Such a right to access to justice in environmental cases is recognized in the constitutions of a few of the countries analyzed in this survey, at least indirectly connecting the right to access to justice together with the constitutional recognition of the right to the environment. The constitutions of Spain and Portugal provide explicitly for an actio popularis, or "popular action," in certain circumstances not necessarily limited to environmental matters. In such circumstances, the constitutions allow open standing to sue, or "citizen enforcement," without the need to show a special legal interest to challenge actions that violate the laws. However, such cases are rare. Portugal's constitution ties the actio popularis specifically to protection of the environment and similar matters. It states that everyone "enjoys the right to actio popularis in the case and under the conditions provided by law, notably the right to promote the prevention, the suppression, and the prosecution of offenses against public health, the environment, the quality of life, and the cultural heritage." This extends to nongovernmental associations as well as natural persons. This should also be viewed in conjunction with the constitutional right of every citizen to a healthy environment and, of course, with relevant legislation.
In Germany, the constitution allows anyone who considers that his or her rights have been infringed to complain to the courts, but this has served primarily to protect traditional, individual rights as opposed to collective or societal rights. As a consequence, this provision has not been used for environmental cases and it seems unlikely that it could be. It is erroneous, however, to contend as some might that this provision of the German Constitution prohibits the broadening of standing through legislation. Indeed, some minor legislation has been enacted on the national level to broaden NGO standing, and a great deal has been enacted on the federal or state level.
In some countries, such as Greece, where a "legal interest" normally has been required for standing in lawsuits, the constitution's imposition of a duty on the state to protect the environment has led the courts to recognize broadly the interests of individuals and NGOs in enforcing that duty. The result has been to grant standing liberally in a wide variety of environmental cases, particularly in the supreme administrative court. A similar development might be possible in Ireland, where the "right to life" provision of the Irish Constitution has been held to allow an anti-abortion NGO access to justice without meeting normal rules of standing. Right-to-life provisions in constitutions elsewhere in the world have been used in the same manner by environmental NGOs to achieve liberalized standing. For the most part, however, the right to legal protection is specified in different legislation, either that of a general character or more specific rules which recognize this possibility.
In the majority of countries, it is administrative legal protection that covers most cases of environmental protection. In others, such as the Netherlands, the civil jurisdiction is commonly used, and still in others, such as Denmark, there is only one type of jurisdiction which encompasses all protections. Criminal protection is seldom used in general for environmental cases filed by citizens on the continent, but individuals do have the right to initiate "private criminal enforcement" actions in England in both environmental and other matters. Citizens and NGOs also have this right of criminal enforcement in Spain.
In general, legal protection is restricted in most cases to affected persons or persons who are said to have a "legal interest." Environmental organizations do not have any broad legal standing recognized in this respect. This situation is clearly unfavorable for the protection of the environment, whose content in many cases is diffuse because it affects all, and it is sometimes difficult to determine personal and not collective effects. Consequently, several countries have already enacted legislation that grants standing to environmental organizations in some such circumstances.
This is one of the facets of public participation which seems to need greater development of legislation, means, ideas and social and institutional change. This need for change applies especially to judicial procedures that are obsolete in terms of their conception of active and passive subjects involved in environmental issues and of their concept of the environment itself.
In general, the right to appeal through the administrative system is recognized for affected parties in all the surveyed countries, subject to a complex set of exceptions. For example, this type of appeal occurs only occasionally in the United Kingdom, and is not applied at certain times in the case of territorial plans for affected residents in Denmark. These two examples show the complexity of this generalization and are not the only possible examples. In Austria, Denmark, Greece, Ireland, Portugal and Spain, administrative standing is recognized for interested parties also on the basis of the different procedures. Only in countries such as Ireland, the Netherlands, Portugal and Spain is recognition given within some procedures to all persons.
Administrative standing in the case of NGOs is more limited than for individuals. The legal standing of NGOs is not recognized in Austria, Portugal or the United Kingdom. Affected and/or interested NGOs are granted legal standing in the rest of the countries. In some cases this standing is recognized only for certain organizations and in other cases there are certain conditions for them to demonstrate the content of their "interest" or "affectedness." For example, NGOs may be required to show their statutes include among the association's objectives the issues relating to the appeal or that their territorial scope coincides with that of the case in question. The ability for NGOs to automatically gain standing is far from being the general rule in the systems analyzed.
In all cases the broadest eligibility for standing is given to physical or legal bodies in matters related to access to environmental information, especially in the European Union member states through the application of Directive 90/313/EEC.
Access to standing in the courts against decisions, actions or omissions of government agencies is governed not necessarily by environmental regulations but instead by general laws on legislative procedures.
In Austria, if public authorities fail to implement laws or act incorrectly, individuals can only appeal to the court or to the higher administrative body when their individual rights are affected. Decisions of the courts are legally binding, and enforcement is guaranteed and is carried out by the public authorities themselves. Affected individuals can also bring cases before civil, criminal, and constitutional courts. In the case of EIA issues, a citizen group is granted legal standing in administrative courts. With regard to NGOs, legal standing is granted to all NGOs as legal entities only in civil courts, and to some NGOs in the arbitration courts. As a result, NGOs are generally unable to seek court protection for the environment in Austria.
In Denmark, the right to legal standing includes the courts as well as the administrative appeal system. Legal standing is defined differently from case to case since no general statutory rules on objections and appeals are set out. However, anybody with a substantial individual interest can appeal to the Danish courts. Several environmental cases have been brought before the courts as criminal cases. The issues treated include waste disposal, agricultural matters, use of pesticides, etc. The appeal system, in connection with the environmental law system, consists of two independent appeal boards, one dealing with nature protection issues (the Nature Protection Board of Appeal) and the other with environmental issues (the Environmental Appeal Board). The first time an environmental NGO tried to bring a case to court was in 1994, when the Danish Ornithological Society took legal action against the Ministry of Transport. It was the first time an environmental organization was found to have a right to action without having to show actual damage to its members' economic interests.
The German legal system allows every citizen to appeal for the right of access to environmental information before the court. Denial of public participation rights can be also challenged in administrative court, although in practice without much chance of success. General environmental issues can be brought before the courts only when a breach of the law occurs and when an individual's rights are affected. Legal standing is granted under certain conditions to some nature protection associations. Thus, legal standing is restricted to affected individuals before administrative, civil and criminal courts and in very few cases is granted to NGOs. It is established that the state is liable for material losses or harm to individual health caused by illegal actions by the authorities.
The Greek laws grant legal standing before the Council of State (administrative court) for individuals and NGOs as long as proof of legal interest is submitted. The same applies to civil courts. The Council of State has substantially broadened the standing of NGOs while staying within the language of "legal interest" by referring to the constitution's imposition of a state duty to protect the environment. In criminal courts, only individuals can gain legal standing. When a public official fails to act properly, justice can be sought in civil or criminal court.
In Ireland, very few environmental cases, mostly related to planning issues, are heard in court. The main type of action taken in the high court relating to environmental and information cases is judicial review of a decision of a public authority. Individuals in general have the right to appeal before an administrative court on issues regarding planning applications, air pollution, specific authorization of pollution licenses, and in the case of integrated pollution control and waste license applications. NGOs are granted legal standing before the same courts in the same cases. Only affected individuals and NGOs are allowed to go before the constitutional court in the cases mentioned above. The Law on Access to Information on the Environment grants legal standing before administrative and constitutional courts only to affected individuals and NGOs.
In the Netherlands, there is no opportunity for active participation in criminal cases for NGOs. There is also no constitutional court. This kind of constitutional review is carried out by the Council of State. The duration of an appeal to the courts is approximately two years. A violation of the law by public authorities is difficult to pursue; action in the civil courts is the best way to proceed in those cases.
In Norway, the Access to Justice Act grants individuals and NGOs the right to go before the court. Where there is legal standing against the government, affected individuals or NGOs can bring both the government and/or the wrongdoer before the court, although NGOs must prove to have a legal interest and that the case is a question of public and/or environmental concern.
Legal standing is granted broadly in Portugal. All individuals and NGOs are allowed to go before administrative and civil courts, and affected individuals and all NGOs are allowed to go before the criminal courts. However, neither individuals nor NGOs are entitled to legal standing before the constitutional court on environmental issues. Although the percentage of environmental cases is very low, NGOs have succeeded in bringing their positions before the courts in some cases. In addition, Portuguese citizens can appeal an administrative decision to the courts using a process called "injunction to grant access to documents," regulated in the Administrative Law. This injunction appeal permits the court to order the administration to provide access to a document very quickly, within 20 to 40 days.
In Spain, legal standing is granted before the administrative, civil, and arbitration courts to individuals who can show a direct and legitimate interest. NGOs have legal standing before administrative courts, though they have to be legal entities and they must act in defense of legitimate interests concerning protection of the environment. Anyone is entitled to legal standing in criminal cases, and public penal action is also allowed. This action allows citizens and organizations to go before the criminal courts to challenge possible harm to the environment. In cases when civil servants fail to comply with legal provisions or they fail to implement applicable legal provisions, individuals or NGOs can seek damages. Civil and even criminal damages can be exacted in the most serious cases, but less serious cases would be settled within the administrative system.
Public action is also allowed in Switzerland within the public appeal procedure. NGOs that have been recognized as legal entities or at least 10 years old are granted legal standing to challenge all projects subject to the EIA procedure before the courts. Apart from that, only affected individuals have general legal standing before the administrative, civil, criminal, and constitutional courts. However, the federal laws relating to the protection of the environment and the protection of nature allow interested NGOs to go before administrative and constitutional courts in relevant cases.
Under the system in the United Kingdom, if a public authority fails to enforce a law, citizens may either carry out the law themselves or they may challenge the public authority by way of judicial review. If anyone suffers damages as a result of an authority's failure to carry out the law, a civil action may be brought against the authority. A similar procedure applies when the authority itself is the wrongdoer. Legal standing is granted in the UK to all individuals and NGOs in administrative courts, to affected individuals and NGOs in civil courts, and finally to all individuals and NGOs in criminal courts. There are no arbitration courts nor is there a constitutional court.
In Austria it is possible to request interim injunctive relief from the administrative court and the constitutional court. The civil and criminal procedures also allow interim and permanent injunctive relief, though they are generally used in media and commercial cases. Similarly, interim injunctive relief is possible in administrative, civil and constitutional procedures in Germany, but not in criminal courts.
It is also possible to obtain injunctive relief under Irish law. The legislation gives individuals the ability to act independently of the public authority to protect the environment. Under the planning law, for instance, any person can apply to the corresponding court for an order to stop a development where permission has not been sought or to restore land to its original state when a non-authorized use has occurred. Similar action is possible regarding pollution of the environment, for example water pollution or discharges to water, or emissions to the atmosphere. Finally, under the Waste Management Act, interim or temporary injunctions or remedies can be sought when improper holding, recovery or disposal of waste occurs.
In Spain, injunctive relief is allowed in civil courts for both individuals and NGOs. It is also allowed in administrative, civil and penal courts to request the adoption of precautionary measures to block the continuation of a situation that could produce adverse effects. Precautionary measures can also be ordered to assure the effectiveness of a future resolution.
The problem with injunctive relief in most countries is the bond required to secure such relief. In general, a bond must be offered by the party seeking the injunction to cover possible damages to the subject whose activity would be blocked. The amount of the bond is set by the judges, who usually do not apply appropriate significance to the protection of the environment and therefore set the bonds too high. This favoritism of the interests of economics and private property often makes injunctive relief difficult and it impedes any real legal protection of environmental interests.
The guarantee of compliance with judicial sentences is achieved in a variety of ways, including the seizure of goods and property or of bank accounts. In some legal systems, failure to comply with a court order can be punishable by imprisonment. However, the legal procedures are not always effective. The Netherlands survey, for example, points out that "problems may arise in administrative law cases where the matter is referred back to the competent public authority," and the case of spatial planning is expressly mentioned. In cases of this type, delays in applying the court decision can lead to lack of enforcement.
The Danish system provides legal aid in non-business matters, and it is also possible to obtain a waiver of court fees if a party can prove it has only modest means. About 69 percent of the Danish population falls under this category. In Spain, it is also possible to participate in judicial proceedings free of charge, although this is not often used in environmental cases, which require special expert support.
Some legal systems establish different costs depending on the type of matter challenged and the value of the matter being debated. The fees may depend also on the levels of the court hierarchy and the type of jurisdiction involved (i.e. civil, administrative, criminal).
Some countries (e.g. Denmark, Ireland, Spain and the United Kingdom) also allow the winner in a case to recover court costs, including lawyer and expert fees. In this respect, the Dutch system limits cost recovery in court cases. The positive side of this provision is that there is a maximum the losing party could have to pay to the winner; thus the risk of losing a court case, economically speaking, is more reasonable.
The UK system proves to be extremely expensive. People on a low income may receive legal aid, meaning that most of the costs will be covered. One of the main advantages of being granted legal aid is that the beneficiary of the legal aid does not have to pay the costs of the winning party if the beneficiary is unsuccessful.
In Germany, one NGO, IDUR (information service for environmental law), has lawyers who provide free advice and legal representation in court to associated groups. There are also NGOs that offer technical or procedural support in authorization matters, including the Oko Institut in Darmstardt. In Ireland, the Free Legal Advice Centre runs an advisory service that provides initial legal guidance. This service depends on volunteer lawyers. In the Netherlands, NGOs, particularly at the provincial level, offer assistance to people and local organizations regarding legal proceedings. There are also legal aid offices, which are independent and offer legal assistance to those who do not have means to pay for an attorney. The offices often assist environmental organizations in their cases, too. In Norway, some legal aid on environmental issues is provided by the JUSBUSS voluntary organization, run by law students; however, this assistance is limited because the students cannot appear before the courts. In Portugal and Spain, different NGOs (GEOTA, CODA) also offer voluntary support or are supported by lawyers who help NGOs defend environmental rights. In the UK there are two legal advisory services provided by or through NGOs: EarthRights and the Environmental Law Foundation.
| TABLE 12: Ombudsman | |
|---|---|
| There is an Ombudsman | Denmark, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| There is no Institution of Ombudsman | Austria, Germany |
In Austria, even though there is no national figure, some states provide so-called "environmental attorneyships," who are members of the public administration but independent and not subject to orders. They have legal standing in the EIA procedure and in other administrative processes.
The institution of ombudsman dates back rather far in some countries. There have ombudsmen in Denmark since 1954. The ombudsman of the parliament deals with complaints about the administrative decisions made by public authorities, and the ombudsman of the consumers deals with complaints related to commercial issues. Many of the cases dealt with by the ombudsman of the parliament concern access to information.
In Norway, one in every eight cases dealt with by the ombudsman is related to the environment. This does not include the many issues that are beyond the competency of the ombudsman, including some decisions made by the local governmental committee or counties.
In fact, the ombudsman is a common figure in most of the Scandinavian countries, but it is not as traditional elsewhere. In Greece, for example, this is an extremely recent institution and is less than six months old.
In Ireland, the Office of the Ombudsman was created in 1984. Only a fraction of the complaints deal with specific environmental issues, but many of the complaints refer to access to environmental information. The Irish ombudsman is not empowered to deal with all types of cases; for example, the ombudsman has no competency for complaints relating to the Environmental Protection Agency or quasi-governmental institutions whose activity can affect the environment, such as the Electricity Supply Board or Irish Rail.
The Dutch ombudsman has competency on the national level only and is not allowed to examine decisions made by the provinces, municipalities or water board authorities. Environmental complaints to the ombudsman are rare, probably because of the existing broad scope for bringing environmental cases to the courts.
In Spain there is a national ombudsman and similar institutions in many of the autonomous regions. Though this is a new institution, people often apply for the intervention of the ombudsman as a quicker and less expensive way of solving many of the dysfunctions caused by the decisions, actions or lack of decision or action by the public authorities. This is particularly the case when public authorities fail to respond to requests for information. The ombudsmen publish annual reports, and since 1994 many of these reports have included special chapters on environmental issues. A lot of space has been dedicated to complaints regarding access to information.