Nord Stream 2 and Access to justice in Sweden and Finland

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In the past year, ClientEarth has seen the conclusion of two domestic proceedings with important implications for access to justice in environmental matters in Sweden and Finland. ClientEarth – through its Polish foundation “ClientEarth Prawnicy dla Ziemi” – challenged permits allowing for the development of the Nord Stream 2 pipeline in these two countries. The verdicts demonstrate that impediments to access to justice exist even in those jurisdictions where it is assumed that NGOs have a particularly open road to having their substantive arguments examined by an impartial body.

ClientEarth’s involvement against Nord Stream 2 in Sweden

In Sweden, where the Supreme Administrative Court issued its verdict on 21 December 2018, the first instance is the only instance, i.e. there is no appeal available. The Supreme Administrative Court examined ClientEarth’s standing according to four cumulative criteria established in domestic administrative law. These criteria apply to both foreign and Swedish legal persons and require a legal person (including an NGO) to:

(1) have as its primary objective the furtherance of the interests of the environment or nature protection,

(2) not be profit-making,

(3) have carried out activities in Sweden for at least 3 years, and

(4) have at least 100 members or in some other way show that its activity has public support.

While there was no question that ClientEarth’s Polish foundation met the first two criteria, the fulfillment of the third and fourth criteria listed above were put in doubt primarily for two reasons: (i) the Polish foundation had not carried out activities in Sweden for 3 or more years, and (ii) it is not comprised of members, as foundations in Poland are not member-based organizations.

In order to demonstrate its standing, ClientEarth argued that the criterion listed in pt. 3 above was clearly discriminatory and should not be taken into account by the court. As for the criterion listed in pt. 4, ClientEarth submitted two pieces of evidence which in its view demonstrated that it had sufficient public support for its activity, i.e.: (i) a public petition signed by over 2,000 named natural persons attesting to their support for not only the application for judicial review but also for other ClientEarth actions against the Nord Stream 2 project, and (ii) written testimony of the General Director of Greenpeace Nordic which confirmed that Greenpeace Nordic – an environmental organization which itself has more than 160,000 supporters – supported the activity of ClientEarth both in bringing the application for judicial review and all its other activities.

Despite the evidence presented by ClientEarth, the Swedish Administrative Court held that the Polish foundation did not have standing and, in justifying this decision, adopted an interpretation of Swedish statutory law which goes beyond its literal wording and which, in ClientEarth’s view, is in contradiction to established international norms, particularly those inscribed in the Aarhus Convention. The Supreme Administrative Court chose not to focus on the criterion listed in pt. 3 above, relying solely on that listed in pt. 4. It “supplemented” Swedish statutory law by holding that the support of the public must be “direct”, which means that the support of a member-based NGO is not sufficient, and that the support of the public must be for the activity of the NGO in general, not for its actions in a specific case. In the context of the Nord Stream 2 case, this – according to the Swedish Supreme Administrative Court – meant that a petition supporting the application for judicial review signed by over 2,000 named individuals was not sufficient to meet the criteria established in Swedish statutory law. It is important to note that neither “direct” support nor “general” support is mentioned in Swedish statutory law regarding access to justice for NGOs in environmental matters.

ClientEarth considers the Swedish provisions governing NGO standing in environmental cases, particularly in light of the Swedish Administrative Court’s interpretation in this case, to be incompatible with the general objective of the Aarhus Convention to give the public – including environmental organizations – wide access to justice and to ensure that “effective judicial mechanisms” are accessible so that “the law is enforced” (Recital 18 of the Convention).

ClientEarth’s involvement against Nord Stream 2 in Finland

In Finland – where the first instance court had denied standing to the Polish foundation on the grounds that, according to domestic Finnish provisions, the pipeline’s impact on the Polish environment is too minor to justify the procedural standing of an entity registered in Poland – ClientEarth filed an appeal to the Supreme Administrative Court.

As far as access to justice is concerned, this appeal was successful, as in its judgment of 19 August 2019, the Supreme Administrative Court overturned the first instance decision as regards the issue of standing. The Supreme Administrative Court stated that there are no grounds to narrowly interpret the standing criteria contained in Finnish domestic law and found ClientEarth’s arguments persuasive as regards the necessity of interpreting domestic law in the light of the provisions of the Aarhus Convention and EU law. According to the court, the Foundation, in light of this broader interpretation, must be given standing to challenge a development permit for a project which may impact the Polish environment. The Court stated that (as unofficially translated from the original Finnish-language version of the verdict):

  1. the Nord Stream 2 project is a project of considerable scope. ClientEarth Prawnicy dla Ziemi’s operating area covers Poland and other countries. The scope of the foundation’s operations may be defined as the location of the contested water management project [Nord Stream 2], and its sphere of influence should also be considered as being in line with the purpose and the actual activities of the foundation, as intended in the domestic legislative preparatory work;
  2. the area of operation of the foundation cannot be governed by the [Finnish] Water Act in assessing the right of appeal of the Foundation under [Finnish standing rules] in the manner proposed by the administrative court, nor be restricted to the territory of Poland. Nor should the wording of the provision be interpreted restrictively, having regard to Article 9 (2) of the Aarhus Convention (…) and the case law of the Court of Justice concerning the right of appeal by independent organizations in relation to Union environmental law.

This ruling will hopefully allow foreign NGOs easier access to justice in environmental matters in Finland.

Interestingly, the Supreme Administrative Court then proceeded to examine ClientEarth’s substantive arguments concerning the project’s impacts on the environment and flaws in the environmental impact assessment, which was ultimately unsuccessful. This had the result that the substance of the case was heard only at one instance, with no right of appeal on these points. From the perspective of a foundation which usually operates in the Polish legal context, this was an interesting turn of events. In Poland, a second instance court would usually remand the case back to the first instance court, thus ensuring a right of appeal on the substantive issues raised by the complainant.

Despite this unfortunate substantive outcome, the Finnish Supreme Administrative Court’s judgment must be viewed as a success from the point of view of access to justice. The case sets an important precedent on the issue of standing of foreign NGOs, which is relevant both for Finland and beyond.

Conclusion

It is to be noted that, almost fifteen years after the EU’s ratification of the Aarhus convention, similar challenges brought in Sweden and Finland have yielded diametrically opposite rulings on the question of standing for foreign NGOs. This is a stark demonstration of the patchwork nature of the EU’s implementation of the access to justice provisions of the Aarhus Convention and the impact of this on the enforcement of environmental law. The European Commission has long recognized that an EU Directive on access to justice is the only means of resolving this problem. We hope that the incoming Commission will make this a priority and bring forward a new proposal without delay.

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Kym Ellis