12 July 2019
Justice experts at the United Nations have issued a rare warning to the European Commission after it was found that people all over the EU were being excluded from national decision-making around climate change. The move followed an alert by environmental lawyers ClientEarth.
The UN has demanded the Commission take emergency steps to resolve the issue.
ClientEarth environmental democracy lawyer Sebastian Bechtel said: “People all over the world are campaigning for our leaders to fight the climate threat. In Europe alone, the climate movement is gathering enormous momentum. But these people are being blocked out of climate decision-making by EU leaders and – as the UN has made clear – this has to change.”
By the end of the year, every EU country has to submit National Energy and Climate Plans (NECPs), detailing how they will respond to the climate crisis and cut carbon emissions to 2030. According to international agreements and EU law, public participation is mandatory in making environmental plans.
But in practice many countries are failing to ensure people’s views shape these national climate strategies.
ClientEarth alerted the UN’s Aarhus Convention Compliance Committee (ACCC), which oversees access to justice and effective public participation internationally, to this shortfall.
The ACCC then took the unusual step of demanding immediate action from the European Commission, in a notification published online and sent to the Commission. This is the first time an NGO alert has prompted such an action by the ACCC.
Bechtel said: “In June, the Commission said itself that the draft climate plans lack the necessary ambition. If Member States take their public participation obligations seriously, and truly listen to the input of the public, we have a good chance of bridging that ambition gap.”
But in its recommendations sent to the Member States on 18 June 2019, the Commission did not refer to the instructions from the ACCC, nor did it specifically emphasise the need for countries to step up public participation efforts. The Commission has been presenting these recommendations behind closed doors to the Energy Working Party of the Council this week.
Bechtel added: “The Commission has missed an opportunity to make sure the people of the EU are involved in this vital decision-making process – but it still has enough time to rectify the issue, if officials act now.”
It is not the first time the UN has prompted the EU to address access to justice issues. The bloc is still under scrutiny over insurmountable hurdles that stop individuals and NGOs bringing environmental cases to the Court of Justice of the EU. ClientEarth first flagged this failing to the ACCC in 2008.
Notes to editors
The Aarhus Convention Compliance Committee (ACCC) oversees whether Parties to the Aarhus Convention are fulfilling their obligations under the treaty.
Regarding the NECPs, the ACCC had already reviewed whether the EU was complying with its obligations when the Governance Regulation – the legal basis for the plans – was being drafted. The ACCC had already expressed concerns in 2017 and February 2019 that the phrasing in the Governance Regulation (in particular article 10) would not guarantee that Member States would ensure adequate public participation when putting the NECPs together. These concerns then materialised in practice, with many EU Member States not ensuring real participation by the public, through for example, lack of public consultation (see studies by Carbon Market Watch, Bankwatch).
ClientEarth’s environmental democracy experts have brought a number of other communications to the ACCC, which have led to findings including:
· that Germany was failing to allow NGOs to go to court (the situation has since then improved);
· that court costs in the United Kingdom are too high (which continues to be a live issue despite some steps in the right direction); and
· that the European Union fails to give individuals and NGOs access to court.
On the last case, the Council asked the Commission last year to prepare a study and, if necessary, a legislative amendment to the Aarhus Regulation (Reg 1367/2006). This study will be released in September this year.
ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin, New York City and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.