Introduction
Aarhus Convention
Existing system
ECJ decision
Comment
Introduction
Permitting procedures for substantial infrastructure projects such as motorways, airports or railways, as well as large-scale industrial or energy facilities, usually attract the attention of environmental lobby groups. Regularly, environmental non-governmental organisations (NGOs) challenge such permits in court, either by sponsoring a third-party plaintiff or in their own right. In Germany, environmental NGOs have the right to be involved in the permitting proceedings for large projects. They also have standing in court in their own right if their participation rights have been violated, but up until now, in most cases they have not had standing to challenge the violation of those laws which protect the environment in general.
However, a recent European Court of Justice (ECJ) decision has substantially expanded environmental NGOs' standing in court . As a result, it is to be expected that environmental NGOs will gain a more prominent role in future permitting procedures in Germany.
The participation rights of environmental NGOs arise from EU legislation following the incorporation of the Aarhus Convention on Public Participation (2001). It requires member states to grant the general public enhanced rights to participate in administrative permitting procedures. Additionally, the general public must have access to court to challenge administrative permit decisions which have an environmental impact in a way that is transparent, simple and not prohibitively expensive. Respecting the different national legal systems, the convention allows signatory states both to admit plaintiffs to court if they merely have justified interests (the Anglo-Saxon approach), or to require that their own individual rights have been violated (as in Germany). However, for environmental NGOs issues that affect the environment must constitute justified interests or, if the national legislation uses another system, such NGOs must be considered to be able to hold rights that could be violated.
In Germany, the traditional rule was that a person or entity would have standing in court only if its own individual rights were violated. A mere general interest did not suffice. This usually meant that environmental NGOs had no standing in court. As a first step, the Aarhus Convention led to a new rule generally admitting environmental NGOs to participate in all planning and permitting procedures with an environmental impact. As a result, environmental NGOs had standing if their participation rights were violated. For certain kinds of far-reaching permitting decisions requiring the highly formalised public planning procedure, environmental NGOs could challenge in court the violation of any kind of environmental protection law. While these public planning procedures cover the largest and most significant projects (eg, airports, motorways, railways or nuclear power plants), the vast majority of environmental permitting decisions – for example, those under the Federal Emissions Protection Act or the building code – were not included.
For these other permits, environmental NGOs could not plead the violation of environmental laws not solely in the public interest, but rather could plead only to protect the rights of individuals (eg, local residents). While environmental NGOs did not need to have such rights themselves (eg, by being a local resident), standing in court was denied if the environmental law was enacted solely to protect public interests and not to grant and protect individual rights.
The ECJ has already decided two cases (in Sweden and Ireland) in which it held that national applications of the Aarhus legislation were insufficient and required the states in question to change their laws. Some NGOs and legal commentators have since argued that the German implementation was also insufficient to comply with the Aarhus Convention.
The ECJ's case was based on an environmental NGO's challenge in the German Higher Administrative Court of a preliminary permit to build a coal power plant in Germany. The environmental NGO claimed that the permit had been issued in violation of German laws implementing the EU Habitats Directive (92/43/EEC). The court agreed. However, the court held that under German law, the NGO could not plead the violation of those rules, since they had been enacted solely to protect public interests. The court referred the matter to the ECJ and inquired whether this was in line with the EU legislation incorporating the Aarhus Convention.
The ECJ ruled that, at least for environmental rules of law that stem from EU legislation, national law cannot limit an environmental NGO's standing in court in relation to laws granting and protecting individual rights. Furthermore, it ruled that environmental NGOs can derive standing to plead the violation of all environmental laws (regardless of their relation to the grant and protect individual rights) directly from the EU directive. The court held that the Aarhus Convention aims to provide broad access to justice for the concerned public. It is deemed to be an undue limitation of that aim if environmental NGOs are limited to pleading only the violation of those rules whose violation could also be pleaded by other persons. Since a large portion of EU environmental regulation is enacted only in the public interest, such a limitation would considerably curb access to justice for NGOs. Therefore, all national law that implements EU environmental law must be considered to grant to NGOs individual rights which can be violated.
Comment
This ECJ decision has resulted in a considerable change in the ability of environmental NGOs in Germany to file lawsuits against decisions with environmental impact by arguing the violation of environmental law. While the verdict covers only those proceedings in relation to which an environmental impact assessment has been carried out, the language and reasoning of the court applies to all kinds of decision concerning the environment that are covered by the Aarhus Convention. In future, environmental NGOs are likely to be able to demand full judicial review of such decisions. Investors will have to keep this in mind when contemplating projects which will have a significant environmental impact. It may well be that in future, environmental NGOs will be seen as more of an 'eye-level player', next to the permitting authorities and the project originators.
For further information on this topic please contact David Elshorst at Clifford Chance LLP by telephone (+49 69 71 99 01), fax (+49 69 71 99 4000) or email ([email protected]).