Key challenges in implementing access to justice

1. Key challenges in implementing access to justice Prof.Dr.Ludwig Krämer 1969-2004 Judge, Landgericht Kiel Derecho y Medio Ambiente, Madrid Kramer.ludwig@skynet.be

2. Cases • The citizens and industrial companies of a city discharge their waste in an old quarry which is neither licensed nor equipped for receiving waste. The municipality, the regional administration, the government do not act. What can the individual citizen do? What can an environmental organisation do? • The regional administration decides to build a motorway through a protected natural habitat, without environment impact assessment and without consulting the citizens or the municipalities concerned. • A company discharges waste water into a river, exceeding the limits that were fixed in its permit. What can the citizens do about that?

3. Judicial or administrative control? See Article 9(1), 9(2) and in particular 9(3) of the Aarhus Convention • For procedures under Articles 9(1) and 9(2), Denmark, Lithuania and Poland have developed some administrative systems. 2. Article 9(3): Contracting Parties shall set up “judicial or administrative procedures” which must be objective (fair) , equitable and quick (timely). It appears that no EC Member State has created new administrative procedures under Article 9(3)

4. Why control the administration? • In all industrialised societies, the task to protect the environment has been given to the administration (permits, infrastructure projects, financial support, monitoring nature) • The administration is not the owner of the environment. The environment is everyone’s. • The environment cannot go to court. It has no voice and it has no standing. • Who then protects the environment against administrative failure, omissions to act, corruption, inertia?

5. Legal standing • In most legal systems, it is necessary to have an “interest” to bring a case to the court. In some countries, more is needed (“impairment of a right”) in other countries less (actio popularis). • Does Article 9(3) of the Aarhus Convention oblige to change the existing systems for legal standing? - criteria of national law (Article 9(3)) - objective of the Aarhus Convention of giving wide access to justice (Article 9(2)) - objective to have objective, equitable, quick and not too expensive procedures which include injunctive relief (Article 9(4)) - Aarhus Compliance Committee: a system that practically restricts access ( of NGOs) to exceptional cases, is too narrow.

6. Injunctive relief • In the three cases above, only case (2) lends itself to injunctive relief. In case (1), how to stop a whole city to discharge? In case (3), how stop the company? How oblige the administration to come in? • In all cases, there must be a “right” or an “interest” in substance to have the practice stopped. This depends anew from the interpretation which is given to these notions. • Courts are reluctant to grant injunctive relief, for fear of damages. However, where the weighing of interests has not taken place in the beginning, the environmental impairment was made at the risk of the acting body.

7. Costs In numerous countries, individuals and NGOs report that costs of litigation are prohibitively high. Main costs are lawyers fees and experts costs. Environmental litigation is typically, though not always, an altruistic litigation. The applicant tries to protect a common interest, not to ensure a personal advantage. In numerous countries, courts have a considerable discretion as to the decision on costs. The impression is that this discretion is not always taking into consideration the altruistic nature of environmental disputes. Legal aid is, in a number of countries, not granted to NGOs or associations. Where this is fixed by legislation, there might be a need for change; where this practice is based on court decisions, the basics should be reconsidered.

8. Length of procedure • Close relationship between length of procedure, injunctive relief and costs • An official (judge) earns the same amount of money, whether he works quickly or slowly • Can court litigation be speeded up? Yes, but by internal measures essentially (chamber competition; explanation of delays; delays for lawyers etc.)

9. What can courts do? • “sufficient interest” and “impairment of a right” are not defined. The different interpretations given by national courts and by the EC court of Justice show the amount of interpretative discretion which courts have Examples: - air quality objectives (EC Court of Justice) - directly concerned (EC Court of First Instance) - interest in the environment (Dutch courts) • Speeding up procedures - concentration of litigation - judicial self control • Injunction - Via Appia syndrome - how to quantify environmental impairment (the economic value of a butterfly)

10. Key challenges • No miracle solution to improve access to justice, but many small steps • The key: do we want to give to individuals and NGOs a greater possibility to protect – with the help of the courts, the arbiter of interests in society - the environment in those cases, where the administration does not enforce the existing law (see the three cases above). In other words: Who shall protect the environment, the administration or (also) the civil society.