Environment law - new EU Directives to implement the Aarhus Convention

New EU Directives to implement the Aarhus Convention

The EU and the UK are implementing the UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The, “Aarhus” Convention imposes extensive requirements on public authorities to supply environmental information to the public and allow both access to and the ability to challenge environmental decision-making processes.

The EU has recently published two new Directives, and proposed a third, that along with the UN Convention from which they are derived, may have significant implications for the accountability companies performing public functions that involve environmental issues.

The Directives have been produced as a result of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Otherwise known as the Aarhus Convention, this was signed at the United Nations by many countries including the UK, and also by the EU.

The EU intends to ratify the Convention so that its institutions are subject to the Convention’s requirements, and by passing the three Directives, it will ensure that EU Member States are also subject to the Convention, whether they have ratified it themselves or not.

The Aarhus Convention consists of three principal “pillars”. As its title suggests they are: (1) access to information; (2) public participation in decision-making; and (3) access to justice in environmental matters. The three EU Directives cover the same areas. The Directives on Access to Information (2003/4/EC) and Public Participation in Respect of the Drawing up of Certain Plans and Programmes Relating to the Environment (2003/35/EC) came into force in February and June 2003 respectively. The third Directive on Access to Justice in Environmental Matters was proposed by the European Commission in October 2003.

Both the Convention and the Directives apply to “public authorities”, a broadly defined term that would include any organisation that performs public activities or services in relation to the environment. This would undoubtedly include government departments, local authorities and public utilities but could conceivably include activities that can be considered a public service. One example might be waste management companies.

Access to environmental information

Under the access to information pillar of the Convention and under Directive 2003/4/EC, public authorities have a duty to supply information relevant to the environment, when requested, within a strict time limit of one month (or two months in exceptional circumstances). The definition of “environmental information” is suitably broad to cover information on virtually any activity that has or may have an impact on the environment. Grounds for refusal are restricted, for example, to manifestly unreasonable requests or where confidentiality is an issue. A reasonable charge may be made for the supply of information.

These requirements will greatly increase the scope of both the information that must be made available and the range of organisations that must provide the information. There could be significant cost implications as a result, particularly where the infrastructure for compiling and supplying information needs to be set up. In addition, decisions to withhold information are open to challenge under the access to justice requirements of the Directives and the Convention.

According to the UK Government, this is the only part of the Convention that requires a change in law for the convention to be fully implemented in the UK. The draft Environmental Information Regulations, currently being prepared by the UK Government, effectively mirror the wording of the Convention and the Directive on access to information. These Regulations were intended to come into force in 2003 but a date for their implementation has yet to be confirmed.

Public Participation in Environmental Decision-Making

The second pillar of the Convention and Directive 2003/35/EC on public participation in decision-making provide for greater input by the public in the process of permitting activities that may have significant effects on the environment. The Directive provides for public participation in decisions made under specific Directives, in particular the Environmental Impact Assessment Directive (85/337/EEC) and the Integrated Pollution Prevention and Control Directive (96/61/EC).

Public participation is restricted slightly to those likely to be affected by the proposal but, significantly, legally recognised Non-Governmental Organisations (NGOs) promoting environmental protection are deemed to have such an interest. It is not clear what “legally recognised” means, but it may be similar to the requirements for a “qualified entity” under the draft Access to Justice Directive (see below).

In many ways, at least in the UK, the Public Participation Directive’s requirements are fulfilled by stages in the planning process, such as public enquiries on major projects. However, the Convention and Public Participation Directive require information to be provided – free of charge - early on in the process and when all possible options are open for consideration. This front-loading of information provision could be a major resource issue and the deemed interest of NGOs could lead to increased challenges to the decision-making process under the access to justice requirements of the Convention that are incorporated into this Directive.

Access to Justice in Environmental Matters

It is the third pillar to the Convention and the draft EU Directive on Access to Justice in Environmental Matters that could have an even more fundamental effect. Under the Convention, the public have a right to challenge a decision by a public authority not to supply environmental information. Secondly, where a member of the public can demonstrate either sufficient interest or the impairment of a right, they must have access to a review procedure to challenge the legality of a decision, act or omission made under the second pillar of the Convention. These requirements are expressly incorporated into both the Access to Information Directive (2003/4/EC) and the Public Participation Directive (2003/35/EC) but, under the Convention and the draft Directive on Access to Justice, these requirements will apply to all other decisions by public authorities that may have an effect on the environment.

Importantly, environmental NGOs will be deemed to have sufficient interest to challenge a decision made under the public participation pillar (and the corresponding Directive 2003/35/EC), provided they are “qualified entities”. The requirements for a “qualified entity” are basically for the organisation to be legally constituted, independent and non-profit making, to have the general aim of environmental protection and have audited annual accounts. Where an NGO is deemed to have sufficient interest, this provision could potentially open up many more environmentally related decisions to challenge, significantly increasing the length and costs of the decision-making process.

The Convention also states that the public must have access to judicial procedures to challenge acts or omissions by private persons and public authorities which contravene national laws relating to the environment. Further, access to justice is not limited to action within a single Member State. Under the draft Directive, a legally recognised NGO would have recourse to environmental proceedings in another Member State to challenge a breach of environmental law provided it falls within its statutory and geographical area of activities. This not only increases the scope for challenges to a particular decision, but also the types of decision or act that could be challenged. A prime example would be transfrontier shipments of waste, whereby decisions by the authorities in the country of dispatch or receipt to permit a shipment of waste could be challenged.

Access to justice must also be timely and “not prohibitively expensive”. In the UK, the current route of challenge would be through judicial review, which can involve significant legal costs and be a lengthy process. Also, judicial review does not allow challenges based on the merits of a decision, but only on the legality of the decision-making process itself. If the draft Directive on Access to Justice becomes law, it is entirely possible that the European Court of Justice could be called upon to pass judgment on whether the UK system is compliant with the Directive. The Convention and draft Directive can only serve to fuel the arguments for a dedicated UK environmental tribunal.

The UK Government clearly considers that the implementation of the Directives and the Convention will have little effect on the current systems and procedures for access to environmental information, challenging acts and decisions that affect the environment and access to justice. Whether this will actually be the case remains to be seen, but given the broad scope of the Convention and the Directives it is likely that challenges will be made to test the extent to which their provisions affect the activities and decisions of public authorities.

For further information please contact Andrew Ryan on +44 (0)207 367 3255 or [email protected]