21 December 2022
Having access to EU courts to challenge unlawful decisions is an essential democratic right but – until recently – it was mostly reserved for companies and Member States in environmental matters. Our lawyers have been working to remedy that, and won a decisive victory.
This new right is a game changer: we are at a crisis point and we cannot afford more decisions that lock in environmental damages.
That’s why we’ve been using this legal procedure to fight decisions that could spell disaster for our shared environment. And we’ll continue to go after infringements of EU law by the EU institutions themselves.
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 guaranteeing - in theory - that everyone can 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 with 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 for civil society – especially 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.
Below are outlines of the current cases we have open thanks to this new right.
In September, we partnered with WWF’s European Policy Office, Transport & Environment (T&E), and BUND (Friends of the Earth Germany) to file an internal review request to stop the EU including fossil gas in its sustainable finance rulebook.
The EU Taxonomy controversially gives gas a ‘sustainable’ label.
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. It’s also responsible for sky-high energy prices across Europe.
Labelling gas as ‘sustainable’ risks channelling investments into this harmful energy source, away from genuinely sustainable sources of energy like homegrown renewables – and skilfully reducing demand in the first place.
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.
In September, we also filed a case before the Court of Justice of the EU after the European Commission refused to review its decision to unlawfully label bioenergy, bio-based plastics and chemicals used to make plastics as “sustainable” under the EU Taxonomy.
The EU Taxonomy 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 than burning fossil fuels and fuelling logging linked to deforestation. Plastics are also vastly harmful for the climate and for our environment.
In October, we took all EU fisheries ministers to Court after they denied that their decision to set unsustainable fishing limits – for EU-only and EU-UK fish stocks – was illegal.
In the North-East Atlantic, 40% of fish stocks are in a bad shape, meaning the EU has spectacularly 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.