under Article 8(1). As the ECtHR observed, having concluded there was no evidence that Art 8 rights were affected: [I]t might have been otherwise if, for instance, the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house, a situation which could have affected more directly the applicants’ own well-being. To conclude, the Court cannot accept that the interference with the conditions of animal life in the swamp constitutes an attack on the private or family life of the applicants.73

The emphasis here is on physical proximity and showing a direct effect on Article 8 rights. If this is hard to establish in a coastal context, then it is difficult to conceive of how this would be any easier in more distant marine scenarios. So far we have considered the idea that rights can be used to protect the environment. If we turn our approach to environmental rights on its head,

70 

ibid, para 220. ibid, para 232. 72  Kyrtatos v Greece, Application No 41666/98, Judgment of 22 May 2003. 73  ibid, para 53 (emphasis added). 71 

Environmental Rights in Marine Spaces 63 then it is possible to see how the special attributes of the coast or marine areas could be used to advance environmental ends. This is illustrated by the case of Depalle v France.74 Here the right of the State to interfere with A ­ rticle 8 rights, as well as the right to peaceful enjoyment of possessions under Article 1 of Protocol 1, were considered in a case concerning a demand by French authorities to demolish without compensation a house built upon public maritime land. Due to a change in law, an authorisation (exception) allowing the house to remain was refused with the result that it must be demolished. In part, the demand to demolish the house was based on the inalienability of maritime public land, land devoted to public utility, and conservation policy.75 The French government argued that allowing the house to ‘remain standing, for purely private use, was no longer compatible with the designated use of the property henceforth subject to environmental requirements’.76 This action of the French authorities was alleged to have violated Article 1 of Protocol 1 on the peaceful enjoyment of possessions. Ultimately this concerned a tension between private property and public interests. Interestingly, the ECtHR acknowledged the overriding importance of public interests in the use of the coastal zone, noting the increased importance attaching to environmental conservation.77 Later the Court observed that it had ‘often reiterated that regional planning and environmental conservation policies, where the community’s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake’.78 This suggests that a focus on the special characteristics of the marine environment might be a possible pathway to harnessing the potential of human rights-based approaches to protecting the marine environment. Another dimension to the application of human rights at sea emerges from the ECtHR jurisprudence on the rescue and treatment of migrants at sea. The cases are important even though they do not concern environmental rights directly or even indirectly. Rather, they are important because they confirm that human rights are applicable in marine spaces per se. Thus, the case of Hirsi Jamaa and Others v Italy confirms the extra-territorial application of treaty rights (Articles 4, 13, and Article 4 of Protocol 4 to the Convention) to any situation where the State exercises the requisite degree of control and authority over individuals.79 Although State control over

74  Depalle v France, Application No 34044/02, Judgment of 29 March 2010. See also ­Brosset-Triboulet and Others v France, Application No 34087/02, Judgment of 29 March 2010. 75  Depalle (n 74) paras 34 and 38. 76  ibid, para 74. 77  ibid, para 81. 78  ibid, para 84. 79 Application No 27765/09, Judgment of 23 February 2012. See also Medvedyev and ­Others v France, Application No 3394/03, 29 March 2010; (2010) 51 EHRR 39.

64  Richard Barnes marine spaces has traditionally been limited, as we increasingly make use of marine space and populate marine spaces with regulatory regimes, then the potential for human rights to be used is enhanced. To summarise so far, although it is uncontroversial that human rights are applicable to activities in marine areas, it is clear that they have as yet played only a marginal role. Even this short review indicates a variety of approaches and potential complexity in the development of marine environmental rights.80 Most marine instruments focus on the protection of the environment or regulation of marine resources at a distance from individuals. Only recently have mainstream human rights been applied in a meaningful way to maritime migration or search and rescue issues. Some instruments establish procedural human rights which could be used to advance the protection of the environment. However, this potential is yet to be realised. The fundamental difficulty with environmental rights is that they generally depend upon a particular impact on the individual before they are triggered. This is problematic for two reasons: first, marine space is remote from the habitable spaces on land, and second, marine environmental problems are larger, their origins harder to identify, and they affect the global environment, not merely the local one. That said, the intensification of human activity at sea, which can help generate connections between p ­ eople and marine spaces, and the growth of marine spatial planning regimes, which extend greater participatory decision making into marine areas, may start to reduce these barriers by creating stronger legal interests between people and marine spaces. III.  THE CAUSES OF DISSONANCE IN MARINE LAWS

Dissonance occurs because of gaps or inconsistencies between legal actors and the laws that purport to govern their activities. The claim that dissonance undermines law is not particular to environmental law, or more specifically marine law. However, it is arguable that there are particular aspects of marine law that make it more vulnerable to regulatory dissonance. First, there is a larger gap to bridge between law as an institution and its application in the marine realm. This is simply a reflection of the physical disconnect between people and the seas. At the heart of this is the notion of the ocean as space beyond the physical territory of the State where ordinary legal relationships and processes are not as immediate and, arguably, effective.81 Paradigmatic of this is the nexus wrought through flag State 80 

See Section IIIB below. Shearer, ‘Problems of Jurisdiction and Law Enforcement against Delinquent Vessels’ (1986) 35 ICLQ 320; S Kaye, ‘Threats from the Global Commons: Problems of Jurisdiction and Enforcement’ (2007) 8 Melbourne Journal of International Law 185. 81 I

Environmental Rights in Marine Spaces 65 jurisdiction, the sometimes tenuous nature of which produces dissonance.82 Second, marine regulation, as with other branches of law, embodies certain structural attributes that give rise to dissonance. This is the idea that marine laws and institutions are fragmented, complex and sometimes impenetrable to most people. This presents obstacles to the articulation and implementation of a body of marine rights. Third, a key aspect of the law–reality interface is provided by property law. Property law is the paradigmatic institution which connects people and things.83 Property rights matter when it comes to environmental protection because the property law can both limit regulatory interference with one’s property, and also ensure that property is not used to cause harm to others. Yet property rights are limited in marine spaces, and even when they have been recognised, they do not sufficiently connect people to things, as discussed above in the context of Article 8 ECHR.84 This is because mainstream property focuses on legal relationships between people in respect of things, and less so on the relationship between people and things.85 Again this stretches the gap between law and the real world. In short, there is a lack of connection between people, law and the ocean realm, which manifests in a lack of rights. By recognising and responding to these marine-specific problems, then, it may be possible to improve the potential role for marine environmental rights. A.  Disconnect between Peoples and Seas? Humans enjoy a distant or transient relationship with the sea. Many marine environmental issues, such as ocean warming, ocean acidification, pollution, overfishing, and so on, are global problems, not the particularised problems of individuals. We experience the sea from the coast or we visit marine spaces for a limited time before returning home. When experienced from land, it is difficult to define the sea as exclusively marine—it becomes part of the territorial and so the distinct marine connection is qualified or lost. Our transient relationship is experienced through fishing, recreational visits, navigating, and in exploration of the sea or seabed. Seafarers, fishers or

82  By tenuous one is referring, first to the simple fact that when vessels are at sea monitoring and enforcement of conduct standards by flag States is practically difficult, and second, that there is frequently no connection, legal or otherwise, between vessels and the flag State—the so-called use of flags of convenience. 83  See HE Smith, ‘Property as the Law of Things’ (2012) 125 Harvard Law Review 1691, who challenges the formalistic, legal realist position that elevates the legal relations between people to the marginalisation of things. See further Section IIIC below. 84  Section IIE above. 85  R Barnes, Property Rights and Natural Resources (Hart Publishing, 2009) chapter 2.

66  Richard Barnes offshore workers identify more strongly with the sea since they spend more time there.86 However, the oceans are then constructed in fragmented terms of work, trade and exploitation, and less so as a lived space. This is perhaps reflected in how ‘marine’ human rights are generally limited to safety matters,87 or employment and welfare matters as per the Maritime Labour Convention 2006.88 Two interesting aspects of this are, first, the development of human rights to tackle slavery or indentured labour in the fisheries sector.89 This is gaining considerable currency with NGOs and activists and shows the traction that can be gained with rights discourse when issues connect closely to core human values.90 The second is the extension of the right to food as a means of driving subsistence and small-scale fisheries.91 These are longer-term challenges but offer up real potential for developing marine-based rights. There is a growing sense that some cultures have yet to articulate a strong connection to the seas—despite knowing of our profound reliance upon the seas as a source of food, communication and other material goods.92 As Westerdahl observes, there is lack of distinct maritime culture, and what is there is often defined as a place of isolation or escape.93 The lack of a maritime voice and the poor availability of source material on our relationship with the seas results in an under-communication of maritime cultures and values.94 Perhaps only recently has this become an object of concern and efforts are under way to (re)construct proper accounts of our relationships with the seas.95

86  See K Weibust, Deep Sea Sailors. A Study in Maritime Ethnology (2nd edn, Nordiska museet Handlingar, 1976). 87  See Barnes (n 21). 88  Maritime Labour Convention 2006, (2006) 45 ILM 792. 89  See EH Allison, BD Ratner, B Asgard, R Willmann, R Pomeroy and J Kurien, ‘Rightsbased Fisheries Governance: From Fishing Rights to Human Rights’ (2012) 13 Fish and ­Fisheries 14–29. 90 Greenpeace, Slavery and Labour Abuse in the Fishing Sector, available at www. greenpeace.org/international/Global/international/briefings/oceans/2014/Slavery-and-LabourAbuse-in-the-Fishing-Sector.pdf. 91 See exceptionally: Interim Report of the Special Rapporteur on the right to food, A/67/268, 8 August 2012. 92  There are interesting and stark contrasts between different societies. For example, in the Pacific, oceans culture and practices are arguably stronger and more deeply rooted in society due to the immediate dependence of peoples on oceans, see EJ Techera, Marine Environmental Governance. From International Law to Local Practice (Routledge, 2012). This might be contrasted with Western societies, where property and mercantilism became dominant forms of discourse over the oceans, see PE Steinburg, The Social Construction of the Ocean (Cambridge University Press, 2001) especially chapter 3. 93 C Westerdahl, ‘Fish and Ships: Towards a Theory of Maritime Culture’ (2007) 30 Deutsches Schiffahrtsarchiv. Wissenschaftliches Jahrbuch des Deutschen Schiffahrtsmuseums 191–236, 191 and 225. 94  ibid, 226. 95  Initiatives include: the Global Oceans Commission (www.some.ox.ac.uk/research/globalocean-commission); World Ocean Observatory (worldoceanobservatory.org/); Ocean Literacy

Environmental Rights in Marine Spaces 67 In practical terms, the sea is difficult to socialise as a space.96 It is far from metropolitan centres and so at arm’s length from normal modes and manifestations of government. Unlike land, it defies simple control or even delimitation of boundaries.97 As law of the sea scholars frequently accept, there are great challenges in exercising maritime jurisdiction—control and authority over the seas—in the face of its vast expanse and our limited naval resources.98 In law, the classical view was espoused by Lord Stowell in 1817, a position that remains relevant today: In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has a right to assume or exercise authority over the subjects of another. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the sea, save only on the belligerent claim.99

At least on the high seas, we describe the legal regime as one of freedom— not an absolute one—but all the same one where the dominant cultural norm is that of liberty. This is found in one of the LOSC’s keystone provisions, Article 87, which lays down the fundamental freedoms of navigation and overflight, fishing, scientific research, pipeline and cable laying, and offshore installation construction. These freedoms appear to echo Westerdahl’s observation of maritime culture as something free of control. In legal terms, this disconnect is exacerbated by institutional, practical and jurisdictional difficulties. Institutionally, much law over marine spaces is international and so not immediately concerned with the conduct of individuals. This is particularly the case in areas beyond national jurisdiction where legal processes are almost exclusively focused on States. In practice, policing at sea is simply more difficult than on land. If the means by which law is extended to activities at sea is weak, then any substantive rights or duties are equally weakened. In part the desire to extend order to the seas has resulted in the gradual extension of exclusive coastal State authority

Principles (www.coexploration.org/oceanliteracy/documents/OceanLitChart.pdf); the Ocean Project (http://theoceanproject.org/); ResponSEAble (www.responseable.eu/); Pacific Oceanscape (C Pratt and H Bevan, Framework for a Pacific Oceanscape: A Catalyst for Implementation of Ocean Policy (Pacific Islands Forum Secretariat, 2010). 96 

See further, Steinberg (n 92). observes wryly on the twisting jurisprudence of maritime boundary making, ‘we should have had more faith in the capacities of international courts and tribunals to keep this most fecund field of controversy alive’. MD Evans, ‘Maritime Boundary Delimitation. Whatever Next?’ in Jill Barrett and Richard Barnes (eds), Law of the Sea. UNCLOS as a Living Treaty (BIICL, 2016) 41–79, 42. 98 For example, N Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2011) 7 and 254. 99  The Le Louis (1817) 2 Dods. 210, at 243. 97 Evans

68  Richard Barnes over the seas.100 This acquisitive and exclusive authority has provided the basis for the effective regulation of some activities, especially offshore oil and gas exploration. It has also provided the basis for potentially more effective fisheries management regimes.101 However, it does not represent a solution to all questions of order at sea. One of the most criticised features of the law of the sea is the pivotal but flawed mechanism of flag State jurisdiction.102 This base of jurisdiction allows States to prescribe and enforce certain regulatory standards over ships flying their flag. However, it is undermined by the use of flags of convenience, which may allow individuals or companies to register ships in States with which they have little or no connection, often to take advantage of weak regulatory regimes. This practice is connected to illegal fi ­ shing, environmental harm and abuse of seafarer rights.103 In principle, there ought to be a ‘genuine link between the State and ship’.104 Although a flag State is required to ‘effectively exercise its jurisdiction and control’ over vessels flying its flag under Article 94 of the LOSC, the meaning of this provision, as well as the means of ensuring the flag State does exercise such control, are not at all clear.105 In the SRFC Advisory Opinion, the tribunal provided some clarity about the meaning of effective jurisdiction and ­control—indicating that this requires the adoption of domestic law measures to this end.106 Tenuous or ineffective flag State control thus presents a threat to critical welfare, fishing and environmental standards at sea. One response to the limits of flag State jurisdiction has been to develop more effective means of control through port State measures, or by extending/ consolidating the spatial jurisdiction of coastal States. The creeping jurisdiction of coastal States through the continental shelf and exclusive economic

100 BH Oxman, ‘The Territorial Temptation: A Siren Song at Sea’ (2006) 100 American Journal of International Law 830–51. 101  However, this is not without problems. See R Barnes, ‘The Law of the Sea Convention: An Effective Framework for Domestic Fisheries Regulation’ in D Freestone, R Barnes and D Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006) 233–60. 102  See United Nations General Assembly (UNGA), Oceans and the law of the sea. Consultative Group on Flag State Implementation. Report of the Secretary-General, UN Doc A/59/63 (2005) 3. More generally, R Barnes, ‘Flag States’ in DR Rothwell, AH Oude Elferink, KN Scott and T Stephens (eds), Oxford Handbook on the Law of the Sea (Oxford University Press, 2015) 304. 103  See DS Calley, Market Denial and International Fisheries Regulation. The Targeted and Effective Use of Trade Measures Against the Flag of Convenience Fishing Industry (Martinus Nijhoff, 2012) chapter 3; M Gianni, Clear and Present Danger. Flag State Failure and Maritime Safety and Security (WWF/ITF, June 2008). 104  Article 91 LOSC. 105 RR Churchill, The Meaning of the ‘Genuine Link’ Requirement in Relation to the Nationality of Ships (Study prepared for the International Transport Workers Federation (ITF, 2000) 68. 106  Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS Case No 21, 2 April 2015, paras 116, 119.

Environmental Rights in Marine Spaces 69 zone (EEZ) is well documented,107 and in recent decades we have been seeing a ‘thickening’ of regulatory control by coastal States.108 This is particularly notable in the content of emergent marine spatial planning regimes. Interestingly, the intensification of marine activities creates a need for regulation in order to reduce the prospects of conflict from the exercise of unconstrained liberties. At the same time this process would seem to enhance the possibility for environmental rights since these tend to emerge in more developed (denser) legal regimes as a means of holding States to account for their exercise of public regulatory authority. However, we should be cautious. As Boyle notes, human rights are conceptually ill-equipped to deal with global or transboundary issues.109 Marine issues are frequently transboundary or of shared concern to States. Another, this time substantive, regulatory disconnect is evident in the weakened legal position of historical (traditional) fishing rights. As a type of vested right (private), traditional fishing rights manifest a strong, immediate connection between individuals and the seas, more so than inter-State rules of conduct. Traditional fishing rights are based upon specific connections between peoples, places and practices. At various times, international law has acknowledged the importance of these connections, even if such practices have not always been maintained in the face of other legal considerations, such as geographic factors in boundary delimitation.110 Over time, the space for historic rights appears to have reduced and continues to decrease, or at least become subsumed by specific agreements or regimes;111

107  JA Knauss, ‘Creeping Jurisdiction and Customary International Law’ (1985) 15 Ocean Development and International Law 209–16; B Kwiatkowska, ‘Creeping Jurisdiction Beyond 200 miles in the Light of the 1982 Law of the Sea Convention and State Practice’ (1991) 22 Ocean Development and International Law 153–97. 108  H Tuerk, Reflections on the Contemporary Law of the Sea (Martinus Nijhoff, 2012) chapter 8. 109  Boyle (n 18). 110 See, for example, the Anglo-Norwegian Fisheries case (1951) ICJ Rep 116, 142; ­Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen—Phase I), RIAA, vol XXII, 209–332, at para 126. It may be implied from the judgment in the Gulf of Maine case (1984) ICJ Rep 246, para 237; In the Matter of an Arbitration (The Republic of the Philippines and the People’s Republic of China) Award on Jurisdiction and Admissibility, 29 October 2015, para 407. It may be observed that courts have been reluctant to take account of fishing rights in delimitations disputes, and that the exceptional jurisdiction of the tribunal in Eritrea/Yemen may explain its treatment of traditional fishing practices. This may also be done through agreement: Agreement Between India and Sri Lanka on the Boundary in Historic Waters Between the Two Countries and Related Matters 1974, reproduced in UN National Legislation and Treaties relating to the Law of the Sea, ST/LEG/SER.B/19 (1980) 396–98; Treaty between Australia and Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Straits, and related matters 1978, Australian Treaty Series 1985 No 4. 111  See, for example, traditional fishing in archipelagic waters under LOSC Article 51. Also, LOSC Article 62(3) lists ‘habitual fishing’ as a factor to be taken into account when determining the access of other States to fishing in the EEZ.

70  Richard Barnes or they are treated as exceptional situations.112 In the past, tribunals have sought to protect traditional fishing rights, noting they survive changes of sovereignty unless expressly changed or terminated. This is based on the concept of vested rights.113 Thus, in the Bering Sea Fur Seals case (1893), special provision was made to protect indigenous fishing from the division of jurisdiction.114 Fast forward to the present day, and we can contrast this with the decision of the tribunal in the South China Sea Arbitration, which held that the LOSC has superseded any historic or other rights beyond those permitted by the Convention.115 While this clearly precludes other State rights in the EEZ, in effect this negates actual historical fishing by individuals. Although one can distinguish State rights from private rights, the tribunal was quite clear in holding that the emergence of the EEZ extinguished traditional/private fishing rights.116 Localised examples of strong traditional fishing rights remain in some parts of the world, but these tend to be exceptional. A good example of this is in New Zealand, where the Maori rights (including fishing) have a priority status.117 Here recognition of Maori fishing rights, which constitute a fundamental aspect of Maori cultural identity, forms an integral part of New Zealand’s constitutional settlement. If marine law is able to encompass traditional rights, then this will enhance its legitimacy in those sectors with long-standing connections to the sea. B.  Complex Structural Features of Marine Laws Much of the regulation of marine space is done under the law of the sea, and this possesses a complex structure. In part, this is a response to the complexity of marine ecosystems.118 In part, this is also a product of the package 112 

Eritrea/Yemen (n 110) paras 525–26. Abyei Arbitration (Government of Sudan v Sudan People’s Liberation Movement/Army), Final Award of 22 June 2009, RIAA, vol XXX, p 145 at paras 760 and 766. 114  Award between the United States and the United Kingdom relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United Kingdom v United States), Award of 15 August 1893, RIAA, vol XXVIII, p 263 at p 271. See also the ICJ’s attempt to accommodate the traditional fishing rights of the UK as part of an equitable solution in Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3 at para 69. 115  In the Matter of the South China Sea Arbitration (The Republic of The Philippines and the People’s Republic of China) Award of 12 July 2016, paras 242–47, available at https://pcacpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf. 116  ibid, paras 802–04. 117  See K Ruddle, ‘Wronging Rights and Righting Wrongs: Some Lessons on Community Viability from the Colonial Era in the Pacific’ in WW Taylor, MG Schecther and LG Wolfson (eds), Globalization: Effects on Fisheries Resources (Cambridge University Press, 2007) 215; J Dawson, ‘A Constitutional Property Settlement Between Ngai Tahu and the New Zealand Crown’ in J McLean (ed), Property and the Constitution (Hart Publishing, 2009) 207. 118  Sutherland aptly describes this as volumetric complexity. MD Sutherland, Marine Boundaries and Good Governance of Marine Spaces (PhD dissertation, Department of ­Geodesy and 113 

Environmental Rights in Marine Spaces 71 deal nature of the LOSC, which inter-connects (in both legal and political terms) all issues of ocean regulation. Logically, it is right that questions of navigation or offshore oil and gas exploration are not considered apart from fishing or marine environmental protection. They are fundamentally connected in a fluid marine environment and due regard should be exercised in the regulation and conduct of such activities. This is an implicit ecosystembased approach. However, this complexity poses its own challenges. Speaking to the challenge of legal complexity, Shuck identifies four of its attributes: density of law, technicality of law, institutional differentiation, and indeterminacy.119 Each of these forms of complexity is evident in law of the sea. Density is the number and coverage of rules, and familiarising oneself with this is a basic challenge for any student of the law of the sea.120 Technicality is the use of specialised rules that require expert understanding by those that use them. Here one can immediately point to instruments like MARPOL, an agreement with six detailed technical annexes that covers accidental and operational discharges from ships,121 or technical elements of maritime delimitation.122 Together, density and technicality serve to distance law from the everyday, putting it in the hands of specialists. A startling illustration of this is provided by Boyes and Elliott’s use of the horrendogram: a map of the various marine instruments applicable in UK seas.123 Institutional differentiation arises when applicable laws draw upon different logics, values or legitimating factors—something that is manifest in various ways in the law of the sea.124 Critically, the regulation of marine spaces is often subject to global processes that are not easily reconciled with local or traditional knowledge.125 Different epistemic communities

Geomatics Engineering, Technical Report No. 232, University of New Brunswick, Fredericton, 2005) 238. 119  P Schuck, ‘Legal Complexity: Some Cause, Consequences, and Cures’ (1992) 42 Duke Law Journal 1–52. 120  DR Rothwell and T Stephens, The International Law of the Sea (2nd edn, Hart Publishing, 2016) 1. 121  International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 Relating thereto, 1340 UNTS 62. 122 On this see NM Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process (Martinus Nijhoff, 2003); S Fietta and R Cleverley, A Practitioner’s Guide to Maritime Boundary Delimitation (Oxford University Press, 2016). 123  SJ Boyes and M Elliott, ‘Brexit: The marine governance horrendogram just got more horrendous’ (2016) 111 Marine Pollution Bulletin 41–44, 43. 124  M Mendelson, ‘Fragmentation of the Law of the Sea’ (1988) 12 Marine Policy 192–200. J Harrison, Making of the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011) 236ff. 125  MG Wiber, ‘The Spatial and Temporal Role of Law in Natural Resource Management: The Impact of State Regulation of Fishing Spaces’ in Franz von Benda-Beckerman, Keebert von Benda-Beckerman and Anne Griffiths (eds), Spatializing Law. An Anthropological Geography of Law in Society (Routledge, 2016) 75.

Figure 3.1:  Horrendogram

Source: Pre-publication version of the paper: SJ Boyes and M Elliott, ‘The marine governance horrendogram just got more horrendous!’ (2016) 111 Marine Pollution Bulletin 41–44, 43. Note: ‘?’ indicate potential gaps in the regulatory framework where further measures to commitments into domestic law may be required.

Policy & Targets

?

Licences, Consents & Authorisations

LONDON CONV. & PROTOCOL

IPPC

SEA

EU Strategy on Invasive Alien Sp.

BALLAST WATER CONV.

MARPOL

EIA

Applications for Nationally Significant Infrastructure Projects (NSIPs)/Marine Licences

Planning Act (as amended)

Infrastructure Planning (EIA) Regs

Protection of marine archaeology

Protection of Military Remains Act

Protection of Wrecks Act

Merchant Shipping Regs Ancient Monuments & Archaeological Areas

National Heritage Act

Marine archaeology

NERC Act

Management Plans & Schemes

Conserving wider biodiversity

Conservation/ Biodiversity protection (MCZ)

Coastal Recreation

Site designations (e.g. SSSI)

Licences

Biodiversity & Species Action Plans

Marine planning(4)

Licences, Consents & Authorisations

Habitat & Species Protection

Reg 35 advice, Article 17 condition monitoring, Appropriate Assessments (AA), Habitat Regulations Assessment (HRA) & Likely Significant Effect (LSE)

Offshore Marine Conservation Regs

Site designations—European Marine Sites (EMS) include SAC & SPA. (RAMSAR sites designated under the RAMSAR Conv. should also be given same management considerations as EMS)

Conservation of Habitats and Species Regs

Enforcement

Control of Trade in Endangered Species (COTES) Regs

Endangered species protection

Marine & Coastal Access Act

?

Programme of measures, qualitative descriptors, ecosystem-based management approach, MPAs(2)

Polluter pays principle & remedial measures

River Basin Management Plans, Heavily Modified Water Bodies & Artificial Water Bodies

Wildlife & Countryside Act (as amended)

Marine spatial planning & coastal zone management

Good Environmental Status

Favourable Conservation Status Natura 2000 sites (SAC/SPA)

Habitats & Species

MSP Dir

MSFD

Marine Strategy Regs

Env. Damage (P&R) Regs

Water Environmental (WFD) Regs

Prevention & remedy of env. damage

Good Chemical Status & Good Ecological Status

Flood Risk Assessment

Multimetric Indices

Flood Risk & Hazard Maps Flood & Coastal Erosion Risk Management Flood & Water Management Act

Flood Risk Regs

Env Liability

EU Biodiversity Strategy

Wild Birds

Sets maximum acceptable levels

Contaminants in Food Regs

EU Integrated Maritime Policy

WFD(1)

Various Regs to control CITES fauna & flora

CITES

Council of Europe Conventions on archaeology & landscape

UNESCO Protection of Underwater Cultural Heritage(3)

RAMSAR CONV.

BERN CONV.

BONN CONV.

OSPAR, HELCOM, UNEP-MAP, BUCHAREST Reg. Seas Conv

FRMD

Safe consumption of fish & shellfish

Salmon & Freshwater Fisheries Act

Sea Fisheries (Shellfish) Act

Contaminants in Food Reg

UN CONV. on BIOLOGICAL DIVERSITY

UNCLOS

ICES

CFP

Basic Fish Regs

INT. CONV. ON SALVAGE

IMO

ESPOO CONV.

KYOTO PROTOCOL

UN FRAMEWORK CONV. ON CLIMATE CHANGE (UNFCCC)

Sea Fish (Conservation) Act as amended by the Sea Fisheries (Wildlife Conservation) Act

Byelaws, Orders, gear and catch restrictions

Sustainable fisheries & safeguarding the marine environment

Sea Fish Regulation Act

Marine projects are subject to Environmental Impact Assessment

Town & Country Planning (EIA) Regs

Harbour Works (EIA) Regs

Marine Works (EIA) Regs

Environmental Assessment Regs

Proposed IAS Reg

Various EU Regs to control shipping & pollution from ships

Renewable Energy

Bathing Waters

Strategic Environmental Assessments to include transboundary effects

Prevention, management & control of harmful aquatic organisms & alien species

Safer shipping navigation, pollution control and operation

Renewables targets for 2020

Nitrates

Waste FD

Environmental Standards

UWWTD

Nitrate Vulnerable Zones

Waste Regs

H1 Method

Pollution Prevention & Control Regs

Licences, Consents & Authorisations

Sensitive area Bathing beaches

All regulated activities in the English marine environment consider UK marine policy drivers such as the UK High Level Marine Objectives 2009, the UK Marine Policy Statement (4) and various National Policy Statements

(3) The UK is not a signatory to this Convention however a number of public statements have been produced that confirm its endorsement of the rules in its Annex

(2) The network of MPAs in England will consist of EMS/Natura 2000 (SACs & SPAs), SSSIs, Ramsar sites and MCZs

(1) In 2013 the WFD replaced the Dangerous Sub. Dir.; Freshwater Fish Dir.; Shellfish Waters Dir. & Groundwater Dir.

Licences, Consents & Authorisations

Harbour & Works Licences

Local Harbour Acts

Harbours Act

Merchant Shipping Regs

Electricity Act

Climate Change Act

Energy Act

Bathing Water Regs

Urban Waste Water Treatment Regs

Nitrate Pollution Prevention Regs

Waste Hierarchy & Good Practice Licences, Consents & Authorisations

Licences, Consents & Authorisations

Licences, Consents & Authorisations

Marine Notices— shipping, guidance & information

KEY

International Bodies & Conventions

Revision and Empowerment Orders. Conservation duties on ports

Implementation method/ Protection afforded

Enabling/Primary Legislation

Target/Status to be met

EC Directive or Strategy

International Law or Commitments

Environmental Rights in Marine Spaces 73 develop within specialist sectors or fields, thereby isolating themselves from external influence and commonality, to the determinant of the system as a whole. Thus competing ideas of expertise and the marginalisation of values may arise—something that is increasingly divisive in the context of ­fisheries.126 Indeterminacy refers to rules, processes and institutions that are ­open-textured, flexible, multi-factored and sustain multiple meanings and application. Again, this is a frequently observed feature of laws in marine spaces. Specifically on the question of individual rights, the European Court of Justice (ECJ) has held that the ‘nature and the broad logic of [the LOSC] prevent the Court from being able to assess the validity of a Community measure (concerning individual rights and freedoms) in the light of that Convention’.127 Inter alia, the complexity of law can cause ‘de-legitimation’. As Shuck observes: Intelligible only to experts, the law is likely to mystify and alienate lay citizens whose intelligence it often seems designed to mock. When this Delphic law also emerges from an institutional black box that is itself dense and difficult to comprehend, its legitimacy—the sense of “oughtness” that the lawmakers hope will attach to it—is diminished.128

The point is not to suggest that law should be ‘dumbed down’, but rather that implications of complexity must be acknowledged and addressed, especially if we want to reinvigorate individual engagement with regulatory processes. C.  An Absence of Property Property has a role to play in protecting the environment.129 For example, it vests owners with an interest in protecting their property, it enables private law remedies such as tort against those causing harm, and, most critically to the present discussion, it provides a nexus to human rights.130 This is germane even to international human rights-based mechanisms, which also protect property rights or rights contingent upon property.131 Here it

126  DC Wilson, JR Nielsen and P Degnbol (eds), The Fisheries Co-management Experience. Accomplishments, Challenges and Prospects (Springer, 2003). 127  Case C-308/06, The Queen on the Application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057, paras 64–65 (text in brackets added). 128  Shuck (n 119) 22–23. 129  See E Brubaker, Property Rights in Defence of Nature (Earthscan, 1995). 130  See further S Coyle and K Morrow, Philosophical Foundation of Environmental Law (Hart Publishing, 2004). 131  See Section IIE above. Also, T Xu and J Allain (eds), Property and Human Rights in a Global Context (Hart Publishing, 2016).

74  Richard Barnes is ­suggested that an absence or under-developed institution of property in marine things is an obstacle to the development of environmental rights in marine spaces. This is both conceptual and actual. It is not possible to provide a fine-grained theory of property here, but we can make some basic observations on some limitations about how property is traditionally conceived in law and how this can distance it from everyday understandings of property. In law, property is fundamentally an institution, concerned with the use of things.132 However, dominant accounts of property have tended to focus on the analytic model derived from Hohfeld.133 This marginalises the object of property, the ‘thing’, in favour of disaggregated, abstract legal relationships (use, transfer, exclusion etc) that people have in respect of things. Although this explains the components of property, it does not provide an explanation of how they fit together, of why certain constellations of rights and duties exist. Such explanations must in part be derived from the nature of things—how they are or can be used by people— especially as regards natural resources.134 For example, the sea is fluid and so exclusion plays a lesser role in explaining how a certain agglomeration of use rights fits together and determines its status as property. This reflects our understanding of the nature of things and explains how we relate to the real world. It does not deny that property has a social dimension. It simply demonstrates that property has a material dimension which is important to how people connect to the world. Whereas property rights densely populate land, the oceans are, relatively speaking, under-‘propertised’. For the most part, the physical nature of the oceans has predisposed them to the status of non-property or commons. In the mid-twentieth century this began to change with the extension of sovereignty into wider areas of the sea beyond territorial waters.135 There have been some calls to privatise the oceans.136 When we examine the legal regimes for marine zones more closely, we see that most spaces and ­living resources are un-owned. Exclusive or private property rights are invariably limited in maritime spaces because State rights at sea are limited, and States cannot designate private rights that are more extensive than a State’s legal structure is capable of supporting.137 In the territorial sea, States

132  Smith (n 83). Also, J.W. Harris, Property and Justice (Oxford University Press, 1996) 3; J Waldron, The Right to Private Property (Oxford University Press, 1987) 31. 133  M Radin, ‘A Restatement of Hohfeld’ (1938) 51 Harvard Law Review 1141, 1146–63. 134  In this respect the present approach shares ground with J Penner, The Idea of Property in Law (Oxford University Press, 1997); MA Heller, ‘Three Faces of Private Property’ (2000) 79 Oregon Law Review 417; D Lametti, ‘The Concept of Property: Relations Through Objects of Social Wealth’ (2003) 53 University of Toronto Law Journal 325–78. 135  See Barnes (n 85) 198ff. 136  R Hannesson, The Privatization of the Oceans (MIT Press, 2004). 137  See generally, Barnes (n 85) chapter 7.

Environmental Rights in Marine Spaces 75 enjoy ­sovereignty and there is often some form of public ownership of the ­seabed.138 However, despite this, private rights tend to be limited to some sedentary fisheries, moorage/anchorage for vessels or aquaculture. On the continental shelf and in the EEZ, sovereign rights allow some degree of exclusive leasing of seabed for mineral exploitation, but otherwise private rights are very limited. Seabed mineral resources are often owned, at least, by the State and then leased to developers.139 Ownership usually only arises upon capture or through the designation of abstract catch rights, such as quotas.140 The absence of exclusive spatial control on the high seas precludes the emergence of private property rights. In all maritime zones, private rights will be limited by restrictions in favour of other sea uses, such as navigation. In short, property can exist in marine spaces, but because of the dynamic and shared physical qualities of the oceans, and the complex legal regimes, property rights in marine spaces have been slow to evolve. As noted above, the oceans are often described as a commons. Yet, even when advocating the oceans as a commons, any sense of collective ownership of the seas tends to be both under-articulated and largely illusory. This is because any form of ownership generally requires a degree of material stasis or location to which rules are applied and this is simply not present in ocean environments. It is difficult to fix legal relationships to dynamic things. Also, we must remember that property is a social construct and so depends upon a strong society to delineate and secure property rights. Ocean spaces are not exclusive to individual States and so international law has a strong role to play in regulating ocean spaces. Yet, international society, such as it is, is not conducive to developing strong notions of collective management, because it still lacks truly shared goals for collective management of common things. Marine-located property rights will continue to develop as a natural consequence of expanding marine activities in areas like resource extraction, offshore energy generation and aquaculture. Such commercial developments will require some degree of exclusive, durable, secure and marketable right in order to facilitate investment and to protect the investment from interference by other marine users. Property rights may also emerge as preferred policy choice options in certain sectors, such as fisheries, where they are expected to deliver positive regulatory outcomes like capacity reduction or efficiency.141 Although property rights play a more marginal role in marine spaces, they are expanding. When they do arise, they emerge in distinctive

138  For example, in the UK, the Crown Estates is the owner of seabed and mineral resources. Crown Estates Act 1961. 139  eg US Outer Continental Shelf Lands Act 1953; UK Continental Shelf Act 1964. 140  See Barnes (n 85) 317ff. 141 This has happened in New Zealand and Iceland through the growth in individual transferable fishing quotas. See A Scott, The Evolution of Resource Property Rights (Oxford ­University Press, 2008) chapter 4; Barnes (n 85) chapter 8.

76  Richard Barnes forms, like fishing quotas, or public (State) ownership of seabed, as a consequence of the material qualities of the marine environment and its resources. Property rights matter to the question of environmental rights both practically speaking and conceptually. Property is important in practical terms since many environmental rights are contingent upon the existence of property rights.142 For present purposes it is sufficient to note that most domestic legal systems make standing to raise certain types of claim (ie tort or noncontractual liability) contingent upon having sufficient legal interest, ie a proprietary interest. Equally some types of human right, such as the right to private and family life (ie Article 8 of the ECHR) may depend upon a property interest. Property is also important because it provides the means for directly engaging in questions of how to regulate the environment. If there is no property, then this limits the potential for some aspects of environmental rights discourse to emerge, as discussed in Section II. IV.  MATERIALITY OF RIGHTS: AN ALTERNATIVE PERSPECTIVE

In this final section, the argument presented is that if environmental rights have a role to play in strengthening the protection of marine environments, as they have done for terrestrial environments, then they must do so in a way that is sensitive to the material considerations at play in the marine environment. In Section III it was noted that disconnections between people and marine spaces, the complexity of marine laws, and the absence of welldeveloped property rights in marine areas have contributed to regulatory dissonance. If these aspects of dissonance are acknowledged and steps taken to address them then this may provide the conditions for more effective marine environmental rights. A.  Material Connections If we are disconnected from the seas, then how can we reconnect? This is no easy task since a maritime identity or culture is the product of historical processes, as well as complex social interactions. It is not something readily imposed or constructed; it is something demanding of further exploration and explanation. Indeed, it is something beyond the reach of mere ­law-making alone. Returning to the comment of Argyou, we also need compelling narratives.143 Such narratives are better able to articulate maritime 142 See D McGillivray and J Wightman, ‘Private Rights, Public Interests and the Environment’, in Tim Hayward and John O’Neil (eds), Justice, Property and the Environment (­Ashgate, 1997) 144. 143  Argyou (n 6).

Environmental Rights in Marine Spaces 77 cultures, connections and identities than mere legal rules. Such narratives do exist, and are stronger in some cultures than others. For example, oceans are deeply rooted in the cultural traditions of the Polynesians.144 Some narratives are historically reconstructed, such as Mark Kurlansky’s Cod: A ­Biography of a Fish that Changed the World, a compelling account of how a single species has shaped social, cultural and political development through 1,000 years of history.145 However, more often they are historically rooted in specific events or enterprises, such as Garrett Mattingly’s The Spanish Armada or Nathaniel Philbrick’s In the Heart of the Sea. The former shows the influence of naval conflicts on early modern nation building. The latter, based on the whaling industry and events inspiring Moby Dick, shows our dependence upon and vulnerability to the oceans. Yet these narratives often lack an environmental conscience.146 We need to think of and articulate what meaningful connections we want to have with the oceans and to draw out more compelling accounts of sustainable use of the oceans.147 Here we need to step outside of narrow legal and even human rights discourse. Adopting a more prosaic legal perspective, one can suggest some potential catalysts for change. First, we should try to secure greater space for and recognition of local opportunities to engage with maritime regulation. Here the language of rights is important because of the connections it creates between people and material things. Internationally and regionally, this could occur through greater participatory rights of NGOs and nonState actors in oceans governance processes. Substantively, engagement could be advanced through the express recognition of traditional or historic rights. Marine planning regimes provide critical opportunities for people to engage in decision making. This can be stimulated at the international and domestic level, as shown by initiatives under the Convention on Biological ­Diversity.148 This should extend to training and educational initiatives that facilitate the meaningful participation of the general public and interest groups in legal processes. This could be reinforced through the extension of strong procedural rights through instruments like the Aarhus Convention. Second, without effective flag State control over ships, especially on the high seas, it will not be possible to establish meaningful environmental rights. As such, we should explore how to strengthen the jurisdictional links between

144 MK Mutsuda, Pacitific Worlds. A History of Seas, Peoples and Cultures (Cambridge University Press, 2012). 145  M Kurlansky, Cod: A Biography of a Fish that Changed the World (Vintage, 1999). 146  See perhaps F Schätzing, The Swarm (Hodder, 2007). 147  This need not be in texts but could be through other material artefacts. In 2016 Andrew Merrie commissioned four pictures by Simon Stålenhag to highlight utopian or dystopian futures for the sea. See www.stockholmresilience.org/research/research-news/2016-09-26marine-science-through-the-eyes-of-sci-fi.html. 148 Report of the Expert Workshop to Provide Consolidated Practical Guidance and a Toolkit for Marine Spatial Planning. UN Doc UNEP/CBD/SBSTTA/20/INF/6, 9 February 2015.

78  Richard Barnes States and flag vessels, or mechanisms for holding recalcitrant flag States to account.149 More radically, this may involve vesting greater prescriptive and enforcement authority in coastal States or regional ­organisations.150 Moving beyond this, we might explore how more compelling relationships or connections can be framed in law. For example, the common heritage of mankind is used in the LOSC to describe the legal regime of the deep seabed. Although contested as a concept, it has achieved something of a rarefied status as a maritime legal principle due to its resonance with the collective interests shared by many developing States.151 Legal texts are also material artefacts and these too should capture our connections with the seas. Thus, new legal instruments should incorporate language and concepts (eg risk and dependency, food security, subsistence, socio-ecological resilience, ecosystem goods and services, and fair and equitable benefit sharing) that reflect our changed understanding of the oceans and capture the dynamic human relationship with the marine.152 B.  Managing Complexity Managing complexity, as discussed in Section IIIB above, is equally challenging. If a system is unavoidably complex, like the marine environment and its regulatory counterpart, then it is simply a case of accepting this and addressing the costs and consequences of complexity so as to ensure that both law makers and law users are equipped to understand and deal with complexity. As noted above, this entails better communication of laws, more education and training—efforts to enhance the regulatory capacity of both legal institutions and law users—and engage them in legal processes. How this happens will depend upon whether the regulatory context is international or domestic. Here it is accepted that the opportunities for non-State actors to engage in international legal processes are limited. However, this should not disguise the fact that international law can drive participatory approaches at the domestic level (eg Aarhus Convention) and that many marine regulations still require domestic transposition to become effective in practice. In this respect, one of the key challenges is to identify opportunities for institutional reform within the marine sector that can better address

149 

For some approaches to this see Barnes (n 102). Rayfuse, ‘Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-flag State Enforcement in the High Seas Fisheries and Disarmament Contexts’ (2005) 24 Australian Yearbook of International Law 181; Y Takei, ‘Assessing Flag State Performance in Legal Terms: Clarifications of the Margin of Appreciation’ (2013) 28 International Journal of Marine and Coastal Law 97. 151  See articles noted above (n 34). 152 In ‘The Continuing Vitality of UNCLOS’, I deliberately consider how legal texts can evolve (live) and capture changing social needs and rules. See Barrett and Barnes (n 97) 459. 150  R

Environmental Rights in Marine Spaces 79 complexity. At the domestic level, this would include the development of participatory marine management decision-making processes—for example through spatial planning regimes.153 At the international level, this would focus on cooperation and integration of sectoral bodies, such as RFMOs and regional seas bodies, as well as the development of strategic environmental assessments. As noted above, key challenges arise from fragmentation and a struggle to harness approaches from different epistemic communities. This in turn may generate contested knowledge or conflicts between sectors. Whilst the LOSC, for example, professes an integrated approach, it remains strongly focused on individual sectors (fishing, navigation, environmental protection). We lack strong centralised institutions capable of dealing with systemic issues. Whilst cross-cutting institutional initiatives are being developed (such as integrated coastal zone management or marine spatial planning) this remains a continuing project.154 Here environmental rights could have a role to play because rights-based approaches transcend traditional legal categories. This is in part because human rights concern the exercise of public power, and so arise wherever States exercise public authority, but also because they are inherent and intrinsic and so potentially emerge in any transaction involving people. Shuck provides some principles that could be used to help ‘simplify’ or alleviate the consequences of complexity.155 The first is to ensure that the costs of complexity are not borne by those groups least able to bear it—typically poorly organised groups. Related to this is the idea that the beneficiaries of complexity should bear its costs. Third is the principle that complexity should be tailored to the audience. Thus, sophisticated or wellorganised users can bear more complexity than lay audiences. Fourth, law should try to approximate informal simplification strategies, particularly in scenarios where there are high prospects of regulatory slide. This does not mean prescribing simple (crude) laws, since these may simply fail to address a complex problem. To illustrate, we can contrast the respective positions of the offshore oil and gas industry and the fishing sector. The latter is a well-developed technical sector that is financially well resourced, involving a relatively small number of private actors, and possessing a highly trained work force, and so is therefore better able to sustain quite complex technical regulation. In contrast, fishing is a highly diffuse industry, with large numbers of participants, often poorly organised (especially in small-scale and subsistence fisheries) and educated, and who are financially less well resourced. Furthermore, fishing is vulnerable to regulatory slide as fi ­ shers 153 See, for example, the UK Marine and Coastal Access Act 2009; Canada’s Oceans Act 1996. 154  In the UK, for example, there is the Marine Management Organisation. 155  Schuck above (n 119) 44ff.

80  Richard Barnes exploit gaps in the law through innovation.156 In this respect fishing may be less well suited to complex technical regulation. Here regulation should be specific to the entity regulated and context sensitive; it must be material.157 Interestingly this is where a rights-based approach may come to the fore. Within the fisheries sector, property rights-based forms of entitlement are increasingly used to address the regulatory challenges caused by complex and burdensome command and control regulation.158 As these are rooted in property rights, as considered below, this can help sustain environmental rights because they vest holders with specific legal interests in marine resources, thereby overcoming the problems of standing and lack of ­interest that have been observed to arise in the context of human rightsbased litigation. General Comment 23 (1994) of the Human Rights Committee on minority rights under Article 27 of the International Covenant on Civil and Political Rights (ICCPR) establishes a key connection between material things and cultural rights which ‘may include such traditional activities as fishing or hunting and the right to live in reserves protected by law’.159 This is reflected in other instruments160 and has been developed in subsequent human rights jurisprudence, although mainly associated with land rights.161 The importance of marine resources as the material basis for cultural rights has since been advocated in a report to the UN’s Economic and Social ­Council, which stated that [f]or indigenous peoples living along coastlines, fishing and other uses of the ocean have been their main livelihood and the material basis for their culture. There are no rules or principles in international law dealing specifically with indigenous rights to salt sea fishing. The legal position of coastal indigenous peoples must be derived from more general instruments.162

The case of Apirana Mahuika et al v New Zealand, concerning a violation of cultural rights in a fishing dispute, is significant given its marine focus. Here the Human Rights Committee stated, in the context of Article 27,

156  A good example of this arises in the context of fishing where gear restrictions can be avoided through technological developments or other changes to fishing input methods. 157 It is admitted that greater contextualisation may create complexity at one level. ­However, at another level, the contextualisation makes the link between law and its subjects more comprehensible. 158  See Barnes above (n 85) 317–19. 159  General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, UN Doc HRI/ GEN/1/Rev.9 (vol I) 27 May 2008. 160  See Article 15 of the Indigenous and Tribal Peoples Convention 1989 (ILO Convention 169). 161  Lubicon Lake Band v Canada, Communication No. 167/1984 (26 March 1990), UN Doc Supp No 40 (A/45/40) para 32.2; Montana Band of Indians v R [1991] 2 FC 30 (Fed CA) at para 6. 162 Report on indigenous fishing rights in the seas with case studies from Australia and ­Norway, 8 January 2010, UN Doc E/C.19/2010/2, para 4.

Environmental Rights in Marine Spaces 81 ‘that it is further undisputed that the use and control of fisheries is an essential element of their culture’.163 Significantly, the Committee went on to observe that such rights need not be fixed in traditional modes, but could be adapted to suit modern fishing commercial practices.164 C.  Material Property At this point it is appropriate to consider the specific question of property rights. Although property has largely been absent from or differs in respect of marine spaces, we should not marginalise it. It is a powerful regulatory tool and one that intersects strongly with environmental rights. At the same time, we should be careful not to export preconceived notions of property into marine space because they may distort or marginalise important concerns. The institution of property addresses fundamental questions about the use and distribution of things that materially affect our well-being. This necessarily encompasses many of the same fundamental questions that underlie human rights. Most obviously this includes material liberty, the requirement that individuals require certain material things in order to function as autonomous social and political agents.165 Such is manifest in a range of economic social and cultural rights. Property is also part of the framework for pursuing environmental protection since it provides a framework for analysing questions of use and entitlement to natural resources.166 Accordingly, justifications of property, based on considerations of desert (ie merit or deserving), liberty, utility, economic efficiency, propriety and so on, necessarily feed into questions about how and why we should protect the environment: Is it a duty incumbent on right holders? Do particular allocations of rights and forms of property (within environmental duties) contribute to general welfare? Should we reward socially productive, environmental good behaviour with property rights? Is it proper that owners manage property for public interest benefits? Some of these concerns are emerging in some important human rights jurisprudence, which requires private rights to yield to (public) environmental interests.167 Interestingly, the divergence of property approaches that is emerging in ocean spaces due to its particular physical attributes, as well as distinctive

163 

Apirana Mahuika et al v New Zealand CCPR/C/70/D/547/1993, para 9.3. ibid, para 9.4. 165  Barnes (n 85) 37–39. 166  C Rogers, ‘Nature’s Place? Property Rights, Property Rules, and Environmental Stewardship’ (2009) 68 Cambridge Law Journal 550. 167  See further K Gray, ‘Land Law and Human Rights’ in Louise Tee (ed), Land Law: Issues, Debates, Policy (Willan Publishing, 2002) 211. 164 

82  Richard Barnes legal structures, may generate novel approaches to both the quality of property rights and attendant environmental rights. For example, rights in ocean resources are more akin to stewardship, where a more complex balance of rights and interests comes into play. Thus, rights to use resources are subject to conservation and management duties. For example, Article 6.1 of the Food and Agriculture Organization Code of Conduct for Responsible Fisheries states: ‘The right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources’.168 Starting from the material qualities of things, more nuanced forms of property are emerging in fish stocks, such as individual transferable quotas in fish stocks or community-based holdings. Only recently is attention being paid to such questions in the wider ­literature on property rights in natural resources.169 Here understanding of property moves beyond the narrow reading of property in the sense of an absolute sphere of private influence towards more nuanced forms of property that are open to other social concerns and virtues.170 This connection of property to social conditions echoes the material premises of Marx, who observed that [t]he way in which men produce their means of subsistence depends first of all on the nature of the actual means they find in existence and have to reproduce. This mode of production must not be considered simply as being the reproduction of the physical existence of the individuals. Rather, it is a definite form of activity of these individuals, a definite form of expressing their life, a definite mode of life on their part. As individuals express their life, so they are. What they are, therefore, coincides with their production, both with what they produce and with how they produce. The nature of individuals thus depends on the material conditions determining their production.171

This is a recurrent theme in sociology and material cultural studies.172 In this tradition, Strang examines the fluid qualities of water to show how it resists or defies ownership according to the ‘holdability’ attribute that defines land and other material artefacts.173 Her reasoning applies equally if not more so to the oceans. It follows that the distinctive attributes of the oceans open

168 

Available at www.fao.org/docrep/005/v9878e/v9878e00.htm. Barnes (n 85). 170  GS Alexander, EM Peñalver, JW Singer and LS Underkuffler, ‘A Statement of Progressive Property’ (2009) 94 Cornell Law Review 743. 171  Reproduced in K Marx and F Engels, The German Ideology (edited and with an introduction by CJ Arthur) (International Publishers, 2004) 42. 172  See further D Miller, Material Culture and Mass Consumption (Blackwell, 1987). 173  V Strang, ‘Elusive Forms: Materiality and Cultural Diversity in the Ownership of Water’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability. The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, 2011) 197, 204. 169 

Environmental Rights in Marine Spaces 83 up possibilities for different allocative criteria and legal ­ connections to the oceans that go beyond mere ‘holding’. Greater concern with the material qualities of the ocean and its resources allows us to develop alternative visions for how the property rights could be ordered. For Strang this includes factors such as the acquisition of knowledge, the creative process of identity construction, and attachments to places and practices.174 Other possibilities include linking fishing to well-being.175 We could go further and include conservation practices and gains being used as a basis for granting rights.176 Conservation efforts provide a strong material stake in a resource, an investment of more than labour, a commitment to a future way of life. Such approaches are exciting because they come closer to describing and accounting for the rich variety of connections that people can form with the oceans, at least as compared with utility- or efficiency-based justifications— justifications which tend towards rewarding limited material gains. This final set of observations on property is important. Although there is scope to develop property rights over marine spaces, thereby facilitating some environmental rights, we have to do so in a way that is sensitive to the material conditions of marine environment and those actors engaged in marine activities.177 In law, modern property discourse is particularly focused on property as an abstract legal relationship.178 This disaggregates property into helpful and distinct legal relationships (such as rights to use, manage and enjoy the capital or disposal of a thing), but at the same time exposes it to the risks of commodification.179 Here property becomes more narrowly centred on market-based transactions. This may weaken the connections between people and things, and so diminish the potential for a richer environmental rights discourse. If the assumption holds true that we better protect those things of importance to us, then law is best served by ensuring that it creates legal relationships of importance. These relationships must be broadly conceived.

174 

ibid, 207ff. S Coulthard ‘What Does the Debate Around Social Wellbeing Have to Offer Sustainable Fisheries?’ (2012) 4 Current Opinions in Environmental Sustainability 358–63. 176  An example of this is the Conservation Credit Scheme in place for some Scottish fisheries. See further www.gov.scot/Topics/marine/Sea-Fisheries/17681/ccs. 177  For an interesting contextual approach to stewardship in environmental law more generally, see E Barritt, ‘Conceptualising Stewardship in Environmental Law’ (2014) 26 Journal of Environmental Law 1. 178  See AM Honoré, ‘Ownership’ in Anthony G Guest (ed), Oxford Essays in Jurisprudence (Oxford University Press, 1961) 107. 179 See GS Alexander, Commodity and Propriety: Competing Visions of Property in ­American Legal Thought 1776–1970 (University of Chicago Press, 1997). 175 

84  Richard Barnes V. CONCLUSIONS

An exploration of how environmental rights operate in the marine context provides an important case study. A review of regulatory instruments and case law shows the potential for environmental rights to be poorly realised when compared to terrestrial space. It also shows that the different structures of domestic and international law, and especially how the latter operates in areas beyond national jurisdiction, may constrain opportunities for individuals or groups to hold and make use of ‘environmental rights’. There are three reasons for this. First, most marine laws lack an explicit human dimension, having evolved apart from human rights-based discourse. ­Second, many marine laws fail to capture the broad range of relationships we have with the sea. Third, there is lack of a material connection to the seas through property rights, which has inhibited the extension of human rights jurisprudence to questions of marine resource regulation. Cutting across these three points is the sense that the marine is not a lived space. However, if we take a more careful look at how we can connect with the seas, then we can begin to develop more nuanced accounts of environmental rights. The small number of cases concerning the material basis of cultural rights provide some indication of the potential for creative thinking in this respect.

Part II

What Kinds of Environmental Rights in the EU Context?

86 

4 Substantive Environmental Rights in the EU: Doomed to Disappoint? CHRIS HILSON*

I. INTRODUCTION

A

S AN EU citizen, do I have a right to clean drinking water? Or do I have a right to be free from significant pollution? These would both be substantive environmental rights, entitling me to a given level of environmental quality. The answer to both questions is probably ‘yes’, but the real issue is, in the first example, whether this kind of explicit rights framing has been particularly visible and, in the second, the extent to which this right is ever likely to be practically enforced in a specifically EU context. Since the adoption of the Aarhus Convention on access to information, ­public participation in decision making and access to justice in relation to the environment,1 we have seen the rise of procedural environmental rights in the EU. While their substantive cousins exist in theory, they have remained very much in the shadows as far as use by the environmental movement is concerned. The aim of the current chapter is to explore the puzzle of why substantive environmental rights have lacked the exposure enjoyed by procedural rights. I examine the current status of substantive EU environmental rights and seek to explain why it is that a potentially salient group of rights have not been used as much as one might have expected. In the case of legislative substantive rights, I will argue that the lack of a juridical need for a right within the EU law doctrine of direct effect is a key factor and, with EU fundamental substantive rights, that it is a feature of both perceived redundancy and restrictive precedent.

*  I am grateful to those present at the Lund conference for comments. For a companion piece to this chapter, which situates EU environmental rights in the context of an empirical study of Daniel Kelemen’s Eurolegalism (Harvard University Press, 2011), see C Hilson, ‘The Visibility of Environmental Rights in the EU Legal Order: Eurolegalism in Action?’ (2017) Journal of European Public Policy (forthcoming). 1  2161 UNTS 447; 38 ILM 517 (1999).

88  Chris Hilson II.  ENVIRONMENTAL RIGHTS

At the outset it is necessary to establish what is meant by ‘environmental rights’ in the context of the current chapter. In the wider literature and campaigning, the phrase is sometimes used to refer to rights enjoyed by, or on behalf of, the environment itself. This may be termed an ‘ecocentric’ approach. However, more common in terms of judicial practice is for environmental rights to take the form of rights to a clean or healthy environment. These are anthropocentric rather than ecocentric rights because the relevant right is reserved for humans. While the environment may benefit indirectly from the enforcement of such rights, the environment itself has no standing under such an approach—only humans have a right to a clean or healthy environment. Such rights may be explicitly expressed in this way, for example in a national Constitution. Thus the Constitution of Hungary states in Article 21 that ‘Hungary shall recognise and enforce the right of every person to a healthy environment’.2 Alternatively, as in the case of the European Convention on Human Rights (ECHR),3 the right to a healthy environment may be a ‘derived’ right whereby newer environmental rights are derived from the older, pre-existing rights already found within the Convention architecture, such as the right to life (Article 2) or the right to home and family life (Article 8).4 The latter right under Article 8 is the most highly developed and well known of the ECHR environmental rights and has been widely employed in pollution cases, where the European Court of Human Rights has often been persuaded that severe pollution of the home amounts to an infringement of the right to home and family life.5 III.  SUBSTANTIVE VERSUS PROCEDURAL RIGHTS

The above rights to a clean and healthy environment—whether express or derived in nature—are a form of ‘substantive’ environmental right. There are also ‘procedural’ environmental rights. These involve not a right to a particular substantive environmental quality or outcome but, rather, to enjoy certain procedural rights in connection with the environment. Among the best-known contemporary examples of such rights are those found in the Aarhus Convention. The Convention provides for rights of

2  See Hungary’s Constitution of 2011, available at www.constituteproject.org/constitution/ Hungary_2011.pdf. 3  Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 September 1953. 4 See generally T Hayward, Constitutional Environmental Rights (Oxford University Press, 2005). 5 eg Lopez Ostra v Spain (1995) 20 EHRR 277; Fadeyeva v Russia (2007) 45 EHRR 10.

Substantive Environmental Rights in the EU 89 access to environmental information, rights to participate in public ­decision ­making on environmental matters and rights for the public to be able to gain access to the courts or other appropriate review procedures in cases involving the environment. The ECHR has also been used to create procedural environmental rights. Article 6 of the ECHR, for example, which involves an obvious procedural right in the shape of a right to a hearing, has been used frequently in environmental cases. And even the otherwise more ­substantive-looking Articles 2 and 8 of the ECHR have, with Aarhus influence (­considered further below), had procedural elements built into them.6 In Europe (in both the EU and the ECHR regimes), it is fair to say that while substantive environmental rights arrived on the scene first, procedural environmental rights have enjoyed a much more prominent role in recent years. It is beyond the scope of the current chapter to address the reasons for this procedural turn, but the entry into force of the Aarhus Convention in October 2001 has undoubtedly played a key part in it. Both EU law7 and the ECHR8 have been significantly affected by Aarhus. While we now find ourselves in a situation where we have both substantive and procedural environmental rights, one might raise a question about whether the recent dominance of procedural rights is an altogether positive development.9 Again, while this is beyond the scope of the current chapter, suffice it to say that although there are undoubtedly significant advantages associated with the new procedural rights, substantive environmental rights produce a much more direct ‘hit’ and are therefore likely to enjoy higher salience. A procedural right, if won, gives an individual or group the right to participate in or use a procedure, which may or may not then produce the substantive result desired. The substantive result is, in other words, one step removed or indirect. A substantive right, in contrast, provides direct access to the desired result in successful cases.

6  A Boyle ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471; C Hilson, ‘Risk and the European Convention on Human Rights: Towards a New Approach’ (2009) 11 Cambridge Yearbook of European Legal Studies 353; O Pedersen, ‘The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law’ (2010) 16 European Public Law 571. 7 eg Council Decision 2005/370/EC on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1; Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies [2006] OJ L264/13; Directive 2003/4/EC on public access to environmental information [2003] OJ L41/26; Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156/17. See also Darpö, Chapter 11 in this volume. 8  See Boyle (n 6); Hilson (n 6); Pedersen (n 6). 9  Hayward (n 4).

90  Chris Hilson IV.  LEGISLATIVE RIGHTS VERSUS FUNDAMENTAL RIGHTS

When considering substantive environmental rights, a final distinction needs to be drawn between legislative rights and fundamental rights because substantive environmental rights can be found in both categories. Legislative rights are those found mainly in EU directives. Some, invariably procedural, environmental directives employ the express language of rights in their ­provisions. For the majority, however, rights can be viewed as correlatives, in a Hohfeldian sense, to the obligations or duties owed by Member States to citizens under those directives.10 Fundamental EU environmental rights consist of those in the EU C ­ harter of Fundamental Rights,11 those found in, or derived from, the ECHR (the Court of Justice of the European Union (CJEU) will have absorbed the latter derived ones into its own internal doctrine of fundamental rights as part of the ‘general principles of law’) and, finally, rights derived from national Constitutions. As de Sadeleer has observed of ECHR-related rights, ‘although EU law does not specify a self-executing right to environmental protection, such a right emerges in the wake of fundamental rights enshrined by the ECHR’.12 These ECHR rights include both substantive rights under, for example, Article 8 (home and family life) and Article 2 (right to life) and procedural rights under, for example, Article 6 (right to a fair trial) and ­Article 8 again. ECHR jurisprudence on environmental rights is now s­ ubstantial and includes cases ranging from airport noise (Hatton),13 pollution risks from coal-fired power stations (Okyay)14 and gold mines (Taşkin),15 through to failures to provide warnings about risk (Guerra, Budayeva).16 However, the CJEU has studiously avoided referencing any ECHR environmental case law in its own judgments (whereas it has not shied away from citing ECHR cases in other policy areas). While there are some references to ECHR articles such as Articles 6, 8 and 13 by Advocates General or by parties,17 the Court itself does not currently tend to frame

10 C Hilson and T Downes, ‘Making Sense of Rights: Community Rights in E.C. Law’ (1999) 24 European Law Review 121. 11  Charter of Fundamental Rights of the European Union [2012] OJ C326/02. 12  N de Sadeleer, EU Environmental Law and the Internal Market (Oxford University Press, 2014). See also F Ermacora, ‘The Right to a Clean Environment in the Constitution of the European Union’ in Jan Jans (ed), The European Convention and the Future of European Environmental Law (Europa Law Publishing, 2003); and S de Abreu Ferreira, ‘Fundamental Environmental Rights in EU Law: An Analysis of the Right of Access to Environmental Information’ in Dennis Pavlich (ed), Managing Environmental Justice (Rodopi, 2010). 13  Hatton v UK (2003) 37 EHRR 28. 14  Okyay and Others v Turkey (2006) 43 EHRR 37. 15  Taşkin and Others v Turkey (2006) 42 EHRR 50. 16  Guerra v Italy (1998) 26 EHRR 357; Budayeva and Others v Russia (2014) 59 EHRR 2. 17  eg Case C-583/11 P Inuit Tapiriit Kanatami [2014] 1 CMLR 54; Case C-28/09 Commission v Austria, EU:C:2011:854; Case C-463/11 L v M [2013] Env LR 35.

Substantive Environmental Rights in the EU 91 its environment-related j­udgments in ­Convention terms.18 If it mentions rights, this will typically only be the Charter or existing EU general principles of law. As regards the EU Charter of Fundamental Rights, although it contains an explicit environmental article, this is expressed more as a programmatic principle than a judicially enforceable right. Article 37 states: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

While Article 37 may be legally justiciable in limited circumstances,19 this will be as a principle rather than a right, with the Charter making a ­narrow distinction between the two.20 This does not mean that environmental rights do not exist under the Charter—they do. However, as with the development of ECHR jurisprudence on the environment, the Charter’s environmental rights (which broadly mirror the equivalent ECHR rights) are ‘derived’ rights based on other rights in the Charter such as the right to life in A ­ rticle 2, the right to private and family life in Article 7 and the right to property in Article 17. Again, as with the ECHR above, the Charter-based fundamental rights may be substantive or procedural in nature, with the right to property an example of the former and the Article 47 right to an effective remedy and fair trial an obvious example of the latter. As for national constitutional provisions, these have only ever been referenced sweepingly and in passing by Advocates General as ‘national constitutional traditions’, without mention of specific national Constitutions.21 Even here, it is not the environment-specific substantive constitutional traditions being cited (eg Article 21 of the Hungarian Constitution, mentioned earlier), but rather procedural ones such as the right to effective judicial protection.22

18  See eg Commission v Austria (n 17). Although eg Article 8 ECHR was raised as a justification by Austria in the case for its trans-Alpine lorry restrictions (paras 83, 118), the Court does not mention Article 8. Cf earlier case law where, in Case C-112/00 Schmidberger v ­Austria [2003] ECR I-5659, the Court did refer to Articles 10 and 11 of the ECHR on freedom of expression and assembly in constructing fundamental rights as a potential justification for restriction on free movement of goods caused by an environmental anti-motorway protest. 19  S Bogojević, ‘EU Human Rights Law and Environmental Protection: The Beginning of a Beautiful Friendship?’ in Sionaidh Douglas-Scott and Nicolas Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017) 449; de Sadeleer (n 12). 20  C Hilson, ‘Rights and Principles in EU Law: A Distinction Without Foundation?’ (2008) 15 Maastricht Journal of European and Comparative Law 193; de Sadeleer (n 12). See also Scotford, Chapter 6 in this volume. 21  L v M (n 17) AG Wathelet. 22 ibid.

92  Chris Hilson V.  LEGISLATIVE RIGHTS

Much of the early interest and controversy surrounding EU environmental rights involved the Hohfeldian legislative type, where, rather than being expressly stated, the right was a correlative to a Member State obligation set out in an environmental directive. These are what one might call ‘silent’ rights and the case law falls into three categories: incorrect transposition; direct effect; and state liability. A.  Incorrect Transposition The incorrect transposition case law involves Member States failing to ­transpose directives into national law in a form which provides sufficient legal certainty to enable individuals to enforce them in national courts. The first CJEU case of this type involved Directive 77/452/EEC on Nursing Qualifications,23 with the Court stating that where the directive is intended to create rights for individuals, the legal position arising from those principles [must be] sufficiently precise and clear [so that] the persons concerned are made fully aware of their rights and, where appropriate, afforded the possibility of relying on them before the national courts.24

In the two following environmental cases involving the Wild Birds Directive 79/409/EEC,25 the Court made no mention at all of rights, emphasising instead that faithful transposition is ‘particularly important in a case where the management of the common heritage is entrusted to the ­Member States’.26 The Court was obviously reluctant to refer back to the ­Nursing Qualifications case and its rights formulation in a nature conservation ­context. To suggest that such directives confer rights on individuals would have been possible, though more ecocentric than one might expect from the Court. However, in the subsequent cases—involving environmental directives with no express rights contained within them—it found itself able to employ the language of rights. In a case involving the G ­ roundwater

23 

[1977] OJ L176/1. Case 29/84 Commission v Germany [1985] ECR 1661 [23]. 25  [1979] OJ L103/1. After amendment, this subsequently became Directive 2009/147/EC [2010] OJ L20/7. 26  Case C-339/87 Commission v Netherlands [1990] I-851 [28]; Case 252/85 Commission v France [1988] ECR 2243 [5]. The Court has kept this formulation for the Birds Directive to this day, see eg Case 247/85 Commission v Belgium [1987] ECR 3029 [9]; Case C-38/99 Commission v France [2000] ECR I-10941 [53]; Case C-60/05 WWF Italia and Others v Regione Lombardia [2006] ECR I-5083 [24]; Case C-418/04 Commission v Ireland [2007] ECR I-10947 [64], [159]. 24 

Substantive Environmental Rights in the EU 93 ­Directive 80/68/EEC,27 the Court declared that the directive conferred rights on individuals, making no link with public or human health at this stage.28 Thereafter, h ­ owever, the Court did frequently make such a link, ruling that environmental directives which were designed to protect public health involved individual rights. Directives explicitly identified as such included the Surface Water for Drinking Directives 75/440/EEC29 and 79/869/EEC,30 the Lead in Air Directive 82/884/EEC,31 the Fish and Shellfish Waters Directives 78/659/EEC32 and 79/923/EEC,33 and the Air Quality (Sulphur Dioxide and Suspended Particulates) Directive 80/779/ EEC.34 Although this link between health and rights occurred frequently, it seems to have been confined to environmental directives involving substantive environmental quality. Thus in an incorrect transposition case involving the procedural Access to Environmental Information Directive 90/313/ EEC,35 the Court employed its standard rights framing even in the absence of a connection with health.36 Of course in this case the rights were not silent either—express rights of access are at the core of that particular directive.37 B.  Direct Effect The CJEU has over the years moved to constitutionalise the EU treaties, emphasising that many of the obligations or duties owed by Member States in the treaties and in legislation such as directives create rights for citizens that are enforceable in their national courts. This forms the basis of the EU law doctrine of ‘direct effect’. Back in the 1990s, there was a significant debate as to whether rights were a condition of direct effect or a consequence of it. Borrowing from the incorrect transposition case law, some

27  [1980] OJ L20/43. Repealed by the Water Framework Directive 2000/60/EC [2000] OJ L327/1. 28  Case C-131/88 Commission v Germany [1991] ECR I-825. 29  [1975] OJ L194/26. 30  [1979] OJ L271/44. Case C-58/89 Commission v Germany [1991] I-4983. 31  Case C-59/89 Commission v Germany [1991] ECR I-2607. 32  [1978] OJ L222/1. Later consolidated into Directive 2006/44/EC [2006] OJ L264/20. 33  [1979] OJ L281/47 (later consolidated into Directive 2006/113/EC [2006] OJ L376/14). Case C-298/95 Commission v Germany [1996] ECR I-6747. 34  [1980] OJ L229/30 (subsequently repealed—see now Directive 2008/50/EC [2008] OJ L152/1). Case C-361/88 Commission v Germany [1991] ECR I-2567. 35  [1990] OJ L158/56. 36 Case C-217/97 Commission v Germany [1999] ECR I-5087, [31]–[32], [37]. See also Case C-530/11 Commission v UK [2014] 3 CMLR 6, [34]–[35] (which involved a challenge to UK judicial costs rules as incorrect transposition of Directive 2003/35/EC on public participation in decision making and access to justice in environmental matters [2003] OJ L156/17); C-427/07 Commission v Ireland [2009] ECR I-6277, [54]–[56] (also involving Directive 2003/35/EC). 37  Similarly for Cases C-530/11 and C-427/07 (n 36).

94  Chris Hilson suggested that rights were indeed a prior condition for direct effect and that such rights were limited to directives which were aimed at protecting human health.38 There are of course some overlaps between incorrect transposition and direct effect—not least the emphasis by the Court in both on a need for clarity and precision (as a condition for direct effect and as a quality of transposition39 respectively). However, the incorrect transposition case law is fundamentally about enabling individuals to rely on EU rights that have been properly transposed into national law without needing to rely on them directly via direct effect (and, furthermore, the Court has also emphasised that the ability to invoke direct effect is no excuse for incorrect ­transposition).40 Moreover, the fact that the Court had said that certain types of environmental directives confer rights for the purposes of incorrect transposition does not mean that rights are a condition for direct effect and that direct effect is limited to, for example, environmental directives aimed at protecting human health. To make such a leap is, in Prechal and Hancher’s terms, to engage in a form of ‘conceptual pollution’.41 Hence, where an EU environmental directive is not intended to protect human health (but, say, to protect the ecological environment itself), it does not follow that it will not be enforceable at the suit of individuals or groups in national courts.42 If the relevant provisions of such a directive satisfy the conditions which the Court has laid down for direct effect (that they be sufficiently clear, precise and unconditional),43 then they will be enforceable. Enjoyment of a right is not itself a condition for direct effect.

38  See eg C Hilson, ‘Community Rights in Environmental Law: Rhetoric or Reality’ in Jane Holder (ed), The Impact of EC Environmental Law in the United Kingdom (John Wiley & Sons, 1997). 39  In Case C-361/88 Commission v Germany (n 34) the Court states that ‘the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts’ [15] (emphasis added). 40  Case 29/84 (n 24): ‘In particular a Member State cannot rely on the direct effect of the principle of non-discrimination on grounds of nationality in order to evade the obligation to incorporate into domestic law a directive which is intended precisely to give that principle practical effect by facilitating the effective exercise of freedoms proclaimed in the Treaty’ [21]. 41  S Prechal and L Hancher, ‘Individual Environmental Rights: Conceptual Pollution in EU Environmental Law’ (2002) 2 Yearbook of European Environmental Law 89. 42 P Wennerås, The Enforcement of EC Environmental Law (Oxford University Press, 2007). 43  Even if the relevant provision does not satisfy the unconditionality requirement for direct effect (meaning there should be no discretion left to Member States by the provision), the environmental directive may still be legally mobilised in national courts. And that is because the Court of Justice has come up with a legal doctrine parallel to direct effect, which has been referred to as ‘legality review’, see C Hilson ‘Legality Review of Member State Discretion Under Directives’ in Takis Tridimas and Paolisa Nebbia (eds), European Union Law for

Substantive Environmental Rights in the EU 95 However, the fact that rights have turned out not to be a condition for direct effect is, I would argue, something of a double-edged sword. On the one hand it is of course an advantage that the scope of direct effect for environmental directives has not been limited by being restricted to a class of directives which confer rights on individuals. Nevertheless, on the other hand, it means that the currency of rights framing—which has been so powerful in other contexts such as civil and LGBT rights44—has not had the opportunity to take hold in relation to substantive directives with silent rights. To illustrate this point, one can take as examples two UK substantive cases decided around 20 years apart. The first is the 1994 Friends of the Earth (FoE) judicial review challenge of a UK government enforcement decision in relation to national legislation designed to implement the Drinking Water Directive.45 Rights were pleaded46 in the case itself,47 no doubt in part because of the uncertainty about whether rights were a condition of direct effect or not. However, rights were hardly mentioned in associated FoE publicity surrounding the case. A letter to The Times newspaper from FoE’s then water campaigner Liana Stupples does not mention a right to clean drinking water at all.48 The FoE press release of 23 March 199449 does mention a right to clean and wholesome drinking water, but only once and on the second page. The main frame adopted is, rather, a ‘polluter pays’ one (with four explicit references and one implicit reference).

the Twenty-First Century: Volume 1 (Hart Publishing, 2004). Indeed, some commentators regard legality review as part and parcel of direct effect rather than a separate doctrine, see S Prechal, ‘Does Direct Effect Still Matter?’ (2000) 37 CMLR 1047; Wennerås (n 42); J Jans and H Vedder, European Environmental Law After Lisbon (Europa Publishing, 2012). In essence, legality review allows for judicial review in national courts so that alleged abuses of Member State discretion under ‘conditional’ provisions of directives do not remain unchallengeable in the courts. 44 See eg S Valocchi, ‘The Emergence of the Integrationist Ideology in the Civil Rights ­ ovement’ (1996) 43 Social Problems 116; E Andersen, Out of the Closets and Into the M Courts: Legal Opportunity Structure and Gay Rights Litigation (University of Michigan Press, 2005). 45  Now Directive 98/83/EC [1998] OJ L330/32. R v Secretary of State for the Environment, ex parte Friends of the Earth [1994] 2 CMLR 760; and on appeal [1996] 1 CMLR 117. 46 Although this appears to have been a last-minute submission rather than a developed argument made orally or in writing. As Schieman J (as he then was) noted at first instance, ‘The submission is not foreshadowed in the Form 86A and has not been the subject of detailed argument in front of me’ [74]. 47  As Counsel for FoE argued at [72]–[74], ‘the Community citizen has had since 1985 a right under Community law to wholesome water; such a right must be enforceable. Under the Act the only method of enforcement at the hands of an individual is that provided by section 22 and this only arises once an enforcement order has been made. Therefore, by not making an enforcement order the Secretary of State deprives the individual of the possibility of enforcing his right under Community law’. 48  The Times, 27 July 1993. 49  On file with the author.

96  Chris Hilson Contrast this with the recent ClientEarth challenge to the UK government’s inaction over air quality.50 The case is the mirror image of Friends of the Earth: there is no mention of rights in the legal judgments ­themselves51—no doubt because it is now clear that rights are not a condition for direct effect. Mention of the substantive right to air quality comes, instead, strongly emphasised in ClientEarth’s publicity around the case. Thus its February 2014 press release begins with the statement that ‘We believe that everyone has the right to breathe clean air. That’s why we brought our successful air pollution case against the UK to the Supreme Court’.52 CEO James Thornton is subsequently quoted as saying: ‘We have the right to breathe clean air and the government has a legal duty to protect us from air pollution’.53 In an earlier press release commenting on the Supreme Court’s call for an expedited hearing by the Court of Justice, ClientEarth lawyer Alan Andrews stated: ‘We can’t afford to wait for this case to grind its way through the courts. The longer these limits are broken, the more people will die. We need a landmark ruling on our right to clean air in 2013’. He went on to assert: ‘We have a right to breathe clean air—this is another big step forward in making that right a reality’.54 The press release after the final 2015 Supreme Court victory similarly observed: The historic ruling is the culmination of a five year legal battle fought by ­ClientEarth for the right of British people to breathe clean air … Air pollution kills tens of thousands of people in this country every year. We brought our case because we have a right to breathe clean air and today the Supreme Court has upheld that right.55

This is important socio-legally. The fact that substantive legislative environmental rights are not juridically necessary for direct effect does not mean that the campaigning power of explicit rights framing cannot be successfully employed outside court. To do the latter, one needs some idea of when it makes sense to marshal such claims. This inevitably takes us back to the case law on incorrect transposition (as well as the law on state liability to be

50  Culminating in the Supreme Court’s judgment in R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28. 51  Similarly, there is no mention of rights in the Court’s previous ruling in Case C-237/07 Janecek [2008] ECR I-6221, which is the key precedent on air quality on which the ClientEarth case is based. 52 ClientEarth, ‘Illegal traffic pollution, the Queen and ClientEarth’, 24 February 2014, available at www.clientearth.org/201402242456/news/latest-news/illegal-traffic-pollution-thequeen-and-clientearth-2456. 53 ibid. 54  ClientEarth, ‘Supreme court calls on Europe to fast-track UK air pollution case’, 17 July 2013, available at www.clientearth.org/201307172236/news/press-releases/supreme-courtcalls-on-europe-to-fast-track-uk-air-pollution-case-2236. 55 ClientEarth, ‘UK Supreme Court orders Government to take “immediate action” on air pollution’, 29 April 2015, available at www.clientearth.org/news/press-releases/ uk-supreme-court-orders-government-to-take-immediate-action-on-air-pollution-2843.

Substantive Environmental Rights in the EU 97 considered in Section C below), where the Court has conceptually wrestled with these ideas. It clearly makes sense to employ extra-judicial rights framing in cases like ClientEarth, where the air quality directive was aimed at the substantive protection of human health. What then of possible extra-­judicial rights framing in cases which are not intended to protect human health? It may be useful to draw a distinction here between directives which are aimed at providing a substantive level of environmental quality and those which are aimed at procedural environmental protection. In terms of framing it does not make sense for environmental social movement organisations like FoE or ClientEarth to employ a rights frame in media campaigning on substantive environmental provisions which are not intended to protect human health. Thus, it may be a stretch to frame the Water Framework Directive in terms of a right to water quality of ‘good’ ecological status as required by the Directive.56 This status is, after all, an ecological quality standard57 and one would conceivably have to be arguing for an ecocentric environmental right for such a frame to fit.58 However, it makes more sense to adopt a rights frame in connection with many more obviously59 procedural environmental directives.60 This is selfevidently true of procedural directives, such as Directive 2003/4/EC on Access to Environmental Information,61 which use the explicit language of rights within the text (the right of access to information). However, it is also true where a procedural environmental directive does not use the language of rights but rather sets out various obligations. Thus, with the Environmental Impact Assessment (EIA) Directive 2011/92/EU,62 for example, it is possible to conceive of the obligations it contains as creating procedural

56  Which is not to say that the Water Framework Directive (WFD) does not lend itself to rights framing: other, procedural parts such as Article 14, which provides for public information and consultation, could easily be framed in terms of rights. 57  W Howarth, ‘The Progression Towards Ecological Quality Standards’ (2006) 18 Journal of Environmental Law 3. 58  cf Case C-240/09 Lesoochranárske zoskupenie VLK [2011] ECR I-1255: ‘In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case’ [47]. However, this is more in the nature of a procedural right to invoke the Directive rather than expressing that the ­Directive confers substantive rights as such. 59 The WFD also has procedural elements (see n 56), but it is not uniquely procedural in nature, see further W Howarth, ‘Aspirations and Realities under the Water Framework ­Directive: Proceduralisation, Participation and Practicalities’ (2009) 21 Journal of Environmental Law 391. 60 On EU legislative procedural environmental rights, see further O Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73. 61  [2003] OJ L41/26. 62  [2012] OJ L26/1.

98  Chris Hilson rights to an EIA which are enforceable in the national courts.63 That may of course in part be because while EIA encompasses ecological issues, it also involves assessment of effects on human health.64 As recital 13 of the EIA Directive’s preamble states: The effects of a project on the environment should be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.

In fact the Court has framed the EIA Directive in rights terms without even explicitly linking this to health, as we shall see in the state liability section, which follows.65 In any event, the point is that on either basis (health-related or not), the EIA Directive clearly lends itself to extra-judicial rights framing. C.  State Liability Although the enjoyment of an individual right is not a condition of direct effect, it is an explicit condition of state liability under Francovich/Brasserie du Pêcheur.66 In the context of such a damages claim in the Leth67 case, the Court ruled that the EIA Directive ‘confers on the individuals concerned a right to have the effects on the environment of the project under examination assessed by the competent services’.68 What is noticeable is that the Court did not make any connection with human health here. Thus, just as one should not draw conclusions for the

63 

de Sadeleer (n 12). Wennerås (n 42). 65 See also ibid. AG Sharpston (Opinion in Case C-115/09 Trianel [2011] ECR I-3673, [38]–[40]) and de Sadeleer (n 12) correctly argue that a health element should not be required to enforce an environmental directive like the EIA in national courts; however, this is not the same as considering whether a rights frame makes sense and may be beneficial from a campaigning perspective in such cases. They argue the same for nature conservation cases, where, again in extra-judicial campaigning terms, a rights frame looks less apposite than for EIA (which has a dual purpose—environmental and human health). 66  Case C-6/90 Francovich v Italy [1991] ECR I-5357; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029. 67  Case C-420/11 Leth v Austria [2013] 3 CMLR 2. For a useful blog account of the case, see H Vedder, European Law Blog, 27 March 2013, available at http://europeanlawblog.eu/?p (accessed July 2017). 68  [44]. See also [32], which describes the right very much in Hohfeldian correlative terms: ‘the Court has already ruled that an individual may, where appropriate, rely on the duty to carry out an environmental impact assessment under Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4 thereof, see Case C-201/02 Wells [2004] ECR I-723, [61]. That directive thus confers on the individuals concerned a right to have the environmental effects of the project under examination assessed by the competent services and to be consulted in that respect’. 64 

Substantive Environmental Rights in the EU 99 case law on direct effect from the case law on incorrect transposition, so too one should be wary of drawing conclusions from the latter case law for the jurisprudence on state liability. In the event, although the applicant—whose house had lost value because of increased aircraft noise from an airport expansion at Vienna-Schwechat on which an EIA had not been conducted— satisfied the rights condition of state liability, they failed on the causation hurdle.69 The fact that Leth remains the only environmental state liability claim heard by the Court70 is almost certainly because the sufficiently ­serious breach and causation conditions are very difficult to satisfy in environmental cases. VI.  FUNDAMENTAL RIGHTS

With fundamental environmental rights, although there were very few cases before 2009 when the Charter of Fundamental Rights became binding, since that time we have seen reasonably large numbers of cases involving procedural fundamental rights. In the Inuit case,71 for example, the CJEU ruled that Article 47 of the Charter (right to an effective remedy and to a fair trial) was not intended to change the system of judicial review laid down by the treaties (including its restrictive rules on standing under challenge here). There are also a number of examples of cases involving substantive fundamental environmental rights. Thus in Križan72 for example, a landfill site operator failed to show that the annulment of a permit by a national court on grounds of infringement of the IPPC Directive 96/61/EC73 was in itself an unlawful interference with its right to property in Article 17 of the Charter. However, the majority of these substantive fundamental environmental cases have, like Križan, been what one might characterise as anti-­environmental cases brought by industry and involve property rights as the relevant substantive right. While there has been the occasional pro-environmental procedural fundamental rights claim—such as R (Edwards) v ­Environment Agency,74 where the right to an effective remedy in A ­ rticle 47 of the Charter was said to support the requirement that the costs of bringing legal proceedings in domestic environmental cases should not be ‘prohibitively

69  In principle, causation is for the national courts to determine; however, the Court left little room for doubt here as to the chances of success. 70 There is an example in the UK national courts—Bowden v South West Water [1998] Env LR 445—involving a substantive legislative right under the Shellfish Waters Directive 79/923/EEC [1979] OJ L281/47 (since replaced by Directive 2006/113/EC [2006] OJ L376/14). 71  n 17. 72  Case C-416/10 Križan [2013] Env LR 28. 73 Council Directive 96/61/EC concerning integrated pollution prevention and control [1996] OJ L257/26. 74  Case C-260/11 R (Edwards) v Environment Agency [2013] 3 CMLR 18 [33].

100  Chris Hilson expensive’—there have been no pro-environmental substantive fundamental rights claims brought by the individuals or environmental groups. How, then, do we account for this, on the face of it, surprising lack? The first explanation is one of perceived redundancy; there will often simply be no need to bring a claim based on a breach of EU substantive fundamental rights because other legal avenues are much more likely to be followed instead. To appreciate this, one needs to set out the various ­possible types of environmental incidents and disputes that might arise. It will then be seen that very few of these are obviously likely to engage EU ECHR-derived general principles or equivalent Charter fundamental rights. First, there is the severe pollution incident type. This is the type of dispute which we know can trigger substantive ECHR fundamental rights in a European Convention context.75 However, in an EU context, these incidents take place on the territory of Member States and most will involve criminal breaches of environmental permitting laws,76 typically with no obvious need to bring EU substantive fundamental rights into the equation, because these permit breaches will have been followed up and enforced by state authorities. Where national law has failed applicants in this type of severe pollution case because of poor enforcement, they have thus far tended to bring substantive environmental rights claims based on breaches of ECHR law and not for breaches of EU fundamental rights law.77 This cannot simply be remedies related. If a pollution victim is seeking damages as a r­ emedy, then to bring a damages claim based on EU law for breach of an EU substantive environmental fundamental right, they will, it is true, need to satisfy the difficult state liability Francovich/Brasserie conditions. However, damages under the ECHR can hardly be considered much more attractive in comparison: ECHR damages are modest and the doctrinal hurdles to successful judgment are not much less arduous. Second, there is the type of case involving a challenge to national action (or inaction) which fails to comply with relevant EU environmental legislation. Here, there is again simply no need to rely on EU fundamental rights because applicants can avail themselves, much more straightforwardly,

75 Eg

Lopez Ostra and Fadeyeva (n 5). may give rise to procedural EU law questions—eg on the effectiveness of criminal penalties for breach of national permits, which will often be implementing EU law, see eg Case C-176/03 Commission v Council [2005] I-7879 (and although the CJEU in that case did not consider fundamental rights, environmental cases could conceivably raise procedural EU fundamental rights). 77 The current chapter concerns EU law; however, it is worth noting that environmental social movement organisations are typically invisible within the European Convention system, even if environmental rights themselves are not, because of restrictions on standing faced by groups (with the inability to show that they are ‘victims’)—see further C Schall, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’ (2008) 20 Journal of Environmental Law 417. 76  This

Substantive Environmental Rights in the EU 101 of EU legislative rights via legal doctrines such as direct effect or legality review (although, as we have seen, these rights may not need to be pleaded in express rights terms). Third, there is the type of case where an applicant wants to challenge an EU action or item of EU legislation, whether for being too strong (­industry) or too weak (environmental movement actors). This type of case could well, in theory, involve reference to fundamental rights as a basis for such a ­challenge. However, legal opportunity78 is poor, in practice, for two reasons. One reason is a lack of standing before the CJEU (restrictive for both environmental interests and industry)—in other words an inability for an applicant to gain access to the Court. The restrictive legacy of the P ­ laumann79 case has cast a long shadow. It is, however, possible to make such challenges in the national courts instead and not be faced with this standing hurdle at EU level. Standley80 provides a good example of such a case, with farmers challenging the Nitrates Directive 91/676/EEC81 in the UK national courts. The other reason has more to do with restrictive precedent or poor ‘legal stock’ as an aspect of legal opportunity.82 In essence, ECHR case law does not come to the assistance of claimants who are arguing that future risks pose a threat. For ECHR rights to be triggered, the relevant risk must be imminent;83 and of course in most cases where an environmental NGO might be mounting a substantive challenge to weak EU environmental action, it will be on the basis that the EU is not doing enough to address a non-imminent, future risk. Standley, in contrast, was a substantive industry challenger—and such litigants will almost invariably (though, as in Standley, typically unsuccessfully) be claiming in national courts that what they perceive as excessively strong national environmental regulation is based on parent EU legislation which is unlawful because it breaches their fundamental right to property. Finally, there are environmental protest cases like Schmidberger84 or, to take a UK national court example, the Scottish case Cairn Energy v ­Greenpeace.85 Cairn Energy was seeking an interdict (injunction) against Greenpeace International in relation to direct action occupation of Cairn’s offices in Edinburgh. Part of Greenpeace’s legal argument was that an

78  See C Hilson, ‘New Social Movements: The Role of Legal Opportunity’ (2002) 9 Journal of European Public Policy 238. 79  Case 25/62 Plaumann v Commission [1963] ECR 95. 80  Case C-293/97 Standley [1999] ECR I-2603. 81  [1991] OJ L375/1. 82  Andersen (n 44); L Vanhala, Making Rights a Reality? Disability Rights Activists and Legal Mobilization (Cambridge University Press, 2011). 83  Hilson (n 6); de Sadeleer (n 12). 84  Schmidberger (n 18). 85  Cairn Energy v Greenpeace (2013) CSOH 50; (2013) SLT 570.

102  Chris Hilson i­nterdict would interfere with fundamental rights to freedom of expression and information and to freedom of assembly and association under Articles 10 and 11 of the ECHR and Articles 11 and 12 of the EU ­Charter of Fundamental Rights. The case itself does not take one very far; this is in part because the judge dismissed the interdict on other grounds and hence did not consider the rights point beyond an obiter mention, and partly because it is hard to assess whether the case did indeed fall within the scope of EU law to make the Charter applicable in any event. However, it is of course likely that future environmental protest cases will engage Charter rights, just as past cases like Schmidberger have engaged ECHR fundamental rights.86 This type of case, in other words, is likely to be an exception in visibility terms; in comparison with the previous three case scenarios cited above where EU fundamental environmental rights are unlikely to get a hearing, in the protest scenario they are much more likely to be made visible. That said, this is only ever likely to be in the context of reactive rather than proactive litigation on the part of the environment movement.87 In other words, as in both Cairn Energy and Schmidberger, it was not the environment movement itself bringing the claim but, rather, a company under pressure from the movement, with protest rights (to free expression and assembly) employed as a defence by the latter. VII. CONCLUSION

That procedural rights have become highly visible is no surprise, given the ‘Aarhus-isation’ of EU environmental law over the last decade or so. ­However, given the powerful language of rights, one might have expected the environmental movement to have brought more rights-based claims to substantive environmental quality than we have seen. Such cases—in relation to both legislative rights and fundamental rights—have been thin on the ground in the courtroom and, the recent ClientEarth air quality case aside, also in the media in the UK. I have argued that the explanation for this puzzle can be found, in the case of legislative substantive rights, in the lack of a juridical need for a right within the EU law doctrine of direct effect and the steep barrier posed by the other conditions for state liability which have left its rights promise underdeveloped as a result. In the case of fundamental substantive rights, I have

86 

eg because of a threat to free movement caused by the protest activity as in Schmidberger. Harlow and R Rawlings, Pressure Through Law (Routledge, 1992); Vanhala (n 82); C Hilson, ‘UK Climate Change Litigation: Between Hard and Soft Framing’ in Stephen Farrall, Tawhida Ahmed and Duncan French (eds), Criminological and Legal Consequences of Climate Change (Hart Publishing, 2012). 87  C

Substantive Environmental Rights in the EU 103 suggested that it was a feature of both perceived redundancy and restrictive precedent: either (as in, for example, severe pollution cases) there is simply no perceived need to bring cases within an EU framework because there are other more obvious avenues available to those who have suffered potential rights breaches, or (with, for example, challenges to legislation) the law on fundamental rights does not lend itself to challenges by the environmental movement in the same way as it does to industry. It remains to be seen whether this situation might change. The recent UK ClientEarth use of rights framing, albeit extra-judicially in its publicity rather than in the legal proceedings themselves, provides some hope that substantive EU environmental rights may yet have a brighter future.88 However, given the potential power of rights frames, my hope is that this chapter might also serve as a call to arms for academics, NGOs, practising environmental lawyers and judges to be creative with the language of rights in EU environmental cases in the courtroom. Where concerns about closing off direct effect have kept substantive rights hidden, the CJEU should be encouraged to resurrect them without at the same time endangering the scope of that doctrine for environmental directives. Similarly, where perceived redundancy of EU substantive fundamental rights has up to now meant that ECHR rights are invariably reached for instead, the environmental movement should consider using strategic litigation to bring those rights out of the shadows. With this kind of agency, the brighter future may come more quickly.

88 Although, depending on the outcome of the UK Brexit negotiations, perhaps not in the UK.

104 

5 Environmental (Property) Rights in Market-based Management SANJA BOGOJEVIĆ*

I. INTRODUCTION

E

CONOMISTS HAVE LONG viewed property rights as the ­optimal solution to the allocation of scarce resources. More than half a ­century ago, Ronald Coase argued that pollution ought to be treated as an externality for which a bargaining system should be created, allowing the right to pollute to be traded—in the form of property rights—to the highest bidder.1 Within such a system, the bid for clean air, on the one hand, and the right to emit air pollutants, on the other, do not clash as victim and wrongdoer. Rather, they represent competing interests for the use of scarce resources, and the conflict is resolved through the allocation of a legal entitlement to the highest bidder.2 Coase did not dwell on the definition of such rights3 but he was awarded the Nobel Prize in Economics for his ‘discovery and clarification of the significance of transaction costs and property rights for the institutional structure and functioning of the economy’.4 His scholarship, together with that of several others,5 comprises the foundation for theorising about market-based regulatory mechanisms. Ultimately, the idea

* I am grateful for comments to Liz Fisher and those present at the Lund conference on environmental rights in April 2016. 1  R Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1. 2  D Cole, ‘The Law and Economics Approach to Property Law’ in Susan Bright and Sarah Blandy (eds), Researching Property Law (Palgrave, 2016) 106, 110–11. 3 See also J Drobak, ‘Coase on Property Rights’ in Claude Ménard and Elodie Bertrand (eds), The Elgar Companion to Ronald H Coase (Edward Elgar Publishing, 2016) 83–84. 4  The Royal Swedish Academy of Science, Press Release (15 October 1991) available at: www.nobelprize.org/nobel_prizes/economic-sciences/laureates/1991/press.html. 5 eg T Crocker, ‘The Structuring of Atmospheric Pollution Control System’ in Harold ­Wolozin (ed), The Economics of Air Pollution (WW Norton & Co, 1966) 61; W ­Montgomery, ‘Markets in Licenses and Efficient Pollution Control Programs’ (1972) 5 Journal of ­Economic Theory 395; J Dales, ‘Land, Water, and Ownership’ (1968) 1 The Canadian Journal of ­Economics 791.

106  Sanja Bogojević of property-based management still moulds scholarly discussions, which often concur in the conclusion that the ‘absence of property rights creates open access and rent dissipation’.6 Although theory sees property rights as a dominant feature of marketbased management dealing with the allocation of social costs, i­ncluding those relating to environmental problems, positioning the ­ discourse of property rights into an environmental law framework is a difficult exercise for at least three reasons. First, property is a legal concept that in many respects is ‘situated within the economy that it facilitates and protects’,7 meaning that its objectives do not always align with that of environmental protection. A common example is the interaction between a regulator and a farmer where the latter is instructed to reduce the use of certain chemicals to protect biodiversity and groundwater. Relying on property rights, the farmer could attempt to resist the regulatory initiatives.8 As argued by Anatole Boute, however, property rights can also function as shields for the environment by protecting the rights of investors in transitioning the economy towards sustainability.9 Environmental protection and property rights are not necessarily polarised then; the point is that property rights may be entrusted with regulatory functions beyond that of environmental safeguarding, which makes marrying the two challenging. Second, and related to the previous point, property rights operate against a doctrinally rich background covering not only property law, but also doctrine significant to, for instance, jurisprudence, environmental law, ­ human rights law and public law.10 The interactions between these areas of law are not static, and although mapping their connecting points is crucial in understanding the evolution and scope of both environmental law and property rights, as well as their correlation, this is largely uncharted scholarly territory.11 This makes most engagements with the topic difficult to navigate. Third, the concept of ‘property rights’ is undeniably broad. It may denote a range of distinct property structures, including private property, p ­ ublic

6 T Anderson and G Libecap, Environmental Markets: A Property Rights Approach (­Cambridge University Press, 2014) 57. For a similar view, see N Keohane and S Olmstead, Markets and the Environment (Island Press, 2007). 7  N Graham, ‘The Mythology of Environmental Markets’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, 2011) 149, 165. 8  G Winter, ‘Property and Environmental Protection: An Overview’ in Gerd Winter (ed), Property and Environmental Protection in Europe (Europa Law Publishing, 2016) 2, 9. 9  See Boute, Chapter 10 in this volume. 10 See E Scotford and R Walsh, ‘The Symbiosis of Property and English Environmental Law—Property Rights in a Public Law Context’ (2013) 76 Modern Law Review 1010. 11  See ibid and B France-Hudson, ‘Surprisingly Social: Private Property and Environmental Management’ (2017) 29 Journal of Environmental Law 101.

Environmental (Property) Rights in Market-based Management 107 property and common goods; each implying a different level of intensity in terms of the protection such rights offer and the preconditions and consequences that they may demand in relation to any interventions.12 ­ ­Crucially, each of these property regimes depicts the government and its role in environmental regulation differently. On one end of the spectrum the government is a malevolent actor driven by lust for power against which property rights are a counter-weight, while on the other end the government is recognised as a benevolent force, seeking to prevent harm to the public through environmental regulation.13 Property rights are therefore part of the fundamental ideological debate about how our societies are, or ought to be, organised. Moving beyond these overarching observations, which are discussed in Section II, this chapter shows that property rights discourses in relation to market-based management in EU environmental law are largely absent or, to borrow the term used by Chris Hilson, low in ‘visibility’.14 This is illustrated in Section III by examining property rights frames,15 that is, the mention and use of property rights in the relevant legal texts, policy documents of the European Commission (Commission) and jurisprudence of the Court of Justice of the European Union (CJEU) concerning market-based strategies in EU environmental law. More precisely, the focus is on trading schemes applied to or proposed for the management of four environmental issues: air pollution, fisheries, water and biodiversity. Obviously, only a broad sketch of each regulatory scenario is provided in this chapter. What it nevertheless shows is that in the rare instances where property rights do come up, they emerge as rights derived from domestic and not EU law, and as rights used by the industry to curb environmental regulation. Admittedly, this may be lauded by those scholars who object to the idea of creating property rights in natural resources16—even if only at the EU level—although others will regard a lack of property rights as evidence of the malfunction of EU environmental markets.17 As will be explained in Sections IV and V, the significance of these findings is that both the existence and the meaning of property rights obviously derive from the legal

12  Winter (n 8) 5. See eg E Ostrom, Governing the Commons: The Evolution of I ­ nstitutions for Collective Action (Cambridge University Press, 1990). Note that in this chapter, ‘property’ is discussed in general terms with no distinction drawn between private, public or common property. 13  P Byrne, ‘A Hobbesian Bundle of Lockean Sticks: The Property Rights Legacy of Justice Scalia’ (2017) 41 Vermont Law Review 733, 760. 14  C Hilson, ‘The Visibility of Environmental Rights in the EU Legal Order: Eurolegalism in Action?’ (2017) Journal of European Public Policy 1. 15  In other words, following the same methodology as applied ibid in determining ‘visibility’. 16  See eg D Satz, Why Some Things Should Not Be For Sale (Oxford University Press, 2010); Graham (n 7) 149. 17  See Section IV.

108  Sanja Bogojević context. In the EU setting, this means understanding the implications of EU constitutional law, which disables the EU from constructing property rights and instead delegates this to the Member States. Thus, the extent to which a rights-centred culture exists to secure environmental protection inevitably depends on the legal setting,18 which calls for a thorough evaluation of the roles assumed for property rights in environmental law in Europe and beyond. II.  PROPERTY RIGHTS, MARKETS AND ENVIRONMENTAL LAW

In the development of environmental law, a major trend emerged in the late 1980s that saw a call for the use of market-based mechanisms. This trend was led by legal scholars19 but heavily inspired by economists, which, as I discuss elsewhere,20 is significant because it shaped the understanding of environmental problems in ‘anthropocentric financial terms’21— specifically, through the economic concept of ‘externalities’. Even today, the main motivation for environmental regulation is thought to be the failure of the market to price environmental costs, or internalise externalities.22 Since problems and solutions in environmental law are co-produced, meaning that the understanding of one informs the perception of the other, corrective interventions by the state to regulate market failures often rely on market forces.23 What is especially significant in the context of this chapter is that economists often assume that such market-based management depends on the creation of property rights. Coase, who is the leading economist on this point,24 argued that externalities are of a ‘reciprocal nature’25 and are most efficiently dealt with by instituting a right to produce externalities that is sold to the highest bidder and thereby internalised. More precisely, the

18 

See Hilson, Chapter 4 in this volume. eg B Ackerman and R Stewart, ‘Reforming Environmental Law’ (1985) 37 ­Stanford Law Review 1333, and as explained in T Tietenberg, Emissions Trading: Principles and ­Practice (2nd edn, Resources for the Future, 2006) 6–7. 20  S Bogojević, ‘Market Mechanism’ in Jorge Vinuales and Emma Lees (eds), The Oxford Handbook of Comparative Environmental Law (Oxford University Press, forthcoming). 21  E Fisher, B Lange and E Scotford, Environmental Law: Text, Cases and Materials (Oxford University Press, 2013) 51. 22 R Baldwin, M Cave and M Lodge, Understanding Regulation: Theory, Strategy, and ­Practice (2nd edn, Oxford University Press, 2012) 11–12. For example, Nicolas Stern explains climate change as ‘the biggest market failure the world has ever seen’, N Stern, The Economics of Climate Change: The Stern Review (Cambridge University Press, 2007) 1. 23 S Bogojević, Emissions Trading Schemes: Markets, States and Law (Hart Publishing, 2013) chapter 2. 24 See eg Claude Ménard and Elodie Bertrand (eds), The Elgar Companion to Ronald H Coase (Edward Elgar Publishing, 2016). 25  Coase (n 1) 2. 19  See

Environmental (Property) Rights in Market-based Management 109 a­ rgument is that such rights should be assigned to those who can use them ‘most productively’ and ‘with incentives that lead them to do so’, which Coase claimed can come about ‘only if there is an appropriate system of property rights, and they are enforced’.26 Coase recognised that these rights will, to a large extent, be ‘what the law determines’27 but he did not specify what this requires.28 Economists more generally have long assumed that property rights emerge over the course of an ‘inevitable evolutionary progress’ and regard them as ‘the preferred tool’ for the orderly allocation of scarce resources.29 What this means is that although economists appreciate that property rights may take a variety of forms (including that of formal legal rights enforced by the state, or that of informal social norms enforced by the social c­ ommunity),30 and that they may be created following different processes (through increased value of the exploited resource or, alternatively, with the fall in the cost of dividing the commons),31 they are, nevertheless, understood to emerge ‘when needed, and in the form needed’.32 On this view, it is the invisible hand of the market that ‘guides the evolution of property rights’.33 This account clearly builds on a classical liberal logic, to which John Dales’ explanation of the correlation between property rights and market-based management similarly refers: Because transferable (or full) property rights always command an explicit price, the establishment of such Rights makes it easy to establish a market in them. In turn, the buying and selling of the Rights in an open market and the consequent establishment of an explicit price for the right to discharge a ton of waste into water (or air) system results in a theoretically efficient allocation of ‘anti-pollution effort’ as between different dischargers.34

All of this shows that property rights are understood as the core component in creating environmental markets and it is on the basis of their ease of creation that market-based management is thought a straightforward process.

26  R Coase, Nobel Prize Speech, available at: www.nobelprize.org/nobel_prizes/­ economicsciences/laureates/1991/coase-lecture.html (emphasis added). 27 ibid. 28 The lack of communication in this regard is a common trait between economists and ­lawyers, see D Cole and P Grossman, ‘The Meaning of Property Rights: Law versus ­Economics?’ (2002) 78 Land Economics 317. 29  H Dormeus, ‘Climate Change and the Evolution of Property Rights’ (2011) 1 UC Irvine Law Review 1091, 1094. 30  ibid 1094–95. See eg Ostrom (n 12). 31  See eg H Demsetz, ‘Toward a Theory of Property Rights’ (1967) 57 American Economic Review 347. 32  Dormeus (n 29) 1094–95. 33 ibid. 34 J Dales, Pollution, Property and Prices: An Essay in Policy-Making and Economics (University of Toronto Press, 1970) 107 (emphasis added).

110  Sanja Bogojević This image is appealing and has had significant impact on environmental law and policy and on environmental law scholarship. In particular it has helped further the assumption that market-based mechanisms are devised according to a common design feature—of which property rights are part— that is transferable across environmental problems and jurisdictions.35 ­Nevertheless, as discussed in the following section, the idea that property rights are simple, inevitable and uncontroversial is not borne out in the environmental law context. A.  Property Rights in Environmental Law: Three Areas of Contestation One of the key points of controversy about property rights in environmental law is the role they play or ought to play.36 Property rights are found at the core of many environmental conflicts. The classic example is property ­owners fighting restrictions imposed on their rights to use land as they see fit, or seeking remedies for interference with their property rights by ­others.37 In the US context, the ‘takings clause’ found under the Fifth Amendment requires any restriction of such rights for public purposes to provide compensation, which has given rise to a particularly problematic line of case law between landowners asserting their rights and government limiting those rights in line with environmental regulation.38 This has contributed to the common view of property rights as antithetical to environmental concerns.39 This view, however, overlooks the fact that property rights can also be employed to further environmental protection. David Driesen explains how historically, when private property was harmed by pollution, property ­owners would ask judges to award damages and to order pollution abatement on the basis that the pollution constituted a trespass, nuisance or an unreasonable interference with the use and enjoyment of property.40

35 Bogojević

(n 23) chapter 1. See eg R Barnes, Property Rights and Nature Resource (Hart Publishing, 2009). 37  D Krinlinton, ‘The Functions of Rights of Property in Environmental Law’ in Douglas Fisher (ed), Research Handbook on Fundamental Concepts of Environmental Law (Edward Elgar Publishing, 2016) 391, 396. 38  See eg J Cannon, Environment in the Balance: The Green Movement and the Supreme Court (Harvard University Press, 2015) chapter 8; D Cole, Pollution and Property: Comparing Ownership Institutions for Environmental Protection (Cambridge University Press, 2002) chapter 8. 39 See eg S Coyle and K Morrow, Philosophical Foundations of Environmental Law: ­Property, Rights and Nature (Hart Publishing, 2004) 157. 40 With the increased complexity of establishing causation relating to air pollution, this approach, nevertheless, has lost its appeal, see D Driesen, ‘Alternatives to Regulation? Market Mechanisms and the Environment’ in Robert Baldwin, Martin Cave and Martin Lodge (eds), The Oxford Handbook of Regulation (Oxford University Press, 2010) 203, 204. 36 

Environmental (Property) Rights in Market-based Management 111 In a modern context, Boute makes the case for property rights being capable of moving industries towards green investment and thus securing a sustainable economy.41 Similarly, Eduardo Gill-Pedro shows how property rights have enabled environmental protection in relation to the European Convention on Human Rights, which makes no reference to the environment.42 This shows that property rights play a complex role in environmental management, serving the role both of restricting and of increasing the impact of environmental regulation. Moreover, these conflicting roles are rarely polarised but may include other interests. For example, in the case of environmental protestors trespassing on and thus interfering with someone’s land, property rights stand in conflict with the freedom of speech, as opposed to environmental interests.43 Another important area of contestation concerns the mapping of the doctrinally rich backdrop that informs the values, characteristics and purposes relating to property rights. Coase, for instance, has been influential in property law in the ways he has advocated for strongly protected property rights against expropriation and other types of infringements.44 Indeed, it was his work in the area that helped start the modern ‘law and economics’ ­movement.45 Economics, however, is not the only source from which ideas and perspectives on property are drawn.46 As noted above, the manner in which property rights are conceived depends not only on property law doctrine, which alone has many different strands,47 but also on constitutional law and how the requirements of possible compensation are applied, as well as on specific human rights adjudication, planning and nature conservation laws or, more broadly, administrative and environmental law.48 Although some property law scholars argue that a common conceptual ground for property may be devised across disciplines,49 the point here is that ­property

41 

See Boute, Chapter 10 in this volume. See Gill-Pedro, Chapter 9 in this volume. 43  As found in Monsanto v Tilly [1999] EWCA Civ 3044, and as explained in Fisher, Lange and Scotford (n 21) 224. 44 A Lehavi, The Construction of Property: Norms, Institutions, Challenges (Cambridge University Press, 2013) 31. 45 C McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, at 639. 46  As an example of the riparian law development, see J Getzler, A History of Water Rights at Common Law (Oxford University Press, 2006). 47  Modern property theory tends to start with the idea of property over things, as opposed to persons, and deals with ownership that stems from it, see eg S Douglas and B McFarlane, ‘Defining Property Rights’ in James Penner and Henry Smith (eds), Philosophical Foundations of Property Law (Oxford University Press, 2013) 219. 48  See Scotford and Walsh (n 10). 49  Lehavi (n 44) 33–34. For a critique, see L Rostill, ‘Lehavi’s Construction of Property’ (2014) 3 European Property Law Journal 256. 42 

112  Sanja Bogojević rights debates are intersected by multiple doctrines, the correlation and impact of which on property rights are broadly uncharted. The third area of contestation concerns how property rights are ­conceptualised.50 In the EU context, for example, the CJEU has ruled that a right to property ‘must be viewed in relation to its social function’,51 which it takes to mean that their application may be restricted in favour of environmental regulation.52 Read this way, property rights are dependent on ‘how things stand in other areas of law’,53 and the security of the right to property is grounded in the procedure prescribed for the drafting, promulgation and application of that law.54 This sits uncomfortably with property rights seen through the lens of classic liberalism, where the right to private property needs to maintain its form regardless of societal changes so that commerce can flourish and governmental discretion be limited.55 Here, property rights help roll back the reach of state power56 and act as a ‘bulwark against government regulation’, which is thought to force landowners to pay for social problems they did not create.57 Seen this way, property owners are entrusted with protecting individual rights against political power and public administration under the umbrella of rule of law. Pushed further, private property may be understood as a necessary part of a democratic society. In tracing the history of land ownership, Andro Linklater explains how one vital element of the private property society in the United Kingdom was established with landowners’ use of political power to protect their own interests against the monarch and the royal executive,58 indicating that liberty depends

50 J Purdy, The Meaning of Property: Freedom, Community, and the Legal Imagination (Yale University Press, 2010) 19. 51  Case C-530/11 Commission v UK, EU:C:2014:67, para. 70. See also Joined Cases C-402/05 P and C-415/05 P Kadi, EU:C:2008:461, para. 355. 52 More precisely, the CJEU argues that protection of the environment constitutes a ­legitimate objective, ‘capable of justifying a restriction on the use of the right to property’: Case C-416/10 Križan, EU:C:2013:8, para. 114. For instance, in Cascina Tre Pini, the CJEU ruled that nature conservations laws constitute a justifiable limitation to property rights—even when the site in question might be declassified as a conservation object, see Case C-301/12 Cascina Tre Pini, EU:C:2014:214, as discussed in S Bogojević, ‘EU Human Rights Law and Environmental Protection: The Beginning of a Beautiful Friendship?’ in Sionaidh DouglasScott and Nicolas Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017) 449. 53 J Waldron, The Rule of Law and the Measure of Property (The Hamlyn Lectures, ­Cambridge University Press, 2012) 70. 54  ibid, 78. 55  R Epstein, Design for Liberty: Private Property, Public Administration and the Rule of Law (Harvard University Press, 2011). 56  C Reid and W Nsoh, The Privatisation of Biodiversity? New Approaches to Conservation Law (Edward Elgar Publishing, 2016) 16–17. 57  Byrne (n 13) 28–29. 58 A Linklater, Owning the Earth: The Transforming History of Land Ownership ­(Bloomsbury Publishing, 2015) 19.

Environmental (Property) Rights in Market-based Management 113 on ­ownership and thus on property rights.59 Such a property structure, however, could also be seen as a system of political dominance enjoyed by the few.60 Clearly property rights manifest themselves differently in different political structures and whichever version of property rights is preferred, the choice is ideological. While these points of contestation have been only superficially and broadly sketched out, this overview clearly demonstrates that the relationship between property rights and environmental regulation is far from straightforward. Property rights are not merely vehicles to facilitate ­market-based management aimed at growth, as prescribed by classical liberal economic theory. Rather, appreciating property rights and their many functions in environmental law requires carefully analysing the many discourses informing property rights and their functions, and digging deep into legal culture. It is this latter exercise to which I turn next by examining market-based mechanisms of environmental problems in the EU and the visibility of property rights in the related legal discourses. III.  PROPERTY RIGHTS AND MARKET-BASED MANAGEMENT IN THE EU

Market-based management is a broad regulatory concept that encompasses various strategies, including taxes, charges, feed-in tariffs and many other measures.61 Often, however, trading schemes are singled out as the most prominent market-based mechanism62 and they tend to take centre stage in both environmental law scholarship and environmental law and policy, particularly in the EU.63 The use of trading schemes in EU environmental law has a relatively short history. When the Commission introduced the idea in 2000 to deal with

59 

See eg E Brubaker, Property Rights in the Defence of Nature (Earthscan, 1995). Douzinas, ‘Adikia: On Communism and Rights’ in Slavoj Žižek and Costas Douzinas (eds), The Idea of Communism (Verso, 2010) 81, 82. 61  J Penca, ‘Marketing the Market: The Ideology of Market Mechanisms for Biodiversity Conservation’ (2013) 2 Transnational Environmental Law 235, 250, as well as Bogojević (n 20). 62  In part this is because trading schemes tend to be applied to climate change, which in turn tends to be singled out as the most pressing environmental problem, see S Bogojević, ‘Global Imbalances in Climate Protection, Leadership Ambitions and EU Climate Change Law’ in A Bakardjieva Engelbrekt, M Mårtensson, Lars Oxelheim and T Persson (eds), The EU’s Role in Fighting Global Imbalances (Edward Elgar Publishing, 2016) 89–108. 63 S Bogojević, ‘Climate Change Law and Policy in the European Union’ in C Carlarne, K Gray and R Tarasofsky (eds), Oxford Handbook of International Climate Change Law (Oxford University Press, 2016) 674–91. 60  C

114  Sanja Bogojević climate change,64 the regulatory concept, although ‘not totally unfamiliar’65 did not yet have major application in the EU.66 Since then, regulatory use of market-based approaches has expanded beyond environmental law,67 and the EU emissions trading scheme (EU ETS) has grown to become the ­‘flagship’ of EU climate policy.68 Here, four environmental areas, in which trading schemes have been ­proposed or applied, will be the subjects of examination, namely; air pollution, fisheries, water and biodiversity. Each of these constitutes an extensive field of EU environmental law, worthy of its own investigation. For present purposes, however, the aim is to only briefly sketch the ‘visibility’ or property rights discourses in each of these regulatory contexts. In particular, the relevant legal texts, Commission’s policies and the CJEU jurisprudence will be examined with a view to demonstrating any property rights framing, which, as will be shown, is largely absent. The reason for this will be identified as resulting from the nature and structure of EU constitutional law, which disables the EU from constructing property rights and instead delegates this to the Member States, with whom the EU shares its regulatory competence on environmental matters. A.  Air Pollution Control: The Case of the EU Emissions Trading Scheme Air pollution is a multifaceted environmental problem caused by a variety of anthropogenic emissions and the science linking the two is contested.69 The topic of air pollution control is thus a broad one. For present purposes, however, the focus is on greenhouse gas emissions, which the EU has pledged to reduce by at least 40 per cent by 2030,70 most prominently through the application of the EU ETS.71 It is therefore the EU ETS and the 64  Commission of the European Communities, Green Paper on Greenhouse Gas Emissions Trading Within the European Union, COM(2000) 87 final. 65 Opinion of AG Campos Sánchez-Bordona delivered on 5 July 2016, Case C-321/15 ArcelorMittal Rodange et Schifflange SA, EU:C:2016:516, para 54. 66  Mechanisms existed for the partial transfer of allowances for ozone-depleting substances under the Montreal Protocol and tradable quotas under the common milk policy; see also M Colangelo, Creating Property Rights: Law and Regulation of Secondary Trading in the European Union (Martinus Nijhoff Publishers, 2012). 67 See eg European Commission, Communication on ‘A Market-Based Approach to ­Spectrum Management in the European Union’, COM(2005) 400 final. 68  AG Sanchez-Bordona (n 65). 69  Fisher, Lange and Scotford (n 21) 603. For an overview of the EU’s air pollution policy, see Communication from the Commission to the Council and the European Parliament on Thematic Strategy on Air Pollution, COM(2005) 446 final. 70  Communication from the Commission ‘A Policy Framework for Climate and Energy in the period from 2020 to 2030’, COM(2014) 15 final. 71  Around 45 per cent of the EU’s greenhouse gas emissions are covered by the EU ETS, see Report from the Commission to the European Parliament and the Council, Report on the Functioning of the European Carbon Market COM(2017) 48 final at 5.

Environmental (Property) Rights in Market-based Management 115 discussion about possible property rights created through this regulatory structure that is the object of this case study. The EU ETS operates by setting maximum emission levels formalised in a cap, which is divided into emissions allowances, each representing the ‘allowance to emit one tonne of carbon dioxide’ for a specific period.72 ­Installations covered by the EU ETS Directive are obliged to obtain an ­allowance to emit,73 the economic value of which is intended to provide ‘a significant incentive to reduce emissions’.74 If an installation succeeds in reducing emissions, it may sell its surplus emission allowances. ­Alternatively, if it initially prefers to buy additional allowances, it will ultimately find it more cost-effective, based on the gradually increased cost of allowances, to invest in more energy-efficient technology.75 The stringency of the cap is thus vital, as the EU ETS does not, itself, reduce emissions, but, as the CJEU explains, it ‘encourages and promotes the pursuit of the lowest cost of achieving a given amount of emissions reductions’.76 It is important to note that the EU ETS is underpinned by an obligation imposed on the relevant operators to monitor their actual emissions, and to report and submit matching allowances at the end of each calendar year.77 Those who fail to surrender matched emission allowances face a fine.78 Despite their obvious economic significance, the legal nature of emission allowances is not outlined in the EU ETS Directive. In early EU ETS jurisprudence, the CJEU included a reference to the possibility that emissions allowances could be regarded as a type of “‘property” having commercial value’79 and the Commission has suggested that allowances might be treated as ‘an intangible asset the value of which [is] determined by the market’80— neither position ultimately being employed by the Court.81 Property rights

72 Article 3(a), Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61, OJ 2003 L275/32. 73  ibid, Article 5. 74  AG Sánchez-Bordona (n 65) para 53. 75  ibid. For a similar description see Case C-127/07, Société Arcelor Atlantique et Lorraine and Others, EU:C:2008:728, para 32. 76  Case C-127/07, ibid, para 31. 77  Article 6, Directive 2003/87/EC (n 72). 78  ibid, Article 16. Note that this fine is fixed and additional to any fines that the Member States decide to impose on a national level, see Case C-203/12 Billerud, EU:C:2013:664. 79  Case T-178/05 UK v Commission, EU:T:2005:412, para 161. 80  Case T-387/04 EnBW Energie Baden-Württemberg AG v Commission, EU:T:2005:412, para 22. 81  It has, however, made clear that emissions allowances under the EU ETS and the Kyoto Protocol units ‘are different in nature and address different aims’, see Case C-556/14P Holcim (Romania) v Commission, EU:C:2016:207, para 66.

116  Sanja Bogojević thus have low visibility in both the relevant legal texts and jurisprudence. Advocate General (AG) Campos Sánchez-Bordona offers an explanation as to why this is. He argues that ‘in accordance with the principle of subsidiarity’, which is a constitutional principle of the EU legal order,82 the creation of emissions allowances, which is outlined in the EU ETS Directive and its related measures, and the classification of these as property or ­administrative authorisations, represent ‘two distinct processes’.83 EU law applies only to the first process, whereas national law applies to the second.84 This has two significant consequences. First, the question whether emissions allowances have the status of property rights will be a matter for national law to determine. The English courts, for example, have found that the allowances amount to property,85 while in Germany, emissions ­allowances are merely a ‘Zertifikat’.86 In other words, multiple legal definitions of an ‘allowance’ exist across Europe, providing high visibility of property rights in some Member States but not in all. In the view of AG Sánchez-­Bordona, which, moreover, is supported by the CJEU,87 the role of the Court in this regard is to ensure that the allocation of emissions allowances and any order to surrender them complies with EU law.88 EU ETS litigation before the CJEU is thus a matter of procedure as opposed to being property rights focused. This is not to say that property rights deliberations are entirely absent from debates on emissions trading before the CJEU. Rather, they emerge in two specific instances: in preliminary references where the relevant industry attempts to restrict the reach of environmental regulation, in this case, the EU ETS, on the basis that it infringes its property rights; and where the relevant industry demands compensation for the confiscation of property in the form of emissions allowances. By way of example of the first line of case law, in Société Arcelor ­Atlantique89 the steel industry, which is covered by the trading scheme, claimed that the EU ETS Directive and its associated laws infringed companies’ property rights by breaching several constitutional principles, including the right to property, the freedom of establishment, and the principle of equal treatment—the latter by failing to regulate the plastic and ­aluminium

82  X Groussot and S Bogojević, ‘Subsidiarity as a Procedural Safeguard to Federalism’ in Loïc Azoulai (ed), The Question of Competence in the European Union (Oxford University Press, 2014) 234. 83  AG Sánchez-Bordona (n 65), paras 90 and 92. 84 ibid. 85  Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 173, paras 50 and 176. 86  AG Sánchez-Bordona (n 65), para 49. 87  Case C-321/15 ArcelorMittal Rodange et Schifflange SA, EU:C:2016:516, para 25. 88  ibid, para 5. 89  Société Arcelor Atlantique (n 75).

Environmental (Property) Rights in Market-based Management 117 sectors, which are the applicant’s main competitors.90 Similarly, in ­Borealis, the Commission’s decision to retain emissions allowances that had been allocated free of charge based on a wrongful calculation was ­challenged on the basis of the right to property, as codified in Article 17 of the Charter of Fundamental Rights of the EU (Charter).91 Relatedly, in Romonta, the Commission refused to grant free emissions allowances to the relevant industry on the basis that the undue hardship criteria, which allow such awards, had not been not met.92 The freedom to choose an occupation, the freedom to conduct a business, and the right to property were all invoked in challenging this decision. Moreover, the applicant argued that the Commission did not correctly assess or balance climate protection and [the applicant’s] ­economic ruin. The Commission took the view that its court-ordered liquidation is a positive measure with a view to better climate protection … the Commission wrongly held that climate protection took precedence over safeguarding a large number of jobs.93

The applicant thus painted a picture where property rights and economic stability clashed with environmental regulation, and insisted that the former should take precedence. The EU Courts, however, reject any such suggestion. In Société ­Arcelor Atlantique, the property rights point was not even discussed, although this is because the domestic court had refrained from inquiring about it.94 In Borealis, however, the CJEU argued that the specific point about property rights is ‘not necessary to answer’,95 focusing instead on other primary and secondary law provisions in order to assess the validity of the Commission’s method for allocating emissions allowances.96 In Romonta, which at the time of writing is under appeal, the General Court reiterated that the right to property is not absolute ‘but must be considered in relation to its

90 

ibid, para 20. Cases C-191/14 and C-192/14 Borealis, EU:C:2016:311, para 20. Article 17 of the Charter states that ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest’ [2012] OJ C326/391. 92  Case T-614/13 Romonta v Commission, EU:T:2014:835, para 41. 93  ibid, para 78. 94  Société Arcelor Atlantique (n 75) paras 21–22. 95  Joined Cases C-191/14 and C-192/14 Borealis (n 91) para 100. 96 The CJEU coupled the question regarding the protection of property rights under the Charter with other questions and so only discussed this specific element in passing but in doing so it failed to confirm or reject the view held by AG Kokott in this case that property rights are not applicable on the basis that the EU ETS Directive allows for the possibility for the number of emissions allowances to be reduced, see AG Kokott’s Opinion delivered on 12 November 2015, Joined Cases C-191/14 and C-192/14 Borealis (n 91), para 163. 91  Joined

118  Sanja Bogojević social function’,97 which includes the protection of the environment.98 The Court concluded that the regulator, here the Commission, has to balance two fundamental rights—the right to property, on the one hand, and that of a high level of environmental protection, on the other99—and consider the principle of proportionality. By way of ensuring that the balance was rightfully struck, the Court engaged in a lengthy analysis of the objectives of the EU ETS Directive and whether the Commission’s assessment of the undue hardship clauses conforms to those objectives. Ultimately, it found that the Commission enjoys ‘wide discretion’ to carry out ‘complex assessments and evaluations’ necessary for managing the ETS.100 In this light, it found no infringement of any property right, which is the same conclusion reached by AG Paolo Mengozzi in his Opinion on the case.101 The second type of case law in which property rights deliberation emerges in the EU ETS jurisprudence relates to situations in which emissions allowances are claimed by operators to be property rights, thereby providing the owners the right to compensation when allowances are confiscated. This claim was tested in ArcelorMittal v Luxembourg, where the relevant national authorities demanded the return of emissions allowances that had been granted on the assumption that the company in question would continue its production as usual when in fact it had decided to suspend its operation without informing the national authorities.102 Here the CJEU engaged with the property rights question in two short paragraphs, concluding that if the allowances are improperly allocated, they are void, so that confiscation without compensation cannot be regarded a violation of Article 17 of the Charter.103 In brief, the Court concluded that the surrender of those allowances would not mean the expropriation of an asset which already formed an integral part of the operator’s property, but simply the withdrawal of the act allocating the allowances, on account of the failure to comply with the conditions laid down in Directive 2003/87.104

Most of the judgment therefore concerned the proper creation of emissions allowances at the EU level and the need for accuracy in this context to help maintain the reliability of the EU ETS.105

97 

Romonta v Commission (n 92), para 59. ibid, para 60. 99  ibid, para 76. 100  ibid, para 63. 101  Opinion of AG Paolo Mengozzi delivered on 8 March 2016, EU:C:2016:469, para. 115. 102  ArcelorMittal Rodange et Schifflange SA (n 87) para 18. 103  ibid, para 37. 104  ibid, para 39. 105 ibid, para 25. This is along similar lines to Billerud (n 78), and Case C-461/15, E.ON Kraftwerke GmbH v Germany, EU:C:2016:648. 98 

Environmental (Property) Rights in Market-based Management 119 What this brief overview of the EU ETS shows is that insofar as emissions allowances are defined as property rights, this is a result of their ­characterisation as such in national law. As explained by AG Sánchez-­ Bordona, this is in line with the principle of subsidiarity,106 which is at the heart of EU constitutional law.107 In an area of shared competence, such as the environment, the Member States are allowed to legislate insofar as the area of regulatory activity at issue has not been harmonised.108 Therefore, the question that is relevant for the CJEU is not one of rights, as such, but rather whether the legal definition of emissions allowances is to be determined by the EU or its Member States. As this overview has shown it to be the latter, the debate about property rights at the EU level figures merely in peripheral considerations, emerging chiefly to either curb the impact of the EU ETS, or demand compensation when regulators reduce or refuse the allocation of emissions allowances. B.  Fisheries Management: The Case of the Common Fisheries Policy Turning to the next case study, fisheries management in the EU is g­ overned by the Common Fisheries Policy (CFP), which allows the Union to define and implement a fisheries policy common to the EU as a whole.109 This competence has been entrusted to the EU since its inception, meaning that fisheries are the oldest natural resource under EU management— and ­ incidentally one that is governed in line with the free movement provisions.110 As the Treaties’ objectives with regard to fisheries have not altered over time, the aim of the CFP remains chiefly economic, seeking to increase production, stabilise markets and ensure a fair standard of living and the availability of supplies for the fisheries communities, as well as reasonable prices for c­ onsumers.111 The environmental projective, which in the case of the EU ETS may be traced to the overall objective of responding to air pollution, is thus missing from the management of this particular natural resource.

106 

AG Sánchez-Bordona (n 65) para 90. Bogojević, ‘EU Climate Change Litigation, the Role of the European Courts, and the Importance of Legal Culture’ (2013) 35 Law & Policy 184, 197. 108  For a more specific outline of the subsidiarity principle, see Article 5(2) of the Treaty on European Union (TEU), [2008] OJ C115/13. 109 See Title III and Articles 38–44 of the Treaty on the Functioning of the EU (TFEU), [2008] OJ C115/49. 110 Title II and Articles 38–47 EEC, which are worded almost identically to the current Lisbon Treaty provisions. 111  Article 39 TFEU. 107  S.

120  Sanja Bogojević Secondary legislation that governs the access to and use of fisheries has, over the years, undergone multiple legislative revisions. Briefly, these ­legislative frames have mainly set out rules for managing European fishing fleets and for conserving fish stocks by, for example, giving all European fishing fleets equal access to EU waters, and allowing fishing only on the basis of total allowable catches (TAC), as adopted by the Council.112 Most recently, such stipulations were codified in Regulation 2371/2002,113 which the Commission proposed to revise,114 and which the European Parliament and the Council adopted.115 A major feature of the Commission’s revision includes creating a market in tradable fisheries quotas. Before discussing the revision of the CFP, it is important to appreciate why the Commission pushed for reforms. The springboard was the finding that, in the last decade, European fishing stocks have almost reached depletion levels.116 However, the focus of the Commission’s push for legislative reforms lies not with biological or ecological concerns but rather on the economic effects of overfishing. This includes dealing with fleet overcapacity, declining job opportunities in the fishing sector, and issues relating to the destiny of the many coastal communities dependent on fisheries.117 The Commission points out that in the whole of the EU economy, ‘the EU fisheries sector represents less than 0.2 per cent of total EU employment’ but that in some regions and Member States, including Greece, Ireland and Galicia, Spain, ‘the sector is an important source of jobs’.118 From this viewpoint, boosting the fisheries industry through reform is seen to secure ‘economic growth and jobs’.119 In addition, as the EU has to rely on imports

112  For a detailed overview of the CFP, see R Churchill and D Owen, The EC Common Fisheries Policy (Oxford University Press, 2010). 113  Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries recourses under the Common Fisheries Policy, [2002] OJ L358/59. 114  For an overview see Communication from the Commission on Reform of the Common Fisheries Policy, COM(2011) 417. The specific proposals include, Proposal for a Regulation on the Common Fisheries Policy, COM(2011) 425 final, Proposal for a Regulation on the European Maritime and Fisheries Fund, COM(2011) 804, and Proposal for a Regulation on the Common Organisation of the Markets in Fishery and Aquaculture Products, COM(2011) 416 final. 115 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, [2013] OJ L 54/22, and Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015 as regarding the landing obligation, [2015] OJ L133/1. 116 See for instance, I Lövin, Tyst Hav: Jakten på den sista matfisken (Ordfront, 2007); C Herman, ‘Lisbon and Access to Justice for Environmental NGOs: A Watershed? A Case Study Using the Setting of the Total Allowable Catches under the Common Fisheries Policy’ (2010) 7 Journal for European Environmental and Planning Law 391, 396–97, 399. 117  Communication ‘Reform of the Common Fisheries Policy’ (n 114) 2. 118  Commission Explanatory note on The Social Dimension of the CFP reform, available at: http://ec.europa.eu/fisheries/reform/docs/social_dimension_en.pdf. 119 ibid.

Environmental (Property) Rights in Market-based Management 121 for two-thirds of its fish, a strong market incentive to create more efficient fishery control in the EU is thought to exist,120 linked to the Europe 2020 Strategy and the goal of creating a ‘resource-efficient’ Europe.121 A market-based approach is found in the Commission’s proposals in the form of the push for making transferable fishing concessions (TFC) become part of the CFP.122 The idea is to make these concessions transferable in a two-step process. As a first step, the Member States will need to allocate TFCs to their national fishing vessels. This, the Commission envisions, needs to be done on the basis of ‘transparent criteria’ and the fishing opportunities allocated to the Member States by the Council.123 Should the Member States need to obtain additional TFCs, they should be able to do so through by-catch reserves, borrowing or banking of quotas between years, or swapping quotas with other Member States.124 As a second step, and once TFCs are allocated to the national vessels, these need to make sure that they hold the necessary quotas to land their catches. Should vessel owners need to obtain additional quotas, they may buy or lease quotas from another vessel owner but only in the same Member State.125 Although the Commission argues that the TFCs are dependent on the overall fishing levels set by the Council, the reforms incorporate flexibility in fisheries management both by allowing the Member States to allocate TFCs to their vessels and by introducing trading of allowable catches. In adopting this proposal, the European Parliament and the Council voted in favour of TFCs but only as a regulatory option for the Member States to pursue at the domestic level, as opposed to as an obligatory part of the CFP.126 The visibility of property rights in these debates is low. In its proposal, the Commission argued that marine resources ‘are and must remain a public good’ and that TFCs ‘cannot confer property rights over marine resources’.127 On this view, TFCs grant ‘only user rights to exploit them [the marine resource] for a limited time’,128 meaning that when the trading period is up, the TFC falls back to the Member State, ‘who is free to allocate it again using the same allocation criteria or different ones’.129

120  Speech, Maria Damanaki, European Commissioner for Maritime Affairs and Fisheries, Breaking the Circle: Introducing a New Common Fisheries Policy (13 July 2011, Brussels, Press Conference on the Common Fisheries Policy Reform Package). 121 ibid. 122  Articles 28–31, COM(2011) 425 final. 123  ibid, Article 28(1)–(4) and Article 29. 124  ibid, Article 31. 125  ibid, Article 29. 126  Article 21 Regulation (EU) No 1380/2013 (n 115). 127 Commission Explanatory note on ‘CFP Reform—Transferable Fishing Concessions’, available at: http://ec.europa.eu/fisheries/reform/docs/tfc_en.pdf. 128 ibid. 129 ibid.

122  Sanja Bogojević There is no mention of property rights in this regard beyond the negation of its ­existence. In a similar fashion, the adopted legal text explains that TFC ‘means a revocable user entitlement to a specific part of fishing opportunities allocated to a Member State … which the holder may transfer’,130 also omitting any mention of property rights. The only reference to such rights is set out in defining aquaculture,131 which is not linked to TFCs and ­market-based management. Similarly to the previous case study, property rights deliberations are not entirely absent from debates on fisheries before the CJEU. More precisely, the question has emerged as to whether compensation needs to be secured to fish owners who have had their fish stock destroyed.132 In Booker ­Aquaculture the stock was depleted pursuant to a European directive responding to the outbreak of a fish disease. In that case, it is assumed that the fish stock amounts to property at the domestic level but the key legal question centres not round this point but rather whether the infringement of such a right gives rise to an entitlement to compensation. The CJEU concludes that the risk of losing fish stock to disease is inherent in the business and so finds no disproportionate infringement of the right to property.133 It nevertheless made clear that this does not hinder the ­Member States from awarding compensation if found necessary under domestic law,134 which is what the domestic court in the United Kingdom did in a later case.135 What this study shows is that fisheries regulation in the EU has only recently been revised to include market-based management. Such regimes, however, are delegated to the Member States to pursue and they must decide on the consequences in terms of compensation should TFCs be altered. The visibility of property rights at the EU level is thus low.

130 

Article 4(1)(21) Regulation (EU) No 1380/2013 (n 115). is defined as ‘the rearing or cultivation of aquatic organisms using techniques designed to increase the production of the organisms in question beyond the natural capacity of the environment, where the organisms remain the property of a natural or legal person throughout the rearing and culture stage, up to and including harvesting’, see ibid, Article 4(1)(25). 132  Joined Cases C-20/00 and C-64/00 Booker Aquaculture Ltd, EU:C:2003:397. 133  ibid. See also Case C-355/08P WWF-UK Ltd, EU:C:2009:286, where the Court denied standing to challenge the Council’s set levels for allowable catches. 134 Discussed in J Jans and A Outhuijse, ‘Property and Environmental Protection in the ­Jurisprudence of the Court of Justice of the European Union’ in Gerd Winter (ed), E ­ nvironmental and Property Protection in Europe (Europa Law Publishing, 2015) 53–54. 135  United Kingdom Association of Fish Producer Organisations v Secretary of State for the Environment, Food and Rural Affairs [2013] EWHC 1959. 131  ‘Aquaculture’

Environmental (Property) Rights in Market-based Management 123 C.  Water Management: The Case of the Water Framework Directive The third case study under consideration relates to water management, which, in the EU, is carried out within and according to the Water ­Framework Directive (WFD).136 This is a holistic directive, often described as ‘dauntingly complex’.137 It provides a multi-level structure for various agencies at EU, national and regional levels to develop integrated water policies and, in doing so, sets out overarching principles and programmes for action relating to water.138 As one of its key objectives, the WFD requires all Member States to ‘protect, enhance and restore’ all bodies of water, with the aim of achieving ‘good water status’ by 2015, both with regard to surface and ground water.139 Here, the WFD relies heavily on the Member States to integrate and implement water policies, leaving maximum leeway for the national authorities to contribute.140 Although it is not clear how the M ­ ember States ought to achieve these goals, the WFD starts with an assertion that may be seen as running contrary to the possibility of applying trading schemes to the regulation of water, stating that water is a heritage and not a commodity: ‘Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such’.141 Although the grassroots align with this view,142 it is not uncontroversial. An alternative understanding is that water ‘has an economic value … and should be recognized as an economic good’.143 This outlook is grounded

136 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L327/1 (Water Framework Directive). 137 M Lee, ‘Law and Governance of Water Protection Policy’ in Joanne Scott (ed), ­Environmental Protection: European Law and Governance (Oxford University Press, 2009) 27. 138  M Bogaart, ‘The Emergence of the Framework Directive in EU Environmental Policy: An Exploration of its Function and Characteristics’ in Marjan Peeters and Rosa Uylenburg (eds), EU Environmental Legislation: Legal Perspectives on Regulatory Strategies (Edward Elgar Publishing, 2014) 48, 60. 139 See H Josefsson, ‘Ecological Status as a Legal Construct—Determining its Legal and Ecological Meaning’ (2015) 27 Journal of Environmental Law 231. 140  Bogaart (n 138) 59, 66. 141  Para 1 of the Preamble to the Water Framework Directive (n 136). 142  For instance, a citizen initiative rejecting suggestions of water privatisation in the EU has been initiated in line with Article 11(4) TEU, available at: www.right2water.eu/news/ monitor-commission-plans-water-privatisation. 143 Discussions as described in C Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation in the UK’ (2011) 23 Journal of Environmental Law 203, 230.

124  Sanja Bogojević in the belief that mismanagement of water is due to the failure to recognise its economic worth, resulting in the wasteful use of the resource. From this perspective, managing water as an economic good ‘is an important way of achieving efficient and equitable use, and of encouraging conservation and protection of water resources’.144 Such views have been explored in great depth in legal scholarship.145 To some extent, the Commission seems to share this assessment and has flagged the importance of recognising water as a crucial component in a strong market economy. In its 2012 Blueprint to Safeguard Europe’s Water Resources, it urges the EU ‘to focus on green growth and become more resource efficient’, including with respect to water, so as to achieve ‘a sustainable recovery from the current economic and environmental crises’.146 This, the Commission predicts, will be economically beneficial, for example by creating jobs: Tackling these challenges holds significant potential to boost the competitiveness and growth of the European water sector, which includes 9000 active SMEs [small and medium-sized enterprises] and provides 600000 direct jobs in water utilities alone. There is also potential for green growth in other water-related sectors (water-using industries, water technology development etc.) where innovation can increase operational efficiency.147

Importantly, the various goals of water management listed in the Blueprint, including that of securing the availability of high-quality water for sustainable and equitable water use, are already enshrined in the WFD. The added value of the Blueprint is that it identifies obstacles to reaching these goals effectively, as well as ways to overcome these obstacles.148 Critically, however, water trading is not proposed as a regulatory alternative, although its potential at local levels is recognised: [W]ater trading is another instrument, used mostly outside the EU, which could help to improve water efficiency and overcome water stress, if a sustainable overall cap for water use is implemented. Water trading entails relatively significant

144  C Reid, ‘Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity’ (2013) 2 Transnational Environmental Law 217, 232. 145  M Bond and D Farrier, ‘Transferable Water Allocations—Property Rights or Shimmering Mirage’ (1996) 13 Environmental and Planning Law Journal 213; F du Bois, ‘Water Rights and the Limits of Environmental Law’ (1994) 6 Journal of Environmental Law 73; B Lange and M Shepheard, ‘Changing Conceptions of Rights to Water?—An Eco-Socio-Legal P ­ erspective’ (2014) 26 Journal of Environmental Law 215; B Morgan, Water on Tap: Rights and Regulation in the Transnational Governance of Urban Water Services (Cambridge ­University Press, 2011). 146 Communication from the Commission, ‘A Blueprint to Safeguard Europe’s Water Resources’, COM(2012) 673. 147 ibid. 148  ibid, 3.

Environmental (Property) Rights in Market-based Management 125 administrative costs and, in principle, only makes sense among water users in a defined river basin. Although it would not be helpful to set up such a system at EU level, the Commission proposes developing … guidance to help the development of water trading in the Member States that choose to employ it.149

What this shows is that the discussion about market-based management applied to water management is slowly emerging in the EU context but more as a discussion point, as opposed to a regulatory reality. The visibility of property rights in this regard, however, is absent. D.  Nature Conservation: The Case of Biodiversity Offset The final case study relates to nature conservation and the use of biodiversity offsets. Two main legislative frameworks govern nature conservation in the EU: the Habitats Directive150 and the Birds Directive.151 The main objective of the Habitats Directive is to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements.152 It does this chiefly by establishing Natura 2000—‘a coherent European ecological network of special areas of conservation’153— which provides safeguards against potentially damaging developments. The Birds Directive overlaps with the Habitats Directive in the sense that it sees habitat loss as one of the most serious threats to the conservation of wild birds.154 By establishing so-called ‘special protection areas’, which are also part of Natura 2000, the Birds Directive seeks to protect birds by providing for protection of habitats of endangered as well as migratory species.155 Property rights are relevant to the application of these as they are considered legitimate justification for exempting the prohibitions outlined in the directives. The emergence of property rights in this regard, similarly to under the EU ETS, is to curb environmental regulation.156 Despite the fact that these legal frameworks are generally regarded as ‘some of the most advanced and effective regional conservation ­instruments’157

149 

ibid, 12.

150  Council

Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitat and of Wild Fauna and Flora (1992) OJ L2067 (Habitats Directive). 151  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of Wild Birds (2010) OJ L20/7 (Birds Directive). 152  Preamble, Habitats Directive (n 150). 153  ibid, Article 3(1). 154  Article 8 Preamble, Birds Directive (n 151). 155  See ibid, Article 5. 156  For a detailed overview, see A Garcia-Ureta, ‘The ECJ Jurisprudence on Nature Protection and Ownership Rights’ in Gerd Winter (ed), Environmental and Property Protection in Europe (Europa Law Publishing, 2015) 56. 157  J Faulks, ‘The EU Habitats Directive’ (1994) 4 European Environment 12.

126  Sanja Bogojević currently in existence, biodiversity in the EU is widely acknowledged to be under great threat;158 or, to put it mildly, nature conservation is seen as ‘not working well enough’.159 This sits uncomfortable with the EU 2020 ­Biodiversity Strategy, the objective of which is to halt ‘the loss of biodiversity and the degradation of ecosystem services in the EU by 2020’ and thereby to help avert global biodiversity loss.160 To meet this objective, the Commission argues that there is a need to recognise that, in addition to biodiversity’s intrinsic value (the Bird Directive, for instance, says that wild birds ‘constitute a common heritage’), biodiversity and the services it ­provides have ­‘significant economic value’.161 The argument is more precisely that biodiversity eludes pricing and thereby ‘falls victim to competing claims on nature and its use’.162 Internalising the costs of biodiversity loss is therefore needed. One regulatory option for enhancing nature conservation that has been considered by the Commission—albeit mainly through commissioning technical and expert reports on the topic rather than by formalised proposals—includes ‘habitat banking’, also known as ‘biodiversity offsets’.163 In brief, this regulatory approach represents a ‘biodiversity compensation mechanism’ that is based on a market ‘where the credits from actions with beneficial biodiversity outcomes can be purchased to offset the debit from environmental damage’.164 This offsetting system is not novel in nature conservation legislation.165 Under the Habitats Directive, for instance, a Member States may ‘in the absence of alternative solutions’ be justified in allowing a project that is likely to damage biodiversity if there are imperative reasons of overriding public interest to do so and the Member State takes ‘all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected’.166 A formal introduction of biodiversity banking, however, is intended to cover broader fields of biodiversity protection.

158 See for instance G. Jones QC (ed), The Habitats Directive: A Developer’s Obstacle Course? (Hart Publishing, 2012). 159  Reid (n 143) 204. 160 Commission on the EU Biodiversity Strategy to 2020, available at: http://ec.europa. eu/environment/nature/info/pubs/docs/brochures/2020%20Biod%20brochure%20final%20 ­lowres.pdf. 161  Fourth Recital of the preamble, Birds Directive (n 151), and at pp 4, 14–15 respectively. 162 Commission Communication on ‘Our Life Insurance, Our Natural Capital: An EU ­Biodiversity Strategy To 2020’, COM(2011) 244 final at 2–3. 163  Other examples include conservation easements, and payment for ecosystem services, see Reid (n 144). 164 Technical Report for the European Commission DG Environment, The Use of ­Market-Based Instruments for Biodiversity Protection—the Case of Habitat Banking (2010) at 4, ­available at: http://ec.europa.eu/environment/enveco/pdf/eftec_habitat_technical_ report.pdf. 165  Reid (n 143). 166  Article 6(4) Habitats Directive (n 150).

Environmental (Property) Rights in Market-based Management 127 More precisely, it demands mandatory biodiversity compensation—and not only for Natura 2000 breaches.167 The call here is to develop measures that can address the residual impacts of pressures on biodiversity, ‘especially those from infrastructure related developments’, and to establish thereby a ‘net biodiversity loss policy’ in the EU.168 According to Colin Reid, these ideas are inspired by experiences of trading ‘in other areas of environmental law’;169 that is, they are conceived by analogy with emissions trading in that both aim to offset environmental degradation in one area by environmental enhancement in another.170 There are, however, important differences between offsetting greenhouse gas emissions and biodiversity degradation. For instance, while emissions in one area can easily be offset by emissions reduction in a different area, biodiversity cannot be considered as one sum. Rather, each species and habitat must be considered individually, and each component can only be protected if protected as a whole. As Reid puts it, enhancing ‘protection for whales is of no benefit to red squirrels’.171 Others are similarly wary that a biodiversity banking system could end up ‘trading the wrong things’.172 Reports commissioned by the Commission, however, seem to comfortably draw a comparison between biodiversity banking and the ­ EU ETS:173 Many of the challenges in developing a habitat banking system have been encountered in the EU’s Emissions Trading Scheme (EU ETS) for carbon. Therefore, in order to better understand how a regulatory market for biodiversity protection, in the form of habitat offsetting and banking, might work, it is useful to review relevant previous experience from carbon markets.

According to the authors of this particular report, defining credits and choosing between voluntary and regulatory markets in setting up trading schemes in natural resources are ‘particularly relevant’ lessons to learn from the experience of carbon trading. The relevant point here is that the Commission has not pursued these proposals, nor are property rights visible in these discussions beyond their use to restrict existing EU conservation laws.

167 

Technical Report (n 164) at 24–25. Similar ideas presented in Final Report submitted to DG Environment, ‘Exploring potential demand for and supply of habitat banking in the EU and appropriate design elements for a habitat banking scheme’ (2013), available at: http://ec.europa.eu/environment/enveco/ taxation/pdf/Habitat_banking_Report.pdf. 169  Reid (n 144) 210. 170  ibid 216. 171  ibid 224. 172 J Saltzman and JB Ruhl, ‘Currencies and Commodification of Environmental Law’ (2000) 53 Stanford Law Review 607, 613 and 629. 173  Technical Report (n 164) 162. 168  ibid.

128  Sanja Bogojević IV.  REFLECTIONS: ENVIRONMENTAL (PROPERTY) RIGHTS AND THE SIGNIFICANCE OF LEGAL CULTURE

The market-based management scenarios examined above are undeniably diverse. To start with, they are concerned with different environmental issues: air pollution, fisheries, water and biodiversity; each enjoying a distinct status in the EU Treaties, secondary law and EU policies. As a start, water and wild birds are clearly positioned as a common ‘heritage’, while fisheries is promoted, at least by the Commission, as ‘a public good’ that, nevertheless, may be compensated at the domestic level as a property right. Emissions allowances are largely left undefined at the EU level and instead delegated to the Member States for legal classification. This highlights the variety in the physical nature of environmental topics discussed but also the distinct ways in which these are imagined applying property frames. Moreover, not all scenarios studied have environmental protection at centre stage of their management objectives. Fisheries control, for instance, aims to establish reasonable prices for consumers and ensure a fair standard of living for the fisheries communities. This stands in contrast to water management, which purports to improve water standards through multi-level administration; nature conservation that aims to preserve biodiversity and halt its loss; and air pollution control that ultimately intends to help combat climate change. Obviously, each regulatory area discussed contains a range of regulatory objectives; still, fisheries management is unique based on its firm positioning within the EU’s common commercial policy. Nevertheless, despite their inherent differences, market-based management has emerged as a possible regulatory mechanism in all the scenarios examined—albeit to different extents. The EU ETS remains the most well-known market-based regulatory example due to its role as the key EU climate change measure and its intense promotion outside the EU.174 The idea of trading in fisheries, on the other hand, has arisen only recently in the EU; traditionally fisheries have been controlled through non-tradable quotas. For its part, water trading has merely been mentioned as a regulatory possibility for domestic regulators to pursue, while the suggestion of creating a biodiversity banking system has thus far primarily been made in policy documents prepared for the Commission and in scholarly debates. A noteworthy feature shared by all four scenarios examined is the lack of conceptualisation of property rights at the EU level—whether in the relevant legal texts, policies or jurisprudence. In instances where property rights do come up, they emerge as rights derived from domestic law and largely

174 Bogojević

(n 63).

Environmental (Property) Rights in Market-based Management 129 used by the industry to curb environmental regulation by either demanding ­compensation or challenging the validity of EU environmental law. The significance of the omission to define tradables in market-based management as property rights throughout the EU level is open to ­ different analyses. One view is that this demonstrates why the operation of environmental markets in the EU is failing. In the case of the EU ETS, the European Court of Auditors, which acts as a guardian of EU finances, has voiced its concerns about the vagueness of the legal status of ­emissions allowances.175 Although property rights are not suggested as a necessary remedy, the ­ fragmented approach to property rights developed by the Member States in this regard is thought to disrupt trading and create legal uncertainty.176 A different interpretation, however, suggests that the omission is praiseworthy because property-based constructions would likely have led to compensation pay-outs, and ultimately stalling environmental regulation.177 Such attempts are visible in EU ETS jurisprudence, as well as in more general EU conservation law. Property-based constructions might also have given rise to the morally problematic idea that ‘rights to pollute’ had been established, offered for sale to whomever may afford them.178 Other interpretations may suggest the need to re-imagine property179 and how it is framed, and also to reassess how ownership is defined.180 Such exercises may see broader definitions of property, which, in turn, could result in higher v­ isibility of such rights in the EU. The point that I seek to make here, however, is a different one. As the case studies above show, property rights in the EU are delegated to the Member

175  European Court of Auditors, The Integrity and Implementation of the EU ETS (Special Report No. 06, 2015) [24]. 176  K Low and J Lin, ‘Carbon Credits as EU Like It: Property Immunity, TragiCO2medy?’ (2015) 27 Journal of Environmental Law 377, 381–86. 177  In the US Clean Air Act, for instance, an emission allowance is carefully defined as a ‘limited authorization to emit sulphur dioxide’ that ‘does not constitute property right’ and that can be limited or terminated by the authority of the United States, see Section 403(f) Sulphur Dioxide Allowance Program for Existing and New Units [42 USC 7651b]. On this point, see also J Button, ‘Carbon: Commodity or Currency? The Case for an International Carbon Market Based on the Currency Model’ (2008) 32 Harvard Environmental Law Review 571, 574; Colangelo (n 66) 162; France-Hudson (n 11). 178  For instance, when emissions trading first was initiated at the international level it was opposed by the developing countries, and in particular China and India, on the basis that it could be interpreted as a ‘right to pollute’. As a response, the Marrakesh Accords included a principle stating that Kyoto has ‘not created or bestowed any right, title, or entitlement to emissions’ on Annex I parties, see D Bodansky, J Brunnee and L Rajamani, International Climate Change Law (Oxford University Press, 2017) 190. 179 See C Rose, ‘Property as the Keystone Right?’ (1996) 71 Notre Dame Law Journal 330, 351. 180  H Rowe, ‘Making Wild Law Work—The Role of “Connection with Nature” and Education in Developing an Ecocentric Property Law’ (2017) 29 Journal of Environmental Law 19.

130  Sanja Bogojević States to create and manage. The reason for this is EU constitutional law. AG Sánchez-Bordona relies on the EU constitutional principle of subsidiarity to explain why the classification of emission allowances is a matter for the domestic legal order to decide on and that EU law is relevant only in assessing that these are lawfully allocated and surrendered. The principle of subsidiarity, however, applies only to areas of shared competences, such as the environment, and not exclusive competences, which the EU enjoys in regulating fisheries. It is therefore relevant to look also elsewhere in the EU constitutional order, and more precisely, Article 345 of the Treaty on the Functioning of the European Union (TFEU), which stipulates that the Treaties ‘shall in no way prejudice the rules in the Member States governing the system of property ownership’. Although this provision has a firm constitutional setting, and originates already in the Schuman Declaration of 9 May 1950, detailed information about its exact meaning and legal implications for the rest of the Treaty, as well as for national law, are still unclear.181 As a general note, Article 345 TFEU precludes the EU from interfering with the freedom that Member States enjoy in establishing their own systems of property ownership. The understanding is that the drafters of the original EU Treaties adopted a neutral position in the debate between state planning and free competition and so allowed Member States the liberty to choose the appropriate form of ownership and their particular model of economic organisation.182 What this shows is that the visibility of property rights will depend on the constitutional setting examined. This is not to argue that EU constitutional law disqualifies any mention of property rights at the EU level. As is shown above, property rights are relied on by the industry in attempting to curb environmental protection. Moreover, the fact that the EU regulates airport slots and broadcasting spectrum rights and creates milk quotas is thought to possibly establish ‘hybrid property-like rights’.183 This questions whether ‘new forms of property’ are possible under EU constitutional law and, if so, how such forms of property align with traditional understandings of property rights. Ultimately, what this shows is that debates on property rights in environmental law are contested and rarely straightforward—also when largely invisible.

181  B Akkermann and E Ramaekers, ‘Article 345 TFEU (ex 295 EC), Its Meaning and Interpretations’ (2010) 16 European Law Review 292, 293 and 296. 182 A Gardner, ‘The Velvet Revolution: Article 90 and the Triumph of the Free Market in Europe’s Regulated Sectors’ (1995) 16 European Competition Law Review 78; E Aspey, ‘Public Goods, Special Rights and Competitive Markets: Right2Water and the utilities Procurement Regime’ in Grith Skovgaard Olykke and Albert Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar Publishing, 2016) 343, 350. 183  Colangelo (n 66) 10.

Environmental (Property) Rights in Market-based Management 131 V. CONCLUSION

In many ways, this chapter deals with an old problem. According to Sean Coyle and Karen Morrow, ever since its inception environmental law has been concerned with the relationship between humanity and the world and the limits of our entitlements to the use of its resources.184 Market-based management has come to enjoy a strong position in environmental law and policy as the strategy through which to successfully deal with the access to and use of natural resources. Economists have had a strong impact on the theory underpinning these regulatory debates, and they commonly hold that property rights are a pre-condition for such management constructs. This outlook, however, sits uncomfortably with environmental law, which has several contestation points in relation to property rights, including how to marry the many regulatory goals of the two. The bulk of this chapter adds to this analysis by showing how the existence of property rights is inherently context specific. In the case of the EU, this means that property rights derive from the domestic legal order and are largely absent at the EU level, emerging mainly in cases where the industry relies on such rights in trying to curtail EU environmental legislation. The reason for this low visibility of property rights is EU constitutional law and the lack of competence of the EU to create such rights. To appreciate the role that property rights thus play or may play in managing environmental problems, we need to ­familiarise ourselves with their legal habitat.

184 

Coyle and Morrow (n 39).

132 

6 Environmental Rights and Principles: Investigating Article 37 of the EU Charter of Fundamental Rights ELOISE SCOTFORD

I. INTRODUCTION

T

HIS CHAPTER CONSIDERS the legal nature and status of Article 37 of the EU Charter of Fundamental Rights.1 Article 37 is a contradictory provision. It seems full of promise as a strongly worded provision on environmental protection included in a charter of rights. It is a source of hope and possibility for those interested in the development of an environmental rights paradigm and jurisprudence within EU law and globally.2 However, Article 37 is also a highly contextualised provision that is inherently compromised as a legal ‘right’.3 It is a distinct creation and creature of EU law, and its identity in EU law terms is central to understanding its character and legal role. Its compromised nature is highlighted by its drafting history and deliberate inclusion in the Charter as a ‘principle’ rather than a ‘right’, and this background fundamentally shapes its construction and interpretation as a matter of EU law.

1 

Charter of Fundamental Rights of the European Union [2012] OJ C326/391 (‘Charter’). eg R O’Gorman, ‘The Case for Enshrining a Right to Environment within EU Law’ (2013) 19 European Public Law 583. On international rights and environmental protection generally, see A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 European Journal of International Law 613. 3  G Marín Durán and E Morgera, ‘Commentary on Article 37—Environmental Protection’ in Steve Peers, Tamara Harvey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014) (noting that Article 37 ‘fails to take a stance’ on the controversial international law question of the existence of a substantive environmental right and also fails to incorporate environmental rights of a procedural character). See also S Bogojević, ‘EU Human Rights Law and Environmental Protection: The Beginning of a Beautiful Friendship?’ in Sionaidh Douglas-Scott and Nicholas Hatzis (eds), Research ­Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017) 443. 2 

134  Eloise Scotford The chapter explores the legal nature of Article 37 both within the unique structure and terms of the Charter itself, particularly in light of its distinction between rights and principles, and more broadly within the context of ‘environmental principles’ in EU law. The latter lens shows that Article 37, as a ‘Charter principle’, is in fact part of a wider and developing legal discourse concerning EU environmental principles. Rather than seeing Article 37 as deficient because it is not a fully fledged EU fundamental or human right, this perspective shows how Article 37 represents a normative progression in EU law, in relation to the principles of integration and sustainable development in particular. EU environmental principles are themselves riddled with uncertainty and continue to evolve legally but they present a pattern of legal development (and ambiguity) into which Article 37 fits. Article 37 makes more sense as a legal creature within the broader picture of EU environmental principles and their evolving legal roles. The chapter demonstrates this perspective in three parts. First, it examines the legal conundrum presented by Article 37 of the Charter—what is a Charter principle in legal terms?—and the limited resources and answers contained within the Charter itself and its accompanying Explanations for resolving this conundrum. Second, the chapter examines the nature of environmental principles in EU law more broadly and shows how Article 37 fits within this growing body of legal doctrine, with its legal limits and complexities. Third, the chapter considers the justiciability of Article 37, both on the state of current case law and its potential justiciability in light of its identity as an ‘EU environmental principle’. Justiciability is often at the crux of arguments over whether socio-economic concepts are or should be recognised as legal rights.4 This chapter shows that, whilst Article 37 might fall short of being an independent ground for reviewing the legality of public action in EU law, its role as an environmental principle suggests a number of interesting and potentially powerful roles in legal reasoning, including through shaping interpretive practice and in otherwise informing the development of EU legal doctrine. II.  THE LEGAL CONUNDRUM OF ARTICLE 37

Article 37 is a perplexing legal provision for a number of reasons. It not expressed as a ‘right’ but it is contained within a Charter of rights. Its ­wording is similar to the integration principle in Article 11 Treaty on the 4 Particularly whether they can operate as autonomous grounds for challenging ­ public action. See generally M Wesson, ‘The Emergence and Enforcement of Socio-Economic Rights’ in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014).

Environmental Rights and Principles 135 Functioning of the European Union (TFEU), but its phrasing is not equivalent. Moreover, it sits within a Charter whose legal and constitutional status is still being explored and understood as a matter of EU law.5 Article 37 ­provides that A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

This section explains the definitional and legal complexity of this apparently well-meaning provision, first by examining its wording, and then by exploring its nature as a provision of the Charter with its deliberate distinction between ‘rights’ and ‘principles’. The section shows how Article 37 wraps a number of ambiguous elements into a single package that was deliberately left unclear as to its precise legal effect. The Charter has created a provision that is ripe for legal interpretation and application, albeit outside the more established and developing legal paradigms of EU rights. A.  Legal Complexity of Article 37—Charter Wording From the wording of Article 37, a number of aspects stand out in analysing its legal meaning. First, it promotes a ‘high level of protection’ and improving environmental quality by requiring these goals to be integrated into the various policy areas that fall within the competence of the European Union. It is thus, similarly to Article 11 TFEU, tied to the limited competences of the EU. This fundamental feature distinguishes Article 37 from other constitutional provisions internationally that guarantee a right to a healthy or clean environment as a freestanding proposition.6 Its reference to a ‘high level of environmental protection’ also resonates with similar references to attaining a ‘high level of protection’ in other EU laws—both in the Treaties and in secondary legislation.7 However, the requirement of a ‘high level of protection’ is not used consistently in EU environmental measures and

5  See generally S Peers, T Harvey, J Kenner and A Ward, The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014). 6  eg Article 24 of the Constitution of the Republic of South Africa (1996) provides: ­‘Everyone has the right (1) to an environment that is not harmful to their health or well-being; and (2) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (a) prevent pollution and ecological degradation; (b) promote conservation; and (c) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’. 7 See eg TFEU, Articles 114(3), 168, 169, 191(2); Regulation 1907/2006/EC of the ­European Parliament and Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) [2006] 396/1, Article 1(1).

136  Eloise Scotford the meaning and significance of this legal imperative remains a matter of debate.8 Second, the wording of Article 37 indicates that it is focused on the pursuit of sustainable development. This again tracks Article 11 TFEU in defining integration of environmental protection in terms of sustainable development (albeit that Article 37 is more strongly worded in requiring compliance with the ‘principle’ of sustainable development).9 This link between integration and sustainable development suggests a number of interpretive possibilities as to how these two concepts might define, mutually reinforce, or dilute one another. Thus it might be argued that the sustainable development principle acts as a qualification on the provision’s integration requirement, which either strengthens or weakens its environmental protection imperative, depending on one’s approach to sustainable development.10 Interpretive possibilities relating to these elements are what we have at this stage due to the contested nature of sustainable development as a concept11 and the equally debated nature of integration as a principle in the EU context.12 From the perspective of environmental principles, considered further in the following section, this definitional ambiguity and the interconnection of the integration and sustainable development principles are part of the wider legal articulation and evolution of these two EU environmental principles. The final aspect of Article 37’s wording that is noteworthy is how it is different from Article 11 TFEU. Despite the similarities in the wording of these two provisions, they have some potentially significant distinctions. In particular, Article 11 refers to ‘environmental protection requirements’ that must be integrated into the definition and implementation of EU policies and activities, whereas Article 37 of the Charter refers to a high level of protection rather than any set of ‘requirements’. It tends to be assumed that the ‘environmental protection requirements’ in Article 11 refer to the wide range of environmental objectives, principles, and factors that are included in Title XX of the Treaty.13 On this reading, the wording in Article 11 leaves

8  eg J Jans and H Vedder, European Environmental Law: After Lisbon (4th edn, Europa Law Publishing, 2012) 41–43. For a recent analysis of the meaning of a ‘high level of environmental protection’ as an EU ‘environmental principle’, see Opinion of Advocate General Kokott in Case C-444/15 Associazione Italia Nostra Onlus [2016] EU:C:2016:665, paras 24–35. 9  Article 11 TFEU requires integration of environmental protection requirements ‘with a view to promoting sustainable development’. 10  eg E Reid, Balancing Human Rights, Environmental Protection and International Trade (Hart Publishing, 2015) 60–61 (arguing that the qualification of sustainable development dilutes the EU integration principle). 11  M Jacobs, ‘Sustainable Development as a Contested Concept’ in Andrew Dobson (ed), Fairness and Futurity: Essays on Environmental Sustainability and Social Justice (Oxford University Press, 1999). 12 E Scotford, Environmental Principles and the Evolution of Environmental Law (Hart Publishing, 2017) 87–88. 13  Jans and Vedder (n 8) 23.

Environmental Rights and Principles 137 room for potentially interesting interpretations and linkage to other EU legal provisions,14 which are not open in the same way on the wording of ­Article 37.15 It is thus a mistake to think that Article 11 TFEU and Article 37 are equivalent EU legal provisions, which are simply repeated in different foundational EU texts. In sum, Article 37 is drafted in a distinctive legal form that requires precise analysis and authoritative legal interpretation. B.  Legal Complexity of Article 37—Charter Explanations The above analysis of the wording of Article 37 shows that its appeal to high-level concepts and its curious wording give rise to many questions as to its interpretation and practical operation. This ambiguity is compounded by the structure and Explanations of the Charter itself, which give some clues as to the nature of Article 37 but again do not provide clear direction. The official Explanation of Article 37 is brief in giving background to the provision, stating simply that it is ‘based on Articles 2, 6 and 174 of the EC Treaty, which have now been replaced by Article 3(3) [TEU] and Articles 11 and 191 [TFEU]’. The Explanation states that Article 37 ‘also draws on the provisions of some national constitutions’ but offers no further explanation of the role or meaning of the provision. Whilst it is a common form of phrasing in the Explanations document to set out how a Charter Article is based on or relates to other measures in the EU Treaties, the European Social Charter or other measures of EU law or the European Convention of Human Rights, the explanations for many other Charter provisions are more developed, particularly where established Court of Justice of the European Union (CJEU) case law informs their ­meanings.16 On one reading, this sparse Explanation indicates that Article 37 does not add anything more to Article 3(3) TEU, and Articles 11 and 191 TFEU.17 This Explanation seems to clarify that Article 37 was not designed to create any new legal obligations in EU law.18 However, it is also unhelpful 14 

Although this has not been definitively decided by a CJEU judgment. Article 37 also has stronger wording in terms of its imperative to integrate a high level of environmental protection ‘in accordance with’ the sustainable development principle. 16  See eg Articles 15, 16, 47, 50. 17  This reading is supported by Gráinne de Búrca’s argument that the Charter was intended as a ‘visibility exercise’ or ‘showcase’ aimed not at the policymaker but at the EU citizen, which declares existing EU commitments publicly to secure more popular legitimacy, see G de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2015) 40 European Law Review 799, 802. 18  Similarly, Article 51(2) provides that the ‘Charter does not extend the field of ­application of Union law beyond the powers of the Union or establish any new power or task for the Union … as defined in the Treaties’, although this limit is focused on the Charter and its relationship to the competence of EU law and its institutions (and the nature of that competence might still be developing even if it is not to be widened). 15 Although

138  Eloise Scotford to the extent that the three treaty provisions referred to are very general provisions setting out the environmental protection ambitions of the EU, which have had limited substantive legal effects to date in the jurisprudence of the CJEU in terms of guaranteeing any specific environmental rights or obligations. Article 191 TFEU is an overarching provision that defines the scope of EU environmental policy action very widely, if ambitiously, and its primary legal influence is in determining the scope of the EU’s lawful action in this area of shared competence. Thus Article 191(1) TFEU provides, like Article 37, that Union policy on the environment shall aim to preserve, protect, and improve the quality of the environment. Notably, Article 191(2) TFEU also contains a list of four further environmental principles—the precautionary principle, the preventive principle, the principle of rectification at source, and the polluter pays principle—which have themselves been generating an interesting body of EU legal doctrine, as discussed in the following section. The Explanation’s connection between Article 37 and Article 191 TFEU at least suggests that these Articles can and should be mutually supportive provisions in further doctrinal development by the Court involving environmental principles. In terms of the potential reach of Article 37 as a general guarantee of environmental protection in EU law, Article 11 TFEU and Article 3(3) TEU are arguably more relevant provisions in explaining Article 37. This is because they are overarching provisions impacting on all areas of EU activity, indicating that the EU’s environmental protection goals extend beyond Title XX (the environmental title) to other areas of EU policy competence.19 However, Article 11 TFEU and Article 3(3) TEU are also legally ambiguous or at least provisions the legal impacts of which are in a state of evolution. As indicated above, Article 11 TFEU is a provision with an unsettled meaning in EU law, with limited authoritative jurisprudence clarifying its impact to date. Some commentators highlight that Article 11 TFEU is a binding legal obligation, which requires that environmental protection concerns be properly integrated in all relevant EU policy domains.20 Others suggest that its influence is tempered by the need to balance EU policy priorities and that its enforceability through legal means is limited, despite its strong wording and prominent position in the TFEU.21 Analysis of the integration principle in the reasoning of the CJEU shows that it is performing notable functions in

19  This is seen in more specific treaty provisions, such as Article 114(3)–(5), both obliging the EU to pursue a high level of environmental protection in adopting internal market measures and allowing Member States to derogate from harmonisation measures where justified on environmental protection grounds in certain circumstances. 20 G Marin Duran and E Morgera, Environmental Integration in the EU’s External ­Relations: Beyond Multilateral Dimensions (Hart Publishing, 2012) 29–33. 21  L Krämer, EU Environmental Law (7th edn, Sweet & Maxwell, 2012) 20–21.

Environmental Rights and Principles 139 EU doctrine although its doctrinal use is not yet widespread. The p ­ rinciple has thus played a role in the authoritative interpretation of various EU measures, infusing environmental protection requirements into the application of EU provisions in different policy domains.22 It has also informed legal review tests in ways that both expand the scope of EU environmental competence23 and highlight the role of environmental protection in other areas of EU competence.24 There are also cases in which Advocates General have suggested that Article 11 TFEU has a more fundamental legal impact, possibly acting as a standalone ground of review in EU law,25 although such suggestions have yet to be fully embraced by the EU courts.26 By contrast, Article 3(3) TEU acts as an even more high-level, general statement of the EU’s ambitions concerning environmental protection and sustainable development, among other equivalent priorities, and its doctrinal impact in individual cases relating to environmental protection is limited.27 In light of all this, a better reading of the Explanation accompanying Article 37 of the Charter is that, whilst Article 37 adds nothing new and legally radical to Articles 3(3) TEU and 191 and 11 TFEU, it nonetheless adds weight to these fundamental EU legal provisions, which have nascent but evolving roles in developing environmental protection obligations in EU law. This reading serves to accommodate two seemingly opposing approaches to the Charter: that there should be no extension of EU legal or judicial competence in interpreting the Charter;28 and that the Charter can also be a source of authority for the ‘discovery’ of new principles of EU law.29 These different approaches both grasp something important in relation to Article 37—it is intimately connected with existing EU provisions, but these are themselves still being legally ‘discovered’. The Explanation to Article 37 is thus more illuminating if one consciously takes into account the ambiguous and evolving nature of related, existing provisions of EU law.

22 eg Case C-513/99 Concordia Bus Finland Oy Ab v Helsingin kaupunki and HKL-­Bussiliikenne [2002] ECR I-7213. See Scotford (n 12) 157–59. 23  Commission v Council (Environmental Crime) [2005] ECR I-7879. 24  eg Case C-440/05 Commission v Council (Ship Source Pollution) [2007] ECR I-9097. 25 eg Case C-161/04 Austria v Parliament and Council [2006] ECR I-7183, Opinion of AG Geelhoed (26 January 2006) para 59 (‘where ecological interests manifestly have not been taken into account or have been completely disregarded’). 26  cf Case T-229/04 Sweden v Commission [2007] ECR II-2437. 27  Article 3(3) is usually drawn on in CJEU judgments and Opinions to set the background of the high level of environmental protection of EU policy, usually in combination with Article 191(2): eg Case T-57/11 Castelnou Energía v Commission [2014] EU:T:2014:1021 [211]. 28  D Denman, ‘The Charter of Fundamental Rights’ (2010) 4 European Human Rights Law Review 349. 29  K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Company Law Review 375, 376.

140  Eloise Scotford C.  Legal Complexity of Article 37—Charter Structure The Charter’s structure adds a further fundamental obstacle in discerning the legal meaning of Article 37, through its deliberate division into provisions that contain ‘rights’ and those that contain ‘principles’. This is not simply a Charter of fundamental rights as its title suggests. The final paragraph of the preamble provides: ‘The Union therefore recognises the rights, freedoms and principles set out hereafter’ (emphasis added). The Charter’s inclusion of principles as well as rights and freedoms complicates the analysis of Article 37 since a ‘rights analysis’ is not sufficient in determining the legal nature of the Charter’s provisions and the Charter itself leaves unanswered questions about the legal distinction between its rights and principles. Following the preamble, this distinction is not clearly articulated in the layout and language of the Charter30 until it is further elaborated in the ‘general provisions’ of the Charter’s final title. Thus, in Title VII, Article 51(1) provides that EU institutions and Member States are to ‘respect the rights’ and ‘observe the principles’ in the Charter within the scope of their respective powers in implementing EU law.31 Article 52(5) attempts to clarify further this distinction between rights and principles in the Charter in terms of their legal effects, indicating that the Charter’s ‘principles’ are to be ‘implemented’ by EU and Member State institutions within the scope of their respective powers and that they are to be ‘judicially cognisable’ only once so implemented. Background materials to the Charter also indicate that its principles are to be something more than ‘objectives’.32 Beyond these provisions, the Charter is largely silent on the legal distinction between rights and principles.33 This silence reflects the political compromise that was reached in including social rights in the Charter at all, leading to the

30  There are no separate sections for ‘rights’ and ‘principles’ in the Charter, although Title IV contains provisions that are more principle-like than right-like. Certain Articles are explicitly expressed as rights (eg ‘Everyone has the right to education and to have access to vocational and continuing training’: Charter, Article 14), whilst others have more ambiguous wording (eg ‘The arts and scientific research shall be free of constraint. Academic freedom shall be respected’: Charter, Article 13). 31  ‘Respecting’ rights and ‘observing’ principles might suggest different legal functions for rights and principles in the Charter although Article 51(1) also proves that both rights and principles are to be ‘applied’. 32  The European Council specified the sources on which the Charter should draw, which included the ECHR, Member State constitutional traditions, and provisions of the European Social Charter ‘which go beyond mere objectives’: Conclusions of the Cologne European Council, June 1999. 33 Although the history of the distinction, from its inclusion in the original non-binding incarnation of the Charter through to its endorsement in the proposed Constitutional Treaty and subsequently adopted Treaty of Lisbon, offers insight into the reasons for its existence, see C Hilson, ‘Rights and Principles in EU Law: A Distinction without Foundation?’ (2008) 15 Maastricht Journal of European and Comparative Law 193, section 2.

Environmental Rights and Principles 141 creation of ‘principles’ for provisions concerning social policy that were seen to be distinct from individual rights exercisable against the state.34 ­Charter principles were intended to be ‘weaker and less judicially cognisable’.35 In relation to Article 37 in particular, Marín Durán and Morgera note that the provision represents ‘a clear manifestation of a lack of consensus among the Member States on a “substantive” human right to the environment’.36 In light of the limited but deliberate reference to the rights–principles distinction in the Charter, a threshold question is how to identify whether particular Articles in the Charter contain rights or principles. States deliberately failed to identify which Charter provisions contain principles as opposed to rights, leaving this to judicial interpretation, although some provisions are obviously rights due to their wording (‘the right to asylum’,37 ‘everyone has the right to freedom of expression’,38 and so on). Other provisions are more ambiguous. In some cases, the language of rights might not be used but rights are implied (such as the guarantee of non-discrimination in Article 21, which is phrased without reference to a ‘right’)39 as they reflect rights that are already well established in EU law. In other cases, including Article 37, some provisions are identified as illustrative ‘principles’ in the Explanation to Article 52(2). Other provisions can contain elements of both rights and principles.40 Overall, there is no definitive catalogue of the provisions that fall into each category in the Charter. Thus whilst we have a clear steer from the Charter’s Explanations that Article 37 is a Charter ‘principle’, there is no bright-line conceptual or structural distinction between rights and principles articulated in the Charter itself. This is significant because this ambiguity leaves difficult questions about the respective legal implications of rights and principles in the Charter. Commentators have adopted various positions in differentiating the legal functions of rights and principles in the Charter. Some focus on the limited justiciability of Charter principles to explain their legal character, picking up on their ‘judicial cognisable’ limitation in Article 52(5). Denman thus finds that Charter principles ‘do not

34 L Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ in Mads Andenas and John A Usher (eds), The Treaty of Nice and Beyond: Enlargement and Constitutional Reform (Hart Publishing, 2003). 35  J Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ (2015) 11 European Company Law Review 321, 328. 36  Marín Durán and Morgera (n 3). 37  Charter, Article 18. 38  ibid, Article 11. 39 ibid, Article 21 provides: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’. 40  See the Explanation to Article 52(5).

142  Eloise Scotford contain justiciable rights’.41 Hoffmann and Mihaescu similarly argue that Charter principles are incapable of granting subjective rights to individuals since they ‘merely constitute programmatic objectives which have to or might be implemented’.42 Other commentators also focus on the ‘implementation’ requirement in Article 52(5) in order for Charter principles to be legally effective, finding that they are ‘programmatic norms requiring the intervention of the EU legislator or, as the case may be, of the national legislator’.43 Krommendijk goes a step further and proposes three main criteria for identifying those provisions that will fall into these two legal categories in the Charter, drawing on work of other scholars: (1) the extent to which the provision aims to protect the rights of individuals (how right-like?); (2) the extent to which the protection provided for depends upon further concretisation in laws (how principle-like?); and (3) the margin of discretion left to duty bearers (how principle-like?).44 However, Krommendijk also notes these tests for distinguishing between rights and principles are not always decisive and that the context of a provision remains important. ­Taking a broader legal perspective, Hilson makes a compelling argument that there is no bright-line distinction between rights and principles in the Charter when analysed as a matter of legal function in EU law.45 These various approaches to the Charter’s rights–principles distinction show that there is unhelpful uncertainty concerning the legal nature of Charter principles and their relationship to the more well-established fundamental rights contained in Charter provisions. Lazzerini sums up the position nicely in referring to the ‘Pandora’s box of the right-principles distinction’ that judges fear to open,46 but it is indeed judges that will need to open this to provide more certainty concerning its legal implications. Section IV below explores the extent to which EU courts have done this to date. The analysis above, however, also highlights that Charter principles constitute something legally distinctive in EU law. The following section considers the nature of environmental principles in EU law more broadly in order to shed more light on the legal distinctiveness of Article 37 as a Charter principle.

41  D Denman, ‘The Charter of Fundamental Rights’ (2010) 4 European Human Rights Law Review 349, 356. 42  HCH Hoffmann and BC Mihaescu, ‘The Relation Between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’ (2013) 9 European Company Law Review 73, 93. 43  Leanarts (n 29) 399. 44  Krommendijk (n 35) 332–34. 45  Hilson (n 33). 46  N Lazzerini, ‘(Some of) the Fundamental Rights Granted by the Charter May Be a Source of Obligations for Private Parties: AMS’ (2014) 52 Common Market Law Review 907, 931.

Environmental Rights and Principles 143 III.  ARTICLE 37 IN THE CONTEXT OF EU ENVIRONMENTAL PRINCIPLES

If Article 37 is a ‘principle’ in the context of the Charter, we are not operating in a complete vacuum in determining what this means as a matter of EU law. Principles may be ambiguous legal ideas in the Charter’s own terms but there is a broader context of environmental principles in EU law to which Article 37 relates.47 As the Explanation for Article 37 states, Article 37 is a ‘principle’ of EU law that is based on, among other EU law provisions, related environmental principles in Articles 11 (the integration principle) and 191 TFEU (which includes the precautionary principle, the principle of prevention, the polluter pays principle, and the principle of rectification at source as central planks of EU environmental policy). A rich body of law has been developing around these EU environmental principles, particularly through the case law of the CJEU. However, care is required in discerning the legal nature of principles in this context. This is because environmental principles, just like environmental rights, are the subject of much legal hope and aspiration, so that ascertaining their legal roles in EU law requires close legal analysis of EU doctrine and legal culture. This section gives some background to this analysis and the pitfalls to avoid in appraising the landscape of EU environmental principles into which Article 37 fits. Environmental principles are now popular concepts in environmental law across jurisdictions, including in EU law. This popularity is driven by pragmatism, by political compromise, and by hopes to pursue high ideals for environmental protection as well as legitimacy for environmental scholarship as a discipline.48 These reasons also apply to Article 37 and its development as a Charter principle: the provision is a product of pragmatism and compromise mixed with high ideals for environmental protection, which has led to high hopes as to its legal impact. The popularity of environmental principles in many jurisdictions, including through their enumeration and articulation in international soft law instruments,49 has led some scholars

47  Hilson (n 33) makes a similar argument, although he looks at the legal roles of principles in EU law even more broadly, considering principles of EU constitutional and administrative law. 48  Scotford (n 12) ch 2. 49 eg United Nations Environment Programme, ‘Declaration of the United Nations ­Conference on the Human Environment’ (16 June 1972) UN Doc A/CONF.48/14, 11 ILM 1461 (1972) (‘Stockholm Declaration’); World Commission on Environment and Development, ‘Report of the World Commission on Environment and Development: Our Common Future’ (20 March 1987) UN Doc A/42/427 (‘Brundtland Report’) Annexe 1; United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992) UN Doc A/CONF.151/26 (Vol I), 31 ILM 874 (1992); World Summit on Sustainable Development, ‘Johannesburg Declaration on Sustainable Development’ (4 ­September 2002) UN Doc A/CONF.199/20.

144  Eloise Scotford and jurists to suggest that a global environmental jurisprudence is developing based on a set of normatively fundamental environmental principles.50 As I have argued elsewhere,51 such claims certainly reflect the growing popularity of environmental principles as legal ideas globally but they risk masking the critical differences that exist across legal cultures in the development and application of environmental principles as legal concepts. These differences relate not only to the specific principles that are developing legal profiles within different legal cultures (the precautionary principle is almost universally popular whilst other principles, such as the principle of rectification at source or the principle of intergenerational equity, have taken hold in certain jurisdictions only),52 but they relate also to the unique doctrinal, constitutional and institutional legal frameworks in which particular environmental principles are found and in which they are developing their legal identities. Taking into account this sensitivity to legal culture, I have previously undertaken a study of the evolving legal roles of environmental principles in different jurisdictions, including in the judicial reasoning of their courts. Based on extensive analysis of the case law of the European courts in relation to the six main environmental principles that appear in the EU Treaties and the Charter,53 this research shows that EU environmental principles have an innovative influence on developing EU law doctrine, particularly in informing (and generating) legal tests applied by EU courts in reviewing the lawfulness of EU and Member State action within the scope of EU law,54 and in giving the courts a broad interpretive discretion in construing EU legislation and the Treaties.55 This analysis confirms that the legal roles of EU environmental principles are intimately tied to existing doctrines in EU law and are shaped by the jurisdictional remit of the EU courts. It also shows that there are limits to the use of environmental principles in legal ­reasoning.

50  eg B Boer, ‘The Rise of Environmental Law in the Asian Region’ (1999) 32 University of Richmond Law Review 1503, 1508–09; B Preston, ‘The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific’ (2005) 9 Asia Pacific Journal of Environmental Law 109; T Yang and RV Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615. 51  Scotford (n 12). 52  ibid, 6–7. 53  The precautionary principle, preventive principle, polluter pays principle, principle of rectification at source, integration principle and principle of sustainable development: see TFEU, Articles 11 and 191(2); TEU, Article 3(3); Charter, Article 37. 54  eg informing the tests of proportionality and manifest error of assessment in appraising the lawfulness of EU action (see eg Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305, discussed below at text accompanying n 64, and Scotford (n 12) ch 4, part V for a detailed explanation of this doctrinal effect). 55 eg Joined Cases C-418/97 & C-419/97 ARCO Chemie Nederland v Minister van ­Volkshuisvesting [2000] ECR I-4475. For further explanation and examples of this doctrinal effect, see Scotford (n 12) ch 4, part III.

Environmental Rights and Principles 145 In particular, environmental principles currently have no free-standing roles in legal arguments to compel the exercise of discretion by EU (or Member State) institutions to pursue a particular environmental policy.56 Thus they cannot be called in aid directly as legal responses to environmental problems. Furthermore, they do not fit existing models of ‘legal principles’ in this legal context. This is an important consideration since it is tempting to suggest that all so-called ‘principles’ in EU law are legally equivalent,57 but EU environmental principles—as ‘substantive’ principles of EU policy—are distinct from the ‘general principles of EU law’ developed by the Court of Justice in its jurisprudence,58 which do operate as independent grounds for reviewing all EU action.59 These legal roles for EU environmental principles, and their limits, reflect the (often implicit) constitutional limits of the EU courts.60 As a general rule, EU judges use environmental principles to justify their reasoning only to the extent that they are deciding questions about EU environmental competence61 that has already been exercised by EU and Member State institutions on the basis of environmental principles and which is then tested in court. Notably, this conclusion, which can be deduced from the now extensive body of EU case law concerning environmental principles,62 mirrors the explicit justiciability limit for Charter principles set out in Article 52(5). This provides that Charter principles are to be judicially cognisable only in interpreting

56 Furthermore, responding to bolder arguments about the potential legal roles of e­ nvironmental principles, EU environmental principles do not render EU environmental law comprehensively coherent, and they do not represent a radical new form of law, see Scotford (n 12) ch 4. 57  Lenaerts thus seeks to align Article 37 and general principles of EU law by giving ­Charter principles exclusionary effect: Lenaerts (n 29); cf Krommendijk acknowledging the legal differences between different kinds of ‘legal principles’ in EU law: Krommendijk (n 35) 328–30. See also Hilson (n 33). 58 T Tridimas, The General Principles of EU Law (2nd edn, Oxford University Press, 2007) 4–5. 59  Environmental principles have not had such a powerful legal function to date (cf Sweden v Commission (n 26)), despite some confusing statements by the EU courts that the precautionary principle in particular is a ‘general principle’ in EU law: Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00, T-141/00 Artegodan v Commission [2002] ECR II-4945 [184], and repeated in cases such as Case T-475/07 Dow AgroSciences Ltd v Commission [2011] ECR II-05937 and Case T-257/07 France v Commission [2011] ECR II-5827. In these cases, the courts are referring to the fact that the precautionary principle acts as a general principle of policy in EU law beyond its articulation in the environmental competence in Title XX TFEU, operating particularly in the field of public health, which is subject to an increasingly robust set of administrative law tests. See Scotford (n 12) 184. 60  ‘Constitutional’ limits, refers to the proper role of the Court as an EU institution in constituting—alongside the Council, Commission and Parliament—a governing body of the EU. 61 ‘EU environmental competence’ here refers to the area of EU-prescribed policy authority concerning environmental matters within which political institutions—legislative and ­administrative—can lawfully act. 62  This is one of the key conclusions of my analysis of environmental principles in the legal reasoning of the EU courts to date: see Scotford (n 12) ch 4.

146  Eloise Scotford and testing the legality of legislative and executive acts that first ‘implement’ the Charter principles within the scope of EU law. This similarity of legal function is telling and it indicates that Charter principles, including Article 37, are indeed legally similar to other environmental principles in EU law. In light of this similar legal function, lessons can be drawn from existing jurisprudence on EU environmental principles in making sense of Article 37. As indicated above, environmental principles are used to inform and generate legal review tests and as interpretive aids in EU law, and so we might imagine similar roles for Article 37. However, it is noteworthy that these legal roles are flexible ones. This is due to the fact that, as pithy and undefined general phrases, environmental principles have contested definitions and open meanings, with the result that, legally, they fall within a ‘category of concealed multiple reference’.63 Accordingly their use in judicial doctrine as interpretive aids and to inform legal review tests, even when courts are interpreting or reviewing measures deemed to be based on an EU environmental principle, can give rise to novel interpretive and doctrinal consequences in the environmental sphere and to widened EU environmental competence. The much-referenced decision in Pfizer v Council is a good example of innovative reasoning based on an environmental principle.64 The precautionary principle is used extensively in the reasoning of the Court of First Instance in this case to uphold the Commission’s decision to withdraw authorisation for an antibiotic used as a growth promoter in animals. A close reading shows that the precautionary principle is not simply used as a general reason for upholding the Commission’s decision—its legal role is more complex. Thus it informs established tests of EU legality review (proportionality and manifest error of assessment) whilst also generating a new test of review (a test of adequate scientific evidence) in this process.65 The precautionary principle is both constrained by existing EU law doctrine, but also allows for innovative legal development by the Court, which has scope to elaborate its meaning. The complexity of this reasoning is often overlooked in references to this case as a showcase for how the precautionary principle operates legally in EU law.66 Another example of the doctrinal

63  J Stone, Legal System and Lawyers’ Reasoning (Stanford University Press, 1964) 246. The connection between amorphous ideas like environmental principles and Stone’s legal categories of ‘illusory reference’ was made by the editors in their introduction to Paul Martin, Sadeq Z Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis, Amanda Kennedy (eds), The Search for Environmental Justice (Edward Elgar Publishing, 2015) 2. 64  Pfizer (n 54). 65  See a full explanation of this reasoning in Scotford (n 12) 171–76. 66  Including in the Explanation to Article 52(5), which mentions Pfizer as notable case for demonstrating how Charter principles do not give rise to direct claims for positive action by the Union’s institutions or Member States authorities and become significant for courts only when the acts of such institutions are interpreted or reviewed.

Environmental Rights and Principles 147 flexibility inherent in environmental principles can be seen in Waddenzee,67 in which the precautionary principle is used to interpret a key provision of the Habitats Directive (since the Directive’s provisions were found to be based on this principle), construing its level of protection for special areas of conservation very strictly in light of a very strong interpretation of the precautionary principle.68 The flexibility of the precautionary principle’s definition allows for this doctrinal development, which in this case significantly extended the regulatory reach of EU environmental law. Similarly, as discussed above,69 the integration principle has a role in expanding EU environmental competence when used both as an interpretive aid and to inform EU legal tests. Thus, whilst environmental principles may have more limited legal functions than fundamental legal rights or general principles of EU law such as the principle of equal treatment, their doctrinal impacts can still be significant in the reasoning of the EU courts. In considering the legal roles of EU environmental principles, it should be noted that the ‘principle’ of sustainable development is something of an outlier in terms of its evolution in EU jurisprudence to date. It is inconsistently referred to as a ‘principle’ in the Treaties (although it is explicitly cast as a principle in Article 37),70 and its derivation is more connected to international legal developments than any of the other EU environmental principles.71 Like the integration principle to which it relates in Article 37, the principle of sustainable development is overarching in its Treaty ambition, in terms of aiming to link all areas of EU policy competence in line with environmental protection and sustainable development goals. As mentioned above,72 it is also a contested concept, and it is often shaped by political winds despite the EU’s prominent policy agenda in the field of sustainable development.73 In the reasoning of the EU courts, it is thus perhaps unsurprising that the principle of sustainable development has given rise to the least developed body of doctrine to date. Whilst there are one or two examples of exceptional doctrinal reasoning,74 the generality of the sustainable development principle makes it challenging for courts to find a firm legal edge to employ it in developing legal doctrine.75 At the same time,

67  Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw [2004] ECR I-7405. 68 ibid, para 44. See also Case C-258/11 Sweetman v An Bord Pleanála [2013] EU:C:2013:220. 69  See nn 22–24. 70 See TEU, Article 3(3) and TFEU, Article 11, which refer simply to ‘sustainable development’. 71  See Scotford (n 12) 91–93. 72  See n 11. 73 M Lee, EU Environmental Law, Governance and Decision-Making (2nd edn, Hart ­Publishing, 2014) 64. 74  eg Case C-91/05 Commission v Council (Small Weapons) [2008] ECR I-3651. 75  See Scotford (n 12) 192–98.

148  Eloise Scotford it is a principle that is ripe for creative legal arguments to be made about how it might inform EU legal doctrine. This is particularly in light of its prominent articulation in Article 37, with its connection to the integration principle in Article 11 TFEU, which has played an interesting but so far embryonic role in CJEU reasoning.76 The potential for Article 37 to foster similar and potentially more extensive doctrinal development is supported by the Charter Explanation of its function, which echoes the roles played by other EU environmental principles in EU doctrine. The link to international norms of sustainable development also provides space for transnational legal developments relating to Article 37 that extend beyond those of EU environmental principles to date.77 At a minimum, Article 37 reinforces the legal presence and significance of the sustainable development principle (and integration principle) as a matter of EU law. The following and final section of the chapter examines the justiciability of Article 37 to date and the prospects of its justiciability in furthering the legal roles of the principles of sustainable development and integration in EU law. IV.  THE JUSTICIABILITY OF ARTICLE 37

Ultimately, the unsettled legal meaning of Article 37 of the Charter will be resolved by its judicial interpretation and the roles that it takes on in the reasoning of the European courts. This section considers the justiciability of Article 37 in European judgments to date, and its potential roles in legal reasoning in light of its character as an EU ‘environmental principle’. It concludes that, whilst the case law to date is limited in illustrating the legal effects of this provision, Article 37 has the potential to be employed in new and interesting lines of doctrinal development in the future. The starting point for ascertaining the justiciability of Article 37 is Article 52(5). As set out above, Article 52(5) explicitly limits the ‘judicial cognisability’ of principles in the Charter. The Explanation to Article 52(5) elaborates this limit, providing that Charter principles, including Article 37, become ‘significant for Courts only when [legislative or executive acts that implement the relevant principle] are interpreted or reviewed’ for their legality and do not give rise to ‘direct claims for positive action’ by EU or Member State institutions.78 Article 52(5) was a contentious amendment to the Charter in 2009, seeming to introduce ‘some version of the traditional (and much-criticised) distinction between negatively-oriented civil and political

76 

See n 22–26. Scotford (n 12) 196–98. 78  Explanation to Article 52(5). 77 

Environmental Rights and Principles 149 rights and positively-oriented economic and social rights’,79 minimising the justiciability of the latter and reflecting that some states (particularly the United Kingdom and Denmark) were uncomfortable with affording social and economic guarantees the status of fully recognised ‘rights’ in the Charter. The Working Group charged with determining how the Charter might be incorporated into the Treaties suggested that Article 52(5) was a ‘technical drafting adjustment’ introduced for ‘legal certainty’, to ‘confirm, and render absolutely clear and legally watertight, certain key elements of the overall consensus of the Charter’.80 This assertion of absolute clarity and legal certainty is overstated.81 In terms of the justiciability limit at the heart of Article 52(5), there are two ways in which uncertainty remains. First, the provision is capable of more than one reading. Thus some commentators have sought to give Article 52(5) a wide reading so that Charter principles can still act as grounds for legally challenging EU and relevant Member State measures that violate Charter principles, albeit on an exclusionary basis.82 Following this school of thought, any narrower reading would ‘prevent applicants from challenging EU measures or national measures implementing EU law that, though not giving expression to those principles, clearly violate them’.83 This wider reading of Article 52(5) seems to go against its explicit wording and reflects frustration with the fact that some Charter provisions were not cast as rights.84 It also shows that the key issue concerning the justiciability of Article 37 is seen to be whether principles can be used as a basis for striking down EU, and more contentiously Member State, legislation. Other commentators adopt a narrower reading of Article 52(5) as being more compatible with its wording and with the proper role of the courts, so that Charter principles can only be relied on in legal argument before courts ‘in relation to EU measures or, where appropriate, national measures implementing EU law which give expression to those principles’.85

79  P Craig and G de Búrca, EU Law: Text, Cases and Materials (Oxford University Press, 2015) 399. 80  Final report of Working Group II, CONV 354/02 (22 October 2002). 81  It reflects at least a determination to capture the politically negotiated consensus reflected in the Charter’s terms. 82  Lenaerts (n 29); Krommendijk (n 35) 336 (a narrower reading would ‘prevent judicial review of clear violations of principles when the EU or Member States fail or refuse to take action or when there are no measures that specifically aim to implement a specific principle’). 83  Lenaerts (n 29) 400. 84  See eg S Prechal, ‘Rights vs Principles, or how to Remove Fundamental Rights from the Jurisdiction of the Courts’ in JW de Zwaan, FA Nelissen, JH Jans and S Blockmans (eds), The European Union: An Ongoing Process of Integration (Asser Press, 2004) 179 (arguing that a narrow approach would be a ‘serious drawback’ when compared with earlier protection of fundamental rights by the ECJ). 85  Lenaerts (n 29) 400.

150  Eloise Scotford The other way in which Article 52(5) remains imbued with legal uncertainty is revealed through the legal lens of EU environmental principles. As shown in Section III above, the justiciability limit in Article 52(5) reflects the pattern of legal reasoning already observed in EU case law involving environmental principles. However, whilst environmental principles might be restricted in their legal function to aiding the interpretation of EU measures and to informing legality review, the analysis in Section III above also highlighted that these roles are themselves characterised by uncertainty and potential in light of the flexible and open-ended nature of environmental principles. Article 37 is no exception in this respect as it incorporates two of the most contested and wide-ranging environmental principles in EU law, the principles of integration and sustainable development. So far, so theoretical. Whatever approach one takes to Article 52(5), what legal roles for Article 37 have actually been reflected in the case law of the EU courts? The short answer is that Article 37 has had only limited legal effects in EU judicial reasoning to date. In general, CJEU case law has so far been unhelpful in interpreting the Charter’s horizontal provisions in Title VII and particularly in construing the difference between rights and principles in the Charter. Pech suggests that the Court’s reluctance to consider these issues ‘may simply reflect the pragmatic wish … to spare itself the dreadful task of making sense of the Charter’s general provisions, which aim to constrain its interpretation and scope of application’.86 It also may reflect the fact that, as Krommendijk points out, some judges see no useful legal distinction between principles and rights, indicating how these are legally unsettled concepts in EU law.87 However, the Charter does make a clear distinction between these concepts and, in relation to one Charter principle at least, the Court has emphasised the narrow reading of Article 52(5) outlined above,88 finding that Article 26 of the Charter, requiring that persons with disabilities should benefit from integration measures, could only be relied on for the interpretation and review of the legality of EU legislative acts that implement the principle and could not ‘by itself confer on individuals a subjective right which they may invoke as such’.89 To date, there has not yet been any similar authoritative CJEU reasoning relating to Article 37. There have, however, been statements by the Court that Article 37 does not add anything legally to existing Treaty principles concerning environmental

86  L Pech, ‘Between Judicial Minimalism and Avoidance: The Court of Justice’s Sidestepping of Fundamental Constitutional Issues in Romer and Dominguez’ (2012) 49 Common Market Law Review 1841, 1861. 87  Krommendijk (n 35) 340–51, although he notes some judges have written on the difference between rights and principles in terms of possibilities for judicial review. 88  See n 85 and accompanying text. 89  Case C-356/12 Glatzel v Freistaat Bayern [2014] ECLI:EU:C:2014:350 paras 74–79.

Environmental Rights and Principles 151 protection and cannot add a separate basis for invalidating EU legislation.90 However, Article 37 has been relied on to ‘reaffirm’ the doctrinal importance of the integration principle in justifying breaches of free movement law.91 Furthermore, at least one Court of First Instance judgment employs Article 37 in an exercise of rights-balancing reasoning without any fanfare.92 True to the trend of more adventurous legal reasoning concerning ­Charter principles appearing in the Opinions of Advocates General (AG), the most developed reasoning concerning Article 37 can be found in AG Opinions.93 Different Opinions have variously suggested that Article 37 raises the importance of environmental protection to the ‘status of a European target’;94 that Article 37 might resolve doctrinal conflicts;95 and that it can help inform the interpretation of EU legislative measures as a relevant underlying aim.96 In the latter sense, Article 37 is cast in a legal role that is well established for EU environmental principles, as discussed above.97 These cases suggest that Article 37 might continue a trend of progressive CJEU reasoning concerning environmental protection,98 including through reasoning involving environmental principles. As AG Cruz Villalon put it in the European Air Transport case, Article 37 ‘does not arise in a vacuum but instead responds

90 Case C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia [2016] EU:C:2016:978 paras 61–64. 91  Case C-28/09 Commission v Austria [2011] ECR I-13525 [121]. See further Bogojević (n 3) 13–14. 92  Case T-614/13 Romonta GmbH v Commission [2014] EU:T:2014:835 paras 76–77. 93  Advocates General have also been more willing to argue about what constitutes a ‘right’ or ‘principle’ in Article 52(5), and to give principles as much legal influence as possible in judicial review cases. See in particular the Opinion of AG Cruz Villalon in Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT [2013] EU:C:2013:491, paras 67–72 (arguing that if the reference to ‘such acts’ in Article 52(5) ‘applied exclusively to implementing legislative acts giving substance to the principle, there would be a “vicious circle”: those implementing legislative acts would be reviewed in the light of a principle whose content, as stated in Article 27 of the Charter, is precisely that which is determined by those implementing legislative acts’; this reasoning reflects the wide interpretation of Article 52(5) referred to by some scholars above: see n 82 and accompanying text). 94  Case C-195/12 Industrie du Bois de Vielsalm, Opinion of AG Bot [2013] EU:C:2013:293, para 82. 95 C-204-208/12 Essent Begium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt, Opinion of AG Bot [2013] EU:C:2013:294, para 95 (seeking to resolve the fraught doctrinal basis for environmental protection in justifying infringements of Article 34 TFEU). 96  eg Case C-474/10 Department of the Environment for Northern Ireland v Seaport [2011] I-10277, Opinion of AG Bot, para 27 (interpreting the consultation requirements of Directive 2001/42/EC on strategic environmental assessment); Case C-535/15 Freie und Hansestadt Hamburg v Jost Pinckernelle [2016] EU:C:2016:996, Opinion of AG Tanchev, para 73 (interpreting the enforcement provisions of the REACH regulation). 97  See n 55–69 and accompanying text. 98 eg Case C-240/83 Procureur de la République v Association de défense des brûleurs d’huiles usagées (ADBHU) [1985] ECR 531; Case 302/86 Commission v Denmark (Danish Bottles) [1988] ECR 4607; Case C-2/90 Commission v Belgium (Walloon Waste) [1992] ECR I-4431.

152  Eloise Scotford to a recent process of constitutional recognition in respect of protection of the ­environment’.99 Article 37 is very much a continuation of this constitutionalisation process, which included the previous introduction of environmental principles into the Treaties, and one might expect that it will have legal impacts along similar lines. AG Cruz Villalon takes this constitutional recognition process a step further and suggests some innovative reasoning that Article 37 might generate in the future, which draws on its transnational legal foundations. Rather than trying to argue that Article 37 can be a standalone ground of rightsbased review, he suggests that its relationship to the European Convention on Human Rights (ECHR) might nonetheless lead to reasoning in support of environmental rights. Like the Charter, the ECHR contains no explicit environmental right as such, but a number of its provisions have been interpreted to afford environmental protections (in particular Article 8 on the right to respect for private and family life).100 Since the Charter provides that its provisions are to be interpreted in line with ECHR jurisprudence,101 Article 37 might be read alongside Article 7 of the Charter (the Charter’s parallel right to respect for private and family life) and thus interpreted in light of the evolving ECHR jurisprudence on environmental rights. On this basis, AG Cruz Villalon suggests in the European Air Transport case that Directive 2002/30 (relating to aircraft noise) can be read so that it does not limit the discretion of Member States to offer greater protection to residents from aircraft noise pollution.102 The CJEU agreed with AG Cruz Villalon on the outcome in the case although it did not refer to Article 37 or ECHR jurisprudence in its reasoning.103 The AG’s reasoning in this case shows the doctrinal possibilities of Article 37 as an interpretive tool within the constitutional framework of the EU. Article 37 might not act as a freestanding right to environmental protection that individuals can rely on to strike down any EU measure that arguably fails to pursue environmental protection or sustainable development aims with sufficient vigour, but its doctrinal influence may nonetheless be significant in building a body of EU environmental law that is attuned to environmental protection priorities. This kind of suggestion for the legal potential of Article 37 links to the role of EU environmental principles in CJEU reasoning to date and develops

99 Case C-120/10 European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale and Région de Bruxelles-Capitale [2011] ECR I-07865, Opinion of AG Cruz Villalon, para 78. 100  López Ostra v Spain, App no 16798/90 [1994] ECHR 46; Hardy v UK, App no 31965/07 (2012) 55 EHRR 58. 101  Charter, Article 52(3). 102  European Air Transport (n 99) para 82. 103  Case C-120/10 European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale and Région de Bruxelles-Capitale [2011] ECR I-07865.

Environmental Rights and Principles 153 it further. Like environmental principles as legal phenomena, Article 37 does not present an independent ground of review of EU action, nor does it track pre-existing legal concepts in EU law. Rather, it presents a novel legal form, as highlighted by its legal ambiguity in the context of the Charter, which has the potential for innovative reasoning in shaping EU doctrinal developments, albeit constrained within doctrinal and constitutional limits. V. CONCLUSION

Article 37 of the Charter represents a step in the constitutional history of environmental protection in EU law. How significant this step will be as a matter of legal reasoning is yet to be seen, but the question of its legal force is more complex than simply inquiring whether Article 37 represents a ‘right’ in EU law. The Charter itself makes clear that Article 37 is not a legal right in its own terms. The assumption of some scholars is that its casting as a Charter ‘principle’ risks making Article 37 less important as a tool or legal basis of environmental protection. Whilst, in any case, it is very unlikely that a ‘right’ to environmental protection would equate to a simple guarantee of beneficial environmental protection outcomes,104 Article 37 is a different kind of legal creature. Its politically fraught creation resulted in a legal provision that signals the importance of environmental protection within constraints. Those constraints are not clearly laid out in the Charter as the legal nature of its principles is poorly defined, but the experience of EU environmental principles to date suggests how these constraints might play out in legal reasoning. In particular, whilst environmental principles cannot be used to challenge all forms of action based in EU law and can only be relied on by courts where first relied on by lawmakers, the breadth of meaning of environmental principles has provided opportunities for innovative reasoning that furthers environmental protection goals within existing bodies of EU legal doctrine and within EU constitutional constraints. Article 37 is likely to have a similar legal future in EU law, but with the potential to catalyse and amplify the legal impacts of environmental principles, particularly in relation to the integration and sustainable development principles, which are ripe for further development in EU doctrine. Article 37 also has the potential to forge new transnational legal links to related bodies of law, such as that under the ECHR. In short, Article 37 is not a legal shortcut to a new right of environmental protection in EU law but it has the potential to generate interesting and progressive reasoning in the inevitably complex cases involving environmental issues in the European Union.

104  See E Fisher, B Lange and E Scotford, Environmental Law: Text, Cases and Materials (Oxford University Press, 2013) ch 2.

154 

7 Article 11 TFEU and Environmental Rights JULIAN NOWAG*

I. INTRODUCTION

E

NVIRONMENTAL RIGHTS ARE a frequent and hotly discussed topic in environmental law scholarship and beyond. Environmental non-governmental organisations (ENGOs), as well as interested individuals or states, hope that such rights in their different shapes and forms might assist in the struggle to achieve better environmental protection.1 This chapter, which focuses on EU law, analyses whether Article 11 TFEU,2 according to which ‘Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’, provides a right that can be of use in fostering environmental protection. The chapter begins by establishing some of the relevant features of rights, and of environmental rights more specifically. These features are subsequently applied in an interpretation of Article 11 TFEU. The chapter highlights a number of characteristics of Article 11 TFEU that support the view that it establishes an environmental right: the steady strengthening of ­Article 11 TFEU in its constitutional setting, and the possibility of annulment of measures that do not comply with this provision. However, while these features are generally considered to support the view that Article 11 TFEU confers a right, the chapter subsequently explores two serious caveats to such classification: the issue of standing; and the weak standard of review in Article 11 TFEU cases. The chapter argues that while Article 11

*  This chapter is in parts based on ideas developed in J Nowag, Environmental Integration in Competition and Free-Movement Laws (Oxford University Press, 2016). 1  See e.g. C Miller, Environmental Rights: Critical Perspectives (Routledge, 2012); R Hiskes, The Human Right to a Green Future: Environmental Rights and Intergenerational Justice (Cambridge University Press, 2009); J Bruckerhoff, ‘Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights’ [2008] Texas Law Review 615. 2  Treaty on the Functioning of the European Union [2012] OJ C326/47.

156  Julian Nowag TFEU approaches something close to the conferral of a right, the Article falls short of conferring a self-standing right. Rather, the status conferred by Article 11 TFEU is dependent on the enabling function of other existing rights. ­Nonetheless, the Article can have an important function in providing the basis for derived environmental rights for individuals and ENGOs, and can act as a justification for government action to protect the environment within the context of EU law. II.  ARTICLE 11 TFEU AND ENVIRONMENTAL RIGHTS

This section explores the idea of rights, and environmental rights more specifically. The discourse on rights is complex, and numerous definitions of rights and their relationship with justice and the state exist. The topic of environment rights is no different; multiple definitions, explanations and varieties of environmental rights exist and are used.3 The purpose here is not to provide one overall definition of rights or environmental rights, but rather to briefly explain some elements of the debates about rights, and especially environmental rights, that provide a framework for the discussion of the different aspects of Article 11 TFEU in the following sections. Perhaps the most well-established definition of rights is that provided by Dworkin, who writes that ‘individual rights [are] political trumps held by individuals’.4 Thus, a right exists where ‘a collective goal is not a sufficient justification for denying [individuals] what they wish … or for imposing some loss or injury upon them’.5 Exactly what this Dworkinian notion of a right encompasses is the subject of much debate. In particular, there is a long-standing jurisprudential debate as to the virtues of the common law approach of ubi remedium ibi ius.6 Then there is the more continental ‘from rights to remedies’ approach, and between these yet other, mixed, approaches to the interrelationship between rights and remedies.7 Whatever position one takes on this issue, the debate itself highlights the close relationship between remedies and rights. This discussion becomes even more complex if one distinguishes between remedies and standing,8 in which case

3 See, for example, M Tushnet, ‘Essay on Rights’ (1983) 62 Texas Law Review 1363; T Hayward, Constitutional Environmental Rights (Oxford University Press, 2005). 4 See R Dworkin, Taking Rights Seriously (Duckworth, 1977) xi; see also R Dworkin, ‘Rights as Trumps’ (1981) Arguing about the Law 335–44. 5 ibid. 6  Where there is a remedy there is a right. 7  On this debate see D Friedman, ‘Rights and Remedies’ in Nili Cohen and Ewan ­McKendrick (eds), Comparative Remedies for Breach of Contract (Hart Publishing, 2005) 3. 8  See, for example, R Fallon, ‘Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons’ (1984) 59 New York University Law Review 1.

Article 11 TFEU and Environmental Rights 157 one faces an analogous debate as to wherein the difference between these concepts really lies. In short, the question arises as to whether a remedy exists only where there is standing, or whether the question of remedy is separate and distinct from the question of whether one enjoys standing. In the environmental rights discourse, distinctions are often drawn between rights classified as ‘anthropocentric’ and those that are ‘ecocentric’; constitutional and ‘operational’ rights;9 and substantive and procedural rights approaches.10 In an anthropocentric approach, individuals are holders of rights that also protect the environment. An example of such rights is the right of an individual to stop neighbours from polluting his/her property. In contrast, in an ecocentric model, it is the environment itself that is entitled to protection as the holder of the right. It is in this ecocentric model, in particular, that the issues of remedies and standing come to the fore. Rights are also thought to exist either at an abstract constitutional level or at the more operational level, providing remedies in concrete cases. Such rights include, for example, a right to be compensated where an activity reduces biodiversity on a piece of land. However, while these operational rights may be highly effective, their effectiveness depends on issues of standing and the availability of remedies.11 With respect to substantive and procedural rights, both can be observed in the anthropocentric and the ecocentric context. It is essentially a question of how the protection of these rights is organised and reviewed. The key is that substantive rights can be safeguarded by means of a procedural approach that provides access to information, participation, and judicial or substantive review. Given the foregoing, a number of questions can be identified as important to the examination of Article 11 TFEU in the context of the environmental rights debates. First, can Article 11 TFEU be invoked in the sense of providing a political trump? If so, what are the consequences of breaching Article 11 TFEU? In other words, are any remedies available? Who, in that case, would have standing to bring a claim that Article 11 TFEU has been breached? Finally, how is a breach of Article 11 TFEU reviewed—by procedural or substantive review? These questions are discussed in the following sections, which will highlight the importance of pre-existing rights and their enabling function. III.  ARTICLE 11 TFEU AS A POLITICAL TRUMP CARD

The first question to be explored relates to the weight of Article 11 TFEU and whether it provides for ‘political trumps’ in the Dworkinian sense, 9 

This distinction is drawn in Reid, Chapter 2 in this volume. On this debate, Hayward (n 3) and Hilson,’ Chapter 4 in this volume. 11  See Colin T Reid’s chapter in this volume. 10 

158  Julian Nowag ensuring that collective goals are not used as a justification for imposing a burden on individuals. This requires an investigation of the EU’s historical efforts to improve the political weight of the obligation to integrate environmental protection. As discussed below, the EU’s long history of strengthening environmental protection in all areas can be observed in various Treaty changes,12 culminating in the adoption of Article 11 TFEU in its current form. These efforts now enable the integration of environmental considerations into nearly all areas of EU law. The aspiration to make environmental protection more relevant in the EU dates back to 1973 when Member States stressed the necessity of tackling transnational environmental problems, such as acid rain and watercourse management.13 Although it had no environmental competence, the EU enacted measures under the internal market and its gap filling competence (now Article 352 TFEU).14 The EU’s Court of Justice (ECJ) endorsed this approach and found that the restrictions on free movement imposed by the waste-oil disposal directive were justified by environmental protection as ‘one of the Community’s essential objectives’.15 From these early steps, the EU moved on to codify the root of what is now Article 11 TFEU in the Single European Act’s newly introduced title on the environment,16 which was aimed at addressing issues surrounding competence in the environmental field. In this newly introduced title, the second sentence of Article 130r(2) EC17 stated that ‘environmental protection requirements shall be a component of the Union’s other policies’.18 This clause was strengthened by the Maastricht Treaty,19 which changed the wording—replacing ‘shall be a component of’ with ‘must be integrated’, thereby imposing a justiciable requirement.20 In the preparatory discussions

12  For a detailed account of the discussions during the various Intergovernmental Conferences preparing the relevant Treaty changes see, J Nowag, ‘The Sky is the Limit: On the Drafting of Article 11 TFEU’s Integration Obligation and Its Intended Reach’ in Beate Sjåfjell and Anja Wiesbrock, The Greening of European Business under EU Law: Taking Article 11 TFEU Seriously (Routledge, 2014) 15–30. 13  See Declaration of the Council of the European Communities and of the representatives of the Governments of the Member States meeting in the Council of 22 November 1973 on the programme of action of the European Communities on the environment [1973] OJ C112/01. 14 For an overview see N de Sadeleer, EU Environmental Law and the Internal Market (Oxford University Press, 2014) 8–10. 15  Case 240/83 Procureur de la République v ADBHU [1985] ECR 531, 13. 16  On this new title and the competences in the environmental area, see e.g. Z Christian, ‘Environmental Law of the European Economic Community: New Powers under the Single European Act’ (1991) 14 Boston College International & Comparative Law Review 249. 17  [1987] OJ L169/1. 18  Thus, it has been said that ‘the Single European Act thereby gave birth to the integration’ obligation in EU law, see J Jans, ‘Stop the Integration Principle?’ (2010) 33 Fordham International Law Journal 1533, 1537. 19  [1992] OJ C224/1. 20  See J Jans and H Vedder, European Environmental Law (4th edn, Europa Law Publishing, 2012) 26–27; A Weidemann, Die Bedeutung der Querschnittsklauseln für die K ­ ompetenzen

Article 11 TFEU and Environmental Rights 159 in the Intergovernmental Conference negotiating these changes to be introduced by the Maastricht Treaty, the European Commission (Commission) had advocated for a ‘tighter and more forceful’ environmental integration ‘in order that genuine account is taken of the environment in the definition and implementation of other policies’.21 The amendment to include the phrase ‘must be integrated’ stems from the Commission’s suggestion. The Commission described the original wording as imprecise, finding that it would ‘record a fact rather than impos[e] an obligation’ and would be vague in terms of ‘the practical implications’.22 Moreover, the Commission’s proposal aimed at clarifying the extent of the obligation, adding the words ‘into the definition and implementation of other Community policies’.23 These Maastricht amendments widened the scope of the Article from merely requiring that environmental protection be a component of ‘other policies’24 to an obligation to take them into account in ‘the definition and implementation’ of those policies.25 In terms of the Dworkinian definition of rights as providing a political trump card, the Maastricht changes were arguably a step forward. While previously, environmental issues needed simply to be considered,26 the Maastricht Treaty made clear that ‘mere consideration without action [would] no longer be sufficient’.27 The Maastricht version was subsequently made yet stronger by the Amsterdam Treaty, which further broadened the scope of the Maastricht provisions, making its environmental protection requirements applicable in all areas of EU law.28 In particular, the Intergovernmental Conference for the Amsterdam Treaty moved the obligation from the second sentence of

innerhalb der Europäischen Gemeinschaft: Eine Untersuchung aus deutscher Sicht (Lang, 2009) 74; M Wasmeier, ‘The Integration of Environmental Protection as a General Rule for Interpreting Community Law’ (2001) 38 Common Market Law Review 159, 160; H Martin and M Richard, ‘Maastricht and the Environmental Policy of the Community: Legal Issues of a New Environment Policy’ in David O’Keeffe (ed), Legal issues of the Maastricht Treaty (Chancery Law, 1994) 155; T Portwood, Competition Law & the Environment (Cameron May, 2000) 79. 21 

Commission Submission to the IGC (10 April 1991) Conf-UP 1761/91 3. ibid 5. 23 ibid. 24  The range of EU policies is very broad and has been extended over the years. These days it ranges from exclusive competences in areas such as rules for the establishment and functioning of the internal market or the common commercial policy to shared competences such as consumer protection, transport or environmental protection. See in this regard Articles 3 and 4 TFEU. 25  For a similar argument, see Jans (n 18) 1537. 26  Portwood (n 20) 79. 27 ibid. 28  See European Commission Directorate General XI Report on the Meeting on Environmental Aspects of the Intergovernmental Conference (4 August 1995) XI/016193; Introductory Note by the Irish Presidency to the IGC (17 September 1996) CONF 3907/96 3. For an overview, see also Nowag (n 12). 22 

160  Julian Nowag Article 130r (2) EC into a new Article, Article 6 EC, and placed it among the ‘Principles’ at the beginning of the Treaty. The Amsterdam Treaty, moreover, introduced the linkage between environmental protection and sustainable development. The new clause highlighted that environmental integration should take place ‘in particular with a view to promoting sustainable development’. The most recent changes under the Lisbon Treaty did not substantially alter the obligation to integrate environmental considerations but they grouped it with other policy-linking clauses29 under one single heading; the ‘Provisions Having General Application’.30 In terms of the importance of environmental protection in the Lisbon Treaty, one might equally m ­ ention the preamble of the Treaty on European Union (TEU), which calls for promoting ‘economic and social progression … taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection’. These changes have, on occasion, been criticised for diluting environmental protection, given that all policy-linking clauses are now grouped together.31 However, this new constitutional arrangement seems not to affect the obligation as such,32 but should instead be seen as merely organisational in bringing together (nearly) all policy-linking clauses into one place. More importantly, however, the wording of the integration clauses33 remains substantially distinct. Only environmental protection is a requirement that ‘must be’ integrated, while others ‘shall be’ integrated.34

29 

See Articles 7–12 TFEU. Moreover, with the Lisbon Treaty the EU Charter of Fundamental Rights became binding. Article 37 of the Charter is rather similar to Article 11 TFEU because it states that ‘a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. For a discussion of Article 37, see Scotford, Chapter 6 and Gill-Pedro, Chapter 9 in this volume. 31  O Mcintyre, ‘The Integration Challenge: Integrating Environmental Concerns into other EU Policies’ in Suzanne Kingston (ed), European Perspectives on Environmental Law and Governance (Taylor and Francis, 2013) 138. Along the same lines, see Jans (n 18) 1543–44, who regards the main change as one of policy area rather than legal situation. 32  See Nowag (n 12) 26–28. 33  The general principle of consistency of Article 7 TFEU; Article 8 TFEU (equality between men and women); Article 10 TFEU (discrimination); Article 12 TFEU (consumer ­protection); Article 13 TFEU (animal welfare); Article 147(2) TFEU and Article 9 TFEU (employment, social protection and exclusion); Article 167(4) TFEU (culture); Article 168(1) TFEU (public health); Article 173(3) TFEU (industrial policy); Article 175 TFEU (regional policy); ­Article 208(1) 2 sentence of the 2 sub-para TFEU (development cooperation). 34 See also W Frenz, ‘Umwelt- und Tierschutzklausel im AEUV’ (2011) 33(2) NuR 103, 105–07 regarding animal welfare; and L Krämer, ‘Giving a Voice to the Environment by Challenging the Practice of Integrating Environmental Requirements into other EU Policies’ in Suzanne Kingston (ed), European Perspectives on Environmental Law and Governance (­Taylor and Francis, 2013) 84, which explains that the other integration clauses would only require Member States to ‘deploy best efforts’ or ‘to consider’ a certain matter. 30 

Article 11 TFEU and Environmental Rights 161 Overall, the history35 of Article 11 TFEU suggests that sectoral policies must take account not only of their own particular concerns, but also of environmental ones.36 As such, a given measure may need to be revised or even omitted depending on its environmental implications.37 Consequently, Wasmeier argues that Union law ‘should basically be interpreted in a way that renders it consistent with environmental protection requirements’.38 When viewed in its historical perspective, the continuous strengthening of the environmental integration obligation and its increased political weight therefore seems to support the view that environmental protection within the EU legal order provides something close to a political trump card; that is, a Dworkinian right. This idea finds further support in the case law explored in the following section. IV.  CONSEQUENCES OF BREACHING ARTICLE 11 TFEU

Having established the growing importance of Article 11 TFEU’s obligation to integrate environmental protection, this section examines the case law of the Court of Justice, demonstrating that measures are liable for annulment by the European Courts where Article 11 TFEU is not complied with. Indeed, Advocate General (AG) Jacobs highlighted in PreussenElektra that ‘Article [11] is not merely programmatic; it imposes legal obligations’.39 As discussed below, the possible consequences of this legal obligation are

35  The original intentions of the Member States support this view; see Nowag (n 23). On the increasing relevance of the intentions and travaux preparatoires in the Courts’ case law, see S Miettinen and M Kettunen, ‘Travaux to the EU Treaties: Preparatory Work as a Source of EU Law’ (2015) 17 Croatian Yearbook of European Legal Studies 145. 36  D McGillivray and J Holder, ‘Locating EC Environmental Law’ (2001) 20 Yearbook of European Law 139, 152. Moreover, the Commission emphasised that ‘environmental policy alone cannot achieve the environmental improvements needed as part of sustainable development’, European Commission, Integration of Environmental Considerations into other Policy Areas—a Stocktaking of the Cardiff Process COM(2004) 394 final 2. 37  A Lenschow, ‘Greening the European Union: An Introduction’ in Andrea Lenschow (ed), Environmental Policy Integration: Greening Sectoral Policies in Europe (Earthscan, 2002) 7. 38 Wasmeier (n 20) 161–62. It could even be argued that environmental protection has become one of the objectives of the Union’s other sectoral policies. For example, in the area of agricultural policy the Court of Justice found that ‘the essential objectives of the [Union] … must be regarded as an objective which also forms part of the common agricultural policy’, see Case C-428/07 Horvath [2009] ECR I-6355, 29. 39  Opinion of AG Jacobs, Case C-379/98 PreussenElektra v Schleswag [2001] ECR I-2099 231; see also Opinion of AG Mengozzi, Case C-487/06P British Aggregates v Commission [2008] ECR I-10515, 102. In terms of the literature see S Bär and A Kraemer, ‘European Environmental Policy after Amsterdam’ (1998) 11(2) Journal of Environmental Law 313, 318; B Sjåfjell, ‘Quo Vadis, Europe?: The Significance of Sustainable Development as Objective, Principle and Rule of EU Law’ in Cecilia Bailliet (ed), Non-state Actors, Soft Law and Protective Regimes: From the Margins (Cambridge University Press, 2012) 266; Hancher and S­ evenster (n 29) 25 as well as T Schumacher, ‘The Environmental Integration Clause in ­Article 6 of the EU Treaty: Prioritising Environmental Protection’ (2001) 3 Environmental Law Review 29, 32.

162  Julian Nowag exemplified in Safety Hi-Tech,40 as well as in ­Jippes and others.41 There are, however, practical limitations to this finding, which will be further discussed in Sections V and VI below. First, in Safety Hi-Tech, the ECJ examined an infringement of the environmental integration obligation where the EU had adopted a regulation that prohibited the use of hydrochlorofluorocarbons (HCFCs) with the aim of protecting the ozone layer. HCFCs were used in a range of products, one of which was fire extinguishers. The ECJ examined the validity of the regulation in the context of a preliminary reference, which originated from a contractual dispute in Italy and where the validity of the EU regulation was questioned. In the Court’s review, it assessed in particular whether the Council, which had adopted the regulation, had infringed Article 11 TFEU.42 The ECJ held that Article 11 TFEU was not infringed because the Council had not exceeded the bounds of its discretion. The Council’s sole focus on the potential for ozone depletion of the HCFCs would not suffice to establish that the bounds of discretion had been exceeded. The Council was therefore not required to compare and consider HCFCs’ potential contribution to global warming or compare their atmospheric lifetime to that of other substances.43 The ruling in this case clearly demonstrates, on the one hand, that measures need to comply with the integration obligation, or they will be liable to annulment.44 On the other hand, it also shows that an annulment is unlikely. This low probability is the result of the wide discretion that is accorded to the EU institutions when balancing environmental requirements with other objectives of the Union.45 Jippes and others points in a similar direction without being directly related to the environmental integration obligation under Article 11 TFEU but rather to the requirement to integrate considerations of animal welfare, now contained in Article 13 TFEU. This case concerned a directive that the EU had adopted as a response to the outbreak of the foot-and-mouth disease in the Netherlands and other EU States. Foot-and-mouth is a highly infectious and potentially fatal virus that infects cloven-hoofed animals, such as cattle

40 

Case C-341/95 Gianni Bettati v Safety Hi-Tech Srl [1998] ECR I-4355, 30. Case C-189/01 Jippes and Others [2001] ECR I-5689, EU:C:2001:420, 80. 42  Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl (n 40) 30. 43  ibid 53. 44 In this line also Wasmeier (n 20) 164; H Zils, Die Wertigkeit des Umweltschutzes in Beziehung zu anderen Aufgaben der Europäischen Gemeinschaft: Untersuchungen zur Anwendung der Querschnittsklausel Art. 130r Abs. 2 Satz 2 EWGV im Gemeinschaftsrecht (v. Decker, 1994) 32–33; S Kingston, ‘Integrating Environmental Protection and EU Competition Law: Why Competition Isn’t Special’ (2010) 16 Environmental Law Journal 780, 786; T Beyer, ‘Europa 1992: Gemeinschaftsrecht und Umweltschutz nach der Einheitliche ­Europäische Akte’ [1990] JUS 962, 966; L Krämer, EU Environmental Law (8th edn, Sweet & Maxwell/Thomson Reuters, 2015) 1; Sjåfjell (n 39) 269–70. 45  See Section VI below. 41 

Article 11 TFEU and Environmental Rights 163 and pigs, and that may be carried by an individual animal even after ­recovery. The directive imposed a general ban on the vaccination of animals against the disease for monitoring reasons. It contained an exception to the vaccination prohibition for cases of confirmed outbreaks where a risk existed that the outbreak could become extensive. The validity of this directive was challenged in the Netherlands by animal rights activists, arguing that the directive would expose animals to unnecessary pain or suffering and that this risk to animal welfare had not been taken into account. At the time, Article 13 TFEU did not yet exist and the Court highlighted that the existing Protocol would not establish ‘any well-defined general principle of [Union] law’ with regard to animal welfare.46 Nevertheless, the Court relied on previous case law, and more precisely United Kingdom v Council47 to reach the conclusion that the EU institutions’ broad discretion would have to take account of animal welfare and that the ‘[F]ulfilment of that obligation can be verified, in particular, in the context of a review of the proportionality of the measure’.48 These rulings highlight the potential reach of the environmental integration obligation. The EU courts may strike down measures that do not comply with Article 11 TFEU, which seems to support the view that Article 11 TFEU can be used as a political trump card within a Dworkinian conception of rights. Yet it is striking that no measure has ever been struck down by the courts on the basis of an infringement of the numerous integration clauses.49 The next section highlights some of the practical limitations that might explain this lack of concrete results, in particular the issue of standing. V.  STANDING AND ARTICLE 11 TFEU

Having explored the possible consequences of non-compliance with Article 11 TFEU’s integration obligation, this section turns to the important question of in what cases an infringement of Article 11 TFEU can be argued before the courts, and by whom. It will be demonstrated that the issue of standing is a substantive practical limitation on the characterisation of ­Article 11 TFEU as a right. First, this section explains that an infringement of Article 11 TFEU does not provide standing at EU level. It then compares Article 11 TFEU to Article 34 TFEU, which regulates the free movement of goods. However, the comparison is one only in terms of direct effect in order

46 

Case C-189/01, Jippes and Others (n 41) 73. Case 131/86 United Kingdom v Council [1988] ECR 905, para 17. 48  ibid 79. 49  Therefore, the argument might be made that these obligations of the EU institutions will never be taken seriously until a court strikes down a measure, see Krämer (n 44) 11. 47 

164  Julian Nowag to highlight the limited availability of judicial review of Article 11 TFEU at the national level. A.  Article 11 and Standing at EU Level At the EU level, the case law has not yet directly addressed the issue of a breach of Article 11 TFEU and standing. Nevertheless, a number of cases concern issues of standing in a context where Article 11 TFEU may well have been argued, as the EU policies in question had substantial environment effects, which appeared not to have been addressed. The starting point for issues regarding standing is Article 263 TFEU, which sets out that only privileged applicants, namely the Parliament, the Council, the Commission and Member States, can bring actions for annulment without further limitations being imposed. For other applicants, the more stringent conditions of the ‘direct and individual concern’ test applies.50 The basic principles of this test and its application to ENGOs51 were established in the 1990s, in the cases of An Taisce and WWF52 and in Greenpeace International.53 In An Taisce and WWF the General Court (GC) had to decide on the legality of the provision of EU structural funds.54 The funds were designated for the development of areas of natural beauty and special scientific interest. More precisely, the Irish government had applied for such funds to build a visitor centre and to promote tourism in a national park. Yet, the government had failed to carry out the environmental impact assessment required by EU law. After the Commission decided not to bring an infringement action against Ireland, An Taisce and WWF brought an action for annulment on grounds that the Commission had not used its powers to slash the

50 See Case 25/62 Plaumann v Commission [1963] ECR 95; C-50/00 UPA v Council [2002] ECR I-6677; C-263/02 Commission v Jégo-Quéré [2004] ECR I-3425; Case C-583/11 P, Inuit Tapiriit Kanatami v European Parliament C:2013:625; Case T-262/10 Microban EU:T:2011:623. On the developments see also S Bogojević, ‘Judicial Protection of Individual Applicants Revisited: Access to Justice through the Prism of Judicial Subsidiarity’ (2015) 34 Yearbook of European Law 5. 51  On the issue of standing for environmental NGOs in the EU and Aarhus, see B Pirker, ‘Access to Justice in Environmental Matters and the Aarhus Convention’s Effects in the EU Legal Order: No Room for Nuanced Self-executing Effect?’ (2015) 25 Review of European, Comparative & International Environmental Law 81–91; H Schoukens, ‘Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?’ (2015) 31 Utrecht Journal of International and European Law 46–67. 52  Case T-461/93 An Taisce and WWF v Commission [1994] ECR II-733, which was upheld by Case C-325/94P An Taisce and WWF UK [1996] ECR I-3727. 53  Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, confirmed on appeal by Case C-321/95P Greenpeace and Others v Commission [1998] ECR II-1651. 54  EU structural funds are funds that support the implementation of the EU’s regional policy, in particular reducing regional disparities of wealth, income and opportunities.

Article 11 TFEU and Environmental Rights 165 funding for the project in question. In this case, the Court was able to sidestep the thorny issue of standing by finding that the Commission had not implicitly made a decision regarding the funding; it had only decided not to initiate infringement proceedings.55 In Greenpeace International, the courts finally had to address the issue of standing. The case concerned an EU decision to make structural funds available to Spain to build power plants in different areas of the Canary Islands. Once again, however, the relevant environmental impact assessments had not been carried out. Greenpeace International, as well as a number of individuals, challenged the Commission decision to release the structural funds to Spain. The Court maintained its strict ‘direct and individual concern’ approach to standing and held that Greenpeace was not individually concerned. No special circumstances had been presented that distinguished Greenpeace’s ‘individual interest [from that of] any other person residing in those areas’.56 Nor could Greenpeace show any formal involvement as an interlocutor in any procedure that had been invoked before the Commission decided to support the project or to expend funds.57 This strict approach to standing has been consistently upheld in subsequent cases, such as Jégo-Quéré58 and Inuit.59 In Vereniging Milieudefensie, moreover, the ECJ made clear that even the Aarhus Convention60 would be of no help in cases regarding standing for ENGOs. It held that the Convention could not be used as a standard for review of the implementation of Aarhus regulation as the Convention required implementing measures and so was neither unconditional nor sufficiently precise.61 As a result of the development and use of the direct and individual concern test, a general infringement of Article 11 TFEU does not suffice to provide standing for non-privileged applicants. In such cases, it is necessary to show that there are factors that distinguish the claimant from others potentially affected. In other words, there must be an infringement of some other pre-existing rights or interests such as property rights or, as suggested by Greenpeace International, rights to participate in decision-making procedures, whether at legislative or local level. These rights or interests serve an enabling function. Only if claimants can plead an infringement of such

55 

Case T-461/93, An Taisce and WWF v Commission (n 52) paras 32–39. Case T-585/93, Greenpeace and Others v Commission (n 53) para 60. 57  ibid para 62. 58 C-263/02 Commission v Jégo-Quéré [2004] ECR I-3425. 59  Case C-583/11 P, Inuit Tapiriit Kanatami v European Parliament EU:C:2013:625. 60  United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (conclusion Aarhus 28.06.1998, entry into force 30.10.2001) 2161 UNTS 447. 61  Joined Cases C-401/12 P to C-403/12 P Vereniging Milieudefensie EU:C:2015:4, para 55. See also Darpö, Chapter 11 in this volume. 56 

166  Julian Nowag a right or interest can they have standing. In turn, this standing allows for advancing the ancillary plea of an infringement of Article 11 TFEU. This situation, which is often described as unsatisfactory,62 is justified by the ECJ with reference to the systems of remedies in the EU, where the national courts provide an alternative avenue for legal protection via the preliminary reference procedure.63 However, as demonstrated in the following section, this argument seems inconsistent in the context of Article 11 TFEU, given that pleading Article 11 TFEU at the national level is equally dependent on the enabling function of pre-existing rights or interests. B.  Article 11 and Standing at National Level Before turning to an examination of the issue of standing and Article 11 TFEU in national courts, we must note that Article 11 TFEU also binds national courts when these are acting in their capacity as Union entities, namely when applying Union law.64 This stems from the nature of EU law and the wording of Article 11 TFEU, which refers to the ‘implementation’ of EU law. If the application of Article 11 TFEU were to be restricted to Union institutions only, Article 11 TFEU would be meaningless, given that it is the Member States that apply EU law. Effectiveness, therefore, requires that Article 11 TFEU applies to both the Member States and the EU when these ‘implement’ Union law.65 This argument finds support in the ECJ’s Concordia Bus judgment. In this case, the ECJ relied on Article 11 TFEU in interpreting EU procurement law, finding that national contracting authorities could rely on criteria ‘relating to the preservation of the environment’66 when assessing the economically most advantageous tender. In this sense, the scope of Article 11 TFEU can be compared to that of EU fundamental rights. These are equally applicable whenever EU law is implemented by the Member States.67 While Article 11 TFEU therefore comes into play in the context of the application of EU law in national courts, it is a separate question whether an infringement of that Article alone is sufficient to grant standing to some party. One the one hand, there seems to be no reason why national

62 

See Pirker (n 51); Schoukens (n 51). See Case C‑456/13P T & L Sugars Ltd and Sidul Acucares v Commission EU:C:2015:284, paras 42–49. 64  For a detailed examination see J Nowag, Environmental Integration in Competition and Free-Movement Laws (Oxford University Press, 2016) 21–24. 65 ibid. 66  Case C-513/99 Concordia Bus v Helsingin Kaupunki [2002] ECR I-7213, para 57. 67 See Case 5/88 Wachauf v Germany [1989] ECR 2609; Case C-292/97 Karlsson and ­others [2000] ECR I-2737 and Article 51(1) EU Charter of Fundamental Rights. 63 

Article 11 TFEU and Environmental Rights 167 ­ rocedural law should be prevented from allowing standing in such cases. p On the other hand, Article 11 TFEU does not appear, contrary to AG ­Cosmas’ assessment,68 to have direct effect. This becomes particularly clear if one compares Article 11 TFEU with the EU’s foundational free movement of goods provisions.69 In comparing the wording of Article 11 TFEU with a provision such as Article 34 TFEU, which does enjoy direct effect, no apparent substantive differences seem to exist. Both seem to contain a command. While Article 34 TFEU highlights that ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’, Article 11 TFEU firmly announces that ‘Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities …’. Thus both Articles also seem to be protecting common interests—free trade and environmental health—from which the individual can derive benefits. However, the main difference is that Article 34 TFEU commands the Member States to abolish quantitative restrictions on imports and measures having equivalent effect while Article 11 TFEU commands the EU to integrate environmental protection requirements. From the textual point of view, this seems to be the only minor difference. Yet, the consequences of the two Articles are substantially different. This difference derives from whether the Article can be invoked before a national court as an independent ground for review. As early as 1963, the ECJ declared in the seminal Van Gend en Loos case that Article 30 TFEU— the prohibition of customs duties and charges having equivalent effect on imports and exports—could be relied upon by individuals in national courts to challenge the validity of national measures.70 The same applies to Article 34 TFEU.71 Thus, the direct effect of these provisions allows individuals to use these rule to challenge any restriction of the free movement of goods. This implies that the individual has standing in national courts to challenge such measures. A similar development cannot be observed with regard to Article 11 TFEU. There are numerous reasons that may explain this difference between Articles 34 and 11 TFEU. First, one may question whether Article 11 TFEU is sufficiently precise and unconditional. Although as explained above, the wording alone does not seem to suggest a substantial difference from that of

68  Opinion of AG Cosmas, Case C-321/95P Greenpeace International v Commission [1998] ECR I-1651, 62. 69  Case C-320/03 Commission v Austria [2005] ECR I-9871, para 63; Case C-265/95 Commission v France [1997] ECR I-6959, para 24. 70  See Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. 71 See eg the seminal decision in Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

168  Julian Nowag Article 34 TFEU. Second, and perhaps more importantly, Article 34 TFEU is primarily addressed to Member States while Article 11 TFEU is primarily addressed to the EU. What this means, to put it bluntly, is that the Court has to decide on someone else’s obligations—not obligations of the EU. In other words, direct effect of Article 34 TFEU primarily affects the Member States while direct effect of Article 11 TFEU would primarily affect the EU. Moreover and relatedly, the establishment of direct effect for Article 34 TFEU ensures an additional enforcement mechanism for EU law,72 thereby decreasing the workload of the Commission and the subsequent caseload of the Court itself.73 In the same vein, standing to enforce Article 34 TFEU does not mean that a great number of applicants will bring cases to the Court of Justice or more precisely the GC.74 Such cases involving Article 34 TFEU are typically brought in national courts against national measures. It is only when such cases raise difficult questions of EU law that the case is referred for a preliminary ruling to the ECJ under the procedure of Article 267 TFEU. In contrast, cases pleading an infringement of Article 11 TFEU would typically be brought directly to the GC because the annulment proceedings for EU acts under Article 263 TFEU is the primary legal recourse. Thus, Article 34 TFEU enforcement via direct effect does not substantially increase the workload of the Court. In contrast, recognising direct effect for Article 11 TFEU could well result in an increased workload. We must bear in mind, moreover, that the ECJ already established its restrictive approach to standing in Plaumann,75 a case decided long before Article 11 TFEU and its predecessors were conceived. The ECJ would either have to change the Plaumann doctrine or provide some kind of exception for Article 11 TFEU cases. While issues of direct effect and standing under Article 263 TFEU have to be distinguished, the substantive difference between Articles 34 and 11 TFEU remains. Article 34 TFEU provides individuals with rights that they can enforce in national and EU courts. Article 11 TFEU, by contrast, provides no such right.76 Rather, an Article 11-based claim is only possible

72  For an empirical examination of its effectiveness in the area of environmental protection see R Slepcevic, ‘The Judicial Enforcement of EU Law Through National Courts: Possibilities and Limits’ (2009) 16 Journal of European Public Policy 378–94. 73  Direct effect for Article 34 TFEU means that individuals can bring action regarding its infringement in national courts. Thus, the usual enforcement mechanism (enforcement action by the European Commission in front of the Court of Justice) is complemented by private enforcement in national courts. On the enforcement system of EU law see eg Slepcevic (n 72). 74  The General Court is the first instance Court within the institution called the Court of Justice of the European Union. The second and final instance within this institution is the Court of Justice (CJ), see Articles 13 and 19 TEU. 75  Case 25/62 Plaumann v Commission [1963] ECR 95. 76 But see the previous section and subsequent sections for the enabling function of Article 11 TFEU in terms of providing a standard to review measures.

Article 11 TFEU and Environmental Rights 169 as an ancillary plea, dependent on the enabling function of standing on the basis of pre-existing rights or interests. As a result, even if questions of standing were considered to be merely technical, procedural questions, the practical problems related to whether a claim based on Article 11 TFEU can be brought raise serious questions as to whether Article 11 TFEU indeed provides a right in the Dworkinian sense. The next section highlights some further limitations that stem from the standard of review employed in the context of Article 11 TFEU. VI.  REVIEW: PROCEDURAL OR SUBSTANTIVE?

We have just seen how Article 11 TFEU and the possibility of reviewing compliance have been strengthened, and considered the problems of standing. This section turns to a further practical limitation of Article 11 TFEU: the standard of review, which has turned out to be a weak substantive one, without any procedural requirements imposed by Article 11 TFEU. As already explained,77 the EU courts have so far never struck down a measure for failing to comply with one of the integration clauses. The two main cases in which an infringement of an integration clause was investigated are Safety Hi-Tech78 and Jippes and others,79 explored in Section IV above. In both cases, the ECJ reviewed the EU measure for compliance with an integration clause. But because of the broad discretion that EU institutions enjoy when adopting such measures, the Court found that these clauses had not been infringed. In Safety Hi-Tech, recall, the ECJ reviewed the legality of an EU regulation prohibiting the use of HCFCs in light of both Article 11 TFEU and the provision on free movement of goods. Ultimately, the Court upheld the regulation because the Parliament had not exceeded the bounds of discretion by committing a manifest error of appraisal.80 The ruling highlighted the importance of available scientific and technical data for the adoption of the measure. First of all, the Court explained that the regulation took particular account of the available scientific and technical data.81 Based on this data the Parliament was justified in prohibiting the use of HCFCs because replacements were available, while for other substances such replacements were not available.82 Secondly, the ECJ highlighted that the regulation even provided for a procedure that allowed the Commission to amend the list

77 

See Section IV above. Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl (n 40). 79  Case C-189/01, Jippes and Others (n 41). 80  Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl (n 40) para 53. 81  ibid paras 49–50. 82  ibid para 52. 78 

170  Julian Nowag of prohibited ozone-depleting substances based on technical progress and newly available scientific and technical data.83 Thus, should new substitutes become available, other substances could be added to the list of prohibited substances. Similarly, there was the potential for review if a new use for HCFCs should be discovered in situations where no substitutes were available. This meant that the prohibition did not exceed the bounds of discretion and the regulation also passed the proportionality test under ­Articles 1184 and 34 TFEU.85 This broad discretion was also the crucial point in Jippes and others where the Court reemphasised that the Community legislature enjoys a wide discretionary power … Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its power of assessment.86

Additionally, the ECJ clarified that in examining whether the institution’s assessment was manifestly erroneous, the information available at the time of the adoption was the relevant yardstick. This was the case in particular when future effects are assessed and yet ‘cannot be accurately foreseen’.87 AG Geelhoed characterised the Court’s approach in Austria v European Parliament and Council as follows: ‘It is only where ecological interests manifestly have not been taken into account or where they have been completely disregarded that Article [11 TFEU] may serve as the standard for reviewing the validity of Community legislation’.88 This observation indicates that the standard applied is a substantive one. It seems that the Court will only intervene in extreme cases of disregard for the obligations in Article 11 TFEU. In Safety Hi-Tech the Court seemed, moreover, to apply its general proportionality test in the context of ­Article 11 TFEU. However, the test of proportionality seems to have made little if any difference, as the finding regarding the margin of discretion was also adopted in the application of this test. Furthermore, numerous cases89

83 

ibid para 51. ibid paras 55–58. 85  ibid paras 60–65. 86  Case C-189/01, Jippes and Others (n 41) para 80. 87  ibid para 84. 88  Opinion of AG Geelhoed, Case C-161/04 Austria v Parliament and Council [2006] ECR I-7183, 59. The Court, unfortunately, did not issue a judgment in this case as Austria withdrew its action. 89  See eg Case C-331/88 Queen v Minister of Agriculture, Fisheries and Food and Secretary State for Health ex parte Fedesa et al [1990] ECR I-4023; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA Ltd and Others v Secretary of State for Health and Others [2005] ECR I-10423; Case C-183/95 Affish BV v Rijksdienst voor de Keuring van Vee en Vlees [1997] ECR I-4315; Case C-210/03 Swedish Match AB and Swedish Match UK Ltd [2004] ECR I-11893; Case C-310/04 Spain v Council (Cotton support scheme) [2006] ECR I-7285; 84 

Article 11 TFEU and Environmental Rights 171 show that the proportionality test, as applied to EU measures, is based on providing broad discretion to EU institutions.90 In this sense, the review of Article 11 TFEU is neither more lenient nor more stringent than the proportionality test, but rather simply reflects the standard of review of EU acts adopted by EU courts. The notion of a substantive review subject to a broad margin of discretion also implies that there are no procedural requirements that, as such, can be invoked to ensure that environmental protection requirements are integrated. This absence of procedural requirements means that the institutions may carry out studies examining the impact of activities and policies on the environment, but falls short of a general requirement to do so.91 Where no study has been carried out, the institutions merely face the risk of having overlooked an obvious issue of relevance. Only where this is the case will the Court seem likely to find that the institution has manifestly exceeded the limits of its discretion. However, as the case law shows, the risk of such an adverse finding seems negligible. This is a further reason to doubt that Article 11 TFEU confers a right in Dworkin’s sense. However, if the Court were to strengthen its review by imposing some procedural requirements,92 for example, Article 11 TFEU might begin to take on the characteristics of a political trump card. VII.  POSITIONING ARTICLE 11 TFEU

Having explored the development of Article 11 TFEU, the possibility of declaring void any measure breaching it, the limitation both in standing and in review, we may now attempt to position Article 11 TFEU in the context of rights. Overall, a rather murky, even messy, picture emerges. ­Article 11 TFEU’s statement that ‘Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities’ seems to support the view that the Article could be seen as providing an ecocentric right, given that the requirement is not attached

Joined Cases C-402/05 and C-415/05 Yassin Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351. 90 See eg A Fritzsche, ‘Discretion, Scope of Judicial Review and Institutional Balance in European Law’ (2010) 47 Common Market Law Review 361–403. 91  However, such a requirement might be developed in the future based on the Commission’s commitment to carry out regulatory impact assessments, see X Groussot and J Nowag, ‘From Better Regulation to Better Adjudication? Impact Assessment and the Court of Justice’s Review’ in Sascha Garben and Inge Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Hart Publishing, forthcoming 2018). 92  See Nowag (n 64) 277–82, regarding options for such procedural requirements based on experience in the area of subsidiarity review.

172  Julian Nowag to an individual. Article 11 TFEU rather seems to protect the environment as such, and for its own sake.93 In this sense this ecocentric right would be abstract, applicable at the level of the Constitution rather than the procedural level. This ecocentric interpretation of Article 11 TFEU is supported by its drafting history and its continuous strengthening over time, which has seen it move from a merely aspirational statement buried deep in a Treaty to a strongly worded provision imposing a definite obligation and positioned at the beginning of a Treaty. This development is reflected in the European Court of Justice’s case law and in the development of allowing judicial review of measures to ensure their compliance with Article 11 TFEU. However, recalling Dworkin’s definition of rights as providing individuals with political trumps such that ‘a collective goal is not a sufficient justification for denying [the individuals] what they wish … or for imposing some loss or injury upon them’,94 serious doubts as to the veracity of this proposition arise. To begin with, it is not entirely clear that ecocentric rights can even exist. Must the holder of a trump card not be a person? In addition, Article 11 TFEU seems to fail as a right since it does not provide any substantive or procedural right of its own accord. Article 11 TFEU’s usefulness to individuals presupposes an already pre-existing right, which provides an enabling function to the Article. With reference to a pre-existing right, the individual may pass the strict standing test in order to gain access to the EU courts or find a route to challenging the measure through the preliminary reference procedure via the national courts. Nevertheless, if the focus is diverted away from the individual, Article 11 TFEU may be viewed as something close to a positive right; a right that requires action on behalf of the State or at least the implementation of certain safeguards. In this way, it can be seen as a rule of conduct for EU institutions, whose compliance with it can be examined by the courts. If this analysis is correct, then interesting questions emerge. Compliance with this rule of conduct can always be required and the institutions can be held to account in this regard by privileged as well as non-privileged applicants under the standing requirements described above. Article 11 TFEU may then legitimately be labelled an obligation. However, if the Article provides a genuine obligation, the pertinent question is whether obligations can exist in the absence of any right to demand compliance. In addition, if privileged applicants and, in certain situations, non-privileged applicants, can demand compliance with the obligation, does that mean Article 11 TFEU provides a right? Arguably it is in the very nature of ecocentric rights that there is

93  This might not be surprising given that environmental protection is also an aim of the European Union, as Article 3(3) TEU clarifies, something that was recognised already before the Treaties made it explicit, see Case 240/83, Procureur de la République v ADBHU (n 15) 13. 94 Dworkin, Taking Rights Seriously (n 4) xi.

Article 11 TFEU and Environmental Rights 173 a split between the holder of the right—the environment as such—and the question of who can bring a case where the right is infringed. Moreover, when thinking about Article 11 TFEU as an ecocentric right, another function should be highlighted. Article 11 TFEU can be invoked to shield environmental measures from challenges based on EU law or to provide further legitimacy to environmental protection as a mandatory ­requirement.95 For example, Member States are able to justify measures restricting EU free movement provisions based on environmental protection considerations. In Commission v Austria,96 the Court was faced with measures prohibiting lorries weighing more than 7.5 tonnes and carrying certain types of goods from using roads other than for local transportation. When the justification of these measures was discussed, the Court referred to its settled case law on the environment as a mandatory requirement,97 and pointed to the protection of the environment as a fundamental objective of the Union, as well as to Article 11 TFEU.98 Finally, the issue of the standard of review raises a number of questions, not least whether rights can ever be said to exist where the standard of review is relaxed to the extent envisioned by Article 11 TFEU. On the one hand it might be asked whether the standard of review could be made sufficiently stringent to call Article 11 TFEU a right. Yet, this would leave open the question when the standard would be sufficiently stringent to call Article 11 legitimately a right. On the other hand, one could set aside these questions concerning our definition of rights and simply stipulate that Article 11 TFEU and many other provisions establish rights. Such rights would then be said to exist as long as the provision allows for at least some kind of review, no matter how weak this review is. VIII. CONCLUSION

This chapter has explored the extent to which Article 11 TFEU can be seen as providing an environmental right. It showed that Article 11 TFEU might well satisfy some of the traditional conditions associated with rights. The chapter has shown the growing political weight of environmental concerns in the EU, and the constant strengthening of the environmental integration obligation as found under Article 11 TFEU in the constitutional history of the EU. Moreover, the option of reviewing EU acts for compliance with

95  It might, however, come into play also in the context of competition or state aid law, see Nowag (n 64). 96  Case C-320/03 Commission v Austria [2004] ECR I-3593. 97  ibid 70. 98  ibid para 73.

174  Julian Nowag Article 11 TFEU suggests similarities with rights. Nevertheless, the chapter also showed that the picture is not as clear as one might hope. This is because Article 11 TFEU does not directly provide standing for individuals; instead, action based on this Article requires pre-existing rights. These rights provide individuals with standing and therefore with the opportunity to advance a claim that Article 11 TFEU has been infringed. The second caveat in terms of referring to Article 11 TFEU as a right concerns the standard of review. The broad discretion that EU institutions enjoy when environmental ­matters are involved does not square well with the notion of rights. The inconclusive picture of Article 11 TFEU presented here raises a n ­ umber of questions that must be answered before we can determine whether the Article confers a right. These questions relate in particular to Dworkin’s definition of rights as political trump cards held by individuals. Without conclusive decisions on whether a right is necessarily connected to the standing of individuals and whether rights can exist in areas of d ­ iscretion,99 the question of whether Article 11 TFEU is a right seems futile. However, even if such a firm position is reached, the question remains whether this position should be applicable to the area of environmental rights. This is because environmental rights, in particular ‘ecocentric’ ones, seem to follow a different logic from that applicable to rights associated with individuals.

99  One might in this regard explore the present issue in the context of fundamental rights, which are nearly never absolute and provide for derogations and discretion on the part of the state.

Part III

Courts and Environmental Rights

176 

8 Green Courts as the Providers of Environmental Rights? The Case of the Swedish Land and Environment Courts ANDERS BENGTSSON

I. INTRODUCTION

T

HE SWEDISH MANNER of allocating environmental matters to specialised courts is unique in the European context. Most environmental cases are settled by the five Land and Environment courts,1 which were established in 1999 as a part of a reform to merge the main acts of environmental legislation into an Environmental Code (Code).2 The composition of the courts is unusual, too,3 in that legally trained judges adjudicate on equal terms with technical judges. Specialised courts have a long history in Sweden.4 Though the Land and Environment courts’ authority to issue permits to large industries for water operations, among other things, has been challenged in the past with the argument that this ought rather to be the task of administrative authorities,

1  This includes most cases under the Environmental Code (1998:808) but also appeal cases under the Planning and Buildings Act (2010:900), as well as property cases, eg under the Property Formation Act (1970:988). An English summary of the Environmental Code, Ds 2000:61, is available at www.government.se/legal-documents/2000/08/ds-200061/. 2  Section 1 (1998:811) on the Promulgation of the Environmental Code. 3  Sweden is not alone in relying on specialised environmental courts to resolve environmental judicial matters. Similar solutions can be found in New Zealand and New South Wales, Australia. For a global overview, see G Pring and C Pring, Greening Justice, Creating and Improving Environmental Courts and Tribunals (The Access Initiative, 2009, updated in 2016), available at www.law.du.edu/ect-study. A system with technical judges also exists in Finland, which is almost the only reminiscence of the earlier system of Water Courts in Sweden and Finland. 4  The Land and Environment courts have their origin in the Water courts, which were established in 1919, and as explained in Section II. The Labour court, the Migration courts, and the Patents and Market court are other examples of specialised courts in Sweden.

178  Anders Bengtsson the general public and industry have, over the years, come to favour their existence.5 In any event, their jurisdiction has continually, albeit at times contentiously, expanded. The objective of this chapter is twofold. First, it aims to introduce the reader to the Swedish Land and Environment courts and their organisation. To that end it outlines their procedure in administrative cases, specifically in appeals from national authorities. Administrative cases make up the majority of cases at the Land and Environment courts, where they are handled in a ‘citizen-friendly’ manner. As will become clear from the discussion in the following sections, in the Swedish context, it is generally agreed that individuals prefer the authorities to act in response to environmental disturbance and damage so that members of the public are not required to bear the economic risks involved in civil cases where the losing party is liable to pay for the costs of the trial. Any party then wishing to appeal an authority’s decision can rely, free of charge, on the procedures at the Land and Environment courts. In hearing such cases, these specialised courts act, in principle, as ordinary administrative courts, and not as civil courts. They thus take on a role different from the one they occupy in ruling on issues of compensation for environmental damage, expropriation and the granting or refusal of permits to large industries or water operations.6 The second objective of this chapter is to reflect on possible new roles the judiciary might come to play in resolving environmental legal matters in the European context. Taken together, these objectives aim to provide an examination of the extent to which environmental rights feature, or may feature, in the Swedish judicial context.

5  As explained in Section II. In the Governmental Bill, Prop. 2009/10:215 p 95, the Ministry of Environment concludes that a majority of the consultation bodies regarded the Land and Environment courts’ handling of permit cases to be functioning well and thus proposed, for the time being, no further changes to the judicial set-up. As a follow-up to the Report SOU 2008:106 on Trust for the Courts, inter alia, the Land and Environment court in Växjö interviewed private and professional parties at the court in order to determine whether the court’s ‘approach and communication ought to be improved and, if so, in which parts’. The general impression was that the respondents were satisfied but as a result of the opinions delivered, the information on the court’s website has been prioritised and is continuously updated. For a more anecdotal reference, see Kristianstadbladet, Debatt, 25 November 2016, available at www.krd.se, regarding the alleged absence of common sense in a municipality in contrast to the conditions in the Land and Environment court. 6  Depending on the type of case, the courts apply different procedural legislation. In civil and permits cases they apply the Code on Judicial Procedure (1942:740). In administrative cases, the courts apply the Court Matters Act (1996:242). The Act on Land and Environment Courts (2010:921), as well as the Environmental Code (n 1) also provide certain procedural rules. Information and English versions of Swedish legislation are available at the Parliament’s and government’s websites: www.riksdagen.se/en/documents and laws/ and www.government. se/information-material.

Green Courts as the Providers of Environmental Rights? 179 Before proceeding, some initial comments regarding the Swedish environmental legislation may be useful for understanding the position of the Land and Environmental courts and other public institutions concerned with matters relevant to environmental rights in Sweden. The Environmental Code, as well as the earlier environmental legislation in Sweden, is not what might be called ‘rights-based’ legislation. The legislation is founded on certain environmental principles that are incorporated into special provisions in the Code, such as the overriding goal of promoting sustainable development, the precautionary principle and the ‘polluter pays’ principle, which in most cases place responsibilities and the burden of proof on the operator or developer before the court.7 By comparison, the procedural laws applied in administrative cases are more directly concerned with the conferral of rights, which can also be applied in environmental cases, such as provisions on standing, the right to effective judicial protection, or the courts’ ex officio obligation to examine the cases at hand. A rather complex pattern of legal provisions and governmental decisions creates a framework which, in turn, places an obligation on the competent authorities to supervise operations and measures covered by environmental law, as well as to monitor the state of the environment and to act against misbehaviour, ultimately in court.8 This invites the conclusion that in Sweden public institutions have an obligation to ensure environmental justice. Conversely, this gives the public rights in environmental matters. A social contract is in place whereby the public expects the public authorities and courts to interfere with unjust or risky operations and measures that threaten their health or the environment. Operators and developers, for their part, expect the public institutions to act in compliance with requirements for legal security and in consideration of their right to a fair trial.9 Much of the discussion that follows is based on my experience working as a judge in one of Sweden’s Land and Environment courts.

7 

See the Environmental Code (n 1) Ch 1, s 1, and Ch 2, ss 1, 3 and 8. framework consists broadly in the general requirements stipulated in the Swedish Constitution (eg Ch 1, s 1 of the Instrument of Government stating that public power is to be exercised under the law, and Ch 1, s 3, which requires that public institutions promote social care and social security, as well as conditions favourable to health; and that public institutions promote a sustainable development leading to a good environment for present and future generations), the Administrative Procedure Act (1986:223) and, as regards local authorities, the Local Government Act (2017:725). The distribution of duties is found in the Environmental Code (n 1), inter alia the Ordinance on Environmental Supervision (2011:13). As regards governmental authorities, the respective competent authority’s instructions are regulated either by Governmental Ordinances or the annual appropriation directions. 9  Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 September 1953 (ECHR), and Art 47 of the Charter of Fundamental Rights of the European Union [2012] OJ C326/02 (Charter). 8 This

180  Anders Bengtsson II.  THE ‘GREENING’ OF THE SWEDISH JUDICIARY

The history of environmental courts in Sweden dates back to the Water Act of 1918,10 under which five regional so-called Water courts were established. In hindsight, these may best be described as ‘exploitation courts’. The overriding idea of creating these courts was to promote Swedish industrialisation by supporting developers and facilitating the building of hydro-electric stations. The Water courts were a ‘one-stop-shop’: by a single decision they granted permission to build and operate; granted access to land; and ruled on economic compensation for land intrusion if, for example, the operation would negatively affect the land or reduce the flow of water to downstream operations. The Water courts also dealt with cases relating to permission for land drainage in order to create plots of land for, inter alia, agriculture and urbanisation. Importantly, the anticipated environmental impact was of no relevance to the issuing of permits; rather the main focus was on economic development. In 1983, however, the 1918 Water Act was replaced by a new Act, which gave room for environmental considerations.11 Nevertheless, it was not until the enactment of the 1999 Environmental Code (Code) that the Water courts were replaced by environmental courts. The overarching objective of the Code is to promote sustainable ­development.12 This is clear from its first and second chapter in which are listed general environmental principles that are applicable to all operations and activities that the Code covers.13 In separate chapters it lists the relevant provisions on environmental quality; environmental impact assessments; nature conservation; flora and fauna; environmentally harmful operations; polluted areas; water operations; chemicals; and waste. The Code also contains provisions on criminal and administrative sanctions and on compensation for environmental damage. The environmental courts have jurisdiction over the majority of these matters, which means that they rule on a wider range of cases than did the earlier Water courts.

10 

SFS 1918:523. eg Ch 3 of the Environmental Code (n 1), which places requirements on a socio-­ economic weighing of the benefits from a public and private point of view against costs, ­damages and other inconveniences of the operation. See R Strömberg, En kommentar (Liber, 1984) 57ff. Later, special requirements were added to the Water Act, eg on Environmental Impact Assessments and links to the rules of consideration in the Act on Natural Resources (1987:12), one of the acts that in 1999 was merged into the Environmental Code. 12  See Environmental Code (n 1) Ch 1, s 1. The Code merged 15 acts of legislation relating to environmental issues. For an overview, see G Michanek and C Zetterberg, Den svenska miljörätten (Justus, 2012). 13  The scope of the Environmental Code (n 1) is very wide and covers measures c ­ oncerning major industries and measures taken by private persons in their daily life (eg the use of ­chemicals in the household) though the requirements for professional activities are stricter than for those undertaken by private persons. 11 See

Green Courts as the Providers of Environmental Rights? 181 Moreover, the Code brought several branches of appeal, including from the administrative courts14 and property courts,15 into one organisation. The National Licensing Board, a court-like institution that dealt with cases under the Environmental Protection Act, was dissolved. That board had handled appeal cases from the county administrative boards on, among other things, complaints against environmental disturbances; but it also had the function of issuing permits for major industries. In May 2011 the environmental courts were turned into the ‘Land and Environment courts’. Through this reform, cases under the Planning and Buildings Act (building cases from the administrative courts and p ­ lanning cases from the government) and property cases, previously heard by so-called ‘property courts’,16 were redirected to the Land and Environment courts. Further steps from the Parliament to direct cases with similar legal issues to the Land and Environment courts have included the dismantling, by the end of 2015, of the Swedish Water Supply and Sewage Tribunal and the allocation of their cases (around 400 new cases a year) to the Land and Environment courts.17 Since 1 June 2016, decisions to adopt municipal land use plans are appealed directly to the Land and Environment courts, rather than to the county administrative boards as was previously the case. With these changes, the legislature has shown a clear desire to gather cases that require special competences into one organisation, although the current situation can still be complex and the chain of procedures long, as in, for example, building cases under the Planning and Buildings Act. These may involve proceedings in the municipality, the county administrative board, the Land and Environment court, the Land and Environment Court of Appeal, and the Supreme Court. The following section describes the structure of the courts, with a focus on the Land and Environment courts and their jurisdiction. III.  ENVIRONMENTAL MATTERS AND THE SWEDISH JUDICIARY

The courts in Sweden are divided into general courts and administrative courts. The general courts comprise 48 district courts, 6 courts of appeal 14 

eg cases on nature protection, chemicals and health protection. eg civil cases on compensation for environmental damage. 16  ‘The property courts’ was the name under which some district courts, appointed by a governmental ordinance, settled property cases. In the Governmental Bill, prop. 2009/10:215, 83ff, the government, with reference to prop. 2006/07:98, argues that planning and buildings cases and property cases have many similarities with cases already allocated to the environmental courts and that it would be beneficial to concentrate these cases in one line of courts, as resources and competence could then be used more efficiently. 17  The Tribunal adjudicated disputes relating to water supply and sewerage under the Public Water Supply and Wastewater Systems Act (SFS 2006:412) and the Swedish Water Supply and Sewage Tribunal Act (SFS 1976:839). Beside these cases, decisions by the Swedish Energy Markets Inspectorate on concessions for power lines are referred to the Land and Environment Court in Nacka (around 50 cases a year). 15 

182  Anders Bengtsson and the Supreme Court, while the administrative courts comprises 12 first instance courts, 4 courts of appeal and the Supreme Administrative Court. The following section describes the structure of the Land and Environment courts and the cases allocated to them. Some of these cases are not heard very frequently and if they were to be split between all administrative or general courts, there would be very few incoming cases on a yearly basis. The practice of directing cases on similar matters and governed by the same corresponding legislation to the same courts is thought to benefit the competence of the judges and also provide opportunities to create more efficient procedures. Nevertheless, as will be shown, the current system still allows for incoherencies. A.  The Judicial Hierarchies of Environmental Litigation Figure 8.1 shows the different judicial levels in Sweden and how they interact. In short, the hierarchy may be described as follows. The majority of cases relating to health and the environment, as codified in the Code, are allocated to the five Land and Environment courts. It is notable, however, that these courts do not have authority to rule on environmental criminal matters, which are instead tried by the general courts. The Land and Environment courts form part of the ordinary district courts18 but have a wider geographical jurisdiction and are the exclusive forum for cases that are explicitly referred to them by law, as by Chapter 21 of the Environmental Code. However, decisions by municipalities (councils or local authorities) are, with few exceptions, first challenged within the administration.19 This means that they are heard by the county administrative board before they can be appealed to the Land and Environment court. The next level of appeal, and indeed the final forum for cases that are first heard by administrative authorities, is the Land and Environment Court of Appeal.20 As an exception the Land and Environment Court of Appeal may permit property cases and cases under the Planning and Buildings Act to be appealed to the Supreme Court. All cases that start in one of the Land and Environment courts (for instance, cases concerning permits and civil cases) may be appealed to the Supreme Court as the final arbiter. It is worth ­noting that leave to appeal is required in all cases appealed to the Land and Environment Court of Appeal and the Supreme Court.

18  The Land and Environment courts are situated in the cities of Växjö, Vänersborg, Nacka, Östersund and Umeå. 19  This exception refers i.a. to decisions by the local supervisory authorities to impose environmental sanction fees, see Ch 30, s 7 of the Code (n 1). 20  That is Svea hovrätt, the Court of Appeal in Stockholm.

Green Courts as the Providers of Environmental Rights? 183

Figure 8.1:  Swedish court system in (most) environmental matters Note: The number of bodies is given in brackets.

What are to be regarded as ‘environmental matters’ is not always easy to determine. As will be shown in the following, the jurisdiction of the Land and Environment courts is extensive but does not entirely correspond with what is regarded as environmental law under EU law or by the Aarhus Convention. In cases where political issues play a more prominent role, the government is either the final arbiter or decides in both the first and last instances. Such cases include decisions under the Code about whether to protect an area as a nature reserve, whether to allow major construction in protected areas, and whether an operation affects a Natura 2000-specified area in a significant manner, which requires weighing environmental interests against other important public interests. Decisions by the government cannot be appealed in the ordinary way. Nevertheless, private persons and non-­governmental organisations (NGOs) can challenge decisions that may raise issues under the European Convention on Human Rights (ECHR) or the Aarhus C ­ onvention at the Supreme Administrative Court via judicial review.21 21  Decisions may be challenged through an extraordinary process created for the purpose of fulfilling the requirements under the Aarhus Convention on access to justice, see Act (2006:304) on Judicial Review of Certain Government Decisions.

184  Anders Bengtsson Beyond these cases, however, environmental litigation that concerns, inter alia, foodstuffs, hunting, fishing and forestry falls outside the scope of the Environmental Code and outside the jurisdiction of the specialised Land and Environment courts. These cases are instead allocated to the administrative courts. Thus, it can be concluded that despite attempts over the years to streamline the court hierarchies, some incoherencies remain, in large part due to a tug of war between the different ministries in the government and also due to the difficulties of defining what is to be regarded as an environmental matter. B.  The Composition of the Land and Environment Courts While numbers differ between the various courts, the Land and Environment court in Växjö has 11 ordinary (law-trained) judges (including two senior judges), 11 technical judges, 15 drafting law clerks and 11 secretaries. The remaining four Land and Environmental courts vary in size: some are larger (Nacka); others are smaller (Östersund and Umeå) while one is the same size as the court in Växjö (Vänersborg). Judges at the Land and Environment courts adjudicate alongside technical judges and specially appointed members of the court.22 The legally trained judges are appointed by the government as judges in the specific district court following an initial nomination from the Judges’ Proposals Board23 and only then elected by the president of the respective district court to work at its Land and Environment court. The judges at the Land and Environment courts hear all cases, with no specific preference for any particular environmental law matter. The judges enjoy lifetime tenure up to the mandatory retirement age of 67. This differs from the Land and Environment Court of Appeal where judges move to a different division of the Court every four years. All Land and Environment courts employ technical judges with technical or scientific training and work experience in the relevant sector. Technical judges are nominated by the Judges’ Proposals Board, and appointed by the government to serve in the country as a whole, although they are based in one particular court. In Växjö, three of the 11 technical judges are land surveyors, two are architects, two are water engineers, two are biologists and one is a chemist. Depending on the type of environmental problem at issue, more than one technical judge may participate in the judgment.24

22  The Land and Environment Court of Appeal also relies on technical judges but has no specially appointed members. The Supreme Court is composed of only legally trained judges. 23  This Board is an independent government authority. 24  See prop. 2009/10:215, 128–31. The solution of having technical judges in the courts has only briefly been discussed (prop. 1997/98:45, Part 1, at 467 and prop. 2009/10:215,

Green Courts as the Providers of Environmental Rights? 185 The specially appointed members of the Land and Environment courts provide expertise within business, industry, municipality or agricultural sciences. The bodies nominating such members include the Swedish ­Environmental Protection Agency, the Swedish Association of Local Authorities and Regions, and the Confederation of Swedish Enterprises. They are appointed by the Judges’ Proposals Board for a period of three years, and brought in mainly for major cases relating to permits and civil cases.25 The obligation on the specially appointed members is to contribute their knowledge and experience from working in the various sectors mentioned but they do not act as representatives of the nominating organisations. As they are not employees of the court, they serve as ‘the eye of the public’, in addition to providing expertise. As will be shown in the following section, having technical expertise on the bench makes it possible for the court to take a more active role in the adjudication of the cases brought to it. Indeed, this approach is a necessary prerequisite for enabling the court to play the role that Swedish courts traditionally play in administrative cases (with the reformatory process and an obligation for the court to ex officio examine the case), also in cases where technically complicated issues are at issue. C.  Jurisdiction and Procedure of the Land and Environment Courts The Land and Environment courts enjoy a broad jurisdiction, as reflected in the number of cases they hear. In 2017 alone, the Land and Environment court in Växjö heard 1869 cases.26 There are different procedural rules that the courts adhere to depending on what kind of case they hear. This is discussed next. The court has jurisdiction over civil cases. While these cases traditionally fall under the jurisdiction of ordinary district courts, the Land and ­Environment courts handle civil disputes relating, for example, to damages at 125–26) and has so far not been evaluated for its contribution to the quality of judgments. The experiences from within the Water Courts, the property courts and the former national permits board were very positive, however, and besides so is the current view of the Land and Environment courts. Regarding the introduction of this system in the Land and Environment courts in 1999, it may be noted that the secretaries in the official state investigation (SOU 1996:103) on proposals in this part had experience from working in the Water courts. 25  The general courts and the administrative courts instead use lay judges, a system also applied earlier in some of the cases now handled by the Land and Environment courts. The main purpose of using lay judges is to give the public control and influence over the judicial operations. In the Swedish administrative courts, that system is complemented by specially appointed members in some cases where the court needs special expertise, eg cases on property taxation and judicial review of certain decisions from the municipal councils. 26  In 2017 the Land and Environment Court in Växjö opened 88 application cases, 7 civil cases, 153 applications on imposition of conditional fines, 554 appealed cases under the Code (n 1), 629 under the Plan and Buildings Act 54 water/sewerage cases and 223 property cases.

186  Anders Bengtsson and compensation, and cases regarding compulsory purchase. These cases tend to be settled following oral hearing, as regulated by the Code of ­Judicial Procedure.27 Moreover, the Environmental Code allows private persons to initiate proceedings for precautionary measures—for example, to prohibit continued construction or to impose protective measures in order to reduce the emission of noise from operations conducted without a permit. As in other civil disputes, the litigant has to pay a court fee (currently circa 300 Euro) and also risks having to pay the opposite party’s costs. This may explain why such cases are extremely rare; at the Land and Environment court in Växjö only two such cases have been heard in 15 years. Instead, private individuals try to push the relevant authority to act and, if unsuccessful, they may attempt to appeal the authority’s decision. The door is then open for an investigation free of charge through the hierarchy of the environmental courts. As noted in Section II, from a constitutional perspective, applications for waterworks operation permits,28 as well as permits for environmentally harmful operations,29 are regarded as tasks reserved for administrative authorities. However, for historical reasons dating back to the existence of the Water courts, such cases are still allocated to the Land and Environment courts. As a rule, the procedure in these cases includes an oral hearing, and with regard to the permit as such, the court essentially acts as an administrative authority.30 During the hearing, all interested individuals—not only the parties to the case—have the right to voice their opinions, although nonparties are not entitled to make formal claims or motions.

27 

SFS 1942:740. a general rule, water operations need permits unless it is obvious that no public or private interests are affected. By a governmental ordinance (SFS 1988:1388), some types of operation are exempted, but they require a notification procedure at the county administrative board instead. 29  A governmental ordinance (SFS 2013:251) points out if an operation requires a permit issued by the Land and Environment Court (‘A-listed’ operations: major industrial plants), a permit from an independent permissions board, present at 12 of the 21 County Administrative Boards (‘B-listed’ operations) or a notification procedure at the supervisory authority at the local level (‘C-listed’ operations). In certain cases the government decides on the permissibility of an operation. 30  The procedure in first-instance cases at the Land and Environment courts are regulated by the Act on Land and Environment Courts (SFS 2010:921) and the Code of Judicial Procedure (SFS 1942:740). In cases of application for permits under the Environmental Code (n 1), the courts also apply certain procedural provisions stated in that Code, giving the procedure some administrative influence on the importance of written material and a strong requirement for the court to examine the case. In case C-263/08 Djurgården Lilla Värtan (DLV) [2009] ECR I-09967, AG Sharpston stated: ‘In the present case, it is clear that the miljödomstolen [the Land and Environment court] performed non-judicial functions. Consequently, the decision it took in the course of the planning procedure, with which the present case is concerned, forms part of “the environmental decision-making procedures” referred to in Article 6 of Directive 85/337, as amended’. 28  As

Green Courts as the Providers of Environmental Rights? 187 Applications from the supervisory authorities for the imposition of conditional fines31 relating to offences under the Environmental Code and the Planning and Buildings Act are made before the Land and Environment courts. These cases are handled as administrative cases but with special regulations to assure the legal rights of the addressee (these cases are regarded as similar to criminal matters). As a general rule the proceedings are conducted in writing; however, the court may hold an oral hearing, either upon the request of a party or on its own initiative. The majority of cases at the Land and Environment courts are appeals of decisions made by administrative authorities. These concern, inter alia, issues of health protection; nature conservation; environmental protection; sanitation; contaminated areas; waste treatment; building; demolition and site improvement in accordance with planning and building laws; planning matters; and cases pertaining to the laws of property registration. Appeals of authorities’ decisions are traditionally handled within the system of administrative courts and the Land and Environment courts apply similar procedural rules in these cases.32 This is a reformatory procedure: the court can alter, annul or confirm the contested decision. The procedures in administrative cases are discussed in the following section. D.  Appeals to the Land and Environment Courts As noted above, the majority of cases heard by the Land and Environment courts are appeals of decisions that have been delivered by an authority (appealed cases). In these cases the procedural rules obligate the courts to take an active role in investigating the case and in principle give the court the same powers as the first deciding authority with regard to the outcome. This is developed more fully in the following sections. i.  The Proceedings The procedure in appealed cases at the Land and Environment courts follows the common Swedish tradition for administrative cases: there is no obligation to be represented by a lawyer, there are no court fees, and there is no obligation for the losing party to pay the opposite party’s litigation costs. In addition, legal aid is not available.33 31  A decision from a supervisory authority to issue an order combined with a conditional fine may be appealed to the Land and Environment court. If the order has come into legal force and the addressee does not comply with it, the authority then applies to the court to have the fine imposed. 32  The Court Matters Act (1996:242). 33  In rare cases the Chancellor of Justice can decide to compensate a party for costs incurred by way of protecting their rights. Such a procedure is regarded as a form of compensation for damage and may ultimately end up as a dispute in the ordinary courts.

188  Anders Bengtsson Once the Land and the Environment court receives an application for appeal, delivered by the authority that took the challenged decision, it has first to forward the appeal to the opposing party for comments, unless the appeal is dismissed or rejected outright. The opposing party could be the administrative body against which an appeal is sought or a private party; cases between neighbours or developers are frequent. Other potential parties include NGOs, municipalities and certain governmental authorities, which may by law act to protect public interests, such as environmental ones. Where an operator challenges a permitting decision from the regional permits board at the county administrative board, and the board either rejects the application or imposes less strict conditions on precautionary measures, the public is given notice by announcement in the local newspapers (at the court’s expense). Copies of the documents are sent to an appointed ‘document keeper’ in the vicinity of the operation, in order to facilitate public access to the documents. This is of course especially important if the site of the operation is located far from the court. A response must then be submitted in writing, unless the court decides that a response can be presented at an oral hearing. In the response, the opposing party’s position should be presented, ie whether he or she contests or accedes to the claims or opposes a particular measure. This response is then sent to the appellant for further statement or for information. This communication continues for as long as new facts or arguments are delivered and until the case has been examined so thoroughly that a decision can be made. This procedure provides the parties with the opportunity to examine all material and to make comments or deliver new evidence. To terminate a situation where the written communication seems to reach no end, the court may choose to call the parties to an oral hearing. ii.  The Written Procedure and the Oral Hearing Administrative cases are generally resolved in writing only. However, the court may decide on its own initiative that an oral hearing should be held if it finds that such a hearing could be beneficial—for example when the action or claims are unclear or complicated, or if the hearing would help resolve the case more quickly. The court is obliged to have an oral hearing if requested by the parties to the case, unless it is regarded as clearly unnecessary. This right is covered by the ECHR34 and is of special importance for private persons who are not assisted by, or are not used to expressing themselves in writing. However, an oral hearing does not replace the written procedure; it may only be used as a supplement in explaining certain aspects of the case in more detail.

34 

The right to a fair trial is codified in Art 6 of the ECHR.

Green Courts as the Providers of Environmental Rights? 189 The oral hearing is presided over by a legally trained judge. The persons summoned to an oral hearing are the parties, witnesses and experts, and, if needed, an interpreter, at the court’s expense. As an alternative, these persons may be present by video link. Witnesses and experts may participate by telephone. In certain cases also the general public may participate—eg when permits for environmentally harmful operations under the Code are requested and the applicant challenges a decision that either denied the permit or ordered it on narrow grounds. Those who are not strictly regarded as parties to the case may in this kind of case give their opinion or ask questions at the hearing. Court hearings are, as a general rule, public. There are nevertheless instances, stipulated in the Public Access to Information and Secrecy Act,35 where for instance concerns of national defence or commercial secrets allow hearings to take place partially behind closed doors. Documents in the courts’ files may be classified on the same grounds.36 iii. Reformatory Procedure in Administrative Cases—The Court’s Role During the Preparation Phase The procedures for administrative cases are only briefly and vaguely outlined in Swedish law. It is generally understood that the legislation deliberately leaves considerable room for the judge to customise the procedure to the circumstances of each individual case. The judge may seek guidance from the preparatory works, court practice, deliberations in the literature, commentaries to the legislation, academic writing and the general principles of law. As a general rule, the Swedish courts have an obligation ex officio in administrative cases to examine whether the prospective parties of the case have the right to standing; whether the decision in question is a challengeable one; and whether an oral hearing is needed. The court gives the case a full review assessing the legality as well as the merits of the case. The Swedish judiciary thus plays a rather active role in preparing the case. The preparation of the case varies, and a main division can be observed between so-called ‘oppressive’ decisions (eg sanction fees, prohibitions, orders) and what may be classified as favourable decisions (eg application for permits, subsidies). In the first category, the court has a more active role and is free to ask questions and investigate the case for the benefit of the private party. Nevertheless, the court is very restrictive in asking questions that

35 

SFS 2009:400. the Land and Environment court in Växjö only a handful of such requests are lodged on a yearly basis. If the court finds sufficient grounds for the request, the documents will be marked (as a warning). If another request from a party or the public is received, the court will decide whether to disclose the document or not. 36  At

190  Anders Bengtsson can be to the detriment of the addressee of an oppressive measure. Other factors affecting the nature of the preparatory work are the kinds of claims adduced, the strength of the parties, and the constellation of the parties— whether the case is between a private person and an authority, or between a private person on the one hand, and a private person and an authority, on the other. By taking an active role, the court eases a burden that otherwise would lie on the parties, and the court can thus even out power imbalances between them. The obligation for the courts to ex officio examine the case makes the process seem easy enough for private persons to pursue in court, without any legal counsel. This same reason is a motive for not having rules on litigation costs in administrative cases. Based on the precautionary principle, the operator will have the burden of proof in most cases under the Environmental Code, and this also affects how the case is handled. The operator will have to show that the operation fulfils the requirements of the Environmental Code, even when the claimant is an authority or a neighbour. This burden is significantly heavier in cases when the operator asks for a permit or an exemption. If, however, the issue at hand is a challenged order or prohibition, the authority must show that the prohibition or ordered measures are justified, legal, appropriate and proportional. As in most administrative cases in Sweden, the parties are normally not represented by lawyers, the claims of the action are often more or less unclear, and the court has to interpret them. This is to be done charitably, with an eye to making the claims intelligible in relation to the dispute. For example, a blank appeal from a neighbour against a decision to grant a building permit will often be interpreted as a claim to quash the permit. In its preparation of the case, the court may upon request or on its own initiative refer certain aspects or questions to relevant bodies, such as central government agencies (eg the National Environmental Protection Agency), or the Court of Justice of the European Union (CJEU), based on the preliminary reference procedure according to Article 267 Treaty on the Functioning of the European Union (TFEU), to either give their opinion on the case or, as in the case of the latter, to interpret relevant EU law. iv.  Closing a Case Most cases are jointly settled by a judge and a technical judge. The judgments are elaborated in close cooperation. Both judges are equally responsible for the judgment, but of course the legally trained judge focuses primarily on the legal argumentation while the technical judge and any specially appointed members concentrate on the technical aspects. The judge, the technical judge and the specially appointed members have equal votes, but as a rule, the legally trained judge—the chairman—has a casting vote. Cases that concern only procedural issues are often decided by a single legally trained judge.

Green Courts as the Providers of Environmental Rights? 191 The outcomes of administrative cases generally have consequences for public interests or third parties. This means that there is only a minor role for the court to mediate between the parties. Principles of equal treatment and the prejudicial effects of a decision must also be taken into consideration. The legislation regarding administrative procedures does not, as in civil matters, leave open the possibility of amicable settlements. In practice, however, this may be done, for example in disputes between neighbours when no other interests are involved. Settlement then means that the parties make an agreement and withdraw their appeal.37 Most administrative cases at the Land and Environment courts are decided following a presentation. This means that the case is presented orally by a drafting law clerk to a legally qualified judge and a technical judge as well as any specially appointed members. In the Land and Environment Court of Appeal (usually presided over by three judges and one technical judge) and the Supreme Court, the case is presented to the chamber. A determination of the court may not go beyond what is claimed in the case. Nor may the court decide on other matters than those that were decided on in the administration. However, if there are special reasons, the court may without an application decide on something more beneficial to a private party, provided this can be done without detriment to an opposing private interest—reformatio in melius. The judgment or decision must be based on the documents in the file and what has otherwise been established in the case. One effect of the ex officio principle, however, is that the court may base its judgment on circumstances other than those invoked by the parties, as long as the outcome is covered by the claims of the parties. This means also that the case—the evidence and the arguments—may have been developed during the court’s procedure and that the court’s decision may be based on different material than the authority’s, as long as it is regarded as the same action. This may, however, result in the necessity of referring the case back to the authority, particularly if new evidence or surveys of a more major importance are presented. As Sweden does not have a constitutional court, one important aspect of the role of the courts is the power to challenge the constitutionality of the applicable legislation.38 Thus from 2011, any judge at any level of court (or any civil servant at a public body) has the right to refrain from

37  Property cases are more similar to civil disputes and the possibility of amicable settlement is greater and more often practised in such cases. 38  The Instrument of Government (SFS 1974:152) Ch 11, Art 14. If a court finds that a provision conflicts with a rule of fundamental law or other superior statute, the provision is not to be applied. The same holds if a procedure laid down in law was disregarded in any important respect when the provision was made. In the case of review of an act of law under paragraph one, particular attention must be paid to the fact that the Parliament is the foremost representative of the people and that fundamental law takes precedence over other law.

192  Anders Bengtsson a­ pplying an act of law or other regulation if they find it to be contrary to the ­Constitution or a superior regulation. According to the Swedish practice in administrative matters, the higher-level court has the same powers to decide the matter as the first deciding authority. Thus the court can annul, modify or even replace the decision of a public authority. An exception from this rule is the appeal of a decision by the City Council to adopt or to repeal land use plans. In these cases the procedure is regulated under special provisions in the Planning and Buildings Act39 and the scope for the investigation and outcome is narrower; in principle this is a judicial review and a cassation procedure. The reformatory procedure in administrative cases has a long tradition in Sweden. Even in such a system a so-called ‘ping-pong procedure’, in which a case may go up and down the various levels of courts for several years, is not possible to avoid. In practice, however, where the substance of the case has been considered, the majority of disputes will have a rather speedy and final conclusion. There are no detailed statistics available on the outcome of cases brought before the Land and Environment courts, but approximately 2 to 3 per cent of appeals from decisions of authorities are dismissed, while approximately 60 to 70 per cent are rejected. The figures are a little higher in planning and building cases as those disputes tend to be more straightforward than in environmental cases, which are often more complex with a variety of claims. Approximately 25 to 30 per cent of appeals lead to an annulment of the challenged decision, or to an alteration of the decision.40 IV.  THE WIDER PERSPECTIVE—COOPERATION BETWEEN JUDGES IN THE EU

Judges have a crucial role to play in environmental matters. For example, the United Nations Environment Programme (UNEP) has made clear that The Judiciary is a crucial partner in the development, interpretation, implementation and enforcement of environmental law. Courts of Law of many countries have demonstrated sensitivity to promoting the rule of law in the field of sustainable development through their judgements and pronouncements, e.g. through applying international environmental law principles such as the polluter pays principle, the precautionary principle and the principle of intergenerational equity.41

39 

Code (n 1) Ch 13, s 17. eg an appeal against a decision to grant a permission to operate an industry may end with the court quashing the permission, but in another situation the court may only make an alteration to a condition for the permit. 41 Statement listed at www.unep.org/delc/judgesprogramme. See also the Charter of the Global Judicial Institute for the Environment, available at welcongress.org/global-judicialinstitute-for-the-environment. 40 

Green Courts as the Providers of Environmental Rights? 193 For a domestic, European judge, of course, the ECHR42 and membership of the EU are of special importance. Substantially, this means that the national environmental legislation in all Member States has been altered and complemented in various ways. The structure of the EU legislation (with Directives and Regulations, their preambles and articles) is quite different from the Swedish tradition and the legal practice most Swedish judges have been trained in. As EU legislation has had to be implemented into an already existing structure of legislation, it has taken some time for the Swedish legislature to find ways of implementing EU law into Swedish legislation and construction of laws. Moreover, judgments from the CJEU are structured and reasoned in a notably different manner from those written by Swedish judges.43 One of the most important functions in accomplishing a coherent application of EU law in the Member States is the possibility for courts and, indeed, the obligation on the highest-level courts, to ask the CJEU for a preliminary ruling according to Article 267 TFEU. To date, Swedish judges have been rather reluctant to refer questions to the CJEU. The CJEU’s 2015 Annual Report shows that Swedish courts are among the more passive in the Union in this respect.44 The reasons are not easy to determine.45 The aspiration to maximise efficiency and minimise turnaround time for cases probably plays a role. Even the introduction of the ‘urgent preliminary ruling procedure’46 has thus far had no effect on Swedish courts. One example of the sometimes slow adaptation to the European legal standards is the former practice of the Swedish Supreme Court of interpreting very narrowly the prohibition of double criminalisation, the principle of ne bis in idem, codified in Article 6 of the ECHR. This practice was challenged by first instance courts, which

42 

By an Act (1994:1219) the Convention is incorporated into Swedish law. as an example: the method Swedish judges apply is to place the verdict in the very beginning of the judgment instead of as a deduction at the end. The idea is that the parties should not have to browse through the judgment in order to find the findings of the case. The deliberations in Swedish judgments are generally kept rather short and simply formulated as they are regarded as addressed to the parties. Previously, judges in lower courts had a tendency to address their writing to the higher courts. CJEU judgments often reason with reference to the EU Treaties while Swedish courts have traditionally found their judicial support and guidance in the preparatory works of the applicable legislation. During the last few years, references to the Constitution and overriding principles have become more frequent also in Swedish judgments but only a couple of years ago such a practice was regarded as somewhat obscure. Mainly so-called ‘dogmatists’ appealed to the Constitution. It is notable that the Supreme Court, obviously inspired by the CJEU, has started numbering the paragraphs in its judgments. 44  The annual report is available at curia.europa.eu/jcms/annual_report. 45 These issues are elaborated in a recent report by U Bernitz, Förhandsavgöranden av EU-domstolen: Utvecklingen av svenska domstolars hållning och praxis 2010–2015 (SIEPS, 2016), available at www.sieps.se/en/publications/reports/preliminary-rulings-by-the-europeancourt-of-justice-swedish-courts-attitude. 46  See curia.europa.eu/jcms/upload/docs/2009-03/cp080012en.pdf. 43  Just

194  Anders Bengtsson issued a preliminary reference to the CJEU and, based on this judgment, ruled in opposition to the Supreme Court. As a result, the practice of the Supreme Court regarding ne bis in idem has altered, highlighting the relationship between national legislation, EU law and the ECHR.47 At the EU level, initiatives have been taken to overcome some of these difficulties, which are not unique to Sweden. The Commission has supported cooperation with national judges in the field of environmental law in various ways. For example, since 2009 there have been opportunities for judges to participate in workshops on certain themes of EU environmental law, such as waste, nature and water.48 The application of those aspects of the Aarhus Convention not covered by secondary EU law—namely those concerning access to court—has been discussed within the European Commission (Commission), which has initiated an expert group on this topic.49 Various initiatives have also been taken to highlight and analyse differences in the legislation of the Member States from a more general point of view.50 The European Judicial Training Network (EJTN) promotes training and knowledge-exchange for the European judiciary, and is financially supported by the Commission.51 The Commission also supports other ways of networking between ‘environmental judges’ and there are now some active networks related to environmental law. The European Union Forum of Judges for the Environment (EUFJE) is one such network; the Working Group on Environmental Law under the Association of European Administrative judges (AEAJ), is another.52 The latter maintains close links with other organisations, such as the EUFJE and the Aarhus Task Force, and is represented in the ­Steering Committee on workshops for judges. The AEAJ is also a partner of the EJTN.

47  See NJA 2010, p 168, Case C-617/10 Åkerberg Fransson EU:C:2013:105, and the subsequent NJA 2013, 502 and 746. 48  Regarding cooperation with national judges in the field of environmental law, see www. era.int and the EU Environmental Law Training Package, available at ec.europa.eu. 49  Information available at ec.europa.eu/environment/aarhus/experts_groups.htm. 50  The creation of the European e-justice portal was intended to give information on justice systems in the different Member States and make it possible to compare how different situations are regulated, see https://e-justice.europa.nu. See also J Darpö, ‘Study on the Implementation of Article 9.3 and 9.4 of the Aarhus Convention in 17 of the Member States of the European Union’, available at www.jandarpo.se. 51  EJTN develops training standards and curricula, coordinates judicial training exchanges and programmes, disseminates training expertise and promotes cooperation between EU judicial training institutions, see www.ejtn.eu. In 2015 the Land and Environment Court in Växjö hosted a Slovakian judge and in 2016 an Italian and a Latvian judge as part of the EJTN exchange programme. 52  Founded in 2000, the AEAJ includes several working groups, such as the working group on environmental law, which this author co-chairs. This group has approximately 60 members, representing most Member States as well as Ukraine. Like the other working groups, the working group on environmental law arranges annual workshops on issues related to substantive and procedural law in the context of the EU, see www.eufje.org and aeaj.org.

Green Courts as the Providers of Environmental Rights? 195 Clearly, the different working conditions for national judges or constitutional issues, due for example to the different political situations in each country, are important concerns and the AEAJ has repeatedly made statements or taken other initiatives in order to support judges and national organisations represented in the AEAJ. As for Swedish participation in these broader cooperative networks, the Swedish Courts Administration and the Courts Academy support participation in these networks financially. In addition, they provide education in EU law, including environmental law. The importance of Swedish judges’ participation in these international cooperative schemes which focus on EU level issues is clearly demonstrated in the appropriation directions that have been issued by the Swedish government in recent years. V. REFLECTIONS

This section elaborates on some issues more closely linked to the development of environmental law in the EU, with reference to the practical work at the Land and Environment courts. It also attempts to summarise the findings and offer thoughts on the future of environmental rights in this regard. A.  Cooperation Between Judges Across the National Borders It is apparent that membership in the EU and the implementation and application of the acquis communautaire, including the Aarhus Convention, has led to major changes for Member State judges. It has broadened the view and made it urgent to cooperate and discuss problems across national borders. This is of special importance when it comes to environmental matters, as the base for the applicable substantive legislation is the same in different Member States and also because national borders are often irrelevant when it comes to the need to combat environmental problems. In the previous section, the AEAJ workshops were mentioned. In order to prepare for the workshops, the working group disseminates a questionnaire in advance, which focuses on the main theme for the workshop. The questionnaire highlights different issues pertaining to national legislation. The EUFJE also uses such questionnaires to analyse differences. The results of these questionnaires show that the procedural differences are sometimes considerable. The Swedish system is often regarded as extreme, for example with respect to judges’ active role in the courtroom, with the requirement to ex officio examine the case, giving the court an inquisitorial approach. While some countries (such as Latvia and Portugal) make provisions for an actio popularis, the majority of Member States are more or less restrictive as to who has the right to gain access to the courts in environmental matters.

196  Anders Bengtsson For private persons to have standing in Sweden and the majority of Member States, they must be regarded as ‘concerned’ with the matter at hand. The right of standing for NGOs in Sweden is regulated in the Code and restricted by requirements on the types of case they may challenge (cases on permits, exemptions and approvals) as well as some criteria relating to the structure and functioning of the organisation itself, including a requirement of a minimum number of 100 members, or the ability to otherwise show support by the public, as well as the requirement that the NGO have been active in Sweden for at least three years.53 Other differences that have been observed relate to the potential costs for a party to open and pursue a procedure in court. In some countries there is an obligation to be represented by a lawyer in a case at the court, whereas in Sweden, there is no such obligation. It goes without saying that these sorts of requirements, which have economic consequences for the litigants, can directly or indirectly affect the practical possibilities of gaining access to a court. A distinction can also be made between countries with a cassation process and those with a reformatory process, as was discussed above.54 During the AEAJ workshops, the findings from the questionnaires are discussed and the results are published online. The compilation of answers is sometimes accompanied by a recommendation on ‘best practice’. Due to different legal cultures and traditions, however, such recommendations are not always easy to agree upon. In our group, for example, there has been disagreement on the advantages and disadvantages of mandating oral hearings in administrative cases, as opposed to holding such hearings only when requested or when preferred by the courts. In sum, a network such as the AEAJ working group on environmental law serves several important purposes. It provides a forum for connecting with colleagues from different countries to discuss shared judicial problems and compare different legal systems and different domestic approaches to European law (environmental law and administrative law). It also provides an avenue by which judges can learn from their peers and keep professionally updated through workshops, discussions and so on. This is beneficial to the daily work of judges when an EU-related problem arises. The network also serves to create trust among the judges and, by doing so, to help strengthen the judiciary and the development of European law.

53  A proposal to alter the requirements has been presented in a governmental report, DS 2016:25. The amendments proposed are that NGOs should have the right to standing also in supervision cases, and that the NGO, in order to have standing, should have existed for at least two years. The report proposes that the criterion to have operated in Sweden be withdrawn for being discriminatory. See also Darpö, Chapter 11 in this volume. 54  See Section IIID(iv).

Green Courts as the Providers of Environmental Rights? 197 B.  Ever-evolving Environmental Law and Its National Application The work of an environmental court is quite different from the work of an ordinary court, mainly because environmental law is a rather new field of law, which is undergoing continuous evolution through new legislation and its interpretation by the courts. This affects the work of national courts, both on procedural matters and in substance. In recent years this has been particularly apparent in relation to issues on standing. Since Sweden became a member of the European Community, now the EU, its legislation has opened up to the possibility of NGOs having broad standing in environmental matters, which has mainly been forced by EU case law and with reference to the Aarhus Convention.55 In addition, the development of international environmental agreements and the recognition of the overriding goal of sustainable development have also placed Swedish Land and Environment courts in a special position as the outpost to safeguard these interests. In general, Swedish substantive law is rather detailed. For example, the Environmental Code includes a number of articles that refer to and interpret various environmental principles, such as the principle of sustainable development,56 the precautionary ­principle57 and the principle of prevention.58 The traditional approach has been to disregard such principles unless they have been expressly stated in the applicable law. For example, as the precautionary principle is not expressed in the Planning and Buildings Act, the administrative courts regarded that principle as inapplicable in cases under that Act.59 There are reasons to believe that judges in the Land and Environment courts are at greater liberty to ‘import’ the interpretation of environmental cases, and their references to international environmental principles, to other legislation. Another example concerns references to environmental quality norms in the Planning and Buildings Act, which relate to decisions on adopting or altering detailed municipal plans and to building permits outside areas covered by such plans. The practice in administrative courts used to be that issues on environmental quality norms were disregarded in cases on building permits within a planned area, as domestic law does not refer to such norms.60 However, the quality norms were adopted to safeguard human

55  See eg DLV (n 30). Several amendments have been proposed in a recent governmental report (DS 2016:25) in order to codify the courts’ practice and to adapt the domestic legislation to requirements of the Aarhus Convention. 56  Code (n 1) Ch 1, s 1. 57 ibid. 58  ibid, Ch 2, s 3. 59  See RÅ 2010 ref. 62. 60 See the judgment of the Administrative Court of Appeal in Stockholm, 18 July 2007, 6306-06.

198  Anders Bengtsson health, meaning that the national provisions to take into account disturbances to the surrounding could be interpreted in the light of underlying environmental EU directives. As the Land and Environment courts are more familiar with such issues, here, too, an approach more in conformity with EU law can be foreseen. Irrespective of this, the legislation often leaves the judges room to ­manoeuvre. Traditionally the preparatory works for the legislation have played a very important role in guiding and filling interpretative gaps.61 However, the hierarchy of the sources of law has altered significantly since Sweden’s entry into the EU, and the stronger influence of practice under the ECHR. This means, among other things, that overriding principles on legal security and environmental considerations now play a much more important role and are more often referred to in judgments from the Swedish courts. The elaboration of statements in the preparatory works is often replaced or completed with references or arguments referring to principles or Articles in the Aarhus Convention, for example. In other words, as a result of the ECHR and membership of the EU, the previously solidly dualistic approach to international agreements has been perforated in an apparent way.62 Due to the high level of detail in Swedish substantive law, Swedish judges do not reason from a rights perspective in their judgments. In principle, there exists no tradition of such reasoning among Swedish judges. This may well change as the courts’ practice evolves pursuant to Sweden’s obligations under the ECHR and the Aarhus Convention, at least as far as procedural rules and access to information and documents by private persons is ­concerned.63 In this context the Charter can also have an impact. There is no doubt that, even indirectly, many issues can be explained from a rights perspective. For example, an authority’s omission to act can be described as a failure to comply with its duty. But it can also imply that private persons have a right to expect the authority to act and that a failure to do so will therefore violate persons’ rights. The enhanced awareness of the effects of EU law and the ECHR to distribute rights to individuals has already made such references and arguments more common and will in turn force the courts to discuss in such terms more often. C.  Judicial Induction Courses and Further Education When starting to work in a Land and Environment court, most judges and drafting lawyers lack education and experience in working with 61 In practice, the most valuable material is found in general and special motivations included in each new or altered article of a government Bill that is delivered to the Parliament before adoption. 62  Regarding the ECHR, a special Act, SFS 1994:1219, states that the Convention is applicable as Swedish law. 63  See the reasoning by the CJEU in C-237/07 Janacek [2008] ECR I-06221.

Green Courts as the Providers of Environmental Rights? 199 e­ nvironmental law or property cases. Nevertheless, even newly appointed and inexperienced judges are fully responsible for the cases assigned to them. Even if legal and judicial problems encountered in the Land and Environment courts may be similar to those encountered in other courts, the specialised knowledge required is greater in the Land and Environment courts due to the extensive and detailed nature of the legislation and the overlapping areas of substantive law involved. This underlines the necessity of providing continuing education in the legislation applicable at the Land and Environment courts. To that end, a national programme is evolving at the Swedish Courts Academy. Individual courts, such as the Växjö Land and Environment court, also have their own programmes for induction and continuous education for all categories of personnel (judges, technical judges, drafting law clerks and secretaries). The backgrounds of the technical judges are naturally quite different from those of the legally trained judges, and for some it can initially be hard to adapt to the culture in the court and the role as a judge. This problem also arises for the specially appointed members. Thus the introduction is crucial, including the mandatory judicial oath, education locally and through the Courts Academy, as well as an open discussion on ethical matters in the court. VI. CONCLUSION

The overall experience from working in a Swedish Land and Environment court is that the close cooperation with experts in fields beyond law is both fruitful and necessary for analysing what is often technically complicated material and being able to properly take the active role that is assigned to the court. This holds especially in administrative cases with the obligation ex officio to examine the case. The full review of cases, with all possibilities open in relation to the contested decision (to uphold, alter or annul), provides some great advantages in terms of the ability to end a dispute. A wider range of questions, formal and substantial, can be solved by one decision. In particular, the technical competence within the court facilitates discovery of lapses in technical surveys, or sometimes outright attempts to cheat the court and the opposing parties. When legally possible, it also facilitates mediation and the exploration and suggestion of practical solutions, especially in disputes between neighbours, as the parties have confidence in the courts’ competence and understanding, both judicially and in respect of the technical aspects of the dispute at hand. In recent years the Swedish courts have become bolder in interpreting and challenging national legislation. The most obvious example is that the earlier rather restrictive approach to standing of private persons and NGOs has shifted to a significantly more generous approach as a result of adherence to EU law, the Aarhus Convention and the ECHR. While the legislature has

200  Anders Bengtsson reacted to the judgment of the CJEU in the DLV case by loosening some of the criteria for NGOs to have standing,64 the court has, particularly in light of the Aarhus Convention, pursued a range of progressive developments.65 Clearly, entry into the EU, and adherence to the ECHR and international environmental law, have forced Swedish judges to adapt to influences coming from beyond Sweden’s national borders, including both the CJEU and the European Court of Human Rights. While this has put pressure on the judges to keep up with a highly dynamic area, it has helped end national isolation and open judges up to a community of colleagues all over Europe. This chapter has sought to emphasise some of the advantages of the ­Swedish system of Land and Environment courts. No doubt many aspects of the ‘Swedish way’ could be improved, both in terms of the applicable legislation and in terms of the organisation of the courts. However, even if it is not entirely clear whether the Land and Environment courts can be said to be either providers or protectors of environmental rights, the system is clearly intended to meet the expectations of both society and individuals. The Land and Environment courts play an important role as the outpost to control the fulfilment of the social contract between the nation and its citizens in safeguarding sustainable development and people’s rights to a healthy and clean environment.

64 See DLV (n 30) and the subsequent judgment of the Supreme Court, NJA 2010 s. 419, disregarding the former requirement in Ch 16, s 13 of the Code (n 1) that an NGO have at least 2,000 members in order to have standing. See also statements in the preparatory works to the adjustments in the Environmental Code, prop. 2009/10:184 at 64, 66. See the governmental report DS 2016:25 where the government tries to catch up with the court’s rather progressive practice in these matters. 65  See J Darpö, ‘Med lagstiftaren på åskådarplats’, available at www.jandarpo.se/rapporter.asp.

9 EU Environmental Rights as Human Rights: Some Methodological Difficulties Facing European Courts EDUARDO GILL-PEDRO

I. INTRODUCTION

T

O WHAT EXTENT does EU law provide for a human right to a healthy environment? In this chapter I will highlight some methodological difficulties that stand in the way of an interpretation of EU law as granting such a right. These difficulties are twofold. First, there are difficulties which stem from the purposive nature of the EU as a polity. The EU is a polity that has been set up in order to achieve certain specific objectives, which include environmental objectives. Because the EU is a purposive polity, its legal norms, including its fundamental rights norms, are inevitably connected with the achievement of the objectives with which the EU has been tasked. Second, there are difficulties that stem from the procedural nature of the rights, which EU law guarantees. Where the EU, as a purposive polity, imposes obligations on Member States, these obligations can include the obligation to protect individual rights. However, these rights are provided not as substantive human rights but as procedural rights. These procedural rights can be divided into two categories. In the first category, procedural rights flow from the obligations that the EU imposes on the Member States. The EU will not only impose the primary obligation to achieve that particular objective, but also a secondary obligation to grant individuals procedural rights to challenge Member States’ failures to comply with their primary obligation. Here, procedural rights are concerned with ensuring the efficacy of EU law, and the effective enforcement of EU obligations, rather than the protection of individual rights for their own sake.

202  Eduardo Gill-Pedro In the second category, the EU requires Member States to guarantee procedural rights derived from the Aarhus Convention,1 which the Member States have given the EU the competence to enforce. As a result, the EU imposes the obligation on Member States, through secondary law, to give effect to specific procedural rights in relation to the environment, in particular rights concerning access to environmental information, and rights relating to public participation in environmental decisions. In neither category is a human right to a healthy environment guaranteed. These two aspects of EU environmental rights present particular methodological difficulties to anyone attempting to understand, apply or interpret these rights as human rights. If, as I will argue in Section II, human rights have a specific nature as a type of legal norm which plays a particular role within a democratic legal order, then this specific nature and specific role will impose specific methodological demands on those who interpret or apply them.2 These demands are quite different from those imposed by EU law. As set out above, and as I will argue more fully in Sections III and IV, the nature of the EU as a purposive polity makes certain methodological demands with regard to EU norms.3 The aim of this chapter, by highlighting the methodological difficulties in conceiving EU environmental rights as human rights to a healthy environment, is not to dismiss EU environmental rights as such, but rather to conceive their role more accurately. In particular, the aim of this chapter is to try to understand EU environmental rights, and the role of the courts in enforcing those rights, in a way that allows understanding such rights as both conditions for, and the outcomes of, democratic processes. As outlined in Section II, human rights are legal norms that require a political community to recognise all those under its jurisdiction as equally worthy of concern and respect. They are therefore ineluctably connected with democratic processes through which a political community can articulate what such recognition of equal concern and respect entails. If we are to conceive of EU

1  UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 28 June 1998, 2161 UNTS 447 (the Aarhus Convention). 2  The use of the term ‘methodological’ indicates that the difficulties are not merely a question of interpretation, or disagreement concerning the validity of particular legal propositions, but they concern, more fundamentally, what it is that we do when we interpret a legal norm, or affirm a legal proposition as valid. For a discussion of the relationship between methodology and different concepts of law and legal validity, see J Dickson, ‘Methodology in Jurisprudence: A Critical Survey’ (2004) 10 Legal Theory 117. 3  On the need for specific, autonomous, methods of interpretation in EU law, see K Lenaerts and J Gutiérrez-Fons, ‘To Say What the Law of the EU Is’ (2014) 20 Columbia Journal of European Law 3. The authors make the point that ‘the founding Treaties are entirely grounded in the idea that there are objectives of paramount constitutional importance’ (31). For a fuller argument that EU law, as an autonomous legal system, requires its own methodology, see K Riesenhuber (ed), European Legal Methodology (Intersentia, 2017).

EU Environmental Rights as Human Rights 203 environmental rights4 as complementing rather than contradicting national democracies, then we need to conceive of them as flowing from and supportive of national democratic processes, rather than as norms which are imposed, by the EU, on national democracies. II.  THE NATURE OF HUMAN RIGHTS

The question of the nature of human rights is complex and controversial.5 In this section I will merely sketch an outline of the nature of human rights as legal rules and set out some important methodological implications of understanding legal norms ‘human rights’. To begin with, although human rights are legal rights they reflect a moral concern. As Besson puts it, ‘legal human rights are fundamental and general moral interests recognised by the law as sufficiently important to generate moral duties’.6 Similarly, Habermas writes of human rights as having ‘a Janus face, turned simultaneously to morality and to law’.7 They are legal norms but they ‘have a moral life, expressing urgent human concerns and claims that must not be ignored’.8 Second, human rights are concerned with the way in which ­individuals9 are treated by a political community.10 This means that the bearers of human rights are individuals and the holder of the duty to secure human rights is the political community.11 Human rights regulate and condition the

4  I addressed the broader question of whether EU fundamental rights in general complement or contradict human rights as conditions of democracy in my doctoral dissertation (E ­Gill-Pedro, EU Fundamental Rights and National Democracies (PhD thesis, Lund U ­ niversity, 2016). In this chapter I am focusing specifically on EU environmental rights and the ­methodological difficulties of trying to conceive of them as human rights to a healthy environment. 5  I engage with this question at greater length in Gill-Pedro, EU Fundamental Rights (n 4). For an overview of different positions and a framing of the debate see the various contributions in R Cruft, S Liao and M Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015). 6  S Besson, ‘Human Rights and Democracy in a Global Context: Decoupling and Recoupling’ (2011) 4 Ethics & Global Politics 19, 25. 7  J Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41 Metaphilosophy 464, 470. 8  R Forst, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ [2010] Ethics 711. 9  Normally human beings are physical persons but in some circumstances human rights can also impose demands on how legal persons are treated. 10  The political community is normally the state, and the various emanations of the state, which exercise public authority over individuals. As the EU is a polity, however, which in certain circumstances can exercise authority over individuals, human rights are also concerned with the way in which an international organisation, such as the EU, treats individuals. 11  The duty to secure human rights includes not only the negative duty not to breach the human rights of individuals under that political community’s jurisdiction, but also the positive duty to take steps to prevent those rights being breached.

204  Eduardo Gill-Pedro way in which the political community can treat each and every one of us, as individuals.12 Third, the moral concern which human rights express is the requirement that a political community acknowledge the equal worth of all human beings.13 Thus human rights are designed to capture those instances where any one individual14 is treated as less than an equal, as less worthy of equal concern and respect.15 Human rights thus express the moral demand that the political community treat each and every one of us as equally worthy of what Forst terms ‘the basic right to justification’.16 Fourth, once this moral concern is expressed as a legal human right, this generates legal duties on the part of the political community to secure them.17 Thus, the nature of human rights as legal norms is deontological, in that they have the ‘oughtness’ of an ‘unconditioned and universal obligation’.18 Fifth, human rights are inextricably connected to democracy.19 The requirement that the political community recognise each and every person within its jurisdiction as equally worthy of concern and respect is a requirement which pertains to democracy as a political form of society.20 Human rights

12  Human rights can also be group rights, such as minority rights. However, also here, the bearer of rights is a distinct and identifiable element of the community, rather than the community as a whole. The group must therefore ‘surmount a threshold of unity and identity if it is to be potentially capable of bearing rights’, see P Jones, ‘Group Rights’ in E Zalta (ed), The Stanford Encyclopedia of Philosophy, available at https://plato.stanford.edu/archives/ sum2016/entries/rights-group/. 13  Cruft et al (n 5) 9. 14  Or group (n 12). 15  See R Dworkin, Taking Rights Seriously (Duckworth, 1977). 16  Forst (n 8) 719; the concept of the right to justification is a complex one, but here I use it merely to indicate the moral demand that every person ‘be recognized as an agent who can demand acceptable reasons for any … social or political structure or law that claims to be binding upon him or her’. This right is not a ‘natural right’ that reflects some kind of essence of human nature, but is, in the words of Seyla Benhabib a ‘moral goal to strive for’, see S Benhabib, ‘Another Universalism: On the Unity and Diversity of Human Rights’ (2007) 81 Proceedings and Addresses of the American Philosophical Association 7, 16. 17  So as legal rights, human rights are ‘claim rights’ under the Hohfeldian taxonomy: the fact that I have a human right is a reason for holding another to a duty to either do or refrain from doing something. The taxonomy of legal relations as ‘claim rights, privileges, liberties and immunities’ is set out in H Hohfeld: ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’ (1913) 23 Yale Law Review 710. 18  J Habermas, Between Facts and Norms, trans. W Rehg (Polity, 1997) 254. This is not to say that all human rights are absolute. Some rights are qualified, which means that an interference with that right which is in accordance with the law and is justified by reference to a legitimate objective will not breach the right. But the obligation not to breach the right is absolute. In other words, the political community has an absolute obligation either not to interfere with an absolute right, or to justify an interference with a qualified right. 19 As Lefort puts it, ‘Human Rights are indissociable from the birth of the democratic debate’, C Lefort, ‘The Question of Democracy’ in Democracy and Political Theory, trans. D Macey (Polity, 1998) 18. 20  I am aware that this fifth proposition is not uncontroversial, and that not all understandings of human rights connect them necessarily to democracy. I do not need to address this controversy because in respect of European human rights, the European Court of Human Rights

EU Environmental Rights as Human Rights 205 and democracy are thus co-original in that human rights are conditions of the democratic process. In turn, it is only through the democratic processes that human rights as legal norms can be elaborated and specified.21 These five characteristics of human rights show that, as legal norms, they play a particular role in a democratic legal order. This role in turn places certain methodological demands on how human rights are to be understood, interpreted and applied. It is against this backdrop of the nature of human rights as legal norms that I now turn to EU environmental rights. III.  ARTICLE 37 OF THE CHARTER

The Charter of Fundamental Rights of the EU22 (the Charter) came into force on 1 December 2009 with the Treaty of Lisbon.23 Article 6(1) of the Treaty on European Union24 (TEU) provides that the Charter shall have the same legal value as the Treaties.25 Article 37 of the Charter, entitled ‘Environmental Protection’, proclaims that ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union, and assured within the principle of sustainable development’. Article 37 belongs to the category of legal provisions that articulate a ‘principle’ rather than a ‘right’. The need to distinguish between rights and principles stems from Article 52(5) of the Charter, which states that ‘provisions which contain principles … shall be judicially cognisable’ only in the interpretation of legislative or executive acts which implement those principles, or when ruling on the legality of such acts. Although Article 52(5) does not provide us with a list of ‘provisions which contain principles’, the official Explanations relating to the Charter26 list Article 37 as an illustration of ‘provisions which contain principles’.27 Moreover, there is broad agreement among commentators that Article 37 contains a principle rather

has affirmed that ‘Democracy constitutes a fundamental element of the “European p ­ ublic order”’ which the ECHR aims to uphold (Yumak and Sadak v Turkey (App No 10226/03), Judgment (Grand Chamber) of 8 July 2008), and democracy is the only political system envisioned by, and compatible with, the ECHR. 21 

Habermas (n 18) 127. [2000] OJ C364/01. 23  Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 [2007] OJ C306/1. 24  Treaty on European Union (TEU) [2016] OJ C202/13. 25  TEU, ibid, and the Treaty on the Functioning of the European Union [2016] OJ C202/47 (TFEU). These two Treaties (and their Protocols) together with the Charter, constitute the primary law of the EU. 26  Explanations Relating to the of Fundamental Rights [2007] OJ C303/02. 27  According to the Explanations, ‘examples for principles recognised in the Charter include eg Articles 25, 26 and 37’. 22 

206  Eduardo Gill-Pedro than a right.28 Article 37 therefore does not ‘confer any right in the sense of an individual entitlement guaranteed to the victims [of a failure to preserve or protect the environment]’.29 The key point about this Article, which engenders the first aspect of the methodological difficulties this chapter seeks to highlight, is that this provision sets out an objective to be achieved, or an outcome to be secured. This is confirmed by the text of the Explanations30 to the Charter, which states that this provision is based on Articles 3(3) TEU and Articles 11 and 191 of the TFEU. Article 3 TEU sets out the aims of the EU, with Article 3(3) specifying that the EU ‘shall work for the sustainable development of Europe […] aiming at a high level of protection and improvement of the quality of the environment’. Article 11 TFEU requires that environmental protection be integrated in EU policies, and Article 191 TFEU states that EU policy on the environmental shall aim at a ‘high level of protection’.31 It is thus clear from the text of Article 37 of the Charter, as well as the related provisions in the Treaties, that Article 37 does not confer a right on ­individuals. What Article 37 of the Charter does is confer duties, primarily on EU institutions,32 to integrate a high level of both environmental protection and improvement of the quality of the environment into all its p ­ olicies. As Morgera and Dúran Morin emphasise, these duties are not merely aspirational, as the EU institutions must integrate a high level of protection into all their policies.33 ­However, the legal ‘bindingness’ of these duties is not matched by a guarantee of a certain environmental quality in the form of rights held by individuals. Given that Article 37 of the Charter does not confer any rights on individuals, the duties imposed on EU institutions cannot be conceived of as deriving from rights. Instead, those duties are connected to the overall objective of protecting and improving the environment, one of the aims of the Union. As will be discussed below, this link between Article 37 of the Charter and

28  Morgera and Mórin Duran state that ‘there is little doubt that Article 37 … belongs to the category of “principles”’, E Morgera and G Mórin Duran, ‘Article 37’ in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2015) 995. This is confirmed in N de Sadeleer, EU Environmental Law and the Internal Market (Oxford University Press, 2014) 109, and S Bogojević, ‘EU Human Rights Law and Environmental Protection: The Beginning of a Beautiful Friendship?’ in Sionaidh Douglas-Scott and Nicolas Hatzis (eds), EU Human Rights Law (Edward Elgar Publishing, 2017) 449. 29  de Sadeleer (n 28) 109. 30  Explanations (n 26). Article 6(1) TEU affirms that these Explanations are to be given ‘due regard’ when interpreting and applying the Charter. 31  Article 191(2) TFEU. 32 Although it may also impose duties on Member States when they implement EU law. Article 51(1) of the Charter stipulates that the Charter is addressed to the EU institutions and to the Member States ‘only when they are implementing EU law’. 33  Morgera and Mórin Duran (n 28) 998. Also, see Nowag, Chapter 7 in this volume, on the integration principle.

EU Environmental Rights as Human Rights 207 the aims of the Union has important repercussions for how this Charter right is applied. A.  The EU as a Purposive Polity The EU is much more than an agreement between states;34 it is an autonomous legal order which claims authority over the Member States as an ‘independent source of law’.35 Although the EU is not a state,36 the Union has taken over extensive areas of governance and ‘exercises a huge amount of public power’.37 This power is conferred on the Union by the Member States in order to achieve certain objectives as specified in the Treaties.38 The use of these competences by the Union is governed by the principle of conferral, which states: ‘The Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’.39 When considering the EU’s role in observing and enforcing fundamental rights,40 it is of crucial importance to keep in mind the purposive nature of the EU as a polity41 established in order to achieve specific objectives42 through the exercise of specific competences which it can exercise only to the extent necessary to achieve those objectives.43 The first implication is that the EU has no general competence to protect human rights per se.44 The fact that the EU has assumed a role in fundamental rights protection, and

34 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen EU:C:1963:1. 35  Case 6/64 Flaminio Costa v ENEL EU:C:1964:66. 36  Opinion 2/13 of the Court on the agreement on accession to the ECHR, EU:C:2014:2454. 37  J Weiler, ‘The Legitimacy Credit Crunch of the EU’, FIDE Conference Keynote speech (2012 Tallinn), available at: www.fide2012.eu/index.php?doc_id=145. 38  In particular under Article 3 TEU, which set out in broad terms the aims that the Member States decided the EU should pursue. As set out above, the protection and improvement of the environment is one such aim. 39  Article 5(2) TEU. 40  For a general discussion see Gill-Pedro (n 4) 173ff. 41 For an elaboration of the purposive nature of the EU see G Davies, ‘Democracy and Legitimacy in the Shadow of Purposive Competence’ (2015) 21 European Law Journal 2. 42 Which include, as set out above, environmental objectives. If the EU (or formerly the EEC) was ever a purely ‘economic’ community whose sole task was the construction of an internal market, it now has a wide range of objectives. While it is worth noting that the impetus that first led the EU to intervene in environmental policy was the danger that Member States’ actions in this field would lead to barriers in the internal market (see de Sadeleer (n 28) 229), it is beyond doubt that the EU now has competence to pursue environmental objectives for their own sake, and not merely in order to facilitate the functioning of the internal market. 43  See Article 5(3) TEU. 44 Opinion 2/94 on the accession by the Community to the ECHR, 28 March 1996 EU:C:1996:140.

208  Eduardo Gill-Pedro now has a legally binding Charter of Fundamental Rights, does not extend its competences.45 Indeed, fundamental rights became part of the EU legal order not in order to promote or improve the protection of human rights but rather, as the Court of justice of the EU (CJEU) expressly affirmed in Siragusa, ‘to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law’.46 The observation that the point of protecting fundamental rights in EU law is the preservation of the unity, primacy and effectiveness of EU law, and that the EU thus does not engage in the protection of fundamental rights for its own sake, has already been noted in the doctrine.47 It is important to keep it in mind since EU actions need to be interpreted in light of the objectives it pursues; that is, in the context of its purposive nature as a ­polity.48 This extends not only to the acts of EU institutions, but also to the obligations that the EU imposes on Member States. Under the principle of sincere cooperation, the Member States have the obligation to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives’.49 Thus, the Union only has the competence to impose obligations on the Member States to take measures where these are necessary for achieving the objectives of the Treaties and, conversely, not to take measures where such national measures might impede the achievement of the Union’s objectives. Thus, the obligations that the EU imposes on Member States, including obligations concerning fundamental rights, are inextricably connected with the objectives of the EU.

45  Article 6(1) TEU, second paragraph, provides that ‘the provisions of the Charter shall not extend in any way the competences of the Union’. Declaration No 1 attached to the Treaty of Lisbon reinforces this by stating that ‘the Charter does not extend the field of application of Union law being the powers of the Union nor establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties’ (Declarations Annexed to the Final Act of the Intergovernmental Conference which Adopted the Treaty of Lisbon [2012] OJ C326/339). 46 Case C-206/13 Cruciano Siragusa v Regione Sicilia—Soprintendenza Beni Culturali e Ambientali di Palermo Judgment of 6 March 2014, EU:C:2014:126, para 32. 47  The ‘point’ of EU fundamental rights is explored in depth in Gill-Pedro (n 4). For statements linking the engagement of the court with fundamental rights and the need to protect the primacy and uniformity of EU law, see JH Weiler, ‘Methods of Protection: Towards a Second and Third Generation of Protection’ in A Cassese, A Clapham and J Weiler (eds), Human Rights and the European Community: Methods of Protection (Volume II, Nomos, 1991) 581; X Groussot, General Principles of Community Law (Europa Law, 2006) 73; B de Witte, ‘The Role of the CJEU in Human Rights’ in Philip Alston (e), The EU and Human Rights (Oxford University Press, 1999) 864. In fact, former Advocate General Fennelly (writing extrajudicially) describes this linkage as ‘generally accepted’, N Fennelly, ‘Legal Interpretation at the European Court of Justice’ (1996) 20 Fordham International Law Journal 656, 678. 48  Indeed, under the principle of proportionality as set out in Article 5(4) TEU, the EU has no competence to act except to the extent to which its actions are necessary to achieve the objectives of the Treaties. 49  Article 4(3) TEU.

EU Environmental Rights as Human Rights 209 B.  The EU and Environmental Objectives One of the objectives that the EU is tasked to achieve is environmental protection. As stated above, Article 3(3) TEU, which sets out the aims of the EU, specifies that the Union shall aim at ‘a high level of protection and improvement of the quality of the environment’. In addition, Article 11 TFEU demands that environmental protection requirements be integrated into EU policies and activities,50 while Article 191 TFEU stipulates that those policies and activities shall contribute to a number of objectives, including ‘preserving, protecting and improving the quality of the environment’.51 In order to achieve these objectives, the EU engages in what Majone describes broadly as ‘regulation’.52 Since the 1970s there has been a substantial output of EU legislation concerned with environmental m ­ atters.53 This ‘regulation’, however, is not limited to the legislative process but also involves complex processes where the various EU institutions interact in tasks that involve policy setting, legislative processes, and administrative and enforcement tasks.54 The EU’s exercise of its competences in order to achieve environmental objectives in turn imposes obligations on the Member States. Although competence in environmental matters is shared between the EU and the Member States,55 the doctrine of pre-emption entails that once the EU exercises competence in respect of a particular field of environmental policy, EU law ‘occupies’ that field and the Member States are no longer free to exercise their own competences in that field.56 The Member State is thus put

50 

See Nowag, Chapter 7 in this volume on the integration principle. Advocate General Kokott pointed out, ‘Those provisions are not to be interpreted or examined independently of each other. On the contrary, they give expression to the common principle of a high level of environmental protection’, Opinion of AG Kokott in Case C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia and Others, EU:C:2016:665, para 25. 52  Regulation, according to Majone and in the sense employed here, is a much broader term than a type of legal instrument. Regulation is ‘a distinctive form of policy-making mainly concerned with the correction of various types of market failure’, see G Majone, ‘Market Integration and Regulation: Europe after 1992’ (1992) 43 Metroeconomica 131. 53  de Sadeleer states that EU environmental law currently embraces more than 200 Directives and a dozen Regulations, and that this ‘substantial body of EU legislation covers nearly all aspects of [environmental] policy, ranging from listed installations and pollution control, through waste management and nature conservation, to procedural requirements’, see de ­Sadeleer (n 28) 175. 54  See L Krämer, EU Environmental Law (8th edn, Sweet and Maxwell, 2015) 33ff, for an overview of the respective roles of the different EU institutions in furthering the EU’s environmental objectives. 55  Article 4(2)(e) TFEU. 56  Article 2(2) TFEU. However, much of EU environmental regulation is by way of so-called ‘minimum harmonisation’ measures. These measures leave the Member States scope to enact rules that will afford a greater level of protection for the environment. However, such stricter rules must be compatible with the Treaties (see Article 193 TFEU, with regard to minimum harmonisation in the field of environmental protection. For an overview of the obligations of 51  As

210  Eduardo Gill-Pedro under a dual obligation. First, it is required to take ‘appropriate measures, general or particular, to ensure the fulfilment of the obligations’ that flow from the acts which the EU institutions have adopted in exercising their competence.57 Second, the Member State is required to ‘refrain from any measures which could jeopardise the attainment of the Union’s objectives’.58 To summarise, my argument is that Article 37 of the Charter does not grant a human right to a healthy environment. Instead, it outlines particularly important objectives with which the EU has been tasked. This understanding of Article 37 of the Charter fits the nature of the EU as a purposive polity which has specific competences conferred on it by the Member States to achieve specific objectives. IV.  EU ENVIRONMENTAL ‘RIGHTS’ AND THE OBLIGATIONS OF DOMESTIC COURTS

So far I have argued that Article 37 of the Charter enshrines the objective of environmental protection as a fundamental principle of the EU legal order. The mere fact that this objective is set out in a Charter of Fundamental Rights does not by itself turn this objective into a right. Rather than conferring rights on individuals, this provision imposes obligations both on the EU institutions and on the Member States, as noted above. However, some of those obligations entail the requirement that individuals be allowed to challenge, before the national courts, failures by Member States to fulfil these obligations, and applies not only, and not even primarily, to environmental obligations. This obligation, which is known in EU law as the principle of direct effect, was first elaborated by the CJEU in the famous case of van Gend en Loos,59 a case concerned with the obligation not to introduce new customs duties on goods imported or exported between Member States.60 The EU thus demands that Member States allow individuals to challenge, before the state’s domestic courts, acts or omissions which would violate that state’s EU law obligation.61 We turn now to look in detail at the ­relevant the Member States under minimum harmonisation, see M Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 Common Market Law Review 853. 57 

Article 4(3) TEU.

58 ibid. 59 

van Gend en Loos (n 34). obligation set out in Article 12 of the Treaty Establishing the European Economic Community: ‘Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other’, see CELEX No: 11957E/TXT. 61  Through the application of the doctrine of direct effect, see van Gend en Loos (n 34). This duty may include a duty to refrain from taking measures that violate EU law (as in van Gend en Loos); to take positive steps to protect rights guaranteed by EU law (Case C-112/00 Eugen Schmidberger Internationale Transporte v Austria EU:C:2003:333); to provide remedies 60  An

EU Environmental Rights as Human Rights 211 case law of the CJEU to further illustrate this point. More precisely, the aim is to show how the obligations imposed on Member States concern the grant of rights which are procedural in nature and these procedural rights can be divided in two categories: one, to enable challenges of any failures on the part of the Member State to comply with a substantive obligation under EU law; and a second to ensure the observance of environmental law entrusted to the EU. A.  Obligations in Respect of Substantive Standards A number of EU legal acts impose obligations on Member States to comply with substantive environmental standards. According to Krämer, the main fields of protection include air quality, noise pollution and waste control.62 Measures regulating the composition and manufacture of products also entail standards that aim, directly or indirectly, to protect the environment.63 These provisions impose a number of duties on Member States to achieve particular objectives, including environmental ones. When a Member State does not comply with those duties, the environmental objectives are not met. Some commentators argue that such provisions therefore entail a substantive right to a healthy environment. According to Feliziani, ‘a Member State’s duty to avoid such harmful situations for the environment and human health suggests a corresponding right [to a healthy environment]’.64 However, if we examine the CJEU jurisprudence in detail we see no such right being recognised. The case discussed by Feliziani is Commission v Italy (Waste Collection),65 which concerns a failure by a Member State (Italy) to comply with its obligations under the Waste Framework Directive.66

for individuals who have suffered harm as a result of a breach of EU law (Cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic EU:C:1991:428); or to adapt its own constitutional structures so as to enable the effective application of EU law (Case 35/76 Simmenthal SpA v Ministero delle Finanze Italiano EU:C:1976:180). 62 

Here I rely on the taxonomy provided by Krämer, EU Environmental Law (n 54). For instance, measures which are designed to reduce the use of mercury in medical devices are intended to protect human health, given that mercury is a poison to humans, but also have the aim of protecting the environment, see Case C-288/08 Kemikalieinspektionen v Nordiska Dental AB EU:C:2009:718. More specifically, measures relating to the composition of plant protection products (pesticides) have the dual purpose of ensuring ‘a high level of protection of both human and animal health and the environment’ (Regulation 1107/2009 concerning the placing of plant protection products on the market [2009] OJ L309/1). 64  C Feliziani, ‘The Duty of Member States to Guarantee the Right to a Healthy Environment: A Consideration of European Commission v Italy (C-297/08) (2012) 24 Journal of Environmental Law 535, 544. 65  Case C-297/08 Commission v Italy EU:C:2010:115. 66  Directive 2006/12/EC on waste [2006] OJ L114/ 9. 63 

212  Eduardo Gill-Pedro The CJEU held that Italy had ‘failed to meet its obligation to establish an integrated and adequate network of [waste] disposal installations’67 and had failed to take ‘all the measures necessary to ensure that waste is recovered and disposed of without endangering human health and without ­harming the environment’.68 Contrary to Feliziani’s assertions, the existence of such a duty does not suggest a corresponding right vested in the persons who may be affected by the failure to fulfil that duty. There is, of course, a correlation between rights and duties. As Hohfelt points out,69 the statement that ‘X has a right against Y that the Y shall stay off X’s land’ is invariably correlated to the statement that Y has a duty to stay off X’s land.70 Indeed, Adestam ­posits that the statement ‘A has a right against B that B shall do H’ is the same as ‘B has a duty towards A to do H’.71 So the statement ‘Member State B has a duty towards individual A not to subject her to environmental harm’ would be the same as the statement ‘Individual A has a right against ­Member State B not to be subject to environmental harm by that Member State’. ­However, this correlation does not appear in the context of this case because the duty imposed on the Member State was owed to the EU—not to individuals. Under the principle of loyal cooperation set out in Article 4(3) TEU, Member States have a duty to cooperate sincerely in carrying out the tasks specified in the Treaties,72 and to take appropriate measures to ensure the fulfilment of the obligations which arise out of the Treaties or from the legal acts of the EU institutions. As Temple Lang points out, this is a reciprocal obligation73 which binds the Member States to each other and to the EU. The orientation of the Member State obligation towards the EU is particularly obvious in the case of Directives, which are addressed to the Member States and which require them to take measures to achieve the objectives stipulated in those directives.74 As the CJEU noted in C ­ ommission v Italy, ‘in permitting Member States to profit from the advantages of the ­Community,

67 

Commission v Italy (n 65) para 88. ibid, para 113. 69  As Hohfeld puts it, ‘a duty is the invariable correlative of that legal relation which is most properly called a right or claim’, see Hohfeld (n 17) 28. 70  Here Hohfeld is writing about what he calls ‘claim rights’. This is the type of right whose correlate is a duty, and thus the appropriate type to use in this particular discussion. 71  J Adestam, Den dokumentvillkorade garantin (Karnov, 2013) 36. 72  The principle of loyal cooperation is in turn linked to the principle of conferral, set out in Section IIA. Member States confer specific competences on the EU in order to achieve common objectives, and in turn the Member States are under a duty, both towards each other and to EU institutions, to cooperate loyally in the tasks required to achieve those common objectives. 73  J Temple Lang, ‘Article 10 EC—The Most Important “General Principle” of Community Law’ in U Bernitz, J Nergelius and C Cardner (eds), General Principles of Community Law in a Process of Development (Kluwer, 2008) 77. 74 According to Article 288 TFEU, ‘a Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed’. 68 

EU Environmental Rights as Human Rights 213 the Treaty imposes on them also the obligation to respect its rules’.75 It is thus clear that the CJEU sees the Member State obligation as being owed to the EU and not to the individual. In short, this correlation between rights and duties cannot exist because the entities to whom the duty is owed—the EU and the other Member States— are not identical with the entity that would benefit from the right—that is, the individual affected by the environmental harm. B.  Obligation to Allow Individuals to Challenge Substantive Failures Of course, as discussed above, one of the obligations that EU law can impose on a Member State is the obligation to allow individuals to challenge a failure by that Member State to comply with its substantive obligations under EU law. Logically, this obligation should also hold with regard to failures by Member States to comply with substantive environmental standards. The case of Janecek, which deals with the Air Quality Directive,76 is a good example of this.77 Here the CJEU held that the Directive ‘places the Member States under a clear obligation to draw up action plans both where there is a risk of the limit [air quality] values being exceeded and where there is a risk of the alert thresholds being exceeded’.78 If such a risk exists, persons directly affected by the risk of poor air quality ‘must be in a position to require the competent authorities to draw up an action plan where such a risk exists, if necessary by bringing an action before the competent courts’.79 Krämer argues that the CJEU’s interpretation of the Directive in this case ‘comes close to giving individuals which are affected by polluted air … a right to clean air’.80 My claim is that the CJEU falls short of doing that; instead, it gives individuals who are affected by air pollution a right to challenge, in a national court, a failure by the Member State to set up an action plan detailing how such air pollution will be tackled. This is made clear in ClientEarth,81 which concerns the same Air Quality Directive. In that case the CJEU reiterated that Member States have a duty, under the principle of sincere cooperation, to ensure judicial protection of an individual’s rights under EU law and to provide remedies sufficient to ensure that legal

75  Case 39/72 Commission v Italy EU:C:1973:13. It should be noted that this case concerns a failure by Italy to comply with the obligations imposed by a Regulation. 76 Directive 96/62/EC on ambient air quality assessment and management [1996] OJ L296/55. 77  Case C-237/07 Dieter Janecek v Freistaat Bayern EU:C:2008:447. 78  ibid, para 35. 79  ibid, para 49. 80  Krämer (n 54). 81 Case C-404/13 R (ota) Clientearth v Sec. of State for Environment, Food and Rural Affairs EU:C:2014:2382.

214  Eduardo Gill-Pedro ­ rotection is effective82 in the fields covered by EU law. Yet the question p arises, what was the right that had to be protected? In this case it was merely the right to rely on the obligation imposed by the Directive in proceedings before a national court83 in order that the national court might require the competent authorities to establish an air quality action plan.84 Thus, the right granted by EU law in these cases is not the human right to a healthy environment but the procedural right to have access to the court in order to demand that the Member State comply with its (pre-existing) EU law obligation.85 This right is not vested in individuals by EU law but arises as a means necessary for ensuring the effective enforcement of that obligation.86 However, EU law does grant individuals a right to challenge any Member State’s failure to comply with its environmental obligations where granting such a right will make the enforcement of those obligations more effective. This contingency is most clearly illustrated in Kraaijeveld.87 The applicant in Kraaijeveld was challenging a decision by a national authority to adopt a dyke reinforcement plan. No environmental impact assessment (EIA) had been conducted prior to the plan’s adoption, which the applicant argued constituted a failure to fulfil the obligation set out in Article 2(1) of the EIA Directive.88 However, the applicant’s concern was not with the environmental impact the plan would have but rather with the economic impact of disconnecting the waterway where Kraaijeveld is based from the rest of the canal system. In short, the applicant’s concerns were that ‘the removal of access to navigable waterways would be ruinous to Kraaijeveld’s business, whose economic activity is related to waterways’.89 Further, Kraaijeveld had not invoked the failure to conduct an environmental assessment in the dispute before the national court; rather it was the

82 

ibid, para 52. ibid, para 55. 84  ibid, para 56. 85  This might seem like an exercise in splitting hairs, but it has some important implications for how we understand the role of a court in the enforcement of rights. I will elaborate on why this difference is significant in Section IV. 86  De Sadeleer notes how ‘private enforcement, where individuals avail themselves of their rights … enhance a weak public enforcement’, N de Sadeleer, ‘Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases’ (2012) 81 Nordic Journal of International Law 39. Note that de Sadeleer (n 28) himself points out that what is at stake is not the rights of the individual, but the obligations of the Member State, and ‘rights are not a precondition for supremacy of EU secondary law’. As Prechal and Hancher point out, ‘direct effect as a concept is broader than the mere creation of rights’, see S Prechal and L Hancher, ‘Individual Environmental Rights: Conceptual Pollution in EU Environmental Law?’ (2002) 2 Yearbook of European Environmental Law 89, 98. 87 Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland EU:C:1996:404. 88 Directive 85/337/EEC on the assessment of the effects of certain public and private ­projects on the environment [1985] OJ L175/40. 89  Kraaijeveld (n 87) para 18. 83 

EU Environmental Rights as Human Rights 215 domestic court that raised the matter on its own motion when submitting the reference for a preliminary ruling. Clearly, in this situation it is very difficult to see the applicant as having a right to an EIA;90 the applicant was not concerned with the assessment of the impact on the environment, and had not sought to challenge the decision on environmental grounds. Nevertheless, the CJEU repeated its mantra that where EU law ‘imposes on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts’. In summary, it is clear from the case law that individuals are not granted, under EU law, a substantive right to a healthy environment. Rather, the Member States are placed under substantive obligations to protect the environment and, under certain circumstances, individuals are granted standing under EU law to challenge, before the national courts, the state’s failure to comply with these substantive obligations. C.  Obligations in Respect of Procedural Rights Several provisions of EU secondary law expressly grant individuals a ­number of procedural rights in relation to the environment, and these may be invoked before national courts. In particular, the EU has implemented the Aarhus Convention91 through a number of secondary legal instruments that are intended to guarantee access to information, public participation and access to justice in environmental matters.92 The objective of the Aarhus Convention is ultimately to protect ‘the right of every person to live in an environment adequate to his or her health and well-being’.93 However, the rights granted by the Convention do not include a general ‘right to live in an environment adequate to health and

90 cf the Opinion of Advocate General Elmer, who observes that the Directive (under ­ rticle 6) confers rights on the public to participate in the decision-making process, and that, A as Kraaijeveld was clearly a part of the public, the decision by the national authorities had deprived it of that right, Opinion of AG Elmer in Case C-72/95 Kraaijeveld EU:C:1996:135, para 70. However, the CJEU, in its reasoning, does not mention Article 6 or a right on ­Kraaijeveld’s part to participate. 91  See n 1. 92  Directive 2003/34/EC on public access to environmental information [2003] OJ L41/26; Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment with regard to public participation and access to justice [2003] OJ L156/17; and Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13. On the Aarhus Convention, see Darpö, Chapter 11 in this volume. 93  Article 1 of the Aarhus Convention.

216  Eduardo Gill-Pedro well-being’,94 but the specific rights of access to information, participation and access to justice. Thus both the Convention and the implementing EU acts are intended to confer specific procedural rights on individuals95 which are enforceable vis-à-vis the Member States. This makes these provisions different in nature from the substantive quality-standards provisions that were considered above because here there is a correlation between the duties that Member States owe to individuals and the rights that individuals enjoy vis-à-vis Member States. The case of LZ96 helps to illustrate the distinction between, on the one hand, procedural rights granted to ensure the effective enforcement of a substantive obligation, and procedural rights vested directly in individuals, on the other. Here, the Member State had granted a permit for the construction of an enclosure on a site designated a site of EU-wide importance under the Habitats Directive.97 Under Article 6(3) of that Directive, approval of such construction hinged on two conditions: —— the proposal must be subject to ‘appropriate assessment of its implications for the site’ and approval may only be given if ‘it will not adversely affect the integrity of the site’, and —— where appropriate, the opinion of the general public must be obtained. The applicant—LZ, a national environmental organisation—had sought to challenge the permission in the national courts on the grounds that no appropriate assessment had been carried out and that it had not been allowed to participate in the decision-making process. The national court refused to recognise LZ as a party in the proceedings, which meant that, in accordance with national procedural rules, it could not contest the decision. After a number of appeals, the matter was referred to the CJEU for a preliminary ruling. The central question concerned whether EU law required the national court to grant LZ standing as a party in the proceedings.

94  Indeed the UK made a Declaration on acceding to the Aarhus Convention, pointing out that the reference to the right to an environment adequate to health and well-being expresses ‘an aspiration which motivated the negotiation of this Convention’, and that the legal rights which the parties undertake to protect are the procedural rights of access to information, ­public participation and access to justice. 95  The objective of Directive 2003/34 (n 92), as set out in Article 1, is, inter alia ‘to guarantee the right of access to information’, and the objective of Directive 2003/35 (n 92) again set out in Article 1, is to provide for public participation in certain environmental decisions. In both of these EU legal acts the reference to a right to live in an adequate environment is not present in the text of the Directive, with reference only in the Recitals. 96 Case C-243/15 Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín (LZ) EU:C:2016:838. 97  Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/07.

EU Environmental Rights as Human Rights 217 The CJEU’s reasoning proceeded in two steps. First, and in line with the reasoning in Janecek98 and ClientEarth,99 it pointed out that it would be ‘incompatible with the binding effect attributed to a directive by Article 288 TFEU to exclude, in principle, the possibility that the obligations which it imposes may be relied on by those concerned’.100 The principle of effectiveness might require national courts to allow such concerned persons to challenge alleged failures by the national authorities in meeting those obligations. Second,101 the Court observed that Article 6(3) of the Directive, read in conjunction with Article 6 of the Aarhus Convention, provided organisations such as LZ with a right to participate in environmental decision making. By not allowing LZ to be a party to the proceedings, the national authorities had denied LZ the possibility of participating in the decisionmaking process, and this denial constituted a breach of Article 6.102 On the one hand, we have a situation where the individual (be it natural or juridical) is allowed to challenge a failure by a Member State to comply with its EU law obligations. In this case, that individual cannot be said to have a right. As Advocate General Kokott put it in her Opinion in LZ, where an environmental association has ‘an interest … which is recognised in law’ this will suffice to enable it to challenge such a failure.103 On the other hand, when it comes to participation, the individual is granted a right, which it holds against the Member State, and the Member State has a corresponding obligation to that individual to allow it to participate. Individuals are also granted rights of access to information. Under ­Article 4 of the Aarhus Convention, and under Directive 2003/34,104 Member States are obliged to make available environmental information held by any public authority upon request by any individual. This entails, as the CJEU put it in Stichting De Bijenstichting,105 that ‘any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of public authorities, without that person having to

98 

Janecek (n 77). Clientearth (n 81). 100  LZ (n 96) para 44. 101  Or ‘in addition’, as the CJEU phrases it in its judgment, ibid para 45. 102  The judgment is not very clear, in particular as the CJEU seems to conflate the right to participate, which LZ has under Article 6(3) of the Directive and under Article 6 of the Convention, with the right to access to court and effective judicial protection under Article 9 of the Convention and Article 47 of the Charter, respectively. My reading of it, however, is justified on the basis that the judgment reflects two strands of case law, as I will explain shortly. 103 Opinion of Advocate General Kokott in Case C-243/15 Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín EU:C:2016:491, para 49. What matters are not the rights of the individual but rather that someone is in a position to challenge the wrong committed by the public authority. The requirement that they have an interest can be seen as designed to prevent frivolous or vexatious claims—to prevent ‘mere meddlers’ from challenging public authorities. 104  See n 92. 105  Case C-442/14 Bayer CropScience SA-NV, Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden EU:C:2016:890. 99 

218  Eduardo Gill-Pedro state an i­nterest’.106 Like the right to participate, this is a right that all persons enjoy vis-à-vis the Member State’s authorities, and which corresponds to that state’s obligation to provide the information when requested. V.  EU ENVIRONMENTAL RIGHTS AS HUMAN RIGHTS

So far I have argued (in Section III) that Article 37 sets out an objective, rather than a right, and (in Section IV) that the EU does not recognise a substantive right to a clean environment but rather requires Member States (a) to allow individuals to challenge the state’s failure to comply with an EU law obligation in the national court and (b) to respect certain procedural environmental rights, in particular rights of public participation and access to information. Some commentators have expressed disappointment at this lack of recognition of a substantive right to a healthy environment.107 This reflects the high hopes that some environmental lawyers place on human rights as a tool for environmental protection. Putting environmental concerns in the language of rights is thought to ‘strengthen [their] legitimacy in the eyes of individuals’,108 and allow those seeking to protect the environment to ‘use the institutions and mechanisms developed to promote and implement human rights’.109 These assertions have not gone uncontested.110 It is not the task of this chapter to revisit this debate in its entirety. Rather, I will highlight two

106 

ibid, para 53. R O’Gorman, ‘The Case for Enshrining a Right to Environment within EU Law’ (2013) 19 European Public Law 583 (very explicitly); Feliziani (n 64) who expresses hope that such a right is on its way to being recognised; and Bogojević (n 28) who refers to the limited applicability of Article 37 as this provision’s ‘drawback’, which renders it of limited use to NGOs and others who attempt to ‘spur environmental action’ through the courts. 108  O’Gorman (n 107) 604. As Prechal and Hancher point out, ‘rights appear to possess a special, almost mystical, normative force’, see Prechal and Hancher (n 86) 90. The authors go on to question this normative force. Weston and Bollier emphasise that a human right to a clean environment ‘provides a powerful narrative and means for envisioning and bringing about an effective, socially rooted system of ecological governance’, see BH Weston and D Bollier, Green Governance: Ecological Survival, Human Rights, and the Law of the ­Commons (Cambridge University Press, 2013) 29. 109  JW Nickel, ‘The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification’ (1993) 18 Yale Journal of International Law 281. This argument is echoed by Leib, when she points out that human rights equip environmentalists ‘with a powerful tool with which to overcome the “sovereignty wall” often raised as a barrier to … state liability’, see LH Leib, Human Rights and the Environment: Philosophical, Theoretical and Legal Perspectives (Martinus Nijhoff, 2011) 2. 110  In the EU context, Douglas-Scott rejects the idea of conceiving environmental protection in terms of human rights because, among other failings, a right to a good environment is too vague and indeterminate to be effective, it provides false hope, and it is merely a policy statement disguised as a right, see S Douglas-Scott, ‘Environmental Rights in the European Union’ in Alan Boyle and Michael Anderson (eds), Human Rights Approaches to ­Environmental ­Protection (Clarendon, 1996) 110. See also Prechal and Hancher (n 86), who argue that using 107  See

EU Environmental Rights as Human Rights 219 ­ ethodological difficulties with the concept of a human right to a healthy m environment that can explain and justify the prevailing focus on procedural rights. A.  The Environment as a Collective Good It is a trite observation that, to the extent that we can consider the ­environment111 a ‘good’, it is a collective good. By definition, the environment is something in respect of which individuals are affected collectively, and measures which are taken for the protection of the environment are measures which in turn protect the collective, not the individual. By contrast, and as set out in Section II, human rights as legal norms are designed to protect the rights of all members of a political community individually. Human rights are designed to protect any one individual112 from being treated as less equal than others; less worthy of concern and respect;113 or as less worthy of the right to justification.114 There are thus methodological difficulties in formulating a human right to a collective good. If all are affected equally by the environment then it is in everyone’s interest to improve the quality of the environment.115 What measures should be taken to improve the environment will then be a question of policy choice. Indeed, this methodological difficulty is reflected in the wording of Article 37 of the Charter, which is formulated as a policy objective which the political community (here the EU) shall strive towards—either in the interests of everybody,116 or in the interests of the intrinsic value of the environment itself.117

the language of rights in this context invites ‘conceptual pollution’. More generally, Leib sets out four critiques of the adoption of a substantive right to the environment, see Leib (n 109) 94. 111 This raises the complex question of what ‘the environment’ is, and to what category of phenomena we can rightly apply the adjective ‘environmental’. I will not engage with this question beyond indicating that de Sadeleer’s formulation may be appropriate. For him ‘environment’ is a complex, chameleon-like concept which ‘may be limited under a narrow reading to NIMBY (not in my back yard) factors, whilst read more broadly it may be coterminous with the biosphere’, see de Sadeleer (n 28) 7. 112  Or group rights, as explained in Section II. 113  The formulation which Dworkin (n 15) employs. 114  Forst (n 8). 115  Of course, in some circumstances, some members of the political community can be more seriously affected than others by environmental harms—this will be addressed in Section VC. 116  If we adopt an anthropocentric justification of environmental protection. 117  It is possible for a political community to seek to achieve a collective objective that is not for its own benefit, or for the direct benefit of its members, but for the benefit of the environment as something which has intrinsic worth. But even a non-anthropocentric justification of environmental protection will still see such protection as a collective objective.

220  Eduardo Gill-Pedro The fact that the environment is a collective good also creates methodo­ logical difficulties for the courts. Traditionally, courts have been seen as ­suitable venues for determining whether a particular individual or group’s legal rights have been violated. They have not been considered suitable ­venues for determining what is in the collective interest of the community. As Dworkin puts it, courts are forums of principle,118 not of policy:  Arguments of policy justify a political decision on the grounds that the ­decision advances or protects some collective goal of the community … [A]rguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.119

Policy decisions are best suited to legislative processes in which those affected by the decision can participate, and where compromises about what the best interest of the community requires can be reached.120 Arguments of principle, on the other hand, are concerned not with results that might ideally be achieved in the future, but with what rights and duties have already been assigned in the community, and are thus best suited to courts.121 This division of labour between courts and legislature reveals itself in the structure of human rights argumentation. Human rights claims are ­normally brought by those who think that their rights have been interfered with.122 The burden of proof falls on the alleged victim. Most human rights, however, are not absolute. Thus, even if the victim is able to show that her or his rights have been interfered with, it is possible for the state to justify that interference by reference to some legitimate objective in the public interest.123 In effect, the state will advance policy arguments as to why the interference is necessary. It is the state that is given the role of identifying the legitimate public interests that may necessitate interference with

118  The term ‘principle’ has a specific meaning, derived from Dworkin’s theory of adjudication, which differs from the term principle, which is used in Article 52(5) of the Charter, discussed in Section III. 119  Dworkin (n 15) 82. 120  Of course, legislative processes are not perfect either, and there is no guarantee that all those affected by a decision will have an equal voice. My argument is that they are much more suitable forums than courts. For a more detailed comparison see Gill-Pedro (n 4) 122ff. 121  Dworkin famously makes another distinction, between principles and rules, see R ­Dworkin ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14. For the purpose of this chapter, nothing turns on this distinction, as arguments of principle rely on both rules and principles. The key distinction for this chapter is between principles and policies. 122  Under the European Convention on Human Rights (ECHR), only those who can show that they are victims of the alleged violation can bring claims before the European Court of Human Rights (ECtHR) under the individual petition procedure (Article 37 ECHR). Similarly, Optional Protocol No 1 to the International Covenant on Civil and Political Rights allows communications from individuals claiming to be victims of violations of the Covenant (Article 1). 123  It may also seek to show that the interference is necessary to protect the rights of others.

EU Environmental Rights as Human Rights 221 human rights.124 It is therefore only the state that can advance policy arguments about what is best for all.125 There are therefore methodological difficulties in the concept of a human right to a healthy environment. Human rights are legal norms which limit the ways in which the political community can treat us, as individuals, in pursuit of what that community claims to be in the public interest. A healthy environment, by contrast, is a public interest, whose pursuit may legitimise interferences with individual human rights. B.  Protecting the Rights of Participation and Information The discussion in the previous section allows us to see that while courts are not suitable forums for deciding matters of environmental policy or making decisions concerning how best to protect the environment as a collective good, they are eminently suitable for ensuring that political decisions respect the rights which the community has assigned to its members. As Samantha Besson explains: ‘human rights protect those interests tied to equal political membership’.126 I argue elsewhere that if we conceive of human rights in this way then rights which guarantee ‘equal opportunities to participate in processes of opinion- and will-formation’127 are a central category of basic rights because the ‘interests tied to equal political membership’ necessarily include the interest to participate in political decision ­making.128 It is clear that, by specifying rights of participation in environmental decision making and rights to access environmental information,129 both the EU and the Member States have made a commitment to guarantee equal rights in the ‘processes of opinion- and will-formation’ concerning the environment. Therefore there is a very clear role for the courts to play in ensuring that both EU institutions and national authorities respect those rights. 124  Although of course, where states are parties to human rights treaties (such as the ECHR), any claim that an interest justifying an interference with a human right is a legitimate interest is subject to compliance with those treaties. 125 And here Bogojević identifies a specific role for Article 37 of the Charter—including this public interest within a charter of rights gives special weight to justifications, which are adduced in the name of attaining environmental goals, and therefore make it possible for a state to justify interfering with individual rights (such as the right to property) in order to achieve environmental goals, see Bogojević (n 28). 126  Besson (n 6) 23. 127  Habermas (n 18) 123. 128  Gill-Pedro (n 4) 133. 129  Both the EU and the Member States signed and ratified the Arhus Convention, and of course, the Member States participated in making the EU directives, which confer competence on the EU in this area. This means that it was the political communities—ie the Member States of the EU—that decided that those in its jurisdiction should have the right to participate in, and have access to, information regarding environmental decisions.

222  Eduardo Gill-Pedro Furthermore, given the potential impact of environmental decisions, it is easy to see how such procedural rights are connected to the right to justification set out in Section II, which expresses the demand that every person ‘be recognized as an agent who can demand acceptable reasons for any … social or political structure or law that claims to be binding upon him or her’.130 It is precisely because the environment is a collective good in which everyone has a stake that it is necessary that everyone can have a say in decisions concerning it.131 As Forst points out, the right to justification does not concern primarily the outcome of decisions concerning the allocation of goods, but is rather the processes by which these decisions are made—how decisions concerning the allocation of goods are made and who has the power to make those decisions.132 It is thus wholly appropriate for courts, both at the national and the EU level, to make sure that the Member States and the EU live up to the commitments to allow individuals to participate in environmental decision making, by disregarding decisions that fail to respect those rights. Such interventions will complement, rather than detract from, the democratic processes of those Member States. C.  Protecting the Rights of Membership Human rights are inextricably connected to membership in a political ­community.133 However, they are not limited to the rights connected to participation in the political life of that community. They include all rights that members of that political community, through the exercise of its political autonomy, confer on one another so as to regulate their life together.134 They are what Besson terms ‘the rights of membership’.135 Such rights must be protected equally because if any one member of the community is not afforded the rights that the community considers necessary to regulate their communal life, that one member is not being treated as a full and equal member of the community and is not being treated with equal concern and respect.

130 

Forst (n 8). In this context it should be noted that although everyone has a stake in the environment, particular decisions concerning the environment can disproportionately affect particular individuals or groups. 132 R Forst, ‘Transnational Justice and Democracy’ (2011) Normative Orders Working Papers 04/2011, 9. 133  This is not to say that only members of a political community can have human rights. On the contrary, one of the key roles of human rights is to make sure that no one is treated in a way that does not recognise them as potentially an equal member of the political community. 134  Habermas (n 18) 122. 135  Besson (n 6) 79. 131 

EU Environmental Rights as Human Rights 223 Norms which prohibit or control activities that cause environmental harm have gained increasing recognition in the legal orders of the Member States through legislation regulating the environment,136 express recognition in Constitutions,137 and ratification of international treaties and conventions concerning the environment.138 If the political community fails to give equal protection to all those under its jurisdiction, that is, where some are treated as less worthy of protection in respect of environmental harm than others, this may entail a violation of the human rights of those persons. The case law of the European Court of Human Rights (ECtHR) provides a good illustration of this.139 While there is no ‘right to be free from environmental harm’ under the European Convention on Human Rights (ECHR), the ECtHR has held that individuals who have suffered harm through environmental degradation can have a right to challenge the acts or omissions of the state which caused the harm.140 It is important to note that in all the case law to date, the ECtHR has only held that a state has breached the Convention through acts or omissions which caused environmental harm where those acts or omissions were not in conformity with domestic law.141 This point was expressly acknowledged

136  For a detailed overview of the specific Italian development, as an example of laws protecting people from environmental harm that has become a part of one national legal order, see A Liberatore and R Lewanski, ‘The Evolution of Italian Environmental Policy’ (1990) 32 Environment 5. 137  See J May, ‘Constituting Fundamental Environmental Rights Worldwide’ (2005) 23 Pace Environmental Law Review 137 for an examination of this phenomenon at a global level. 138 See generally A Gunnerstad, ‘God Miljö—en mänsklig rättighet?’ (1995) SvJT 112, 120–22. 139  See, for a fuller illustration, Gill-Pedro (n 4) 153ff. See also Hilson, Chapter 4 in this volume. 140  The ECtHR has recognised a broad range of environmental harms as falling within the scope of the ECHR. These include allowing activities which entail a serious risk to human life, which fall within the scope of Article 2, severe noise and smell, serious environmental pollution, contamination of the water table and the creation of risk of subsidence, which have all been considered to affect the individual’s right to respect for her or his home, or private and family life. 141  Lopez Ostra v Spain (App No 16798/90) Judgment of 9 December 1994; Dubetska v Ukraine (App No 30499/03) Judgment of 2 May 2011; Moreno Gomez v Spain (App No 4043/02) Judgment of 16 November 2004; Fadeyeva v Russia (App No 55723/00) Judgment of 9 June 2005; and Taskin and Others v Turkey (App No 46117/99) Judgment of 10 ­November 2004. According to Pedersen, ‘the Court steps in and corrects the sometimes obvious shortcomings of national law and procedures where it is clear that national authorities have had little regard to national measures’, see OW Pedersen, ‘The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law’ (2010) 16 European Public Law 4, 571–95, 591 (emphasis added). Even the in Brincat and others v Malta (App No 60908/11 et al), Judgment of 24 July 2014, where the ECtHR found a violation for failure to legislate in order to protect the applicants’ rights to life and to private life, which were put at risk by working in an environment where they were exposed to asbestos dust, this still amounts to a failure by the state to protect rights recognised in national law—the right of employees to be safe from exposure to hazardous substances in their workplace was a right recognised in the Maltese legal order, but still the national authorities failed to legislate to extend the protection

224  Eduardo Gill-Pedro by the ECtHR in Hatton: ‘In previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime’.142 In these cases, the right that is protected is not the ‘right to a good environment’. Rather it is the right to the environmental standard that a particular political community has determined must be guaranteed to all members of that community ‘in order that they may regulate their common life together’.143 In other words, it may be appropriate for a human rights court, such as the ECtHR, to intervene when it appears that a state has failed to afford a particular individual or group the human rights which that state has committed to guarantee to all those in its jurisdiction. However, while such a role may be appropriate for the ECtHR, it is not an appropriate role for the CJEU. As the former President of the Court of Justice forcefully put it, the EU is not a human rights organisation and the CJEU is not a human rights court.144 The CJEU has no general competence to oversee the Member States’ observance of fundamental rights145 and, as pointed out earlier in this chapter, the EU protects fundamental rights only in order to ensure the unity, primacy and effectiveness of EU law. In other words, the CJEU, as the Supreme Court of the EU, has the task of ensuring that the Member States comply with the obligations they have undertaken under the Treaties.

of that right to a specific category of workers who were exposed to a specific harm which the authorities knew about, see in particular paras 105ff. 142  Hatton and others v United Kingdom (GC) (App No 36022/97) Judgment of 8 July 2003, para 120. It is important to note that the ECtHR did not depart from this trend in Hatton, meaning that what the ECtHR said about ‘previous cases’ is still applicable to subsequent cases, and to Hatton itself. 143  As stipulated by Habermas (n 18) and see text accompanying n 134. 144  The former President of the CJEU, Judge Skouris, expressly stated that ‘The Court of J ­ ustice is not a human rights court; it is the supreme court of the European Union’ (V Skouris, XXVI FIDE Congress, Copenhagen, 2014, cited by L Besselink, ‘The ECJ as the European “Supreme Court”’, Verfassungsblog, entry of 18 August 2014, available at http://­verfassungsblog.de/ ecj-european-supreme-court-setting-aside-citizens-rights-eu-law-­supremacy/). The current President of the CJEU has also affirmed that ‘From the fact that the Charter is now legally binding does not follow that the EU has become a “human rights organisation”’, see K L ­ enaerts and J Guitérrez-Fons, ‘The Charter in the EU Constitutional Edifice’ in Peers et al (eds) (n 144) 1561. 145  As already noted, Article 6 TEU expressly states that the rights provided in the Charter do not, in any way, extend the EU’s competences. There is a limited role for the EU to play under Article 7 TEU, if there is ‘a clear risk of a serious breach’ of one of the values set out in Article 2 TEU, and these values include respect for human rights. However, as Spaventa pointed out, this provision ‘has proved an eminently ineffective tool and it has never been used’, see E Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights’ (European Parliament, Citizens’ Rights and Constitutional Affairs Policy Department, 2016) available at www. europarl.europa.eu/RegData/etudes/STUD/2016/556930/IPOL_STU(2016)556930_EN.pdf.

EU Environmental Rights as Human Rights 225 VI. CONCLUSION

I began this chapter by analysing the text of Article 37 of the Charter and observing that it does not entail a right but is rather framed as a policy objective. This has been criticised by some as limiting its usefulness in promoting environmental protection. However, I argue that this criticism is misguided. First, the EU is a purposive polity, capable only of pursuing those objectives that have been specified in the Treaty. The EU has no competence to act to protect fundamental rights of individuals. However, the protection of the environment is a policy objective of the EU, meaning that the EU can demand that Member States comply with the obligations that flow from the commitments they have made as members of the EU, including demanding that Member States allow individuals to challenge their failure to comply with those obligations before national courts. Second, human rights are not, in themselves, suitable norms through which to secure policy objectives. The requirement to respect human rights is connected to the requirement that the equal worth of all members (and potential members) of a political community is respected. Human rights are breached when any one person or group is treated in a way that fails to recognise them as worthy of equal concern and respect. Admittedly, states can breach individual rights by subjecting individuals to, or by failing to protect them from, environmental harm. However, the EU has no mandate to intervene in the Member States’ domestic legal orders to secure the protection of these individual human rights per se. Nevertheless, protection of the rights of participation and of access to information are rights which the Member States and the EU are committed to protecting. This provides an indication of how the EU can contribute to the furtherance of both human rights and environmental protection—not by stipulating some pre-defined EU ‘right to a healthy environment’ that would be imposed on the Member States, but by insisting that Member States live up to their commitments to allow all those affected to participate meaningfully in decisions about their environment.

226 

Part IV

Whose Environmental Rights?

228 

10 The Rights of Environmental Investors: The Case of Renewable Energy ANATOLE BOUTE*

I. INTRODUCTION

T

HE RIGHT TO property is intrinsic in the development of ­environmental law.1 Environmental law scholarship has mostly focused on the negative impact that the right to property can have on environmental protection.2 First, as the foundation of the current economic system, property rights are responsible for environmental degradation. According to Taylor and Grinlinton, ‘environmental damage, whether on a small or a grand scale, is often the result of the legitimate exercise of individual property rights over natural resources in ways that show little regard for the natural environment’.3 Second, the protection of the right

* This chapter was finalised before the public disclosure of the arbitral awards in Eiser I­ nfrastructure Limited and Energía Solar Luxembourg Sàrl v Kingdom of Spain, ICSID Case No ARB/13/36 and Isolux Netherlands, BV v Kingdom of Spain, SCC Case V2013/153. 1 S Coyle and K Morrow, Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing 2004); E Scotford and R Walsh, ‘The Symbiosis of Property and English Environmental Law—Property Rights in a Public Law Context’ (2013) 76 Modern Law Review 1010. 2 P Taylor and D Grinlinton, ‘Property Rights and Sustainability: Toward a New Vision of Property’ in Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, 2011) 1–20, 8; C Rodgers, The Law of Nature Conservation: Property, ­Environment, and the Limits of Law (Oxford University Press, 2013) 307; K Tienhaara, The ­Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge University Press, 2009) 3. 3  Taylor and Grinlinton (n 2) 8. See also Rodgers (n 2) 307, according to whom: ‘Many of the problems and weaknesses of modern nature conversation law arise from the inevitable conflict that arises between the legal norms reflected in property entitlement rules, which grant to landowners unrestricted and extensive land use rights, and the impact of environmental regulation that seeks to restrict or mould property rights in order to promote a public interest goal in environmental protection’.

230  Anatole Boute to property constrains environmental initiatives because it exposes states that adopt ambitious environmental measures to possible legal claims. The negative interaction between property rights and environmental protection is a recurrent issue in the investment law literature. According to Tienhaara, ‘arbitrators have expropriated certain fundamental aspects of environmental governance from states. As a result, environmental regulation has become riskier, more expansive and less democratic, especially in developing countries’.4 Focus on the risk of ‘regulatory chill’5 and the ‘collision points’6 between the right to property and environmental protection has led attention away from the positive contribution that the right to property, including foreign investors’ rights, can make to environmental protection. While the protection of property can be an obstacle to the introduction of ambitious environmental protection policies, it also has a key role to play in the transition of the economy towards sustainability by protecting the rights of investors in the green economy. Investors have a crucial role to play in delivering the massive investments that are needed in the reorganisation of the economy towards more sustainable—and in particular more climate-friendly— patterns.7 However, these environmental investors face important regulatory and political risks, not least the risk of changes by the government of the regulatory and financial basis that governs environmental investments. Focusing on the decarbonisation of the EU economy, this chapter critically examines the existing protection of low-carbon investments in the EU under the European Convention for Human Rights (ECHR, Article 1 First Additional Protocol)8 and the International Investment Agreements (IIAs) signed by EU Member States.9 This chapter thus take an investor’s perspective to the question of ‘environmental rights’. What rights can environmental ­investors rely on when confronted with a decision by the government to

4 

Tienhaara (n 2) 3 (italics in original). Tienhaara, ‘Regulatory Chill and the Threat of Arbitration: A View from Political ­Science’ in Chester Brown and Kate Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge University Press, 2011) 606. 6 J Viñuales, Foreign Investment and the Environment in International Law (Cambridge University Press, 2015) 253. 7 UNEP, The Financial System We Need: Aligning the Financial System with Sustainable Development (2015) vii; Addis Ababa Agenda of the Third International Conference on Financing for Development, UNGA Resolution 69/313, 27 July 2015, UN Doc A/RES/69/313; Executive Secretary of the United Nations Framework Convention on Climate Change, Investment and Financial Flows to Address Climate Change (2007) 42. 8  European Convention for the Protection of Human Rights and Fundamental Freedoms, entry into force 3 September 1953, available at www.echr.coe.int/Documents/Convention_ ENG.pdf. 9 The protection of environmental investors under international investment law can also be approached from the nature conservation perspective. See Peter Allard v Government of Barbados, PCA Case No 2012-06, Decision on Jurisdiction of 13 June 2014. 5 K

The Rights of Environmental Investors 231 unilaterally (and often retroactively) change the regulatory and financial basis that the government initially created to attract these environmental investors? The key role of investors for climate change mitigation is clear in the context of the ambitious EU climate change mitigation policy. This policy requires significant investments in energy production from renewable energy sources, in energy efficiency improvements and in carbon capture and storage.10 Ensuring these low-carbon investments requires the creation of an ‘enabling environment’,11 or a level playing field, to ensure the competitiveness of clean technologies in relation to existing polluting sources. However, the investment community regularly highlights the regulatory and policy risks of investing in clean energy sources.12 Governments in the EU have repeatedly interfered with the regulatory framework they have created to promote investments in the green economy.13 According to institutional economic theory, the creation of an attractive investment climate requires protection against the illegitimate interference by the state with investments.14 The pertinent question that emerges is does the right to property adequately protect green investors against risks of interference with

10  European Commission, Communication: A Policy Framework for Climate and Energy in the Period from 2020 to 2030, COM(2014) 15 final. 11  See UNEP—Regional Office for Asia Pacific—Supporting Policy Development and Enabling Environment for Sustainable Consumption and Production, available at www.unep. orgoap/Activities/ResourceEfficiency/SupportingPolicyDevelopmentandEnablingEnviron/ tabid/1036845/Default.aspx. 12 See eg A Vaughan, ‘UK Solar Power Installations Plummet After Government Cuts’, The Guardian, 8 April 2016, available at www.theguardian.com/environment/2016/apr/08/ solar-installation-in-british-homes-falls-by-three-quarters-after-subsidy-cuts; T Macalister, ‘UK Solar Panel Subsidy Cuts Branded “Huge and Misguided”’, The Guardian, 17 December 2015, available at www.theguardian.com/business/2015/dec/17/uk-solar-panel-subsidies-slashedparis-climate-change; House of Commons Energy and Climate Change Committee, Investor confidence in the UK energy sector, Third Report of Session 2015–16, available at http:// www.publications.parliament.uk/pa/cm201516/cmselect/cmenergy/542/542.pdf; Letter from ­Institutional Investors Group on Climate Change to Mr. Zapatero on the Proposed Retroactive Reduction of 661 Tariff for Existing Investments (23 June 2010), available at http://www.iigcc. org/__data/assets/pdf_file/0010/1009/IIGCC-letter-to-Spanish-government.pdf. 13  For a discussion of these regulatory changes and their impact on renewable energy investments, see EU Commission, REFIT Evaluation of the Directive 2009/28/EC, Accompanying the Proposal for a Directive on the Promotion of the Use of Energy from Renewable Energy Sources, COM(2016) 767 final, at 6 and 37; EU Commission, Commission Staff Working Document, ‘Guidance for the Design of Renewables Support Schemes’, SWD (2013) 439 final, at 3–4. 14 See eg D North, Institutions, Institutional Change and Economic Performance ­(Cambridge University Press, 1990). Investor certainty is a central notion to the 2016 proposal of the EU Commission on a new Renewable Energy Directive (replacing Directive 2009/28 on the Promotion of the Use of Energy from Renewable Sources and Repealing Directive 2001/77 [2009] OJ L140/16 [the EU Renewable Energy Directive]). See EU Commission, Proposal for a Directive on the Promotion of the Use of Energy from Renewable Sources, COM(2016) 767 final, at 3, 5, 7, 13, 27.

232  Anatole Boute the economic rights that states create to stimulate investments in the green economy? To answer this question this chapter starts by briefly introducing the regulatory and financial incentives that governments create to involve private companies in the achievement of environmental policy objectives. The focus then turns to the right to property under the ECHR and to investors’ rights under IIAs.15 As will be examined, investors in the EU renewable energy sector and companies operating under the EU Emissions Trading Scheme (ETS) have invoked both the ECHR and the IIAs signed by EU Member States to challenge government interference with the regulatory and financial incentives that were created to promote environmental investments. This chapter highlights the necessity of reconceptualising the right to property as a right for the protection of environmental investors, ie as an ‘environmental right’. In the context of the urgent need for decarbonisation, it is not sufficient for governments to create regulatory mechanisms (eg green subsidies) to attract environmental investments. Environmental investors must be able to enforce the rights that result from these regulatory mechanisms. II.  REGULATORY AND FINANCIAL INCENTIVES TO PROMOTE ENVIRONMENTAL INVESTMENTS

In the absence of the internalisation of environmental externalities, environment-friendly technologies (eg clean energy) do not compete on ­ equal terms with polluting sources that do not pay for the damage they are causing. In this context, the financial viability of clean technologies depends on state measures to internalise environmental externalities by imposing the cost of pollution on the responsible emitters. Moreover, states can provide direct support to clean technologies by subsidising their development.16 Climate change mitigation measures are commonly designed along these lines. In the EU, for instance, the ETS aims to reduce greenhouse gas (GHG) emissions in a cost efficient way by ‘capping’ the emissions that may be released by large polluters.17 The operators of installations that fall within the scope of application of the ETS Directive must, on a yearly basis, submit 15  Other mechanisms of protection include insurance against political and regulatory risks. See Swenja Surminski, ‘The Role of Insurance Risk Transfer in Encouraging Climate Investments in Developing Countries’ in Pierre-Marie Dupuy and Jorge Viñuales (eds), Harnessing Foreign Investments to Promote Environmental Protection: Incentives and Safeguards (­Cambridge University Press, 2015) 228–53. 16 EU Commission, Commission Staff Working Document, ‘Guidance for the Design of Renewables Support Schemes’, SWD (2013) 439 final. 17  European Commission, Proposal of 23 October 2001 for a Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, COM(2001) 0581final, 6.

The Rights of Environmental Investors 233 a number of allowances that cover the verified GHG emissions of their installations. Allowances can be freely traded. Depending on the market price of the ETS allowances and the cost of company-specific emission reductions, companies will decide to continue to emit GHG as usual or implement emission reduction measures. Although in theory emission reductions can result from the closure of factories or economic down-turn, in practice investments in clean technologies are key to the success of the ETS. Clean investments are needed to avoid being ‘locked in’ on a carbon-intensive path in the long term.18 Carbon prices—and thus the functioning of the ETS— have an important role to play in driving investments in the decarbonisation of the energy supply. According to the General Court (European Union), the main objective of the ETS Directive is ‘to reduce emissions through an ­efficient allowance trading scheme in which the cost of emissions and investments made to reduce such emissions is essentially determined by market forces’.19 However, low and volatile prices have so far prevented the ETS from having a significant impact on investment decisions.20 Following the free allocation of allowances during the first two ETS trading periods (2005–2012), electricity production installations must now purchase their allowances on the carbon market via auctioning.21 As an exception, free allocation of allowances continues to apply to district heating and high-efficiency CHP (cogeneration) installations. These installations emit CO2 but are a more energy-efficient alternative to individual approaches to heat production and supply.22 With free allocation of allowances, the EU aims to facilitate the financial viability (profitability) of these investments, in order to achieve the energy-saving gains that characterise the centralised supply of heat, produced from high-efficiency cogeneration installations.

18 EU Commission, Proposal for a Directive amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, COM(2015) 337 final. 19  Case T-16/04 Arcelor SA v European Parliament and Council of the European Union [2010] ECR II-00211, paras 200–01 (Arcelor SA). More recently, see Case C-203/12 ­Billerud Karlsborg AB and Billerud Skärblacka AB v Naturvårdsverket [2013] EU:C:2013:664, para 26. 20  European Commission, ‘Impact Assessment Accompanying the Proposal for a Decision Concerning the Establishment and Operation of a Market Stability Reserve for the Union GHG Emission Trading Scheme and Amending Directive 2003/87/EC’ COM(2014) 20 final (Commission Staff Working Paper), 5. 21  Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 Amending Directive 2003/87/EC so as to Improve and Extend the Greenhouse Gas Emission Allowance Trading Scheme of the Community [2009] OJ L140/63. 22  If properly maintained, district heating with CHP can be one of the most efficient ways of organising the energy system. CHP plants recover the heat—a by-product of electricity ­generation—that is largely wasted with conventional electricity production techniques. District heating systems supply this heat to industrial and domestic consumers and, therefore, are (in theory) a more energy-efficient alternative to individual boilers. See eg IEA, Coming in from the Cold: Improving District Heating Policy in Transition Economies (IEA, 2004) 41.

234  Anatole Boute Moreover, certain East European countries benefit from free allocation of allowances to their power-generation sector, as a transitional measure in the context of the modernisation of their electricity infrastructure.23 Allowances are also used to support the development of innovative low-carbon technologies. Through the sale of allowances from the new entrants’ reserve, the EU aims to finance demonstration projects of innovative—but not yet commercially viable—renewable energy technologies (eg geothermal energy), as well as the construction and operation of commercial demonstration carbon capture and storage (CCS) projects.24 The award of allowances is dependent upon the verified avoidance of CO2 emissions. To ensure the financial viability of clean energy investments in the context of relatively low and volatile carbon prices, the EU Member States provide direct support to the development of clean energy sources. According to the EU Renewable Energy Directive: Public support is necessary to reach the Community’s objectives with regard to the expansion of electricity produced from renewable energy sources, in particular for as long as electricity prices in the internal market do not reflect the full environmental and social costs and benefits of energy sources used.25

Here, ‘support schemes’ include any instrument, scheme or mechanism that promotes the use of energy from renewable sources by reducing the cost of that energy, increasing the price at which it can be sold, or increasing, by means of a renewable energy obligation or otherwise, the volume of such energy purchased.26

These mechanisms and schemes include investment aid, tax exemptions or reductions, tax refunds, clean energy obligation support schemes (eg green certificates), and direct price support schemes (eg feed-in tariffs and ­premium payments).27

23  Article 10c, Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC [2003] OJ L275/32 (the ETS Directive). 24 Article 10a(8), ETS Directive. See also http://ec.europa.eu/clima/policies/lowcarbon/ ner300/index_en.htm. 25  EU Renewable Energy Directive, Recital 27. 26  Article 2, k, ETS Directive. 27 For an overview and discussion of support schemes in the EU, see EU Commission, Communication, ‘Renewable Energy: A Major Player in the European Energy Market’, COM (2012), 271; EU Commission, Communication, ‘Renewable Energy: Progressing towards the 2020 Target’, COM (2011), 31 final; and C Klessmann, ‘Status and Perspectives of Renewable Energy Policy and Deployment in the European Union: What is Needed to Reach the 2020 Targets?’ (2011) 39 Energy Policy 7637–57; J Canton and Å Johannesson Lindén, European Commission, Directorate-General for Economics and Financial Affairs, Econ. Papers No 408, KC-AI-10-408-EN-N, Support Schemes for Renewable Electricity in the EU 7 (2010).

The Rights of Environmental Investors 235 Usually, ‘green certificate’ schemes are arranged in such a way that r­egulatory authorities deliver tradable certificates for a certain amount of electricity generated from renewable energy sources. The value of such certificates is created by obliging electricity suppliers to submit a certain number of certificates to the regulatory authorities. This number is generally determined in proportion to the producers’ supplies of electricity to end consumers. Suppliers that fail to meet this quota-obligation are fined. A secondary market for certificates is created where eligible producers and suppliers with a surplus of certificates can sell these to other market players. With ‘feed-in tariff’ schemes, the electricity produced from renewable energy installations is paid at a fixed minimum price. This minimum purchase price is generally set higher than the market price and guaranteed over a specified duration. Usually, this fixed price is combined with a purchase obligation for electricity suppliers or network companies. The difference between a ‘feed-in tariff’ and a ‘premium payment’ is that the latter involves a premium being applied on the electricity market price, whereas feed-in tariffs entitle producers to one specific and all-inclusive price. In premium schemes, the amount of support paid to the producers fluctuates with the price of electricity on the wholesale market.28 All these regulatory measures create economic interests for investors in clean energy projects. In the absence of the full internalisation of the carbon externality, the business case for investments in clean energy depends on the reliable implementation of measures of support (clean energy subsidies). States establish these measures in order to incentivise investors to participate in the achievement of the environmental policy objectives they pursue, which is GHG emission reduction and the promotion of renewable energy.29 Support schemes for clean energy investments thus create economic interests for investors in these technologies. Investors rely on the implementation of these support mechanisms to recover the costs of their investments together with a reasonable profit. However, as will be seen in the following section, governments have interfered with investors’ economic interests, thereby undermining investors’ confidence in clean energy support schemes and thus affecting the effectiveness of these environmental policies, which depend crucially on investor participation.

28 EU Commission, Commission Staff Working Document, ‘Guidance for the Design of Renewables Support Schemes’, SWD (2013)439 final, at 8. 29  Renewable energy investments can also pursue objectives of energy security. See P ­Crossley, ‘The Role of National Renewable Energy Laws in Promoting Energy Security’, King’s College London Transnational Regulatory Governance research seminar, 8 March 2016, available at https://www.kcl.ac.uk/law/newsevents/eventrecords/tli/the-role-of-national-renewable-energylaws-in-promoting-energy-security.aspx.

236  Anatole Boute III.  INTERFERENCE WITH THE ECONOMIC RIGHTS OF ENVIRONMENTAL INVESTORS

The experience accumulated so far with the support of clean energy ­investments in the EU demonstrates the risk of interference by EU Member States with the economic interests of investors in clean energy technologies. Governments have unilaterally reduced the level and duration of support for clean energy investments. Most notably, the Spanish government introduced cuts to the feed-in tariffs for solar energy—which generated harsh criticism from the investment community30 and resulted in an important number of investment arbitration claims against the Spanish state.31 The changes that Member States such as Spain have introduced to support schemes in recent years are part of states’ reaction to the alleged overcompensation of investments following the strong reduction in the cost of clean energy equipment.32 Moreover, in the EU, the termination of support must be placed in the context of the completion of the internal energy market. According to the European Commission, ‘as the renewables sector and technologies mature and grow—and as costs decline—it is important that production and investment decisions are driven increasingly by the market and not by guaranteed price levels determined by public authorities’.33 The market (ie market price signals) must replace public subsidies as the main driver of clean energy investments. The 2015 reform of the EU ETS aims to reinforce the ETS as an investment driver by supporting the stability and predictability of carbon prices—thereby reducing the need for specific support mechanisms for clean energy.34 In parallel with the reform of the ETS, the European Commission is taking action to phase out feed-in tariffs and integrate renewable energy investments into the market. Member States

30  See eg Letter from Institutional Investors Group on Climate Change to Mr. Zapatero on the Proposed Retroactive Reduction of 661 Tariff for Existing Investments (23 June 2010), available at http://www.iigcc.org/__data/assets/pdf_file/0010/1009/IIGCC-letter-to-Spanishgovernment.pdf. 31  Most of these investment arbitration claims have been brought under the Energy Charter Treaty ([1994] OJ L380/24). For an overview of these claims, see http://www.energycharter. org/what-we-do/dispute-settlement/all-investment-dispute-settlement-cases/. 32 EU Commission, Commission Staff Working Document, ‘Guidance for the Design of Renewables Support Schemes’, SWD (2013)439 final, 4. 33 European Commission, ‘Communication on Delivering the Internal Electricity Market and Making the Most of Public Intervention’, COM (2013)7243 final, 15. 34 Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 ­October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC [2015] OJ L264/1. For a critical analysis of this reform, see eg J Richstein, E Chappin and L de Vries, ‘The Market (In-) Stability Reserve for EU Carbon Emission Trading: Why It May Fail and How to Improve It’ (2015) 35 Utilities Policy 1–18.

The Rights of Environmental Investors 237 are gradually opting to expose renewable energy investments to market prices.35 However, these policy measures have affected existing investors— imposing important financial losses on the clean energy sector and affecting the confidence of industry.36 In its 2013 Guidance for the Design of Renewables Support Schemes, the EU Commission noted that: Renewable energy producers have faced a range of frequent changes to support schemes. Change is constant. In the renewables sector, the regulatory risk that comes with such changes has a direct impact on capital financing costs, the costs of project development and therefore with the whole process of developing renewables. … Member States’ reforms of national support schemes have changed tariff levels, actual scheme design, choice of technology, or the length of support granted.37

According to the 2016 Report on Investor Confidence in the UK Energy Sector by the House of Commons Energy and Climate Change Committee, recent changes by the UK government on low-carbon energy policy ‘took many stakeholders by surprise and raised serious questions about the Government’s plans for meeting long-term carbon objectives. … the ­Government’s actions have clearly had an impact on the confidence of many investors’.38 According to the Committee, to achieve the UK decarbonisation objective, it is essential ‘to restore trust, start to re-establish the investor confidence that has been lost, and begin to restore the attractiveness of the UK as an investment destination for the many global investors seeking new opportunities’.39 While reform of support schemes and the ETS is needed to adapt these mechanisms to the rapidly changing energy market environment, the success of clean energy policies depends on investors’ confidence that the economic and regulatory foundation of their clean energy investments will be respected. For existing clean energy investments, promises of subsidies must be honoured. According to the 2016 proposal of the EU Commission on a new Renewable Energy Directive, ‘Member States shall ensure that the level

35  European Commission, Commission Staff Working Document Accompanying the Document on Renewable Energy: A Major Player in the European Energy Market, SWD/2012/0164 final. 36  For an overview of recent government interference with renewable energy support mechanisms, see D Behn and OK Fauchald, ‘Governments under Cross-Fire? Renewable Energy and International Economic Tribunals’ (2015) 12 Manchester Journal of International Economic Law 117–39. 37 EU Commission, Commission Staff Working Document, ‘Guidance for the Design of Renewables Support Schemes’, SWD (2013) 439 final, 3–4. 38  House of Commons Energy and Climate Change Committee, Investor confidence in the UK energy sector, Third Report of Session 2015–16, www.publications.parliament.uk/pa/ cm201516/cmselect/cmenergy/542/542.pdf. 39  ibid, 41.

238  Anatole Boute of, and the conditions attached to, the support granted to renewable energy projects are not revised in a way that negatively impacts the rights conferred thereunder and the economics of supported projects’.40 In the absence of the internalisation of the carbon externality and the phasing out of fossil fuel subsidies, green investments remain dependent on public support and will thus continue to be exposed to the risks of government intervention in the economic rights that states created to attract these investments.41 Can the right to property play a role in protecting investors against government interference with the economic interests that states create to attract investments in the development of clean energy? Could investors successfully invoke the right to property under the ECHR, and/or the protection against expropriation under international investment law to oppose the u ­ nilateral withdrawal of clean energy subsidies and carbon allowances?42 Or does the decarbonisation of the energy supply require a re-conceptualisation of the right to property to provide adequate protection to the economic foundation of clean energy investments? IV.  THE RIGHT TO PROPERTY UNDER THE ECHR

A. The Economic Interests of Environmental Investors as Protected ‘Possessions’ According to the case law of the European Court of Human Rights (ECtHR), the right to property under Article 1 of the ECHR applies to ‘possessions’ within the broad meaning of this concept.43 It encompasses corporeal and incorporeal rights and interests,44 as well as both private ownership rights and public benefits and entitlements.45 Pecuniary claims against

40  EU Commission, Proposal for a Directive on the Promotion of the Use of Energy from Renewable Sources, COM(2016) 767 final, at 69 (Article 6). 41  See eg Surminski (n 15) 236 and 249. 42  The answer to these questions proposed in the next sections, to a certain extent, builds further on A Boute, ‘The Protection of Property Rights under the European Convention on Human Rights and the Promotion of Low-carbon Investments’ (2010) 1 Climate Law 93–132; A Boute, ‘Combating Climate Change through Investment Arbitration’ (2012) 35 Fordham International Law Journal 613–64; A Boute, ‘The Quest for Regulatory Stability in the EU Energy Market: An Analysis through the Prism of Legal Certainty’ (2012) 37 European Law Review 675–92. 43 See eg Aida Grgić, Zvonimir Mataga, Matija Longar and Ana Vilfan, ‘The Right to ­Property under the European Convention on Human Rights—A Guide to the Implementation of the European Convention on Human Rights and its Protocols’ (Strasbourg, Council of Europe, 2007) 7. 44  Beyeler v Italy, Judgment of 5 January 2000, Application No 33202/96, para 100. 45 PT Orebech, ‘From Diplomatic—to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1’ (2009) 43 Journal of World Trade 59, 65.

The Rights of Environmental Investors 239 public authorities,46 licences,47 permits48 and other public rights49 have been ­considered by the ECtHR as possessions. In sum, the notion of possessions includes every right or interest having an economic (patrimonial) value.50 These interests or rights must be sufficiently established to enjoy the guarantees of the ECHR. This provision does not protect the hope of recognition of a property right51 but applies only to ‘existing possessions’ or to ‘assets, including claims, in respect of which the applicant can argue that he or she has at the least a “legitimate expectation” of obtaining effective enjoyment of a property right’.52 It is incontestable that carbon allowances and support benefits (eg green certificates) issued to clean energy investors have an economic (patrimonial) value.53 Carbon allowances are often considered as (public) ‘licences’ or ­‘permits’54 that confer the right to fulfil GHG emission reduction ­obligations.55 This right is not absolute. It is subject to the limitations

46  Pressos Compania Naviera v Belgium, Judgment of 20 November 1995, Application No 17849/91, para 31. 47  Tre Traktörer Aktiebolag v Sweden, Judgment of 7 July 1989, Application No 10873/84, para 55. 48  Fredin v Sweden, Judgment of 18 February 1991, Application No 12033/86, para 40. 49  Posti and Rahko v Finland, Judgment of 24 September 2002, Application No 27824/95, para 76; Chassagnou and Others v France, Judgment of 29 April 1999, Application No 25088/94, 28331/95, 28443/95, para 74. 50  Van Marle e.a v The Netherlands, Judgment of 26 June 1986, Application Nos 8543/79, 8674/79, 8675/79, 8685/79, para 41; Pressos Compania Naviera v Belgium (n 46) para 31; Anheuser-Busch Inc v Portugal, Judgment of 11 January 2007, Application No 73049/01, para 78. See David Harris, Michael O’Boyle, Edward Bates, and Carla Buckley, Law of the European Convention on Human Rights (Oxford University Press, 2005) 657. 51  Sokołowski v Poland, Decision on Admissibility of 7 July 2009, Application No 39590/04; Gratzinger and Gratzingerova v the Czech Republic, Decision of the Grand Chamber as to the Admissibility of 10 July 2002, Application No 39794/98, para 73; Kopecky v Slovakia, Judgment of 28 September 2004, Application No 44912/98, para 35. 52  Pressos Compania Naviera v Belgium (n 46) at 31–32; Pine Valley Developments Ltd and Others v Ireland, Judgment of 29 November 1991, Application No 12742/87, para 51; Maurice v France, Judgment of 6 October 2005, Application No 11810/03, paras 63–66; P Popelier, ‘Legitimate Expectations and the Law Maker in the Case Law of the European Court of Human Rights’ (2006) 11 European Human Rights Law Review 10; L Wildhaber, ‘The Protection of Legitimate Expectations in European Human Rights Law’ in Mario Monti, Nikolaus von und zu Liechtenstein, Bo Versterdorf, Jay Westbrook, and Luzius Wildhaber (eds), Economic Law and Justice in Times of Globalisation: Festschrift Carl Baudenbacher (Nomos, 2007) 253. 53 On the qualification of carbon allowances as ‘possessions’, see eg H van Asselt and J Gupta, ‘Stretching Too Far? Developing Countries and the Rule of Flexibility Mechanisms Beyond Kyoto’ (2009) 28 Stanford Environmental Law Journal 311, 337. 54  Within the meaning of the case law of the ECtHR (see Tre Traktörer Aktiebolag v Sweden (n 47) para 55; Fredin v Sweden (n 48) para 40). 55 See E Vranes, ‘Climate Change and the WTO: EU Emission Trading and the WTO ­Disciplines on the Trade in Goods, Services and Investment Protection’ (2009) 43 Journal of World Trade 707, 716–17; G Wiser, ‘Frontiers in Trade: The Clean Development Mechanism and the General Agreement on Trade in Services’ (2002) 2 International Journal of Global Environmental Issues 292.

240  Anatole Boute (eg validity period, transferability) imposed by the regulations governing its creation (starting with the ETS Directive). Nonetheless, carbon allowances that have been issued and registered in the carbon accounts of installations that fall within the scope of application of the EU ETS can be traded on the EU carbon market and thus have a sufficiently established economic value,56 provided these allowances have been created in compliance with all applicable regulations.57 For the same reasons, the subsidies or public benefits that have already been issued to clean energy investors qualify as ‘possessions’ within the framework of the ECHR. A more delicate issue is whether carbon allowances that have not yet been registered in the accounts of ETS installations (eg district heating and high-efficiency CHP generation) and the clean energy subsidies that have not yet been paid to investors qualify as ‘possessions’. Registration in carbon accounts is an essential criterion for the transfer of property of carbon allowances.58 In the absence of registration on their account, the operators of installations that fall within the scope of application of the EU ETS will not hold any formal (property) title over expected allowances. According to the case law of the ECtHR, the question then is whether investors can invoke ‘legitimate expectations of obtaining effective enjoyment’59 of free carbon allowances. During the first ETS trading period (2005–2007), the Belgian Constitutional Court ruled that allowances assigned to a certain installation under the National Allocation Plan but not yet transferred to the account of that installation did not qualify as a ‘possession’ as far as the ECHR is concerned.60 The Court came to this conclusion by highlighting

56  The possible qualification of carbon allowances as administrative rights under national law does not undermine their protection under the ECHR property regime. As we have seen, what matters for the analysis of property under the ECHR is the economic value of possessions. The ECtHR has recognised administrative rights (eg licences) under the ECHR property regime (see Tre Traktörer Aktiebolag v Sweden (n 47) para 55; Fredin v Sweden (n 48) para 40). See, however, Opinion of 5 July 2016 of Advocate General Campos Sanchez-Bordona in ArcelorMittal Rodange et Schifflange SA, Case C-321/15, distinguishing between ‘property’ and ‘administrative rights’ in the analysis of carbon allowances under the right to property under EU law (Article 17(1) Charter of Fundamental Rights of the EU). 57  See AG Sanchez-Bordona in ArcelorMittal Rodange et Schifflange SA (n 56) concerning the allegedly wrongful allocation of allowances due to an error regarding the situation of the installation concerned (failure to comply with the obligation to notify to the competent authority that the installation had ceased production). 58  See Article 3 of the Emission Allowances Single Trade Agreement for the EU Scheme, drafted by the International Emissions Trading Association, Emission Allowances Single Trade Agreement for the EU Scheme, available at www.ieta.org. 59  Pressos Compania Naviera v Belgium (n 46) at 31–32; Pine Valley Developments Ltd and Others v Ireland, Judgment of 29 November 1991, Application No 12742/87, para 51; Maurice v France (n 52), paras 63–66. 60  Belgian Constitutional Court, Arrest no. 92/2006 of 7 June 2006, Application No 3715, ftp://ftp.const-court.be/pub/n/2006/2006-092n.pdf.

The Rights of Environmental Investors 241 the fact that, according to the applicable national law, assigned allowances would not be transferred to the installation concerned in case of closure of that installation, which happened in casu. According to this interpretation, investors’ expectations to benefit from allowances depend on the definition of these expectations in the applicable legal and regulatory framework. Explicit limits concerning the issuance and transfer of allowances to investors undermine investors’ expectations of benefiting from these ­allowances—thus preventing possible investors’ claims under the ECHR against the refusal to grant these allowances. In contrast to the Belgian case, the EU ETS Directive (as amended in 2009) does not limit the future transfer of allowances to investments in district heating and high-efficiency CHP, with the exception of the linear regression factor that applies to the ETS in general: ‘Free allocation shall be given to district heating as well as to high-efficiency cogeneration, as defined by Directive 2004/8/EC, for economically justifiable demand, in respect of the production of heating or cooling’.61 According to this provision, investors in district heating and high-efficiency CHP can reasonably expect free allocation of allowances to cover the emissions associated with the production of heat and cooling by their installations. However, as will be seen below, it is unclear if such a positive requirement is sufficient to trigger protection under the ECHR. Following recent judicial practice in relation to the support of renewable energy, legitimate expectations require a promise of support and at the same time a specific commitment that this support will remain unchanged over the lifetime of the investment. Despite repeated statements by the EU institutions on the importance of legal certainty for investments in the decarbonisation of energy supply,62 the EU ETS Directive falls short of guaranteeing to investors the stability of the free allocation regime. Similarly to carbon allowances, the protection under the ECHR of clean energy subsidies that still have to be issued to investors is a delicate issue. In a 2014 case launched by biogas producers, the Belgian Constitutional Court rejected investors’ claims that regulatory changes to the green subsidy (green certificates) regime constituted a violation of the right to property under the ECHR.63 The case concerned a reduction in the number of years

61 

Article 10a(4), ETS Directive. eg Communication from the Commission, ‘Building a Global Carbon Market’ COM(2006) 676 final), 8 Communication from the Commission, ‘Decisions of 7 July 2004 Concerning National Allocation Plans for the Allocation of Greenhouse Gas Emission Allowances of Austria, Denmark, Germany, Ireland, the Netherlands, Slovenia, Sweden, and the United Kingdom’ COM(2004) 500 final, 7–8. 63 Belgian Constitutional Court, Judgment no 8/2014, 23 January 2014, Application Nos 5558 and 5561. 62 See

242  Anatole Boute during which existing green investors were eligible for support under the subsidy regime. The Court confirmed the validity of this ex post regulatory amendment by highlighting the fact that this change did not affect the subsidies previously granted to investors and therefore did not retroactively undermine the rights of investors. More importantly, the Court argued that investors could not expect the regulatory regime governing the subsidisation of their investments to remain unchanged during the entire lifetime of these investments. The state did not commit to the stability of the subsidy regime and, in the absence of such stabilisation commitments, investors’ economic interests in the support scheme did not qualify as ‘possessions’ within the meaning of the ECHR. In the 2015 case Department for Energy and Climate Change (DECC) v Breyer Group PLC and others, the UK Supreme Court took a comparable approach but reached a different conclusion, recognising clean energy investors’ expectations of support and their protection under the ECHR.64 Despite repeated assurances that regulatory changes to the UK feed-in ­tariff regime would remain unchanged for existing installations,65 the UK government proposed to reduce by 50 per cent the subsidy of smallscale solar projects and to apply this reduction with retroactive force. This ­proposal—which was declared illegal by the Court of Appeal because of its retroactivity—affected the business (in particular the ‘goodwill’) of solar installers.66 Referring to the ECHR case law, the Supreme Court found that goodwill is a ‘possession’ protected by the right to property. Interference with this ‘possession’ by proposing retroactive changes to the economic foundation of solar energy investments can therefore amount to a violation of the ECHR. B.  Interference with ‘Possessions’ and the ‘Fair Balance’ Test The threshold for expropriation of possessions under the ECHR is very high. According to the ECtHR, expropriation constitutes ‘the most r­ adical

64  Supreme Court of Judicature (Lord Dyson, Lord Justice Richards, Lord Justice Ryder), The Department for Energy and Climate Change and Breyer Group PLC, Case No A2/2014/ 2909, 2910, 2911, 2913, of 28 April 2015. 65  On ‘the principle of no retrospective change for low carbon investments’, see eg DECC, Planning Our Electric Future: a White Paper for secure, affordable and low-carbon electricity (The Stationery Office, 2011) Cm.8099, 12, available at http://www.decc.gov.uk/assets/ decc/11/policy-legislation/EMR/2176-emr-white-paper.pdf. 66 However, in Infinis Energy Holdings Ltd v HM Treasury & Anor [2016] EWCA Civ 1030 (21 October 2016), the England and Wales Court of Appeal refused to consider that the removal of the exemption for renewable source electricity from the Climate Change Levy constituted a breach of the principle of legal certainty because the government ‘had made no promise and given no assurance that the [exemption for renewable] would be maintained indefinitely’.

The Rights of Environmental Investors 243 kind’ of interference with the right of peaceful enjoyment of property.67 Even if the interference ‘substantially reduces’ the value of the property, it will not amount to expropriation if this property is not ‘left without any meaningful alternative use’ or is ‘not rendered worthless’.68 The ECHR does not separately protect the different rights arising from the same property.69 The fact that one right has been expropriated will therefore not be sufficient to qualify an interference as a deprivation of possessions, unless the interference takes away all meaningful use of the property concerned.70 Taking this requirement into account, it appears an almost insurmountable task to show that an investor has been deprived of a possession. Investors could still, for example, sell or rent the site or the turbines. A more promising approach for clean energy investors is to invoke protection against the ‘control of the use of property’—a concept that encompasses all measures that public authorities take to regulate the use of property but that do not amount to expropriation.71 The threshold for qualifying as such is low, but under ECHR case law states benefit from a broad margin of appreciation to justify interference with property. To constitute a breach of the ECHR, the withdrawal of carbon allowances or the termination of clean energy support schemes would have to be shown to violate the proportionality requirement, ie fail to ensure a ‘fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’.72 The requisite balance will not be achieved if the affected owner has to bear ‘an individual and excessive burden’.73 In other words, measures are not proportional if they impose most of the social and financial costs of a policy on certain owners. Moreover, state interference with possessions must respect investors’ legitimate expectations. On the one hand, states will have no difficulty in arguing successfully that the interference with carbon allowances or support schemes is ‘in the public interest’, taking into account the broad margin of appreciation for states.

67 

James and Others v UK [1986] ECHR 2] para 71. Pine Valley Developments Ltd and Others v Ireland (n 59) para 56; Fredin v Sweden (n 48) para 45. 69  Mellacher and Others v Austria, Application nos 10522/83; 11011/84; 11070/84, Report of the Commission, para 184. See also Fredin v Sweden (n 48) para 45; Tre Traktörer ­Aktiebolag v Sweden (n 47) para 55. 70  Mellacher and Others (n 69) para 185. 71  Hutten-Czapska v Poland, Judgment of 22 February 2005, Application No 35014/97. See F Tulkens, ‘La réglementation de l’usage des biens dans l’intérêt général. La troisième norme de l’article 1er du Premier Protocole de la Convention Européenne des Droits de l’Homme’ in Hugo Vandenberghe (ed), Propriété et droits de l’homme (La Charte, 2006) 1, 13–14. 72  Sporrong and Lönnroth v Sweden [1982] ECHR 5, para 69; James and Others v UK (n 67) para 50. 73  Sporrong and Lönnroth v Sweden (n 72) para 73; James and Others v UK (n 67) para 50. 68 

244  Anatole Boute Interference with carbon allowances and support schemes, for instance, could be justified as a measure to safeguard the state budget and protect the financial interests of consumers,74 for example in case of unexpected investor interest in the development of clean energy investments based on the support scheme. Moreover, the reform of the subsidy regime could possibly be justified based on environmental considerations. By addressing overcompensation, reform can improve the efficiency of support and possibly result in the subsidisation of more installations.75 On the other hand, clean energy investors could argue that the reform or termination of support imposes on them ‘an individual and excessive ­burden’76—in breach of the ‘fair balance’ test. Taking into account that support schemes are designed to cover the higher investment costs of clean energy projects, significant changes to these schemes (eg to preserve the state budget or protect consumers) could inflict significant financial harm on investors. At the same time, this could breach the investors’ ‘legitimate expectations’ to benefit from these schemes during a sufficient period to enable them to recover their costs and receive a reasonable return on investment. Termination of—or significant changes to—support schemes after clean energy installations have been constructed could be seen as placing the financial cost of the decarbonisation of energy supply mainly in the lap of investors. In the above-mentioned case, DECC v Breyer Group, the UK Supreme Court ruled that, by announcing tariff changes for existing clean energy projects, the UK government breached the ‘fair balance’ test and thus the right to property under the ECHR.77 The Court based its conclusion on the violation by the government of the legitimate expectations that it created for clean energy investors regarding the stability of the support scheme. Despite repeated statements that there would be no retrospective tariff changes, the government proposed to reduce feed-in tariffs with retroactive force. The Court highlighted the scale of the investments made by the Claimants ‘in reliance on these statements’ and the losses caused by the government’s interference with investors’ expectations—protected ‘possessions’ under the ECHR. Importantly for the ‘fair balance’ test, the ‘losses caused by the interference with [investors’] possessions were dwarfed by the savings achieved by DECC as a result of the interference’. The Court reached this conclusion even though it recognised the wide margin of appreciation that the government enjoyed in accordance with ECHR case law. Strictly speaking, the ECtHR does not require explicit stabilisation commitments to protect investors’ expectations under the right to property. 74 

In this sense, see Pressos Compania Naviera v Belgium (n 46) paras 36 and 37. DECC v Breyer Group [2015] EWCA Civ 408, paras 93–95. 76  Sporrong and Lönnroth v Sweden (n 72) para 73; James and Others v UK (n 67) para 50. 77  DECC v Breyer Group (n 75) paras 85–100. 75 See

The Rights of Environmental Investors 245 In the absence of stabilisation commitments, tribunals could in theory decide to recognise—and protect—investors’ ‘legitimate expectations’ to benefit from support, provided the government did not explicitly retain the right to introduce unilateral changes to the level and duration of support (or the allocation of allowances).78 Investors will have to demonstrate that they invested in reliance on the promise of support.79 However, in practice, the protection of clean energy investors against the termination of the support scheme or the future allocation of allowances will prove to be much more challenging in the absence of stabilisation commitments. Recent cases on the protection of clean energy investments under the ECHR right to property before national (Belgian and UK) tribunals have highlighted the importance of investors’ ‘legitimate expectations’ in the continued support of their installations. As demonstrated by DECC v Breyer Group, investors’ reliance on assurances by the state that the support mechanism will be maintained for the entire lifetime of their investments can be a decisive element in the tribunal’s assessment.80

78  See eg Secretary of State for Energy and Climate Change and Friends of the Earth and others [2012] EWCA Civ 28, [51] where the Court of Appeal considered that, in the absence of a clear competence being afforded to the authorities to modify the tariffs, there was a presumption against the retrospective operation of such changes. According to the Court of Appeal, ‘Were there to be a power to introduce, by modification, such a scheme [in which tariffs could be varied once installations had met the eligibility requirements for support], one would expect it to be clearly shown’. See also Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt, Case C-201/08 [2009] ECR I-8343, where the CJEU [Court of Justice of the EU] ruled that ‘It must be accepted that a trader … who commenced his activities under the tax exemption scheme in favour of biofuels at issue in the main proceedings, and who, to that end, made costly investments, could see his interests considerably affected by the withdrawal of that scheme before the date announced, all the more so if that withdrawal takes place suddenly and unforeseeably, without leaving him enough time to adapt to the new legal situation’. The CJEU, however, highlighted that in that case the expectations of the investor were affected by the fact that the legal framework governing the subsidisation of biofuels explicitly announced regulatory interference in the case of overcompensation. 79  See eg Secretary of State for Energy and Climate Change and Friends of the Earth and others (n 78) [52] where the Court of Appeal paid particular attention to the fact that investors committed capital on the basis of a promise of support. Modifying this scheme would ‘take away an existing entitlement without statutory authority’. 80  It must be noted that the owners of clean production installations that are not completed prior to the amendment of a support scheme are unlikely to be considered as holders of the right to benefit from the support scheme. In this sense, see the Judgment of the Gerechtshof te S-Gravenhage of 11 October 2007 in the case X and Stichting Natuur & Milieu v the ­Netherlands, No 06/1560 KG, para 10, where the Court of Appeal considered that the cancellation of the Dutch support scheme for renewable energy (feed-in) did not violate Article 1 of the First Additional Protocol in so far as the applicant had not yet constructed the renewable energy installation at the moment when the change of the support scheme was implemented and was thus not entitled to the payment of the support. However, when introducing changes to the existing support schemes, governments must provide a sufficient transition period to enable investors to adapt to the new regulatory environment. See Secretary of State for Energy and Climate Change and Friends of the Earth and others (n 78).

246  Anatole Boute This ‘stabilisation’ requirement imposes a very high threshold on the successful application of the ECHR to clean energy investors. Indeed, with very few exceptions, support schemes usually guarantee to investors the payment of a minimum fixed subsidy for a minimum period of time. Rarely do states provide an additional guarantee that the fixed subsidy and duration will remain unchanged. V.  PROTECTION OF ENVIRONMENTAL INVESTORS UNDER INTERNATIONAL INVESTMENT LAW

A. The Economic Interests of Environmental Investors as Protected ‘Investments’ ‘Investments’ protected under IIAs are generally defined in a broad way as ‘covering every kind of asset, owned or controlled directly or indirectly by an Investor and including tangible and intangible, and movable and immovable, property … claims to money … and any right conferred by law or contract’.81 There can be no doubt that this broad definition applies to the carbon allowances that have been transferred to investors’ carbon account and the green certificates that have been issued.82 More generally, the right of clean energy investors to benefit from support—as recognised under national energy law—also falls within the scope of application of investment law, taking into account that regulatory and contractual rights qualify as ‘investments’.83 The classification of regulatory and contractual rights relative to the support of clean energy investments as ‘investments’ has the effect of bringing these rights within the ambit of protection afforded by IIAs. However, only in exceptional circumstances will government interference with these rights amount to an unlawful expropriation standard within the meaning of international investment law. B.  The ‘Expropriation’ of Environmental Investments In accordance with established investment arbitration practice, the threshold that must be reached before an action amounts to an expropriation is

81 

See eg Energy Charter Treaty, 1994 OJ L380/24, Articles 1(6)(c), 1(6)(f). See J Morgan, ‘Note: Carbon Trading Under the Kyoto Protocol: Risks and O ­ pportunities for Investors’ (2006) 18 Fordham Environmental Law Review 151, 173–74; L Bennett, ‘Note: Are Tradable Carbon Emissions Credits Investments? Characterization and Ramifications Under International Investment Law’ 85 (2010) New York University Law Review 1581, 1590–99. 83 United Nations Conference on Trade and Development, Taking of Property, at 36, UNCTAD/ITE/IIT/15 (2000). 82 

The Rights of Environmental Investors 247 high: expropriation results from actions that deprive the investor of full ownership and control of the investment.84 The termination of support for clean energy or the cancellation of carbon allowances is unlikely to destroy the economic value of the clean energy investment or deprive investors of full ownership and control of these assets. Indeed, clean energy investors remain in control of their installations. They continue to receive revenues for the electricity produced and sold on the market. Expropriation claims could only be successful if arbitral tribunals were to accept the separation of the specific rights to support from the overall investment in clean energy. However, in a similar way to the ECtHR, arbitral tribunals are reluctant to isolate particular elements of a larger investment operation and qualify these elements as separate investments.85 Indeed, according to established arbitral practice: If it were possible so easily to parse an investment into several constituent parts each forming a separate investment … it would mean, absurdly, that an investor could always meet the test for indirect expropriation by slicing its investment as finely as the particular circumstances required.86

As an exception, in Middle East Cement Shipping v Egypt,87 CME v Czech Republic88 and Eureko v Poland,89 the tribunals accepted that specific rights associated with a general investment transaction could separately be subject to expropriation.90 According to these cases, individual rights can be subject to expropriation if these rights are capable of economic exploitation independently of the remainder of the investment and constitute a key element of the general investment transaction.91 In the absence of internalisation of the carbon externality, the support schemes are an essential precondition (key element) for the making of clean energy investments. Carbon ­allowances

84  Pope & Talbot, Inc v Canada, Interim Award, 40 ILM 258, para 100 (NAFTA/ UNCITRAL Arb. 2000); Técnicas Medioambientales Tecmed, SA v United Mexican States, ICSID Case No ARB(AF)/00/2, Award, para 115 (29 May 2003) 43 ILM 133 (2004); L Yves Fortier and Stephen L Drymer,’ Indirect Expropriation in the Law of International Investment: I Know It When I See It, or Caveat Investor’ (2004) 19 ICSID Review–Foreign Investment Law Journal 293, 305. 85  C Schreuer and U Kriebaum, ‘The Concept of Property in Human Rights Law and International Investment Law’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassoli, ­Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (Dike/Nomos, 2007) 743, 760. 86  Electrabel SA v Hungary, ICSID Case No ARB/07/19, Award of 30 November 2012, para 6.57. See also CMS Gas Transmission Co v Republic of Argentina, ICSID Case No ARB/01/8, Award of 12 May 2005, paras 263–64. 87  Middle East Cement Shipping & Handling Co., SA v Arab Republic of Egypt, ICSID Case No ARB/99/6, Award, paras 100–01, 135–38 (12 April 2002) 7 ICSID Rep. 173 (2005). 88  CME Czech Republic BV v Czech Republic, 9 ICSID Rep. 121. 89  Eureko BV v Republic of Poland, 12 ICSID Rep. 335, para 144 (UNCITRAL Arb. 2005). 90  Ursula Kriebaum, ‘Partial Expropriation’ (2007) 8 Journal of World Investment & Trade 69, 73–78. 91  ibid, 83.

248  Anatole Boute and green certificates have an intrinsic economic value. Once issued and transferred to the individual account of the company concerned, these assets can be sold independently—on the ETS and green certificates markets respectively. It is thus arguable that these assets constitute a ‘right [that] is capable of economic exploitation independently of the remainder of the investment’,92 which can be subject to partial expropriation. However, other support mechanisms, such as feed-in tariffs and premium payments, can usually not be traded separately from the main electricity transaction and are thus not economically independent. More fundamentally, the right to benefit from support in the future is intrinsically linked to clean energy installations. This regulatory or contractual right cannot be exploited independently of these installations, and interference with this right is thus unlikely to amount to partial expropriation. In Charanne B.V. v Spain—the first solar energy case decided under the Energy Charter Treaty (to which the EU and all its Member States except Italy are Contracting Parties)93—the Claimants accused Spain of depriving them of the value of their shares in a clean energy company by capping the volume of electricity that was eligible for support and by reducing the tariff after 25 years of operation of the solar installations.94 The respondent defended the measure by arguing that ‘the right to obtain a regulated tariff for the entire lifespan of the facility’ cannot on its own qualify as an investment separately protected under the expropriation standard. Implicitly endorsing the latter argument, the tribunal rejected the expropriation claim by focusing on the decrease in value of the shares of the clean energy company, not on the subsidy as a separate asset. According to the tribunal, ‘A simple decrease in the value of the shares constituting the investment cannot constitute an indirect expropriation unless the loss of value is such that it can be considered equivalent to a deprivation of property’.95 In casu, the impact of government interference with the support mechanism was limited to a loss of about 10 per cent in the profitability of the investment. C.  Environmental Investors’ Legitimate Expectations of Support Environmental investors can seek protection under the other substantive investment standards under international investment law. For example, in Nykomb v Latvia, an investor in high-efficiency CHP generation ­successfully

92 

Kriebaum (n 90) 83. Charanne B.V. v Spain 1994 OJ L380/24. 94  Charanne B.V. Construction Investments S.A.R.L. v Spain (ARB 062/2012), 21 January 2016. 95  ibid, para 465. 93 

The Rights of Environmental Investors 249 invoked the non-discrimination standard against the refusal of the host state to honour a promise of support for its clean energy investments.96 Latvia continued to provide support to domestic investors and not to the foreign investors. However, the broader relevance of this case is limited by the fact that states will rarely act in such an obviously discriminatory way. Interference with support schemes is usually more subtle and affects investors across the board, not just investors of foreign origin. The ‘fair and equitable’ standard, and in particular the protection of investors’ legitimate expectations, offers another possible avenue for protection of the economic rights of environmental investors. Based on the good faith principle, the protection of investors’ legitimate expectations under investment law aims to ensure states’ respect for the promises they make in order to attract investments.97 The principle applies in cases where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the Party [the host state] to honor those expectations could cause the investor (or investment) to suffer damages.98

Following the fundamental investment objective pursued with clean energy support schemes, states promise support in exchange for investments in the development of clean energy sources. Based on the promise of support, investors contribute capital and technology to the achievement of the public policy objectives of emissions reductions and clean energy production. In theory, a violation of the promise of support should thus amount to a breach of the fair and equitable treatment standard. However, the fair and equitable treatment standard does not freeze the regulatory framework.99 States maintain the right to regulate in the public interest, and, provided these state measures are proportional, investors must tolerate a certain level of economic and financial impact on their investments. More problematically for clean energy investors, in recent years arbitral tribunals have restricted

96  Nykomb Synergetics Tech. Holding AB v Republic of Latvia, SCC Case No 118/2001, Award (Stockholm Chamber of Commerce 2003); T Wälde and K Hobér, ‘The First Energy Charter Treaty Arbitral Award’ (2005) 22 Journal of International Arbitration 83, 98; E ­Sussman, ‘The Energy Charter Treaty’s Investor Protection Provisions: Potential to Foster Solutions to Global Warming and Promote Sustainable Development’ (2008) 14 ILSA Journal of International and Comparative Law 391, 404. 97 C Schreuer and U Kriebaum, ‘At What Time Must Legitimate Expectations Exist?’ in Jacques Werner and Arif Hyder Ali (eds), A Liber Amicorum: Thomas Wälde—Law Beyond Conventional Thought (Cameron May Publishing, 2009) 265; T Wälde, ‘Investment Arbitration Under the Energy Charter Treaty in the Light of New NAFTA Precedents: Towards a Global Code of Conduct for Economic Regulation’ (2004) 1 Transnational Dispute Management 1, 5. 98  Int’l Thunderbird Gaming Corp. v The United Mexican States, UNCITRAL, Award, para 147 (26 January 2006), available at italaw.com/documents/ThunderbirdAward.pdf. 99  Saluka Invs. BV v Czech, Partial Award, para 305 (UNCITRAL Arb. Trib. 2006), 15 ICSID Rep. 274 (2010).

250  Anatole Boute the scope of application of the fair and equitable treatment standard by requiring specific stabilisation commitments before recognising the creation of expectations.100 Following this strict approach to the recognition of investors’ expectations, the tribunal in Charanne v Spain refused to recognise the clean energy investors’ expectations in the implementation of the Spanish solar energy support scheme. In the absence of a stabilisation clause ‘according to which the regulated tariff would remain untouched for the rest of the regulatory lives of the plant’,101 a regulatory promise of support for clean energy investments did not create specific commitments by Spain towards the Claimants. To reject the existence of specific commitments, the tribunal also highlighted the general nature of the support scheme. The fact that the support scheme applied to a limited group of investors—ie clean energy investors—was not sufficient to override the general nature of the law and regulation that established the promise. According to the tribunal: To convert a regulatory standard into a specific commitment of the state, by the limited character of the persons who may be affected, would constitute an excessive limitation on power of states to regulate the economy in accordance with the public interest.102

In Charanne, the state’s interference with the investment was limited. Tariff levels remained unchanged for 25 years. The state only reduced the volume of energy eligible for support under the mechanism. The support scheme did not explicitly guarantee minimum output levels. The fundamental characteristics of the regulatory framework thus remained unchanged. The degree of risk could have been identified based on a careful analysis of the regulatory framework. However, from a conceptual perspective, the interpretation of the principle of protection of investors’ legitimate expectations by the Charanne tribunal seriously limits the protection that investment law can provide to clean energy investors against government interference with the e­ conomic foundation of their projects. Support schemes are adopted by law or regulation and drafted in an open way. These mechanisms apply to clean energy investors in general, and rarely contain explicit stabilisation clauses ­committing the state not to change the level of support during the lifetime of the investment. Nevertheless, it is beyond doubt that these mechanisms create expectations.103 The fundamental investment promotion objective of

100 See eg Total, S.A. v Arg. Republic, ICSID Case No ARB/04/1, Decision on Liability, paras 310–12 (27 December 2010). 101  Charanne (n 94) para 490. 102  ibid, para 493. 103  See Dissenting Opinion of Guido Santiago Tawil, ibid.

The Rights of Environmental Investors 251 clean energy support schemes is premised on the creation of expectations of support to a specific category of investors that participate in achieving the state’s objective of decarbonisation. VI. CONCLUSION

Environmental law scholars tend to focus their analysis of the interaction between environmental protection and property rights on ‘collision points’ (or ‘normative conflicts’)104 between the two. Very limited attention is paid to the role that the right to property, and investment rights, can play in facilitating the green economic transition. To stimulate environmental investments in the green economy—in particular in the decarbonisation of energy supply—states create economic interests, eg in the form of support mechanisms for clean energy investments or free allocation of carbon allowances. Failing internalisation of carbon externalities, these rights constitute the economic and regulatory foundation of environmental investments. Investors’ readiness to participate in the green economy depends on their confidence that the rights and economic interests that states have created to stimulate clean investments will be maintained. Interfering with these rights and interests affects the readiness of investors to participate in future environmental policies. As demonstrated by the DECC v Breyer Group case before the UK Supreme Court and the Nykomb v Latvia case before investment arbitration, the right to property and international investment law can in principle protect green investors against government interference with the economic and regulatory foundation of their investments. However, according to recent judicial and arbitral practice, protection depends on the extent to which green investors can invoke commitments as to the stability of the regulatory framework that governs their investments. Following this narrow interpretative approach, investors’ legitimate expectations of benefiting from support for a minimum duration will not be protected in the absence of an additional commitment by the state that this support will remain unchanged. Dual commitments of support and stability are not common practice in the design of clean energy support mechanisms—thus affecting the protection of clean energy investors under the right to property. To reinforce the economic and regulatory basis of environmental investments, states can integrate a stabilisation commitment into the design of clean energy support mechanisms.105 The presence of dual commitments of 104 

Viñuales (n 6) 253. the stabilisation of national support for renewable energy under EU law, see EU Commission, Proposal for a Directive on the Promotion of the Use of Energy from Renewable Sources, COM(2016) 767 final, at 69 (Article 6). 105 On

252  Anatole Boute both support and stability should be key considerations for investors before developing green projects in reliance on public support mechanisms. However, the additional requirement of stability increases the burden for the participation of private capital in the green economy and thus undermines the decarbonisation of the economy. In this context, a reconceptualisation of the right to property—ensuring the protection of the economic interests of environmental investors in the absence of sector-specific guarantees by the state not to renege on promises of support for environmental investments—is necessary to contribute to the green economy transition.

11 Pulling the Trigger: ENGO Standing Rights and the Enforcement of Environmental Obligations in EU Law JAN DARPÖ

I. INTRODUCTION

T

HIS CHAPTER DISCUSSES the relationship between the Aarhus Convention and EU law concerning access to justice in environmental decision making. Its focus is on environmental rights from a procedural perspective—more precisely on the legal requirements for the public concerned to have access to justice in environmental decision making. I will use standing for environmental non-governmental organisations (ENGOs) in cases concerning nature conservation and species protection as an illustrative example. This area of law is particularly interesting as it contains clear obligations according to international law and EU law, and at the same time the responsibility for implementing those obligations rests, in many Member States, exclusively with the competent authorities, and the public cannot challenge the administrative decision making in court. In my analysis, I will discuss the relationship between the Aarhus Convention and the principle of judicial protection enshrined in EU law. My conclusions suggest that the principle of judicial protection goes beyond the Convention in requiring that members of the public—often represented by ENGOs—are able to challenge administrative decisions and omissions made in this area of law through taking legal action. II.  PRINCIPLE 10, THE AARHUS CONVENTION AND EU LAW

The basic idea of ‘environmental democracy’ is expressed in Principle 10 of the Rio Declaration of 1992: Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have

254  Jan Darpö 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.1

Principle 10 thus contains ‘three pillars’: access to information; participation in decision-making processes; and access to judicial and administrative proceedings. These pillars were developed six years later in UNECE’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’).2 In the preamble to that Convention, the close relationship between environmental rights and human rights was emphasised. It was also stressed that all three pillars were of decisive importance for sustainable development and that they were intertwined to form a whole. The ‘third pillar’ of the Convention is contained in Article 9, which, in broad terms, is structured as follows. According to Article 9(1), any person whose request for environmental information has been refused shall have access to a review procedure in a court or tribunal. Article 9(2) stipulates that the public concerned shall have the right of access to a similar procedure in order to challenge the substantive and procedural legality of any decision, act or omission subject to permit decisions on activities that may have a significant impact on the environment. In addition, Article 9(3) requires that members of the public have the right of access to administrative or judicial procedures in order to challenge acts and omissions by private persons and public authorities that contravene provisions of national law relating to the environment. There is also a general requirement in Article 9(4) for the environmental procedure to be effective, fair, equitable, timely and not prohibitively expensive. Both the European Union and its Member States are Parties to the Aarhus Convention. Article 9(2) has been implemented by various ­directives, for example the Public Participation Directive (PPD, 2003/35),3 the ­ Environmental Impact Assessment Directive (EIA, 2011/92),4 the Integrated Pollution Prevention Control/Industrial Emissions Directives ­

1  Rio Declaration on Environment and Development (adopted 14 June 1992) 31 ILM 874 (emphasis added). 2  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (UNECE, adopted 25 June 1998) 38 ILM 517. 3  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ L156. 4 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L26.

Pulling the Trigger 255 (IPPC, 2008/1 and IED 2010/75)5 and the Environmental Liability Directive (ELD, 2004/35).6 For decision making by the institutions of the Union, the implementation is done through Regulation 1367/2006.7 With respect to ­Article 9(3), the picture is more complex. On the approval of the Convention, the EU made a declaration on competence stating that Member States are responsible for the performance of the obligations in accordance with Article 9(3) and will remain so unless and until the Union adopts provisions covering implementation. A proposal for a directive on access to justice was launched by the Commission in 2003, and deliberated for more than a decade before finally being withdrawn in 2014 due to resistance at Member State level.8 Since then, the Commission has instead concentrated its efforts on developing guidance on access to justice, resulting in a Notice in April 2017.9 III.  THE COURT OF JUSTICE OF THE EU AND ITS JURISPRUDENCE ON ACCESS TO JUSTICE

In describing the relationship between Aarhus and the EU since 2005, one may say that implementation measures have been kept to a minimum. In the era of Better Regulation,10 environmental democracy has not been an issue close to the Commission’s heart. Instead, the focus has been on a lightening of administrative burdens for industry and enterprises. This minimalistic approach and general indecisiveness towards the international requirements for wider access to justice in environmental matters has also been shared by most Member States. However, this development has been counterbalanced 5  Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, OJ L24/8 and Directive 2010/75/EU of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L334. 6  Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L143. 7 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 ­September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ L264. 8 Proposal for a Directive of the European Parliament and of the Council on access to ­justice in environmental matters (COM/2003/0624 final), withdrawal announced in OJ (2014) C153/3. 9 Communication from the Commission, ‘Commission Notice on Access to Justice in ­Environmental Matters’, C(2017) 2616 final, see J Darpö: On the Bright Side (of the EU’s Janus Face). The EU Commission’s Notice on access to justice in environmental matters. (2017) Journal for European Environmental and Planning Law 373. 10 Better Regulation is an overall EU strategy aimed at streamlining regulations in order to reduce the administrative burdens for industry and enterprises. The guidelines set out the principles that the European Commission follows when preparing new initiatives and proposals and when managing and evaluating existing legislation, see https://ec.europa.eu/info/files/ better-regulation-guidelines_en.

256  Jan Darpö by a strongly ‘activist’ approach on the part of the Court of Justice of the EU (CJEU). Even before the ratification of the Aarhus Convention in 2005, the Court took important stands on issues such as the direct effect of EU environmental directives and the principles of effectiveness and judicial protection under EU law. Landmark cases in this respect can be found from 1990 onwards.11 Since 2005, the development of case law on access to justice has been expansive.12 A number of milestone cases have been delivered by the CJEU, dealing with all aspects of access to justice in environmental matters. Most of them have concerned standing for individuals and ENGOs13 or the issue of costs in environmental proceedings.14 The CJEU has furthermore emphasised that the environmental proceedings must be effective in line with Article 9(4) of the Aarhus Convention.15 However, the CJEU has also taken important positions on the principles of direct effect, effectiveness and legal protection under EU law in other kinds of cases. Clearly, all these judgments need to be taken into account when discussing access to justice in environmental decision making. Most of the cases mentioned above concern Article 9(2) of the Aarhus Convention and its implementation into EU law. As noted, when it comes

11 C-361/88 TA Luft I [1991] ECR I-2567, C-59/89 TA Luft II EU:C:1991:325, C-431/92 Commission v Germany (Grosskrotzenburg) [1995] ECR I-2189, C-72/95 Kraaijeveld v ­Gedeputeerde Staten Van Zuid-Holland [1996] ECR I-5403, C-435/97 WWF v Autonome Provinz Bozen [1999] ECR I-5613, C-287/98 State of the Grand Duchy of Luxembourg v Berthe Linster [2000] ECR-I 6917, and C-201/02 R (Delena Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. 12 See J-F Brakeland: Access to Justice in Environmental Matters—Development at EU Level, available at http://greenaccess.law.osaka-u.ac.jp/wp-content/uploads/2014/05/ arten-brakelandup.pdf. 13 C-237/07 Dieter Janecek v Freistaat Bayern [2008] ECR I-06221, C-240/09 ­Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Slovak Brown Bear) [2011] ECR I-1255, C-75/08 Mellor v Secretary of State for Communities and Local Government [2009] ECR I-03799, C-263/08 Djurgården–Lilla Värtans Miljöskyddsförening v Stockholms kommun genon dess marknämd [2009] ECR I-9967, ­ C-115/09 Bund fur Umwelt und Naturschutz v Arnsberg (Trianel) [2011] ECR I-3673, C‑128/09 Antoine Boxus and Willy Roua v Region Wallonne [2011] ECR I-09711, C-182/10 Solvay v Region wallone [2012] 2 CMLR 19, C-570/13 Karoline Gruber v Unabhangiger Verwaltungssenat fur K ­ arnten and Others EU:C:2015:231, C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz [2014] PTSR 311, C-404/13 ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 and C-243/15 Lesoochranarske Zoskupenie VLK v Obvodny urad Trecin (LZ II) EU:C:2016, C-529/15 Gert Folk v Landeshauptmann von Steiermark EU:C:2017:419. 14 C-427/07 Commission v Ireland [2009] ECR I-6277, C-260/11 David Edwards v ­ Environment Agency [2013] 1 WLR 2914 and C-530/11 Commission v UK [2014] 3 WLR 853. 15 C-416/10 Križan EU:C:2013:8. A summary of the CJEU cases starting with Djurgården and onwards is published on the website of the Task Force on Access to Justice under the Aarhus Convention, see www.unece.org/environmental-policy/treaties/public-participation/ aarhus-convention/envpptfwg/envppatoj/jurisprudenceplatform.html.

Pulling the Trigger 257 to Article 9(3), there is a limit to the impact of the Convention in EU law. This was elaborated on by the CJEU in Slovak Brown Bear case.16 That case started as a reference for a preliminary ruling concerning whether ­Article 9(3) of the Aarhus Convention had ‘self-executing effect’ within an EU Member State’s legal order, the background being the EUs declaration of competence upon approval of the Convention. In addressing these questions, the CJEU first pointed out that the Aarhus Convention was signed and approved by the Community and that, according to settled case law, the provisions of the Convention ‘formed an integral part of its legal order’.17 The Court therefore has jurisdiction to give preliminary rulings on the interpretation of provisions falling under that agreement, especially in a situation that lies within the scope of both national and EU law and thus requires a uniform interpretation. The CJEU went on to say that, according to ­Article 216 TFEU, a provision in an agreement concluded by the EU with a non-member country is directly applicable when it contains a clear and precise obligation which is not subject to the adoption of any subsequent measure.18 This cannot be said about Article 9(3) of the Aarhus Convention since only members of the public who meet certain criteria in national law are entitled to exercise the rights provided for therein. However, the CJEU stated that even so, the courts of the Member States have a Union law obligation to interpret, ‘to the fullest extent possible’, the procedural rules of environmental law in accordance with the objectives of Article 9(3) and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation to be able to challenge before a court an administrative decision liable to be contrary to EU environmental law.19 This obligation of the courts to interpret the national procedural rules to the fullest extent possible so as to enable ENGO standing in environmental decision making can be described as the so-as-to-enable formula. It requires national courts to give a new understanding to open provisions on standing in order to align them with Rio Principle 10, as well as with modern ideas of access to justice in the environmental area. Since 2011 the formula has had an extensive impact in the Member States, which can be explained by the fact that most legal systems use ‘open provisions’ or mere jurisprudence when defining the public concerned. In many situations, it is therefore possible for the national courts to use the formula in order to grant s­ tanding for ENGOs. ­Perhaps one of the most important judgments was made in

16 

Slovak Brown Bear (n 13). ibid, para 30. 18  On the ‘self-executing effect’ of international law in EU and Member State law, the CJEU made a reference to a great number of cases, among them C-213/03 Étang de Berre v EDF [2004] ECR I-7357. 19  Slovak Brown Bear (n 13) para 51. 17 

258  Jan Darpö September 2013 at the German Bundesverwaltungsgericht (BVerwG) in the Darmstadt case.20 Here, the BVerwG granted an ENGO standing to appeal a clean air plan, arguing that the German Code on Administrative Court Procedure needed to be interpreted in light of Article 23 of Directive 2008/50 and Article 9(3) of the Aarhus Convention.21 In Sweden, the case law on standing in environmental matters has also developed strongly in the same vein, as will be discussed in the following section. IV.  SWEDISH CASE LAW ON ACCESS TO JUSTICE IN ENVIRONMENTAL DECISION MAKING

As in many Member States, the Swedish legislature has been reluctant to expand access to justice for ENGOs in environmental decision making. The legislature has taken a minimalist approach, reacting only when the legal situation has become untenable due to case law from the CJEU or the national courts. In some politically sensitive areas of law—such as wolf hunting and city development—the government has even tried to restrict ENGO standing. In contrast, the Swedish courts of precedent – the Supreme Court, the Supreme Administrative Court, and the Environmental Court of Appeal – have been quite progressive in their approach and very sensitive to the development of the case law at EU level. A.  Standing According to the Environmental Code The traditional concept of standing in administrative cases in Sweden is ‘interest based’. If the provisions in an Act are meant to protect certain interests, representatives of those interests can challenge the decision by way of appeal. Standing is generally defined as pertaining to the ‘person whom the decision concerns’. This means a person affected adversely by a decision that is appealable, which all decisions are as long as they have factual or legal consequences in a broad sense. To gain a clearer picture of that scope of persons, one must study the case law that has been established in each administrative area or even under specific pieces of legislation. Under the

20  Bundesverwaltungsgericht, Judgment 2013-09-05 in case BVerwG 7 C 21.12. An English summary is available on the website of the Task Force on Access to Justice under the Aarhus Convention, see n 15. 21  In a series of judgments, the CJEU has found that the German ‘Schutznormtheorie’ is not in line with the Aarhus Convention and EU law. The German legislature has reacted slowly to this but a major reform was passed in the Federal Parliament in the spring of 2017; see Entwurf eines Gesetzes zur Anpassung des Umwelt-Rechtsbehelfsgesetzes und anderer Vorschriften an europa- und völkerrechtliche Vorgaben; BR 5 September 2016, Drucksache 18/9526. The revised legislation came into force on 2 June 2017.

Pulling the Trigger 259 Environmental Code (1998:808), the courts have applied a generous attitude, stating that in principle, every person who may be harmed or exposed to more than a minor inconvenience by the environmentally harmful activity at issue is to be considered an interested party. Thus everyone who may be harmed by an activity or exposed to risk—for example, neighbours, people affected by emissions or other disturbances from an activity—should have the right to appeal the decision in question.22 In contrast to this state of affairs derived from case law, standing for ENGOs is decided by criteria in express legislation, at least as a starting point. In Chapter 16 section 13 of the Environmental Code, standing is given to certain organisations in order to appeal decisions on permits, approvals or exemptions in environmental matters, the criteria being that it is a non-profit association whose purpose according to its statutes is to promote nature conservation, environmental protection or outdoor recreation interests. In addition, the organisation must have been active in Sweden for three years and have at least 100 members23 or else be able to show that it enjoys ‘support from the public’. ENGOs meeting those criteria are able to defend the public interest according to their statutes, without any further qualifications. In other words, they have standing in their own capacity.24 These criteria for ENGO standing have been interpreted very generously by the Swedish courts, which may be illustrated by a couple of landmark cases. The first is from the Supreme Court (HD) and concerned a permit for a coastal wind park in the south of the country.25 Here, the HD started by citing the CJEU in the Djurgården case, where that Court accepted numeric criteria, but only to the extent that they were necessary to decide whether the organisation still existed and was active. The standing criteria furthermore must not be set at a level that conflicts with the aim of providing the public concerned wide access to justice. Furthermore, local associations must be able to use legal means to protect their interests according to the environmental legislation. It is therefore necessary to be generous in such

22  J Darpö, ‘Access to Justice in Environmental Decision-making in Sweden: Standing for the Public Concerned, the Scope of Review on Appeal and Costs’ (Study for the German research institute Ufu on behalf of the Ministry of the Environment, 2015). In The Legal Debate on Access to Justice for Environmental NGOs. Umweltbundesamt 99/2017, Chapter 6 (125–150). 23 In the beginning, the numeric criterion was set at 2,000 members, which effectively barred all but two ENGOs from having standing. After the CJEU found that this criterion was in breach of EU law in the Djurgården case (n 13), the number was set at 100. 24  Different terms are used in the literature for the legal construct that ENGOs have ­standing to protect environmental interests: ‘privileged standing’, ‘standing per se’, ‘standing de lege’, see Commission Notice (n 9). In my view, ‘standing in their own capacity’ is the expression that best captures the concept. 25  NJA 2012, s 912. Summaries on the Swedish cases can also be found at the website of the Task Force on Access to Justice under the Aarhus Convention (n 15).

260  Jan Darpö matters, according to the HD, and to use fixed criteria in law only as a starting point for decisions on standing to appeal. One must also consider the overall picture—especially in those cases where no individuals have standing rights—and take into account that someone be able to challenge the decision. This case was followed by a judgment in the Land and Environmental Court of Appeal (MÖD), where a local bird-watching association with only 37 members was allowed to appeal a municipal decision relating to the development of wind turbines.26 MÖD reasoned that even though the number of members in the organisation did not meet the numeric criterion in the Environmental Code, it had been regularly active for a long period of time. The organisation had arranged annual exhibitions with as many as 500 ­visitors and it had also taken part in public hearings in cases concerning nature protection. Thus, the organisation was found to enjoy public support. Next, two cases at the MÖD concerned the kind of decisions that could be appealed. According to old case law, the meaning of ‘permits, approvals or exemptions’ was read narrowly, restricting the types of decision which could be subject to appeal. In 2012, the MÖD distinguished itself from this old jurisprudence and clarified that the application of fixed standing criteria must comply with the Aarhus Convention and EU law. In both cases, the Swedish Society for Nature Conservation (SNF) appealed a decision from the County Administrative Board to accept that certain activities were undertaken without a formal decision. The first case27 concerned the necessity of having an exemption from the species protection regime, and the second28 a permit according to the legislation on Natura 2000. In both judgments, the MÖD referred to the Slovak Brown Bear case, where the CJEU emphasised the necessity of giving the public concerned wide access to justice in environmental matters. The County Boards’ decisions were also closely connected to ‘exemptions and permits’ as they related to the legislation on species protection and Natura 2000. The challenged decisions were without any doubt also covered by Article 9(3) of the Aarhus Convention. Given this context, the provision in the Environmental Code should be read in order to fulfil the international obligations and thus be understood as also relating to a decision on whether or not an exemption and a permit was needed. SNF was therefore granted standing in both cases.

26 

MÖD 2015:17. MÖD 2012:47. 28  MÖD 2012:48. 27 

Pulling the Trigger 261 B.  Standing in Cases Outside the Scope of the Environmental Code The criteria in the Environmental Code on ENGO standing are also used in some other pieces of environmental legislation concerning plans and permits for developments, mines, quarries, highways, railways and other largescale activities. In addition to this, ENGO standing rights have expanded in recent years by way of the courts applying the ‘so-as-to-enable’ formula according to the Slovak Brown Bear case. The most important judgment in this respect is from the Supreme Administrative Court (HFD) concerning standing for SNF to challenge a decision according to the Forestry Act on a clear-cutting operation in the mountains.29 The HFD noted that there was no standing rule in this piece of legislation so that the issue must be decided on the basis of general principles of administrative law. In previous jurisprudence the standing provisions never applied to ENGOs in their own capacity. However, the HFD pointed to the fact that Article 9(3) of the Aarhus Convention covers all kinds of decisions that relate to the environment. As nature conservation and environmental protection must be taken into account in the decision making under the Forestry Act, the permit in question was clearly covered by the obligations in Article 9(3). Furthermore, though the legal basis for the decision was national law, the situation also touched upon issues to which EU law on the environment applies. The HFD also stated that there was, on a more general level, a need for a common understanding of the standing rules, irrespective of whether national or EU law was applied. In sum, for purposes of securing effective legal remedies for the public concerned, SNF should be able to appeal such a decision according to the Forestry Act.30 C.  Ban on Appeals Before the HFD As seen above, it has been possible for the Swedish courts to use the ‘so-as-to-enable’ formula enunciated in the Slovak Brown Bear case in order to grant ENGOs standing. However, in some situations such an approach does not suffice, as was made clear in the court proceedings concerning wolf hunting. Wolves are strictly protected under the provisions of the Habitats ­Directive.31 The Swedish Environmental Protection Agency (SEPA) p ­ ermitted

29 

HFD 2014:8 Änok. standpoint was recently confirmed in a case concerning the cultural heritage of a church building, a situation which is covered by national legislation only, see HFD 2018-01-29 in case No 593-17. 31  Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitat and of Wild Fauna and Flora (1992) OJ L2067 (Habitats Directive). 30  This

262  Jan Darpö hunting seasons for wolves in 2010 and 2011. The decisions were decried by ENGOs but their legal challenges were dismissed for lack of standing. Following legal developments at EU level and further legal challenges by Swedish ENGOs, standing was granted and injunctions issued against the 2013 and 2014 hunting seasons, and the decisions were eventually declared invalid by the Swedish administrative courts. Determined to permit licensed hunting, the government changed the procedure for decision making in order to disallow appeals to a court. In 2014 the hunting decisions were taken by the regional County Administrative Boards instead and appeals could be made to SEPA, but no further. Despite the appeals ban, the ENGO Nordulv appealed this decision to the administrative courts, and the case went all the way to the HFD in the so-called Appeals Ban case.32 To begin with, the HFD stated that the relevant provision in Article 12 of the Habitats Directive was unconditional and clear, requiring strict protection of the wolf. The case law of the CJEU has created general principles of law, among them the principle of judicial protection. To a certain extent, these principles are today expressed in Articles 4(3) and 19(1) para 2 of the Treaty of the European Union (TEU) and Article 47 of the Charter of Fundamental Rights of the European Union (Charter).33 Thereafter, the HFD stated that according to established case law of the CJEU under Article 288 TFEU, clear provisions in directives create ‘rights’ that shall enjoy legal protection. If Union legislation is silent on this matter, it is for each Member State to lay down the detailed procedural rules governing actions for safeguarding those rights. However, this ‘procedural autonomy’ must respect the principle of equivalence and the principle of effectiveness. Furthermore, the principle of useful effect (‘effet utile’) of Union law not only requires the Member States’ courts to interpret national law in a manner that is faithful to EU law, but also implies that they shall disregard those procedural rules that are in conflict with clear provisions of EU law. The HFD also referred to the Waddenzee case,34 in which the CJEU made clear that the public concerned must be able to rely on obligations expressed in the Habitats Directive, meaning that the ENGOs action must enjoy effective protection in court. In sum, the HFD made clear that Union law requires that the question whether clear and unconditional provisions in the Habitats Directive have been implemented correctly in national law can be tried in a national court. The fact that the appeals ban also excluded the possibility to refer such a question to the CJEU by way of a request for preliminary ruling according

32 

HFD 2015 ref. 79. Charter of Fundamental Rights of the European Union [2012] OJ C326/02. 34 C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse ­Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) [2004] ECR I-7405, para 66. 33 

Pulling the Trigger 263 to Article 267 TFEU reinforces the impression that such a provision is in breach of EU law. Thus the appeals ban in the Swedish Hunting ordinance was disregarded.35 V.  THE AARHUS CONVENTION IN UNION LAW

As illustrated by Swedish case law on ENGO standing in environmental cases, the interaction between the Aarhus Convention and Union law is complex. In some situations, Aarhus goes further than EU law in requiring wide access to justice, whereas the reverse holds in other situations. Therefore, before going deeper into the discussion of ‘environmental rights’ from an EU perspective, I think it necessary to make certain clarifications of some key issues and questions from a more general perspective, concentrating on Article 9(2)–9(4) of the Aarhus Convention and their implementation of EU law. A.  Article 9(2) of the Aarhus Convention Article 9(2) stipulates that the public concerned shall gain ‘access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6’. That provision covers permit decisions on activities listed in Annex I (Article 6(1)(a)), as well as decisions concerning other activities ‘which may have a significant effect on the environment’ (Article 6(1)(b)). As a result, Article 9(2) covers two kinds of decision. The first category concerns permit procedures for activities listed in Annex I, including largescale operations such as energy installations and industries, mines, waste management and waste-water treatment plants, and so on. The enumeration in the Annex is concluded by a point covering ‘(a)ny activity not covered by paragraphs … above where public participation is provided for under an environmental impact assessment procedure in accordance with national legislation’. In addition, Article 9(2) also covers decisions concerning other activities ‘which may have a significant effect on the environment’. As previously mentioned, Article 9(2) of the Convention has been implemented by various directives in EU law, most importantly the EIA and the

35  A more detailed summary of the case is given in J Darpö, ‘The Commission: A Sheep in Wolf’s Clothing? On infringement Proceedings as a Legal Device for the Enforcement of EU Law on the Environment, Using Swedish Wolf Management as an Example’ (2016) Journal of European Environmental and Planning Law 270; see also the website of the Task Force on Access to Justice under the Aarhus Convention (n 15).

264  Jan Darpö IPPC/IED Directives.36 ­However, Article 6(1)b of Aarhus applies to all kinds of other activities that may have a significant effect on the environment, even those that are not listed in the directives of EU law. As this provision includes the wording ‘in accordance with its national law’, different interpretations are possible. Some have argued that it gives the Parties absolute discretion to decide on which activities are covered for the requirement of an EIA, whereas others take the view that the Convention obliges the Parties to apply the test to every activity that might have a significant effect on the environment.37 Forestry activities can be used as such an example. Clearcutting operations may cover hundreds of hectares and have an immense effect on the environment. Nevertheless, those activities are not covered either by Annex I to the Convention, or by Annex I or II to the EIA Directive. Still, the Swedish courts have adopted the position that clear-cutting operations are covered by Article 9(2) of Aarhus in those instances where they may have a significant impact on the environment. This stance was also confirmed by the CJEU in the LZ II case. Accordingly, the statement in Article 6(1)(b) that the provision applies in accordance with national legislation relates solely to the manner in which public participation is carried out, and cannot be taken to call into question the right to participate.38 Furthermore, it is important to note the wide area of application for ­Article 9(2)—the public concerned shall be able to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6. This means that all kinds of decisions and omissions in relation to those activities are covered by the access to justice requirement. For example, many permit regimes—such as those under IED—include an obligation for the administration to reconsider and update permit conditions on an ongoing basis. In my understanding, this means that the public concerned shall have the possibility to challenge in court any decision in such a reconsideration procedure, irrespective of whether the authority decides to update the permit condition or not. Thus the possibility of challenging the authority’s omission in that respect belongs to Article 9(2). To be understood otherwise, the word ‘omission’ would lose all meaning. This is also how I interpret the CJEU’s reasoning in Mellor, which concerned the requirements according to the EIA Directive when an authority finds that an EIA is not needed for an activity.39 Similar reasoning can be found in the

36 

See nn 4 and 5. J Jendroska, ‘Public Participation under Article 6 of the Aarhus Convention: Role in Tiered Decision-Making and Scope of Application’ in Gyula Bandi (ed), Environmental Democracy and Law—Public Participation in Europe (Europa Law Publishing, 2014) 134. 38 C-243/15 Lesoochranarske Zoskupenie VLK v Obvodny urad Trecin EU:C:2016:838, para 48. 39 C-75/08 Mellor v Secretary of State for Communities and Local Government [2009] ECR I-03799, para 66. 37  See

Pulling the Trigger 265 Boxus case, where the national courts were called upon to check the legality of a measure undertaken in a Member State, whereby certain projects were exempted from the requirements of the EIA Directive.40 To conclude, if an authority chooses not to update a permit condition covered by Article 9(2) and its implementation in Union law, this decision or omission falls under Article 9(2), and not under Article 9(3).41 B.  Article 9(3) of the Aarhus Convention Other situations clearly fall outside the scope of Article 9(2) of the Aarhus Convention and this is where Article 9(3) comes into play. As already mentioned, this access to justice provision has been left to the Member States to implement in their procedural systems. Nevertheless, all Member States of the EU are signatories to the Aarhus Convention and it is an international environmental law obligation to fulfil the requirements therein. Even if the European Commission and the CJEU cannot act as watchdogs over the implementation of Aarhus on areas of ‘pure’ national environmental legislation—which today is only a minor portion of this field of law—the Convention is nevertheless equipped with a different kind of surveillance mechanism that is somewhat unusual: the Aarhus Compliance Committee. This is an independent committee whose members are judges and legal scholars and who sit in their personal capacities. There is also a ‘public trigger’, meaning that the public can communicate complaints about breaches against the provisions of Aarhus to the Committee. All communications and meetings among the Committee, the complainant and the Party are open to the public.42 Furthermore, one must not underestimate the importance of Committee decisions. Though its statements are not binding, they play an important part in the understanding of the Convention and—when endorsed by the Meeting of Parties—serve as ‘interpretive factors’ in the building of international norms in the field of Principle 10 and environmental democracy. Article 9(3) of Aarhus requires that members of the public ‘have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. A first issue to address when contemplating whether the provision is applicable is how to define that field

40  Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and Willy Roua v Region Wallonne [2011] ECR I-09711, para 57. 41 For a similar line of reasoning, see the Compliance Committee in ACCC/C/2010/50 Czech Republic, para 82. 42  All documents are published on the Aarhus Convention’s website, see www.unece.org/ env/pp/.

266  Jan Darpö of law. Whereas Article 9(2) is confined to permit decisions for activities having a ‘significant effect on the environment’, Article 9(3) has much wider scope. It covers national laws ‘relating to the environment’, even if that specific piece of legislation is not labelled as ‘environmental law’. In a case against the Czech Republic, the Compliance Committee stated that members of the public should have the possibility to challenge ‘an alleged violation of any legislation in some way relating to the environment’.43 In other cases, the Committee has found that Article 9(3) covers different kinds of plans, health issues, noise and a wide range of environmental legislation.44 It is also noteworthy that the European Commission’s 2003 proposal for an access to justice directive applied a very broad definition of ‘environmental law’, including planning law and health issues. Against this backdrop, it is safe to say that Article 9(3) covers all other areas of law on activities that have an effect on the environment, not least planning and building, ­environmental taxes, water operations, infrastructural projects, nature conservation and species protection.45 As for standing, Article 9(3) gives more room for the signatories to decide on who belongs to the public concerned and what they should have access to. The Convention does not require ‘actio popularis’—that is, a system that allows anyone to challenge breaches of environmental law—but there must be the possibility open for someone to do so.46 A system which bars almost all ENGOs from taking legal action to protect the environment is not consistent with the Convention.47 Nor does Aarhus require that individuals and NGOs have the possibility to take direct action in court. The Convention asks for access to justice but is silent on the matter of how the Parties arrive at different solutions.48 Article 9(3) focuses on the enforcement of environmental law. It does not, however, say what kind of case the public concerned can bring to court. In many legal systems, the courts’ control of the administration is mainly triggered in relation to specific acts or decisions. In others, the public concerned also has access to ‘abstract norm control’.49 However, the Convention does not require such a procedural order, a position which is shared with the European Court of Human Rights (ECtHR), for that matter.50 Even so, 43 ACCC/C/2010/50

Czech Republic, para 84. See ACCC/C/2008/11 Belgium, ACCC/C/2011/58 Bulgaria. 45 See The Aarhus Convention—An Implementation Guide (2nd edn, UNECE/United Nations, 2014) 197–99. 46  See, for example, ACCC/C/2005/11 Belgium, paras 35–37, ACCC/C/2006/18 Denmark, paras 29–31, ACCC/C/2011/63 Austria, para 51. 47 ACCC/C/2005/11 Belgium. 48  ACCC/C/2004/06 and ACCC/C/2007/20 Kazakhstan. 49 For an European example, see C-381/07 Association nationale pour la protection des eaux et rivières—TOS v Ministere de l’Ecologie du Developpement [2008] EUECJ 58. 50  ECtHR judgments in the cases Klass v Germany [1978] ECHR 4, Norris v Ireland [1988] ECHR 22, and Västberga taxi AB v Sweden [2002] ECHR 36985/97. 44 

Pulling the Trigger 267 the national system must provide some effective legal remedy in similar ­situations.51 This can be provided for with different legal instruments: indirect action—that is, appeals of decisions or omissions by the authorities; direct action in court to challenge an environmentally damaging activity; the possibility to instigate or at least take part in criminal proceedings; and the right to ask for damages on behalf of the environment.52 Many countries have an Ombudsman, usually selected by the legislative body of the state. The Ombudsmen are generally independent review ­institutions that aid individuals and entities in disputes with administrative bodies. Often, an Ombudsman can investigate complaints and report on its findings. The institution tends to be quite flexible, inexpensive, and simple to access. Due to the fact that the Ombudsman’s powers are usually limited to non-legally binding activities such as investigating, reporting, mediating and recommending, s/he is commonly disqualified from being considered an effective remedy in accordance with Article 9.4.53 In practice Ombudsmen are often nevertheless very useful and therefore considered to be a complementary safeguard of environmental rights. Political pressure to follow the recommendations of the Ombudsman generally leads to compliance. VI.  THE PRINCIPLE OF JUDICIAL PROTECTION IN AN ENVIRONMENTAL CONTEXT

Up till now, the discussion has mostly concerned the implementation of the Aarhus Convention in the EU. As noted, certain provisions in Aarhus are not implemented in EU law, either in part or in full. Thus the analysis so far has dealt with situations where Aarhus, so to speak, requires more access to justice for the public concerned than EU law does. In the following, I will reverse the perspective and discuss access to justice in environmental matters from a Union law perspective to see what emerges. I will focus on the principle of judicial protection, primacy and direct effect and the meaning of ‘environmental rights’ in a European context. The conclusion is—not very surprisingly—that the Aarhus Convention and general principles of EU law cross-fertilise each other in the environmental area in a way that is quite positive from a Principle-10 point of view. The Appeals ban case in the Swedish HFD can be used as a starting point for an analysis of situations where EU law and principles require ‘more’ 51 

Implementation Guide 2014, p 199. E Fasoli, Study on the possibilities for non-governmental organisations promoting environmental protection to claim damages in relation to the environment in four selected countries; France, Italy, The Netherlands and Portugal (UNECE, Aarhus Convention/Task Force on Access to Justice, Geneva 2015). 53  See eg Compliance Committee, ACCC/C/2011/63 Austria, paras 58–61; Implementation Guide 2014, 189, 191. 52  See

268  Jan Darpö than Aarhus, that is, a wider access to justice for the public concerned in order to protect environmental rights and interests. At issue in that case was the national procedural order for challenging decisions concerning a species that requires strict protection according to EU law. The procedure only allowed for administrative appeals, not judicial review in court. As the appeals body—the Swedish Environmental Protection Agency—is constitutionally independent of the government and is able to suspend decisions at stake, this procedural order is probably acceptable from an Article 9(3) point of view. However, the HFD set aside the appeals ban provision and allowed for the ENGOs to come to court, basing its reasoning solely on the effet utile and the principle of judicial protection in EU law. Another situation where EU law is said to require ‘more’ than Aarhus, which has been debated in the literature, concerns the possibility of appealing plans and programmes. Whereas some authors argue that plans and programmes cannot be challenged by legal means according to Aarhus, others suggest that such a possibility follows from general principles of EU law, despite the fact that the directives that require the setting up of plans and programmes do not contain any access to justice provisions.54 However, before entering into a discussion on the relationship between Aarhus and the principle of judicial protection, a few words are required on the general debate on primacy and direct effect according to EU law. A.  Primacy and Direct Effect According to EU Law For a considerable time there have been controversies in the legal literature on the distinction between primacy and direct effect in EU law. Even though the discussion is mostly relevant to the issue of whether provisions in directives may have horizontal effects between private subjects, the different attitudes also have important implications for the possibility of enforcing EU law in vertical relationships between individuals and the administration in the Member State, not least in the environmental area. In the general discussion, at least two schools of thought can be distinguished: that of the supremacy model and that of the trigger model. The most prominent representatives for the former are Koen Lenaerts and his co-authors.55 According to their view, primacy of EU law always exists as

54  L Squintani and E Plambeck, ‘Judicial Protection Against Plans and Programmes ­Affecting the Environment’ (2016) Journal for European Environmental and Planning Law 294, with references to the literature on the matter. 55 K Lenaerts and T Corthaut, ‘Of Birds and Hedges. The Role of Primacy in Invoking Norms of EU Law’ (2006) European Law Review 287–315; K Lenaerts and P van N ­ uffel, European Union Law (3rd edn, Sweet and Maxwell, 2011); K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press, 2014).

Pulling the Trigger 269 the normal state of affairs concerning norms of different levels, meaning that EU law is always supreme to Member State law. The supremacy of EU law is mainly ensured through consistent interpretation, the duty of sincere cooperation and state liability; but it may in some situations also entail that a Member State court is required to disapply national rules inconsistent with the higher norms of EU law (‘exclusion’). Direct effect, however, is only connected to individual subjective rights, guaranteed exclusively by EU law. If such a right is expressed in a directive provision that is unconditional and sufficiently precise, the Member State court must not only disapply the inconsistent national law, but also replace it with the EU norm expressing that individual right (‘substitution’). In other words, in the latter situation, the court must fill in the gap left in the national law: Then it does matter whether the norm relied upon was intended to confer rights upon individuals and whether it is sufficiently clear, precise and unconditional because, on the one hand, the norm identifies the object of the benefit claimed and the person who must provide that benefit and, on the other hand, the norm indicates when and under what conditions this right can be deemed to be created in the legal order allowing for the right to be claimed.56

To conclude, primacy according to these authors is a general conflict rule between norms of different hierarchic value, whereas direct effect is a tool for the implantation of individuals’ subjective rights according to EU law in the national systems. Michael Dougan is an outspoken representative of the trigger model.57 In contrast to Lenaerts and others, he argues that direct effect is not only relevant for the enforcement of individuals’ subjective rights, but encompasses any situation where the norms of EU law produce independent effects within the national legal systems. On his view, all kinds of directive provision that are unconditional and sufficiently precise can be invoked as grounds for j­udicial review in the national system by those who are protected by that provision: ‘In other words, direct effect is perfectly capable of ­accommodating the needs for an administrative law doctrine of standing to enforce Community measures intended to protect the public or general interest’.58 He also criticises the supremacy model for trying to create a clear distinction between exclusion and substitution. Such a distinction is not easy to find or establish, Dougan argues, which is why this model becomes random and inconsistent. He also argues that the principle of direct effect becomes blurred if one emphasises supremacy as a general concept, as this 56 

Lenaerts and Corthaut (n 55) 291. M Dougan, ‘When Worlds Collide! Competing Visions of the Relationship between Direct Effect and Supremacy’ (2007) Common Market Review 931–63; M Dougan, ‘The Direct Effect and Supremacy of EU Law’ in A Dashwood, M Dougan, BJ Rodger, and D Wyatt (eds), Wyatt and Dashwood’s European Union Law (Hart Publishing, 2011). 58  Dougan, ‘When Worlds Collide!’ (n 57) 934. 57 

270  Jan Darpö model is built upon the idea that EU law is always superior in the national systems. In contrast, the trigger model is built upon the notion that primacy is a ­consequence of direct effect, namely the disapplication of those national rules that are inconsistent with unconditional and sufficiently precise EU norms.59 As often in legal scholarship, the differences in views are not that clear and mostly relate to specific areas of law. As for the debate on primacy and direct effect of EU law, one must also take into account that the case law of the CJEU has developed rapidly over the past 10 years and that the positions have developed accordingly over time. This is clearly illustrated in one of the leading commentaries on general EU law in English—Craig and de Búrca’s EU Law—Text, Cases and Materials.60 In the earlier editions, direct effect was described as something that was connected to the existence of individual subjective rights in a narrow sense. Later on, the authors recognised that this position was problematic when it came to areas of law dealing with general or diffuse interests, such as environmental law. In the latest 2015 edition, Craig and de Búrca point to the differences in understanding of direct effect: a narrower view where the concept confers individual rights and a broader one where precise and unconditional directive provisions can be used as a means for judicial review in order to determine whether the national administration has remained within the parameters set in Union law.61 A decisive issue here is how to define ‘individual rights’ and who are the bearers of those rights. Even though the authors find the CJEU’s case law ambiguous on the issue, they refer to Janecek and ClientEarth, arguing that the Court has given strong rules on the requirement of access to court to enforce particular obligations on national authorities in the context of environmental directives. Even so, they conclude: While certain strands of case law—mainly those in which the CJEU focuses on a particular substantive EU law right, often an EU legislative right—require specific national remedies to be made available, and particularly in certain sectors such as competition, consumer, and environmental law, many other cases continue to emphasize the primary responsibility of the national legal system, subject only to the principle of equivalence and effectiveness.62

59  Further on supremacy and direct effect, see J Engström, ‘The Principle of Effective Judicial Protection after the Lisbon Treaty’ (2011) Review of European Administrative Law 53–68; S Prechal and R Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) Review of European Administrative Law 31–50. 60  P Craig and G de Búrca, EU Law: Text, Cases and Materials (Oxford University Press, 1998–2015). 61  ibid, 2015 edition, 203 and with reference to Stichting Natuur en Milieu (n 69). 62  ibid, 246 and 251.

Pulling the Trigger 271 B.  Reflections on Direct Effect in the Environmental Area In the legal scholarship of today’s environmental law the broader understanding of direct effect is dominant. To most authors, direct effect concerns the ways and means available to the public concerned to challenge decisions by authorities in relation to demands for a certain environmental quality in accordance with clear indications under EU law.63 The direct effect of EU law has also been described as the duty of the court or another authority to apply the relevant provision ex officio, either as a norm governing the case, or as a standard for legal review.64 In this way, they argue, provisions with direct effect could be used by all concerned parties, regardless of whether they provide individual rights.65 An oft-cited passage in this direction is from a paper by Prechal and Hancher, where they condemn as ‘conceptual pollution’ the idea that the existence of individual subjective rights is a decisive prerequisite for direct effect.66 For my own part, I agree with this general position as I find it impossible to reconcile the narrow attitude towards direct effect as a means for safeguarding only individual subjective rights with the development of the jurisprudence of the CJEU in recent years in the area of environmental law. As will be shown below, the CJEU instead emphasises both rights and duties expressed in directive provisions with direct effect. In this way, this case law expresses two aims of direct effect—a dual approach.67 First, to protect rights and second, to secure that EU legislation in the environmental sphere is complied with at Member State level. The latter approach, reflecting the principle of ‘rule of law’, is especially relevant in environmental cases. What obviously complicates the discussion is how ‘rights’ are to be defined in an environmental law context, since this is an area of law dominated by the public interest. My point of departure for the analysis is that all provisions of EU law with sufficient clarity and precision have direct effect—meaning

63  J Jans and H Vedder, European Environmental Law (4th edn, Europa Law Publishing, 2011) 222–31; see also E Fisher, B Lange and E Scotford, Environmental Law: Text, Cases, and Materials (Oxford University Press, 2013). 64  S Prechal, Directives in EC law (2nd edn, Oxford University Press, 2005) 241. 65 D Langlet and S Mahmoudi, EU Environmental Law and Policy (Oxford University Press, 2016) 21. See also M Eliantonio, ‘Enforcing EU Environmental Law Policy Effectively: International Influences, Current Barriers and Possible Solutions’ in Sara Drake and Melanie Smith (eds), New Directions in the Effective Enforcement of EU Law and Policy (Edward Elgar Publishing, 2016) 175–201; M Hedemann-Robinson, Enforcement of European Union ­Environmental Law: Legal Issues and Challenges (Routledge, 2007); P Wennerås, The ­Enforcing of EC Environmental Law (Oxford University Press, 2007). 66  S Prechal and L Hancher: ‘Individual Environmental Rights; Conceptual Pollution in EU Environmental Law’ (2002) Yearbook of European Environmental Law 85, 98. 67  Commission Notice 2017 (n 9), section C, paras 31–57.

272  Jan Darpö the substitutional effect on incompatible rules of national law—and that those who are qualified as bearers of the interests expressed in these provisions should be able to challenge the national decision making in court in line with the principle of judicial protection. Another starting point is that the Union legal system cannot discriminate between different areas of law concerning the enforcement of common obligations, although the doctrine of direct effect must be adapted to the legal context in which it functions. As traditional individual subjective rights belong to areas where there are distinct bearers of the rights that are expressed in EU law—such as free movement of goods and services, labour law, social security, migration and so on—the legal system would be biased if the public interests (such as clean air, sound water resources and a rich biodiversity) were to be prevented from going to court in order to counter-balance the interests of developers and enterprises. In my view, such an attitude would not be in line with either the high ambitions of environmental protection within the Union— expressed in Article 3(3) TEU, Articles 11 and 191 TFEU and Article 37 of the Charter—or the fundamental principles of judicial protection according to Article 19 TEU and Article 47 of the Charter. C.  The Development of the CJEU’s Case Law on Direct Effect To begin with, it should be noted that some years ago the CJEU had already clarified that environmental provisions in EU law can also have direct effect. The first of these cases dealt with the EIA Directive, long before the EU ratification of the Aarhus Convention.68 Others concerned Natura 2000 and species protection. Many of these cases were brought to court by ENGOs.69 It is reasonable to suppose that this influences the concept of rights in environmental matters. Moreover, in these cases the CJEU seems to focus not on rights, but on obligations. In Kraaijeveld, the Court had stressed the possibility for those concerned to rely on the provisions in the directive in order to challenge an administrative decision in court, especially in relation to the obligation of Member States ‘to pursue a particular course of conduct’.70 This statement has been repeated in a series of environmental cases, where the CJEU has said that it would be incompatible with the binding effect

68 See J Darpö, ‘Article 9.2 of the Aarhus Convention and EU Law: Some Remarks on CJEU’s Case-law on Access to Justice in Environmental Decision-making’ (2014) Journal for European Environmental & Planning Law 367. 69  For example C-44/95 Regina v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds (Lappel Bank) [1996] ECR I-3805, WWF (n 12), C-165-167/09 Stichting Natuur en Milieu v College van Gedeputeerde Staten van Groningen [2011] ECR I-4599. 70  Kraaijeveld (n 11) para 56.

Pulling the Trigger 273 attributed to a directive to exclude the possibility that the obligation which it imposes may be relied on by those concerned. The CJEU has furthermore stated that the effectiveness of such an act would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of EU law in order to rule whether the national legislature had kept within the limits of its discretion set by the directive.71 In more recent case law, the CJEU has emphasised that, concerning provisions with direct effect, ‘natural and legal persons directly concerned must be able to require the competent authorities, if necessary by bringing the matter before the national courts, to observe and implement such rules’.72 Furthermore, in Janecek, the CJEU made clear that whenever the failure to observe the measures required by the directives which relate to air quality and drinking water, and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in those directives.

In Stichting Natuur en Milieu, this reasoning was used analogously concerning legislation on atmospheric pollution.73 It is not far-fetched to suppose that the rationale of these latter-mentioned cases also covers legislation on chemicals, waste, water and other areas. Evidently, the underlying reason for the jurisprudence of the CJEU is that the Member States shall not have the advantage of being able to evade the obligations of EU environmental law by simply avoiding implementing them. Clearly, this argument relates to the rule of law. Another reason is that the public plays a crucial role as guardian of the correct application of EU law, something already stressed by the Court in Van Gend en Loos.74 This is even truer when it comes to EU environmental law and has been emphasised in a number of cases concerning the Aarhus Convention and its implementation into the EIA Directive.75 That the ENGOs play a key role in promoting EU environmental law was finally confirmed in Trianel, where CJEU stated (my italics): It follows more generally that the last sentence of the third paragraph of Article 10a of Directive 85/337 must be read as meaning that the ‘rights capable of

71  WWF (n 12) para 69; Linster (n 11) para 32; Waddenzee (n 34) para 66 and C-41/11 Inter-Environnement Wallonie and Terre Wallonne ASBL v Region Wallonne EU:C:2012:103, para 42. 72  Stichting Natuur en Milieu (n 69) para 100; see also Inter-Environnement Wallonie (n 71) para 42. 73  Stichting Natuur en Milieu (n 69) paras 94–100. 74 C-26/62 Van Gend en Loos v Netherlands [1963] ECR 1, the penultimate paragraph (not numbered) above ‘The second question’, see Brakeland (n 12). 75 C-260/11 David Edwards v Environment Agency [2013] WLR 2914 para 40, C-530/11 Commission v UK [2014] 3 WLR 853 para 47.

274  Jan Darpö being impaired’ which the environmental protection organisations are supposed to enjoy must necessarily include the rules of national law implementing EU environment law and the rules of EU environment law having direct effect.76

It follows from this case that ENGOs represent the environmental interest, not only where the EU law provisions have been implemented in national legislation, but also where they have direct effect by way of being sufficiently precise and unconditional. A reasonable conclusion to be drawn from this judgment in combination with the CJEU’s reasoning in Slovak Brown Bear77 and the principle of judicial protection in Article 19 TEU is that this role of the ENGOs is generally applicable in all areas of EU environmental law. Against this backdrop, it seems the idea that the existence of individual subjective rights is a prerequisite for direct effect has played out its role in EU environmental law. Of course, one may water down the notion of individual rights by giving it an extremely wide definition—from substantive property rights in a traditional sense to the procedural possibility for ENGOs to appeal a decision or omission where an authority applies provisions of EU environmental law. However, in doing so, ‘rights’ loses all meaning as a legal concept. This can be illustrated by the second Slovak Brown Bear case, where the CJEU made clear that Article 47 of the Charter was applicable to a situation where an ENGO had appealed a decision to construct an enclosure for deer within a Natura 2000 site.78 My view is therefore that we should instead openly acknowledge that the rights of individuals and direct effect are two separate concepts in the area of EU environmental law. Though rights for individuals in a wide sense may have importance for the individual’s standing in environmental cases, the concept mainly becomes interesting when claims for damages are made against a Member State for failing to implement EU law correctly according to the Francovich doctrine.79 Therefore, in describing direct effect on this area of EU law, we ought to focus on the obligations of the national authorities

76 

Trianel (n 13) para 48. Slovak Brown Bear (n 13) para 51. 78  LZ II (n 13). 79  Joined Cases C‑6/90 and C‑9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357. I will not further discuss how to apply the Francovich doctrine in environmental law here, but it may have at least some room for application where individuals have had harm inflicted on them due to breaches in the proper implementation of EU legislation at Member State level. Such examples may include damages to property, see C-201/02 R (Delena Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723; or prohibitively high costs in environmental proceedings, see Edwards (n 77). However, as was illustrated in C-420/11 Leth v Austria [2013] 3 CMLR 2, there is little room for state liability towards individuals who suffer damage from an activity that has been approved without a preceding EIA in breach of the EIA directive. For more on the impact of Francovich in environmental cases, see Wennerås (n 67) 150. 77 

Pulling the Trigger 275 according to provisions of sufficient clarity. In my view, this would make the doctrine clearer and also more compatible with the principle of legal protection. In conclusion, I contend that direct effect of EU environmental law relates to clear obligations and means that the public concerned shall have standing in order to challenge decisions by national authorities on subjects that are covered by provisions that are sufficiently precise and unconditional. In addition to this, the requirement to take it into consideration expressed in the case law of the CJEU means that the Member State court must make an evaluation of its own of the case to see whether the administration has decided in accordance with those provisions. Thus the direct effect has two legal consequences: first, standing in the case and, second, that of being invocable in court. D.  Who Belongs to the Public Concerned? According to Article 9(2) and its implementation in EU law, the definition of the class of persons who have standing in environmental cases is those who either have a sufficient interest in the matter or allege the impairment of a right.80 ENGOs meeting certain criteria shall be deemed to have sufficient interest and rights capable of being impaired for the purpose of having standing. The different ways that the Member States provide for the safeguarding of those rights and interests under EU law are open to their own choice under the notion of national procedural autonomy, though the principles of equivalence and effectiveness must be respected. Certain criteria for ENGO standing are thus acceptable, but only if they are set at a level that does not conflict with the aim of providing the public concerned a wide access to justice. As for individuals’ standing, the situation is more complex. Clearly, the ‘double approach’ to individuals’ standing is not an invitation to limit their possibilities of challenging administrative decisions concerning the environment. If, essentially, the national rules on standing do not go beyond what is already protected through a traditional rights-based approach, this falls short of what is required by the Aarhus Convention.81 In its case law, the CJEU

80 The ELD Directive identifies three categories of the ‘public concerned’ that are all on equal footing, including also natural and legal persons ‘affected or likely to be affected by environmental damage’, see Article 12.1 ELD (n 6), which was confirmed in Gert Folk (n 13), paras 52–58. Also other environmental directives include this ‘third category’—for example the EIA directive (n 4) Article 1.2.c, but only as a general definition of the ‘public concerned’. Future CJEU case law will show if the Gert Folk judgment will have wider implications for legislation outside the scope of ELD. 81 ACCC/C/2010/50 Czech Republic, para 76.

276  Jan Darpö has stated that Member States have a significant discretion to determine the conditions for the standing of individuals, including the confinement to ­individual public-law rights. The crucial question here is to understand what that expression—deriving from the German ­subjektiv-öffentliches Recht— actually means. To me at least, it is not very clear. What is clear, though, is that according to Janecek, health issues on a very general level also trigger standing for those who are concerned. In this case, the CJEU found that an affected person should have the possibility available to challenge with legal means any administrative decision or omission that concerned his rights according to Directive 96/62 on ambient air, including the requirement for the authority in charge to draw up an action plan. A similar approach may well be applied in cases concerning other aspects of environmental quality, such as the status of water. A reasonable conclusion is therefore that the jurisprudence of the CJEU will develop towards wider standing for individuals in environmental cases. I also believe that individuals will be afforded greater possibilities to invoke public interests in cases where they have been granted standing. There are two reasons for this. First, it is often difficult to distinguish public interests from private, which can be illustrated with cases concerning air quality. Second, in line with Janecek and ClientEarth, it would not be surprising if the CJEU further strengthened the rule of law in environmental cases, meaning that the obligations expressed in environmental directives must be complied with by the national authorities, regardless of who is driving the case. E.  Substantive and Procedural Legality According to Article 9(2), the scope of the review on appeal shall include both the formal and the substantive legality of all kinds of decisions ­concerning activities that are covered by that provision. This has been elaborated upon by the Compliance Committee in a series of decisions.82 The case law of the CJEU has not been so developed in this respect, at least not directly dealing with the Aarhus Convention. Even so, in relation to the EIA Directive, one can safely say that the statements made by the CJEU in those cases clearly show that the review may concern all aspects of the legality of the ­administrative decisions under that legislation. Also in other environmental directives, there are express provisions requiring the national courts to review the substantive legality of the application of law by the competent authorities.83 Moreover, if one looks in wider circles and takes

82 ACCC/C/2010/48 (Austria) para 66, ACCC/C/2008/33 (United Kingdom) para 124, ACCC/C/2011/63 (Austria) paras 52–53 and 66, also Implementation Guide, 207. 83  For example, Article 25 IED (n 5), and Article 13 ELD (n 6).

Pulling the Trigger 277 into account a multiplicity of cases, the picture becomes clearer. As shown above, a ­combination of Stichting Natuur en Milieu, Janecek, ClientEarth and S­ lovak Brown Bear shows that the case law of the CJEU is developing towards the purpose of ensuring that the aim of the law is achieved. In another case that concerned access to information, East Sussex, the CJEU made clear that a national judicial review procedure must allow for ‘the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision’.84 Also, in Commission v Germany, the CJEU emphasised that the review in national courts should concern ‘both the substantive and procedural legality of the contested decision in its entirety’.85 In addition, in nature conservation law, it is a common feature that the administration may authorise certain activities only if no reasonable scientific doubts remain as to whether the activity will damage the protected interest.86 According to the case law of the CJEU, when a court reviews those decisions, it must determine whether the technical and nature scientific evidence relied upon by the administration leaves room for any such doubts. Thus the court is obliged to assess this evidence on its own accord and cannot leave this to the administration’s discretion.87 Even though the case law of the CJEU on the matter has required such an assessment to be undertaken only concerning the adoption and the content of EIAs and similar instruments in nature conservation law, in addition to plans and programmes aimed at reducing pollution of different kinds in different elements of the environment, there is no reason to believe that this rationale is less valid in other environmental cases. F.  Administrative Appeal and Judicial Review A remaining issue to deal with concerns what kind of appeal body the public concerned has access to when challenging administrative decisions in e­nvironmental matters. As was illustrated by the Appeals Ban case in the Swedish HFD, one may argue that there are inconsistencies between Aarhus and EU law on this matter. Although the Swedish case was somewhat peculiar, the situation as such is not unusual in the Member States.

84 C-71/14 East Sussex County Council v Information Commissioner [2016] CMLR 5, para 58. 85 C-137/14 Commission v Germany EU:C:2015:683, para 80. 86  This is, for example, the case with activities that may have a significant impact on Natura 2000 sites; see Waddenzee (n 34) para 59. 87 See Kraaijeveld (n 11), paras 56–57.

278  Jan Darpö Most national systems have types of environmental decisions—or omissions for that matter—that are not appealable in court. Any court in a Member State which is faced with such a situation must decide whether to dismiss the legal challenges to the administration’s standpoints or to grant standing contra legem.88 Normally, access to justice provisions relate to the possibility for the public concerned to bring legal action in a ‘court or another independent and impartial body established by law’. Due to their close connection to scientific and technical issues, the general complexity of cases with many actors and interests and the need for a non-bureaucratic procedural order, environmental cases on appeal are often dealt with by specialised bodies or tribunals outside the ordinary courts system. Sometimes these are staffed with experts of their own. For those tribunals, to be able to satisfy the requirements of being an ‘independent court or tribunal’, certain criteria must be met. As the expression used in Article 9(2) of the Aarhus Convention closely relates to the ones used in Article 6 of the European Convention on Human Rights (ECHR) and Article 267 TFEU, guidance can be found in the jurisprudence of both the ECtHR and CJEU regarding the term ‘tribunal’, denoting an autonomous concept, meeting certain criteria.89 According to the case law of the Strasbourg Court, the tribunal must, to begin with, be established by law and undertake its functions of determining matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner.90 Also, its members must be independent and impartial. The independence of a body is assessed on the basis of the manner in which members are appointed, the duration of their terms of office, and guarantees against outside pressures. It is also significant whether or not the body is regarded as independent by impartial spectators.91 Lay assessors are ­generally acceptable, but in some cases their objectivity may be challenged.92 Furthermore, it is acceptable that the first decision in a case

88  This was also what the Slovak Supreme Court did when the CJEU delivered the answers to their questions; see The VLK Case Slovakia—Application of Art. 9 Para 3 of the Aarhus Convention According to the Decision of the Court of Justice of the European Union (Justice and the Environment, 2011), available at: www.justiceandenvironment.org/_files/file/2011% 20ECJ%20SK.pdf. 89  Thus the following tribunals were accepted by the ECtHR: a board for deciding compensation for criminal damage in Sweden, Gustafsson v Sweden (1996) 22 EHRR 409; an authority for real estate transactions in Austria, Sramek v Austria (1984) 7 EHRR 351; a prison board for visitors in the UK, Campbell and Fell v UK [1984] 4 ECHR 7819; and an appeals council of the Medical Association of Belgium, Le Compte a.o v Belgium (1983) 5 EHRR 533. 90  Sramek v Austria, ibid, para 36, see also Coême and others v Belgium [2000] ECHR 249. 91  Campbell and Fell (n 89) para 78. 92  In the case of Langborger v Sweden (1989) 12 EHRR 416, the Housing and Tenancy Court was not accepted in a case concerning the right of the applicant to stay outside the organisations that had nominated the lay assessors. However, in this case, the European Court also commented that such members ‘appear in principle to be extremely well qualified

Pulling the Trigger 279 is taken by an authority, so long as the possibility exists of appealing that decision to a court, without restriction on the scope of examination. Finally, the decision of the tribunal must be binding, prohibiting the government or other authorities from setting it aside.93 As for the CJEU, it has its own, closely related jurisprudence on these issues according to the so-called Vaasen criteria under Article 267 TFEU.94 Interestingly, Article 9(3) of the Aarhus Convention only demands access to ‘administrative or judicial procedures’. This requirement seems to satisfy itself with administrative appeals; that is, an appeal to a higher level within the administrative system or to a specific appeal body or tribunal, even if that body does not meet the criteria of being ‘independent and impartial’. However, the procedure still has to be fair and effective according to ­Article 9(4). This is a strange legal construct, which really does not concord with the ordinary perception of access to justice. Furthermore, as there is little case law from the Compliance Committee on the relationship between Articles 9(3) and 9(4), the understanding of this concept is less developed. This can partly be explained by the fact that such an order clearly breaches EU law, which is built on the cooperation between national—independent and impartial—courts and tribunals and the CJEU. The obvious reason for this is that the EU law system as a whole requires that decisions can be challenged in a national court or tribunal according to Article 267, thus enabling the CJEU to have a final say on the matter.95 As is well known, the CJEU is a strong believer in the First Commandment.96 There is one more strong argument as to why the public concerned should have access not only to administrative appeal but to a court or tribunal, and that relates to ‘equality of arms’.97 In many environmental cases, the ­applicant for a permit or a derogation will always be allowed to appeal to court, as the decision concerns his or her ‘civil rights and obligations’ according to the ECHR. If one were to deny the opposing interests a s­ imilar

to ­participate in the adjudication of disputes between landlords and tenants and the specific ­questions which may arise in such disputes’ (para 34). 93 

Zander v Sweden [1993] ECHR 59. Joined Cases C-9/97 and C-118/97 Jokela and Pitkäranta [1998] ECR I-6267, about the Finnish Maaseutuelinkeinojen Valituslautakunta (Rural Business Appeals Board) and Case C-205/08 Umweltanwalt von Kärnten v Kärntner Landesregierung [2009] ECR I-11525 about the Austrian Umweltsenat, also case 61/65 Vaasen—Goebbels v Beambtenfonds voor het Mijnbedrijf [1966] ECR 261. For further reading, see Lenaerts and van Nuffel European Union Law (n 55) 54, and J Darpö, Effective Justice? Synthesis report of the study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the Member States of the European Union, available at http://ec.europa.eu/environment/aarhus/access_studies.htm. 95  See CJEU Opinion 2/13 on Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454. 96  See also Commission Notice (n 9) paras 23, 94, 210 and 212. 97  A classic case illustrating this concept is McLibel 2 from the European Court of Human Rights, Steele & Morris v UK, (2005) 41 EHRR 403. 94 CJEU

280  Jan Darpö opportunity, this would surely create an imbalance in the procedure, which is hardly acceptable from a democratic point of view. Furthermore, such discrepancies would raise a systematic problem. One can hardly handle a procedure where there is one kind of standing for decisions covered by Union law, and another for purely domestic ones. In the environmental law area, Union law and national law are tightly interwoven and any effort to make a distinction at the appeal stage in a case would lead to endless and futile discussions. VII.  CLOSING REMARKS

In this chapter I have discussed the encounter between the Aarhus ­Convention and EU law on environmental matters, focusing on access to justice. My conclusions are much the same as the ones that Chris Hilson draws in Chapter 4 of this volume, namely that when we discuss ‘rights’ in EU environmental law, we usually mean the procedural rights for the public concerned. The existence of individual subjective rights seldom plays a decisive role in the case law of the CJEU concerning the direct effect of environmental provisions. In my view, we can achieve more clarity in our analyses if we instead focus on the unconditional and clear obligations found in the legislation: that representatives of environmental interests—typically ENGOs—should have standing in a national court to challenge administrative decision making, and the possibility to invoke the obligations for that court to take them into account and disapply any national legislation incompatible with EU norms. Thus I contend that if we look beyond the labels of the legal construct, this is the European way of creating procedural ‘environmental rights’, namely to let ENGOs defend the environmental interests expressed in EU law. Admittedly, the CJEU would not phrase it that way and the system has its shortcomings. To begin with, many directives and other regulations of EU environmental law are framed broadly and in general terms, thus excluding the possibility of finding any clear obligations expressed therein. However, I do not think this aspect should be over-emphasised, as the CJEU has shown considerable imagination in finding obligations in EU environmental law and the jurisprudence on the matter is developing dynamically.98 98 Another important step was taken in late 2017 by the CJEU in the Protect case (C-664/15). Here, the Court first made the common statement about Article 9(3) of Aarhus not having direct effect in EU law (para 45). But then it added that that Article in conjunction with A ­ rticle 47 of the Charter and the substantive provision at stake—that is Article 14(1) of the Directive 2000/60 (Water Framework Directive, WFD)—must be interpreted as meaning that a duly constituted environmental organization must be able to contest before a court a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water as set out in the WFD. If the procedural rules in

Pulling the Trigger 281 A clearer drawback relates to the fact that the environmental rights according to the EU principle of judicial protection are procedural and that EU law on the environment is sometimes weak in substance or even lacking in important areas. At least from a Nordic perspective, the EU regulations on chemicals is not very far-reaching. On urbanisation and the need for green infrastructures in the cities, EU law is fragmented and has very little to say. Forestry and mining are activities that are mainly regulated at Member State level. On noise, there is silence. As for the natural resources of the sea, the stage of EU legislation is still dominated by the strong economic actors representing extraction interests. Whether sufficient effort will be placed on combating climate change is very doubtful, even though we are surely not the ‘baddest guys’ in that game. Even on core areas of Aarhus, the attitude on transparency and access to justice within the EU institutions is embarrassing, and has been criticised by the Compliance Committee.99 If by ‘environmental rights’ we mean the law in substance—that is, the right to live in a healthy environment—the concept remains most doubtful. But if we argue that ‘environmental rights’ is a label for the possibility open to the public concerned to enjoy transparency, public participation and access to justice in decision making under environmental law, such as it has been expressed by the legislature, we are on the way.

the Member State do not allow for this under the doctrine of compliant interpretation, it would then be for the national court to disapply those provisions (paras 55–58). In my view, this judgment is a major step forward compared with the Slovak Brown Bear case, as the CJEU says that Article 9(3) does have direct effect when combined with provisions of environmental directives which are unconditional and sufficiently precise. A summary of the case can be found on the website of the Task Force on Access to Justice, see n 15. 99  See the findings of the Compliance Committee in case ACCC/C/2008/32 Part II European Union (2017-03-17); see also Darpö (n 35).

282 

Index Aarhus Convention: CJEU jurisprudence, 25, 165, 256–7 Compliance Committee, 265–6, 279, 281 environmental democracy, 16 EU environmental law and, 194, 253 access to justice, 263–7 access to review, 263–5 Article 9(2), 263–5, 275–6, 278 Article 9(3), 265–7 domestic courts, 265–7 Principle 10 (Rio Declaration), 253–5, 267 impact, 23, 87, 89, 195, 198 information rights, 217–18 marine regulation, 54, 58, 59–60 objective, 215–16 participatory rights, 14–16, 78 procedural rights, 88–9, 202, 216–18 public concerned, 275–6 standing, 183 Sweden and, 260 Aarhus Task Force, 194 access to justice see judicial protection acid rain, 158 actio popularis, 195, 266 Adestam, J, 212 African Charter on Human and Peoples’ Rights, 9, 12, 17 air quality, 40, 93, 96–7, 211, 213, 273 air transport, 151–2 airports, 90, 99, 130, 152 An Taisce, 164–5 Andrews, Alan, 96 animal welfare, 162–3 Anthropocene era, 3 arbitration: democracy and, 230 investment in green energy, 247–51 Argyou, V, 50–1, 76 Association of European Administrative Judges (AEAJ), 194–5, 196 Australia: ‘Environmental Water Holder,’ 34 Austria: aircraft noise, 99 Barnes, Richard, 19–20, 49–84 Belgium: green subsidies, 241–2, 245 Bengtsson, Anders, 23, 177–200 Besson, Samantha, 221 biodiversity, 28, 30, 31, 32, 42, 46, 106, 107, 114, 125–8, 157, 272

Biodiversity Convention, 77 birds, 28, 92, 125, 126, 128 Bogojević, Sanja, 3–26, 105–31 Bolivia: constitutional rights of nature, 5 Boute, Anatole, 24–5, 106, 111, 229–52 Boyes, SJ, 71–2 Boyle, Alan, 10, 15, 39, 69 broadcasting, 130 Byrne, P, 112 chemicals, 106, 180, 273, 281 China: South China Sea Arbitration, 70 Clark, NA, 58 ClientEarth, 96–7, 103 climate change mitigation, 231, 232 Club of Rome, 3 Coase, Ronald, 105, 108–9, 111 collective rights, 17–18, 36–7 see also group rights common heritage of mankind, 55–6, 78, 92, 126 commons, 74, 75, 109 compulsory purchase, 31, 186 concept of environmental rights: anthropocentric approach, 88, 157 beyond categories, 16–18 constitutional rights, 34, 36–41 definitions, 53, 156–7 discourse, 156–7 alternative, 77 dissonance, 51 environmental rights, 49–50 EU courts, 20 explanatory narratives, 51, 76–7 property discourse, 83 ecocentric approach, 88, 157, 171–2, 173 EU, 88–91 human rights, 23–4, 218–24 legislative v fundamental rights, 90–1 substance v procedure, 88–9 human right to environment, 7–13, 34 EU law, 23–4, 201–25 nature’s rights, 5–7, 35–6 operational rights, 35, 41–3 overview, 4–18 participatory rights, 13–16 substantive v procedural rights, 87, 88–9, 157, 169–71, 276–7 vagueness, 34–6

284  Index constitutionalism: constitutional environmental rights, 10, 36–41, 88 constitutionality of Swedish legislation, 191–2 national constitutional traditions, 91 nature’s rights, 5–7, 35–6 continental shelf, 68–9, 75 cooperation principle: EU, 192–6, 208 Corhaut, T, 268–9 Court of Justice of the European Union (CJEU): Aarhus Convention and, 25, 256–7, 265 activism, 256 air quality, 213 Article 11 jurisprudence, 161–71 standing, 163–9 Article 37 (EU Charter) and, 150–3 direct effect doctrine, 210, 256, 272–5 effectiveness principle, 256, 262 EIAs, 264–5 environmental jurisprudence, 90–4, 98–9 direct effect, 272–5 free movement, 158 protest cases, 101–2 substantive rights, 25 ETS cases, 115–19, 129–30 fishery cases, 122 general principles of law, 145, 262 habitats, 262 human rights and, 224 obligations of domestic courts, 210–18 precautionary principle, 146–7 preliminary rulings, 190, 192–3 property rights, 112 proportionality, 146, 163, 170–1 purposive polity, 208 standing, 255–8, 260, 270 Article 11 TFEU and, 163–9 DLV case, 200 environmental cases, 271 NGOs, 259 Plaumann test, 60, 101, 168 public concerned, 275–6 substantive and procedural rights, 276–7 subsidiarity, 116, 119, 130 UNCLOS and, 73 Vaasen criteria, 279 waste control, 211–13 courts see also individual courts cooperation across EU, 192–6 costs, 196 domestic courts and EU environmental law Aarhus Convention, 265–7 ENGO standing, 25

individual standing, 213–15 obligations, 210–18 procedural standards, 215–18 substantive standards, 211–15 environmental courts see environmental courts (Sweden) ever-evolving environmental law and, 197–8 legal representation, 196 remedies, 43 role, 23–4 standing, 196, 197 covenants, 35, 42, 43 Coyle, Sean, 131 Craig, P, 270 Czech Republic: Aarhus Convention and, 266 Dales, John, 109 Darpö, Jan, 25, 253–81 de Búrca, G, 270 de Sadeler, N, 90 deer, 274 democracy: arbitration and, 230 environmental democracy, 16, 253–5, 257 environmental protection and, 29 human rights and, 202, 204–5 property rights and, 112–13 Denmark: socio-economic rights and, 149 Dougan, Michael, 269–70 Douglas-Scott, S, 4, 19 Driesen, David, 110 drinking water, 87, 92, 95, 97, 273 due process see fair hearing/trial Dworkin, Ronald, 22, 27–8, 156, 157–8, 159, 172, 174, 220 easements, 35, 42 ECOSOC, 9, 80 Ecuador: constitutional rights of nature, 5, 6, 35, 44 socio-economic rights, 36 Elliott, M, 71–2 emergencies: environmental emergency, 46–7 emissions trading: carbon allowances, 239–41, 243–4, 247–8 East European countries, 234 EU ETS, 113–19, 127, 128–30, 232–4, 236–8, 240–1 Energy Charter Treaty, 248 ENGOs: actio popularis, 266 participatory rights, 77 standing, 25, 257–8 CJEU, 273–5 Sweden, 258–63

Index 285 environmental courts see Swedish environmental courts environmental impact assessments, 97–8, 214–5, 264–5, 273–4, 276 environmental investors see investment environmental protection: alternatives to rights, 33, 43–7 democracy and, 29 environmental rights impeding, 27, 29–34 human rights and, 53, 61 property rights and, 106 environmental rights: alternatives, 33, 43–7 battle between rights, 19 competing interests, 27–8, 31–4, 46–7 concept see concept of environmental rights environment as collective good, 219–21 framework, 18–25 EU see EU environment law hopes, fears and realities, 19–20 human right to environment autonomous right, 8–10 concept, 7–13 existing rights, 11–13 human rights as EU, 218–24 participation and information, 221–2 impeding environmental protection, 27, 29–34 looking ahead, 25–6 marine spaces see marine environment promotion pitfalls, 19, 27–47 property rights and see property rights remedies, 43 right bearers, 24–5 weaknesses, 34–43 EU: environment law see EU environment law law see EU law EU Charter of Fundamental Rights: Article 37 ambitions, 272 Article 11 TFEU and, 134–9 Charter explanations, 137–9, 206 complex Charter structure, 140–2 complex wording, 135–7 conundrum, 133, 134–42 EU environmental principles and, 143–8 justiciability, 148–53 nature, 205–10 no right for individuals, 206–7 overview, 21–2, 133–53 principle, 134, 205–6, 219 sustainable development, 91, 134, 135, 136, 147, 153, 205, 206 ECHR and, 100, 152

environmental rights, 10, 12, 38, 99–100 Article 37, 21–2, 133–53 derived rights, 90–1 protest cases, 102 principles and rights, 140–2 property rights, 91, 117 structure, 140–2 EU Court of Auditors, 129 EU environment law: Aarhus Convention and, 89, 194, 253, 254–5 access to justice, 263–7 Article 9(2), 263–5, 275–6, 278 Article 9(3), 265–7 Principle 10 (Rio Declaration), 253–5, 267 access to information, 93, 97 air quality, 40, 93, 211, 213, 273 airports, 99, 130 Article 11 TFEU, 22, 155–74 Article 37 (EU Charter) and, 134–9 case law, 161–71 environmental rights, 156–7 history, 158–61 integration principle, 134–9, 158–61, 162–3, 169 political trump card, 157–61 positioning, 171–3 positive right, 172–3 procedural or substantive review, 169–71 standard of review, 173 standing, 163–9 assessment, 280–1 biodiversity, 125–7 chemicals, 106, 180, 273, 281 direct effect, 25, 271–2 domestic courts’ enforcement, 210–18 procedural standards, 215–18 substantive standards, 211–15 duties of member states, 210–15 EIAs, 97–8, 214–15, 264–5, 273–4, 276 emissions trading, 113–19, 127, 128–30, 232–4, 236–8, 240–1 enforcement, 16, 210–18 environmental rights as human rights, 218–24 environment as collective good, 219–21 Europe 2020 Strategy, 121 fisheries, 93, 119–22, 128, 130 free movement and environmental rights, 158, 173 green economy, 231 habitats, 32, 125–6, 147, 216–17, 262 impact on Swedish green courts, 23 information rights, 221–2 investment incentives, 232–5 IPPC Directive, 99, 255, 264

286  Index lead in air, 93 legal cultures and, 128–30, 144–5 legislation direct effect, 93–8 incorrect transposition, 92–3, 96–7 market mechanisms, 113–27 overview, 92–9 state liability, 98–9, 100 market-based management biodiversity offset, 125–7 Common Fisheries Policy, 119–22, 130 emissions trading, 113–19, 127, 128–30, 232–4, 236–8, 240–1 environment and, 113–27 legal cultures, 128–30 Water Framework Directive, 123–5 Natura 2000, 125, 126, 183, 260, 272, 274 nature conservation, 32, 253 nature’s rights, 5 nitrates, 101 noise pollution, 99, 152, 211, 281 objectives, 209–10 participatory rights, 221–2 precautionary principle, 146–7 principles Article 11 TFEU, 22, 134–9 EU Charter and, 143–8 procurement, 166 renewable energy, 234, 236–8 rights, 20–2 Article 11 TFEU, 156–7 fundamental rights, 99–102 human and environmental, 23–4 human rights, 201–25 legislation, 92–9 legislative v fundamental rights, 90–1 protest cases, 101–2 substantive v procedural rights, 87, 88–9, 201, 276–7 special protection areas, 125 species protection, 32, 35, 98, 125, 127, 253, 260, 268, 272 sustainable development, 134, 139, 147–8, 150, 152, 160 waste control, 158, 211–13 water, 97 drinking water, 87, 92, 95, 273 Framework Directive, 123–5 groundwater, 92–3 wild birds, 92, 125, 126, 128 EU law: broadcasting, 130 CJEU see Court of Justice of the European Union cooperation principle, 192–6, 208 democratic deficit, 16

direct effect, 25, 87, 93–8, 210, 256, 268–70 CJEU development, 272–5 environmental context, 271–2 effectiveness principle, 217, 256 environmental law see EU environment law general principles of law, 90, 91, 145, 147, 262, 267, 268 milk quotas, 130 nursing qualifications, 92 primacy, 268–70 property rights, 21, 108 concept, 128–30 hybrid rights, 130 purposive polity, 23, 201, 207–8 standing, 60, 101, 163–9, 200, 255–60, 271 subsidiarity, 116, 119, 130 European Convention on Human Rights: Aarhus Convention and, 89 damages, 100 ECtHR see European Court of Human Rights environmental rights, 10, 11, 38, 88, 89, 90, 91, 223 EU Charter and, 100, 152 EU law and, 194 fair hearing/trial, 89, 90, 188, 278, 279 ne bis idem, 193–4 family/private life, 61–2, 76, 88, 90 impact on Swedish courts, 23, 193, 198 marine environment and, 54, 61–4 participatory rights, 15 procedural environmental rights, 89 procedural standards, 31 property rights, 32, 63, 232 environment and, 111 environmental investors, 238–46 fair balance test, 242–6 protected possessions, 238–42, 244 right to life, 88, 90 standing, 183 European Court of Human Rights: admissibility, 266 environmental jurisprudence, 90–1 environmental rights, 11, 223–4 fair hearing, 278 margins of appreciation, 63, 243 marine cases, 61–4 property rights, 238–9 fair balance tests, 242–6 European Court of Justice see Court of Justice of the European Union European Forum of Judges for the Environment (EUFJE), 194, 195 European Judicial Training Network (EJTN), 194

Index 287 European Union see EU exclusive economic zones (EEZs), 68–9, 70, 75 externalities, 105, 108, 232, 235, 238, 247 fair hearing/trial: ECHR, 89, 90, 188, 193–4, 278, 279 independent tribunals, 278 ne bis in idem, 193–4 family/private life: ECHR, 61–2, 76, 88, 90 EU Charter, 91 marine environment and, 61–2 Feliziani, C, 211, 212, 218n107 Fischlin, D, 45 fisheries: Aarhus Convention and, 59–60 catch limits, 32 EU law, 93 Common Fisheries Policy, 119–22 competence, 130 objectives, 128 FAO code of conduct, 82 industrial structure, 79–80 international law, 53, 56–8 policing, 68 property rights, 80 RFMOs, 57–8, 79 right to food and, 66 slavery and indented labour, 66 Straddling Fish Stocks Agreement, 56–7 traditional rights, 69–70, 80–1 well-being and fishing, 83 flag state jurisdiction, 68, 77–8 Food and Agricultural Organization (FAO), 82 food rights, 11, 36, 66 foot-and-mouth disease, 162–3 forestry, 62, 261, 264, 281 France: marine environment, 63 freedom of speech, 111 Friends of the Earth, 95, 97 Gearty, Conor, 29, 53, 61 Germany: emissions trading, 116 ENGO standing, 258 standing, 276 substantive and procedural rights, 277 Gill-Pedro, Eduardo, 23–4, 111, 201–25 global environmental movement, 4 Graham, N, 106 Greece: coastal environment, 62 fisheries, 120 green certificates, 235, 239, 241–2, 248 Greenpeace, 101–2, 165 Grinlinton, D, 229

groundwater, 92–3, 106 group rights, 52–3, 56, 58, 204n12, 220 see also collective rights Habermas, Jürgen, 203 habitats, 32, 125–6, 127, 147, 216–17, 261–2 Hancher, L, 94, 271 HCFCs, 162, 169–70 Hilson, Chris, 20, 25, 87–103, 107, 142, 280 Hoffmann, HCH, 142 Hohfeld, WN, 74, 90, 92, 211 housing rights, 11, 36, 40–1 human rights see also specific conventions; specific rights 1st-generation rights, 17 2nd-generation rights, 17 3rd-generation rights, 17, 53 burden of proof, 220 CJEU competence, 224 collective rights, 17–18, 36–7 competing rights, 27–8, 31–4 ranking, 46–7 democracy and, 202, 204–5 emergencies and, 46–7 to environment, 7–13, 34 autonomous right, 8–10 discourse, 49–50 EU law, 23–4, 201–25 existing rights, 11–13 environmental protection and, 53, 61 environmental rights as environment as collective good, 219–21 EU, 218–24 membership rights, 221, 222–4 participation and information, 221–2 equal worth of human beings, 204 EU law, 207–8, 218–24 see also EU Charter of Fundamental Rights group rights, 52–3, 56, 58, 204n12, 220 legal duties, 204 membership rights, 221, 222–4 moral rights, 203 nature, 202, 203–5 socio-economic rights, 40–1, 81 things and, 51 UNCLOS and, 54–5 victims, 13 burden of proof, 220 human trafficking, 55 Hungary: environmental rights, 88, 91 indented labour, 66 India: constitutional rights of nature, 5, 6 indigenous peoples, 7, 17, 77 indigenous rights, 51, 53, 70, 80–1

288  Index information rights: Aarhus Convention, 217–18 environmental democracy, 254–5 EU law, 93, 97, 221–2 human right, 221–2 Inter-American Convention on Human Rights, 9–10, 12, 17 International Covenant on Civil and Political Rights, 56, 80 International Seabed Authority, 56 Inuit Circumpolar Conference, 17–18 investment: EU incentives, 232–5 fair and equitable treatment, 249 international investment law, 246–51 legitimate expectations, 239, 240–1, 243–5, 248–51 property rights, 25, 230 carbon allowances, 239–42, 243–4 clean energy subsidies, 241–6, 248–51 ECHR, 238–46 fair balance test, 242–6 interference, 236–8 international investment law, 246–51 protected possessions, 238–42, 244 renewable energy, 230–2 rights, 24–5 Ireland, 120, 164–5 Italy, 63–4, 211–13 ITLOS, 56, 68 judicial protection: Aarhus Convention and EU law, 263–7 appeals and judicial review, 277–80 CJEU, 255–8 direct effect, 267–70, 272–5 direct effect and, 267–70, 271–5 environment context, 267–80 environmental democracy, 253–5, 257 principle, 267–80 public concerned, 275–6 substantive and procedural rights, 276–7 Swedish environmental law, 258–63 judiciary see also courts continuing education, 198–9 cross-border cooperation, 195–6 environmental knowledge, 198–9 European networks, 194–5 Krämer, L, 211, 213 Krommendijk, J, 141, 142, 150 Kurlansky, Mark, 77 Latvia: actio popularis, 195 clean energy support, 248–9, 251 constitutional environmental right, 40

Lazzerini, N, 142 lead in air, 93 legitimate expectations, 239, 240–1, 243–5, 248–51 Lenaerts, Koen, 268–9 level playing fields, 34, 44, 45, 47, 231 LGBT rights, 95 Marín Durán, G, 141 marine environment: Aarhus Convention, 54, 58, 59–60 absence of property, 52, 63, 65, 73–6 common heritage of mankind, 55–6, 78 dissonance alternatives, 78–83 causes, 64–76 complex legal structures, 70–3, 78–81 disconnect between peoples and seas, 65–70, 76–8 property rights, 52, 63, 65, 73–6, 81–3 ECHR and, 54, 61–4 environmental rights alternative, 76–83 marginalisation, 50, 64 materiality, 76–83 overview, 19–20, 49–84 fishing rights see fisheries international law complexity, 70–3, 78–81 dissonance, 19, 50, 51, 64–76 Horrendogram, 71–2 indeterminacy, 71, 73 institutional differentiations, 71–3 overview, 52–64 standing, 60 technicality, 71 ITLOS, 56, 68 jurisdiction, 67–9 flag states, 68, 77–8 marine culture, 66 Marine Labour Convention, 66 MARPOL, 71 material connections, 76–8 material qualities, 83 OSPAR Convention, 53, 58–9 policing, 67–8 rescue of migrants at sea, 63–4 state sovereignty, 74–5 UNCLOS, 53, 54–6, 70, 73, 78 Arctic Sunrise case, 56 freedoms, 67 structure, 79 Marine Labour Convention, 66 market-based regulation: economics, 105–6 invisible hand, 109

Index 289 property rights and, 105–6, 107 biodiversity offset, 125–7 Common Fisheries Policy, 119–22, 130 environment, 108–13 EU emissions trading, 113–19, 127, 128–30, 232–4, 236–8, 240–1 EU environment law, 113–27 legal cultures, 128–30 Water Framework Directive, 123–5 MARPOL, 71 Marx, Karl, 82 Mattingly, Garrett, 77 Melville, Herman: Moby Dick, 77 membership rights, 221, 222–4 migrants: rescue at sea, 63–4 UNCLOS and, 55 Mihaescu, BC, 142 milk quotas, 130 Morgera, E, 141 Morrow, Karen, 131 Nandatorfy, M, 45 narratives, 51, 76–7 Natura 2000, 125, 126, 183, 260, 272, 274 nature’s rights, 5–7, 35–6 Netherlands: environmental impact assessments, 214–15 foot-and-mouth disease, 162–3 New Zealand: constitutional rights of nature, 5, 7 Maori fishing rights, 70, 80–1 NGOs see ENGOs nitrates, 101 noise pollution, 90, 99, 152, 186, 211, 266, 281 non-state actors, 77, 78 see also ENGOs Nowag, Julian, 22, 155–74 nuisance, 110 OHCHR, 11 oil and gas sector, 79 Ombudsmen, 267 OSPAR Convention, 53, 58–9 ozone depletion, 162, 170 Papanicolopolou, I, 55 Paris Agreement (2015), 14, 46 participatory rights: Aarhus Convention, 78 environment, 13–16 EU protection, 221–2 marine environment, 58, 78 NGOs, 77 Pech, L, 150

Permanent Court of Arbitration: Arctic Sunrise case, 56 Philbrick, Nathaniel, 77 planning law, 30–1, 63, 181, 182, 187, 192, 197, 266 polluter pays principle, 95, 138, 143, 179, 192 Polynesians, 77 population growth, 3, 29, 44 Portugal, 39, 195 precautionary principle, 138, 143, 144, 146–7, 179, 190, 192, 197 Prechal, S, 94, 271 private life see family/private life property rights: concept, 106–7, 112–13 European Union, 128–9 conservation law and, 31–3 contested environmental areas, 110–13 discourse, 83 ECHR, 63, 111, 232 environmental investors, 238–46 fair balance test, 242–6 protected possessions, 238–42, 244 economics, 105–6, 108–9, 111–12 environmental investors, 25, 230 carbon allowances, 239–42, 243–4 clean energy subsidies, 241–6, 248–51 ECHR, 238–46 fair balance test, 242–6 interference, 236–8 international investment law, 246–51 protected possessions, 238–42, 244 environmental rights and, 27, 30, 45–6 centrality, 229–30 contested areas, 110–13 EU Charter, 99 markets and, 21, 108–13 EU Charter, 91, 117 EU law, 21, 108, 128–30 EU market-based management biodiversity offset, 125–7 Common Fisheries Policy, 119–22, 130 emissions trading, 113–19, 127, 128–30, 232–4, 236–8, 240–1 environment and, 113–27 legal cultures, 128–30 Water Framework Directive, 123–5 family/private life and, 76 fisheries, 80 framework, 106 ideological debate, 107, 113 legitimate expectations, 239, 240, 241, 243–5, 248–51 marine spaces and, 52, 63, 65, 73–6, 81–3

290  Index market-based regulation and, 105–6, 107 European Union, 113–27 fair balance test, 242–6 legal cultures, 128–30 material property, 81–3 natural resources, 107–8 scarce resources, 21, 105, 109 stewardship, 45–6 Rayfuse, Rosemary, 3–26 regional fisheries management organisations (RFMOs), 57–8 regulatory chill, 230 Reid, Colin, 6, 19, 27–47, 127 remedies: environmental rights and, 43 renewable energy: clean energy subsidies, 241–6, 248–51 EU Directive, 234 green certificates, 235, 239, 241–2, 248 international investment law, 246 investors, 230–2 interference with property rights, 236–8, 243–6 right to food, 11, 36, 66 right to life, 11, 88, 90 Rio Declaration: Aarhus Convention and, 14 environmental democracy, 253–5 human rights and environment, 8–9 participatory rights, 14 Principle 10, 253–5, 257, 267 Sanders, K, 7 scarce resources, 21, 105, 109 Schuman Declaration (1950), 130 Scotford, Eloise, 21–2, 133–53 search and rescue, 54, 55, 64 seas see marine environment self-determination, 53 Shuck, P, 71, 73, 79 sites of special scientific interest (SSSIs), 31 slavery, 66 Slovakia: brown bears, 257, 260, 261, 274, 277 constitutional environmental right, 40 solar energy, 236, 242, 248, 250 solidarity rights, 17, 55–6 South Africa, 34, 40–1 sovereignty: marine spaces, 74–5 Spain: environmental rights, 37, 39 fisheries, 120 solar energy, 236, 248, 250 use of structural funds, 165 species protection: CJEU, 257, 261, 274 ENGOs, 253, 260, 261–2 Sweden, 260, 261–2

standing: Aarhus Convention, 183 Article 11 TFEU, 163–9 CJEU jurisprudence, 255–8, 260 domestic courts, 25, 213–15 ECHR, 183 Swedish environmental decisions, 258–63 state liability, 92, 96, 98–9, 100, 269 stewardship, 19, 45–6, 82 Stockholm Declaration (1972), 7, 8, 14 Stone, CD, 5, 7, 26 Straddling Fish Stocks Agreement, 56–7 Strang, V, 82–3 Stupples, Liana, 95 subsidiarity, 116, 119, 130 sustainable development: Aarhus Convention, 254 contested meaning, 45 environmental investors and, 230 EU Charter, 91, 134, 135, 136, 147, 153, 205, 206 EU principle, 134, 139, 147–8, 150, 152, 160 obstacles, 29 role of courts, 192 Sweden, 179, 180, 197 Sweden: Aarhus Convention and, 264 appeals ban, 261–3, 267–8, 277 constitutionality of legislation, 191–2 court structure, 181–2 environmental jurisdiction, 182–4 standing, 183 ECHR and, 23, 192, 198 ENGO standing, 258–63 Environmental Code, 23, 177, 179, 180–1, 186–7, 190, 197 standing, 258–60 environmental courts see Swedish environmental courts environmental legislation, 179 EU membership, 198 greening of judiciary, 180–1 judicial training, 199 legal representation, 196 ping-pong court procedure, 192 precautionary principle, 197 preliminary rulings, 192–3 sources of law, 198 specialised courts, 177–8 standing, 196 ENGOs, 258–63 Environmental Code, 258–60 sustainable development, 179, 180, 197 Water Courts, 180, 186 Water Supply and Sewage Tribunal, 181 wind turbines, 260 wolves, 261–2

Index 291 Swedish environmental courts: appeals to, 181, 187–92 composition, 184–5 confidential information, 189 constitutionality of legislation and, 191–2 court structure, 182–4 fees, 186 jurisdiction, 180, 181, 182–4, 185–6 legal representation, 190 model, 197–8 origins, 180–1 overview, 23, 177–200 ping-pong court procedure, 192 procedure, 186–92 burden of proof, 190 closing cases, 190–2 oral hearings, 188–9 preparation phase, 189–90 referrals to CJEU, 190 size, 184 technical expertise, 184–5, 199 Taylor, P, 229 Temple Lang, J, 212 Thornton, James, 96 Tienhaara, K, 230 town and country planning see planning law traditional cultures, 71, 77 see also indigenous people transaction costs, 105 trespass, 110, 111 tribunals see arbitration Turner, S, 15 UN ECOSOC, 9, 80 UN Environment Program (UNEP), 3, 192 UN Human Rights Council, 11 UN OHCHR, 11 UNCLOS, 53, 54–6, 67, 70, 73, 78, 79

UNFCCC (1992): participatory rights, 14 United Kingdom: air quality, 40, 96–7 animal welfare, 163 clean energy subsidies, 242, 244, 245, 251 conservation law, 31–4 drinking water, 95 emissions trading, 116 fishing rights, 70 marine pollution, 61–2 planning and environment, 30 property rights, 112–13 renewable energy, 237 socio-economic rights and, 149 SSSIs, 31 substantive and procedural rights, 277 United States: fishing rights, 70 property rights, 30 takings clause, 110 Universal Declaration of Human Rights, 15 waste control, 180, 187, 211–12, 263, 273 waste oil, 158 waste pollution, 109 water: drinking water, 87, 92, 95, 97, 273 groundwater, 92–3, 106 waste water, 263 Water Framework Directive, 123–5 watercourse management, 158 Westerdahl, C, 66 whaling, 77 wild birds, 92, 125, 126, 128 wolves, 261–2 World Commission on Environment and Development, 8 WWF, 164–5

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