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ClientEarth Communications

7 June 2022

Access to Justice
Environmental justice
Rule of law
Access to Justice for a Greener Europe

We won the right to challenge EU decisions that break environmental law last year. This is how we’ve been using it.

Having access to EU courts to challenge unlawful decisions is an essential democratic right but – until recently – it was mostly reserved to companies and Member States in environmental matters. Our lawyers have been working to remedy that, and won a decisive victory last year. Since then, we’ve been using this legal procedure to fight environmental disaster. 

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What can be done when EU decisions are unlawful? 

Public authorities, even with the best intentions, are not infallible. The environment, despite its vital role in keeping us alive and well, sometimes gets shoved to the bottom of the priority list. That’s why advocates need to be able to get in front of a judge – to act as a counterbalance when some decisions do not follow basic environmental rules.  

But until recently, civil society and individuals had extremely limited opportunities to challenge unlawful EU decisions, despite an international treaty vouching that everyone should be able to access the courts when environmental laws and democratic rights are breached.

That’s why, in 2008, shortly after the creation of ClientEarth, our lawyers filed a complaint with the UN against the EU for its failure to comply with the Aarhus Convention. This international environmental treaty ensures access to justice rights to the public. In 2017, the UN body responsible for overseeing compliance with the Convention found the EU to be in violation of its international law obligations.

After this finding and despite delays in taking steps to comply, EU institutions finally altered the EU access to justice law, known as the Aarhus Regulation, in October 2021. Our lawyers engaged in the reform every step of the way. The result is ground-breaking for the more than 400 million citizens living in the EU. 

Before the reform, access to the courts to protect the environment was extremely limited in comparison to companies seeking to protect their financial interests. It was only possible for NGOs to challenge certain chemicals authorisations, shielding from scrutiny the vast majority of decisions taken by the EU – despite their huge impacts on people’s health and the environment.

Under this new procedure, NGOs and individuals have the right to ask EU institutions and bodies to review their own decisions, if there is evidence that they breach environmental laws. The institution in question has up to 22 weeks to reply to the request. If the claimants find that the reply does not fix the legal violation, they can sue the institution before the Court of Justice of the European Union. 

How are we using this new legal procedure? 

Ruling out bioenergy and bioplastics as sustainable investments 

In February, we filed an internal review request to the European Commission for unlawfully labelling bioenergy, bio-based plastics and chemicals used to make plastics as “sustainable” under the EU Taxonomy.

The EU Taxonomy – which is the EU’s sustainable finance rulebook, to be used by financial players to label and direct their investments – classifies bioenergy, bio-based plastics and chemicals used to make plastics as activities that “contribute substantially to climate change mitigation or adaptation” and do no significant harm to the environment.

We argue that the assessment behind this is flawed. Scientists warn that burning wood for energy has a severe environmental impact and is far from carbon neutral, producing more CO2 emissions that burning fossil fuels and fuelling logging linked to deforestation. Plastics is also vastly harmful for the climate and for our environment. 

Ending overfishing

In March and May, we filed two internal review requests to the Council of the EU for illegally setting unsustainable fishing limits – for EU-only fishing stocks and stocks shared between the EU and the UK.

In the North-East Atlantic, 40% of stocks are in a bad shape, meaning the EU has missed its legal deadline to end overfishing by 2020. Despite this worrying situation, last December, EU and UK ministers set catch limits for 2022 above scientific advice for many stocks – threatening the recovery of stocks in a dire state.

Overfishing is undermining the health of our ocean – one of our biggest carbon sinks – and its capacity to mitigate climate change. It is also jeopardising the future of the fishing industry as well as coastal communities. Fishing opportunities must be set at sustainable levels that respect scientific advice.

Fighting a gas lock-in in Europe  

In June, we partnered with Friends of the Earth Europe, Food & Water Action Europe and CEE Bankwatch Network to file an internal review request to end support to 30 EU-backed gas infrastructure projects. 

Every other year, the EU Commission draws up a list of priority energy infrastructure projects deemed beneficial to the whole bloc. Infrastructure on the “Projects of Common Interest” list gain fast-tracked permits and eligibility for EU funds. Climate-destructive projects such as gas pipelines are therefore given VIP status.

But gas is a fossil fuel, which emits not only vast amounts of CO2, but also planet-warming methane, said to be 86 times stronger than CO2 over 20 years. The EU executive acknowledged that it did not account for methane emissions in its selection process. We argue that this is a severe breach of EU law, in particular in light of the trajectory needed to meet the EU climate targets.

The EU is at a major crossroads, deciding how to make sure all citizens have safe access to power and heat. It has a precious window of opportunity to do this in a way that ensures peace, equity and a stable climate. Gas cannot be part of the story. 

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