Written by Željka Leljak Gracin – new Chairwoman of Justice and Environment
Although it was a great honor to become Chairwoman of Justice and Environment in June this year, it was not an easy task to step into the shoes of my predecessor, Siim Vahtrus, since he did a great job. The whole network and I personally wish all the best to Siim and are sure he will be equally successful in his new role as he was in J&E. I will do my best to continue to strengthen our network externally and internally in the years which are ahead of us with the support of a great team consisting of Senka Vrbica as Vice-Chairwoman, Csaba Kiss as Coordinator, Lubica Motzkova as Finance manager and Marija Mileta as Communications person. Every network needs a strong internal team to operate smoothly in order to further develop the network and for the benefit of its member organisations, and I am very confident and grateful that we have that.
Getting to know the network and its members was personally a great (and fun) experience and still is. Zelena akcija/FoE Croatia, the organisation in which I work as a lawyer, got in touch with the network in 2006 and I am very proud of what we have achieved since then. The network grew within these years not only in the number of members but also professionally in becoming a network with strong partnerships with other European networks and civil society organisations, and being recognised by the European Commision as a pool of environmental law experts. Besides joint projects, sharing knowledge and experience between members and giving each other support is the greatest value of Justice and Environment. We all can say, without modesty, that we contribute to the development of environmental law with our everyday work on EU and national level, which is a thing we should all be very proud of. It is not an easy task to have a reflection on my work as Chairwoman so far as probably we would all prefer to forget this whole year. However, although the situation with COVID-19 did have an impact on the network as it did on the whole world, we managed to preserve the network in this extreme situation which is, in my opinion, a great success. Moreover, we adapted to the situation very quickly and did not face any period in which we were unable to fulfill our obligations within projects. Having that in mind, the future looks bright for Justice and Environment and I am looking forward to being part of it in the following years.
This year has been an exceptional one, and not in a positive manner. But life does not stop, and we had to go on with our undertakings in order to promote the implementation of access rights. And you can be sure, we did our best again.
We devoted a considerable attention to an old phenomenon that has become really important and interesting these years: SLAPP cases. These are those frivolous and vexatious cases with little legal merit that are initiated by public authorities or companies in order to silence the civil society and journalists. We joined an anti-SLAPP working group led by Greenpeace Europe and contributed to its work with our legal knowledge, as well as we did a survey among our member countries to know if there are any available legal means against SLAPP cases. The results will be published in 2021 January.
Many years ago, the European Commission published a Communication on access to justice with the aim of promoting the access of the members of the public to justice in environmental matters. The intended purpose of the document was to orientate Member States in a situation where the adoption of the directive on access to environmental justice was blocked by the EU Council. Did it work? We wanted to know, so we made another survey, the outcomes of which will be published in 2021 January, again.
What is available now, however, on our website, is a study on how one can get information about environmental damage and liability cases in a number of Member States. This comparative analysis is built on our national research and complements well our large-scale research we are coordinating for the Commission on the implementation of the Environmental Liability Directive in the EU Member States.
Our paper on how courts can protect clean air via legal actions is ready, just waiting for the final touches before its publication in January 2021.
And finally, we left the big thing for the last: The Commission, after many years of resistance and reluctance, finally published a draft amendment to the Aarhus Regulation that would grant access to justice to NGOs against the decisions and omissions of EU bodies. While the step is welcomed, the proposal misses a few key points that would be critical for granting real and effective access to justice on EU level. If you are interested, read the joint statement of EEB, J&E and Client Earth here.
So, it was not only a difficult, but also an interesting year for access matters, and in 2021, we will not just publish the outcomes of the work we have done this year but will also continue the fight for less barriers of access to justice, for a harassment-free environment for civil activists and environmental defenders, and for a broader access to remedies on the EU level. Stay with us, it is worth the wait!
National climate plans
Integrated national energy and climate plans (NECPs) are crucial elements of the 2030 climate and energy
framework, bringing energy and climate targets into one strategy, as well as helping to plan and report on progress. In 2020, J&E continued working on transparency and public participation of NECPs on national level, especially focusing on strategic environmental assessments (SEA). We are preparing a comparative study on how the finalising process of NECPs was carried out in seven member states. Besides focusing on SEA, we are planning to give an overview on the legal form of NECPs to empower civil society organisations to get involved in the implementation or enforcement. Our findings will be available on our website in the beginning of 2021! In 2021, J&E will continue monitoring NECPs and analysing transparency and public participation regarding implementation of ongoing NECPs. Monitoring of Climate Acts is also planned in 2021, and we plan to give an overview on good practices, solutions and weaknesses.
SEA – Climate Assessment
Environmental assessment of effects on climate is still a very abstract topic for all participants in the Strategic Environmental Assessment (SEA). It is carried out in the context of uncertainty as well as politically and normatively set objectives. For “mainstreaming” climate change, which includes the integration of climate content into all policies, the SEA is an excellent tool for impact assessment of the highest strategic plans and programs (PPs) on climate, both climate change mitigation and adaptation.On the basis of the J&E comparative study on Strategic Environmental Assessments and Climate Change “Assessing the Impacts on Climatic Factors”, J&E created practical guidance on the issue. It is focussed on considerations throughout the SEA that are important for assessing the impact of plans and programmes at the highest strategic national level on climatic factors. After an introduction to the general issue of climate mainstreaming in plans and programmes, the guidance addresses the different stages of the SEA. The most critical phase is the screening phase, which is aiming at the assessment whether a plan requires a SEA.
The guidance is a complementary reading to the Guidance on Integrating Climate Change and Biodiversity into Strategic Environmental Assessment and as such is useful for decision-makers, experts, NGOs and the general public in public consultations. At this highest strategic level, it is important that such strategic aspirations are designed in a way that will yield effective contributions to achieving climate goals. That way, the coherence of the plan or program will not be aligned only to the Paris Agreement or EU national climate goals, but also with other strategic goals related to climate change (e.g. Agenda 2030 goals and national strategies).On 23 November 2020, the J&E Climate topic team held a webinar on climatic factors in SEA. Recordings of the different presentations can be accessed by J&E members and shared with others on request.
Climate litigation and advocacy
Under international law, i.e. the Framework Convention on Climate Change, the Paris Agreement and the outcome of the latest IPCC report, individual states are obligated to act and proceed respecting protection of human rights and precautionary principle. Climate litigation has therefore become an increasingly important topic throughout the European Union.J&E supports national NGOs in bringing climate cases to court. A compilation of relevant case law will be published and within different events, members of civil society shall have the opportunity to exchange their experiences in this field. So far, cases have been started in Austria and Slovenia. In Austria, the Constitutional Court has recently rejected the first climate case against benefits for aviation for strictly formal reasons. Other cases are still pending.
Justice and Environment, supported by the European Environmental Bureau (EEB) and WWF Central and Eastern Europe (WWFCEE), prepared a position paper on the EU Directive which governs the assessment of environmental impacts of strategic documents (SEA Directive). Although, J&E, EEB and WWFCEE mostly agree with these conclusions, we wanted to highlight that in order to unleash the full potential of the SEA Directive, which has an enormous potential to aid in the necessary transformation of our society, it should provide a framework for including environmental and sustainability considerations throughout strategic decision-making procedures. The position paper was published on 29th October and sent to different departments and officials of European Commision.
Related to national work of J&E members, a lot has happened in 2020. There is a strategic case which concerns the use of Art 4(7) of the Water Framework Directive (WFD) to protect Czech, Polish and German Waters against the negative impacts of the expansion of the Turow coal complex. Our Austrian member was lobbying against the Act for Location Development (Standortentwicklungsgesetz) which could potentially undermine EIA proceedings, challenging the hunting permissions against otters (lutra lutra) in Lower Austria due to a violation of the Habitats Directive (especially Article 6). J&E Croatian member, in coalition with three other Croatian NGOs, is fighting against the permit to Hrvatske vode (Croatian Waters) for the excavation of 460,000 m3 of sediment from Drava River without an environmental impact study. The Ministry which issued the permit has violated the Habitats, Birds and Water Framework Directive.
It is also important to mention that Justice and Environment, as well as a lot of member organisations, supported the Manifesto against new hydropower in Europe which was initiated by WWF EU and published on 26th October.
It can be concluded that, although there were a lot of challenges in 2020, J&E managed to overcome difficulties and was active on international and national level, and we will surely continue to work on this topic in 2021. Activities continued as planned in this topic, although the situation with COVID-19 made our lives and work difficult, since in our line of work we have to contact different stakeholders which is never an easy task. Besides comparative analysis on WFD and SEA, which are in their final stage of preparation, we also started working on a comparative study on the impact that the latest changes to the EIA Directive have had on the EIA practice in member states. These three studies will be published in 2021 and will be used as an advocacy tool for improvement of all environmental procedures.
Victory in Austrian wolf caseThe Salzburg Regional Administrative Court announced on 14th December 2020 the decision to annul the permission to shoot a wolf in Salzburg, after complaints by WWF, the Naturschutzbund and ÖKOBÜRO/J&E Austria. The decision was appealed by the NGOs because the requirements for killing the animal were not met: there was neither significant/serious damage, nor was a sufficient alternative assessment carried out, as required by the Habitats Directive. The wolf as a strictly protected species is also native to Austria and may only be shot if the narrow conditions of the Directive are met and there is no other possibility for protection. In the specific case, the court did not consider the substantial/serious damage to be given. Furthermore, a formal error had occurred in the eligibility of the application and the decision had to be annulled. Together with other organisations, ÖKOBÜRO demands sustainable wolf management and proper protection measures.
The Croatian Government is not interested in the public opinion on national climate policyJ&E member Zelena akcija / Friends of the Earth Croatia issued a press release urging the Croatian Government to prolong the public consultation on the Integrated National Energy and Climate Plan (NECP) for the period 2021-2030 to 30 days. This is a continuation of a non-transparent process since the public consultation on the first draft of the NECP in 2018 lasted only four working days as well, between Christmas and New Year. In this way, the Croatian Government prevents the public, civil society, private sector and various institutions from contributing to this important document.
Important precedent on public participation in CzechiaA Czech court ruled in favor of J&E member Frank Bold Society, stating that environmental NGOs were entitled to participate in the proceedings on life extension of the large combustion plant. The Supreme Administrative Court ruled in favor of the Frank Bold Society’s lawsuit, stating in a recent judgment that even a “mere” time extension of a permit to discharge the same amount of pollutants from a large combustion plant could have a significant negative impact on human health and the environment. Therefore, the authorities must allow environmental NGOs to take part in such proceedings. This is an important precedent that has the potential to ensure wider public participation in integrated permit change proceedings in Czechia in the future.
Silencing activists in BulgariaJ&E member BlueLink organised its traditional civic Action Time Forum in Sofia, Bulgaria, on November 10, 2020, entitled “Litigation, traps and barriers – how we survive”. This time the event was fully online. The event presented an opportunity for environmental and human rights NGOs, and media experts and journalists to discuss issues and challenges of importance for civil society organisations defending the environment, human rights and core EU values. The 2020 Action Time edition focused specifically on SLAPP (Strategic Litigation Against Public Participation) cases and administrative pressure on civil society. The session on SLAPP was co-organised by Justice and Environment, as part of a project funded by the EU’s LIFE NGO grant programme, and included presentation of SLAPP cases against activists.
Environmental justice couped by private justice in CroatiaZelena akcija has been fighting against a gated community style golf resort above the medieval city of Dubrovnik for over a decade. After Zelena akcija’s initial success in revoking the environmental and location permits, the investor staged a full-blown offensive. First they sued Croatia for the alleged 500 million Euros in front of the International Centre for Settlement of Investment Disputes based on the Croatia-Netherlands Bilateral Investment Treaty. Immediately thereafter the revoked permits were re-issued, with no changes to their content whatsoever. After Zelena akcija called the reissuing of permits a result of racqueteering, the organisation itself was sued by the investor – in both civil and criminal court. A few weeks ago, ZA won a first instance in the civil court. Criminal charges are still pending. Read more here.
Documents from infringement proceedings can be classified as environmental information At the end of October 2020, the Supreme Administrative Court annulled the decision of the Czech Ministry of Foreign Affairs, which refused to provide documents from the proceedings conducted by the European Commission against the Czech Republic regarding non-compliance with the Directive on ambient air quality. The Frank Bold Society requested the documents with regard to the above-limit concentration of fine dust particles (PM10) in the ambient air, which the Czech Republic exceeds. The Ministry must reconsider the request for information again and to assess it as an environmental information, where the reasons for refusal of providing the information are stricter in comparison with non-environmental information.
Rejection of Austria’s first climate caseThe Austrian climate case against benefits for aviation was rejected by the Constitutional Court for strictly formal reasons. According to the court, the applicants are not directly violated in their rights. The Constitutional Court has recently rejected the climate case brought forward by the environmental organisation Greenpeace. Strictly speaking, the Greenpeace class action was a bundling of more than 8.000 individual applications that were jointly submitted to the court. The applicants challenged the constitutionality of several provisions concerning climate-damaging laws, reasoning that these legislations harmed their fundamental rights in view of the worsening climate crisis. Read more.
Lignite mining listed as a problem of supra-regional importance
The International commission for protection of Odra (ICPO) included lignite mining to the list of problems
Bold Society. This step implies that Poland, Germany and Czechia will have to work on seeking common solutions to prevent deterioration of water bodies caused by lignite mining in the next river basin management plan for the period from 2021 to 2027.
Austrian infringement judgment translated
On May 11th 2020, the Federal Administrative Court in Austria finally granted the request by Justice and Environment from 2013, asking the Austrian government to hand over documents containing environmental information on infringement proceedings by the European Commission against the Republic of Austria.
Whistleblowing case in Greece
J&E member the Greek Helsinki Monitor (GHM) provided legal advice on freedom of expression and whistleblowing standards to a domestic lawyer representing a food specialist. The latter is facing a series of criminal and civil proceedings of a SLAPP nature instituted by the company he worked for after
revealing to the public that the company had ordered and used as a food disinfectant significant quantities of a substance that posed a threat to consumers’ health as well as to the environment. The food specialist was acquitted at first instance in two out of the three criminal proceedings filed against him by the company for libel. Regarding the civil proceedings, the first instance court turned down the company’s action for damages for hundreds of thousands of EUR for alleged loss of revenue. Following the company’s appeal, the case is now pending before the appeals’ court.
Continued fight for the protection of untouched rivers in AustriaJ&E member group ÖKOBÜRO, together with WWF Austria, filed a final complaint to the Austrian Supreme Administrative Court regarding the permission for the hydropower plant “Schwarze Sulm”, while advocating for environmental protection and public involvement. Relevant expert opinions and planning documents of the power plant were withheld from the environmental protection organisations involved. In the opinion of ÖKOBÜRO, this constitutes a violation of the party status confirmed by the relevant ruling. Find out more.
ECJ strengthens habitat protection of hamsters in an Austrian caseIn July 2020, the European Court of Justice confirmed the strict protection that the Fauna-Flora-Habitat Directive intends to guarantee. According to the judgement, even abandoned resting places of protected species, such as the European hamster, may not be damaged or destroyed if there is a high probability that the animals return. The reason for the legal dispute was that the burrows of Grand hamsters were destroyed in the course of clearing a construction site in Vienna for city expansion. This species, however, is threatened with extinction due to changes in agriculture and increasing surface sealing. Therefore, the European hamster is subject to strict protection according to the Directive, which aims to safeguard biodiversity in EU countries. Article 12 of the Directive prohibits all deliberate forms of capture or killing, deliberate disturbances and any damages to or the destruction of the breeding sites/resting places of protected animals. The Viennese magistrate imposed a sentence on the construction worker for the damage, which was appealed. The Administrative Court of Vienna submitted the interpretation of Article 12 to the European Court of Justice to clarify the facts.
BIG LEGAL NEWS
Council reaches agreement on the European climate law
In December 2020, the European Council reached agreement on a general approach on the proposal for a European climate law, including a new EU greenhouse gas emissions reduction target of at least 55% by 2030 compared to 1990. The main aim of the European climate law is to set into legislation the objective of a climate neutral EU by 2050. Having now set the newly minted target, Member States will start negotiations with the European Parliament over the final text of the Law. While it is a step forward, many European organisations have criticised the new target. Friends of the Earth is disappointed that the 55% target agreed includes controversial ‘net savings’ that would come from land and forest sinks, weakening the target. And that the agreement references “the right of Member States to decide on their energy mix and to choose the most appropriate technologies … such as gas” – a fossil fuel. Similarly, the EEB believes that the proposed regulation is not yet fit for purpose and has highlighted several areas where legal provisions must be clarified and strengthened to drastically reduce and avoid greenhouse gas emissions.
Shell awaits judgement in historic climate case
The judgement on Shell, one of the ten biggest climate polluters in the world, is now awaited, as lawyers for Friends of the Earth Netherlands have concluded their arguments after four days of public hearings during December 2020 in the historic climate case.
If successful, the judge would require Shell to comply with global climate goals and reduce its emissions by 45% by 2030. This unique lawsuit is not seeking compensation but to force Shell to alter its business model, which lawyers argue is not in line with the Paris Agreement. This has significant potential consequences for the climate and the wider fossil fuel industry. Due to its importance, the Dutch Court of Justice awarded special status to the case to make the legal process faster and more public than usual. A verdict from the judge is expected 26 May 2021.
Air pollution has been listed as a cause of death
Dangerous levels ofair pollution “made a material contribution” to the death of nine-year-oldElla Kissi-Debrah inLondon in 2013, a coroner has ruled following a second inquest into the child’s death. The landmark result, following a two-week inquest at Southwark Coroner’s Court means air pollution has been listed as a cause of death for the first time in the UK. In a detailed conclusion lasting almost an hour, assistant coroner Philip Barlow said: “I will conclude that Ella died of asthma, contributed to by exposure to excessive air pollution.”
Class action lawsuits to become EU law
European consumers will soon be able to band together as groups in court after the European Parliament in November 2020 adopted legislation giving them the right to US-style class-action lawsuits. The measure will become law within the next two years, once it is published in the EU’s official administrative gazette, and member states change their laws to include it. Currently, only six EU countries offer what the European Consumer Organisation considers to be a full collective redress system. The EU legislation means that all 27 member states will have to allow consumers to launch group actions against a trader or company they believe has caused them loss or harm.
French court gives government three months to prove effective climate policyFrance’s highest legal body, the Council of State, ruled in November 2020 that the government has three months to justify that the measures “permitting a reduction” in greenhouse gas emissions are on the right track – and this despite never having previously dealt with a climate dispute. In January 2019, Grande-Synthe’s former mayor and now EELV MEP, Damien Carême, filed an appeal before the Council of State for “climate inaction”. The northern conurbation near Dunkirk is facing land and sea flooding, and soon rising sea levels. To make matters worse, the area is home to several Seveso-classified industrial sites and the Gravelines nuclear power plant. Read more.
Shannon LNG quashed by the Irish High Court
In November 2020, Shannon LNG had all permissions to build its fracked gas import terminal quashed in the Irish High Court after a 13-year battle. This decision follows the judgement of the European Court of Justice (ECJ) from September in which it has found against the Irish State Planning Authority, which was responsible for extending planning permission for a fracked gas import terminal to the advantage of US fracked gas exporter ‘New Fortress Energy’. The completion of the legal process which has seen Shannon LNG lose all development consents to build a fracked gas import terminal in Ireland, has now opened up a window of opportunity for Ireland to ban the importation of fracked gas. 2021 will surely be a busy year for us, and we invite you to join us on our way.
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The whole team of Justice and Environment wishes you very happy holidays and a much more positive 2021!