Legal systems must be able to ensure that the final deci-sions of tribunals are respected and followed. There are many issues at work in the enforcement of judgements, which can only briefly be mentioned here. One such issue is geographical jurisdiction. It may be difficult for a deci-sion in a particular state or locality to be implemented out-side that area. As international standards for access to jus-tice become more accepted, inter alia, through the imple-mentation of the Aarhus Convention, the enforcement of judgements across borders (giving them full faith and cred-it) should become easier. Another issue is whether the tri-bunal maintains jurisdiction over the enforcement of its judgement, or whether a complainant must use subsequent proceedings for enforcement. But the potential for irre-versible damage when dealing with environmental matters is a strong argument for ensuring enhanced powers of tri-bunals to enforce their judgements directly.
Injunctions as a remedy under the Aarhus Convention
What is an injunction?
An injunction is a legal mechanism, usually taken with-in the context of a court proceedwith-ing, to require an action, or more commonly to halt an action or set of activities somehow connected to the court proceeding. An injunc-tion is often a pivotal aspect of an environmental case.
Unlike commercial law disputes where one party claims monetary damages from another party, environmental dis-putes often involve proposed activities that, if undertaken, would produce an irreversible environmental impact. In such cases, monetary compensation is insufficient. The only way that a remedy can ensure complete relief is to prohibit the activity.102
How does an injunction work?
An injunction typically works by preserving the under-lying situation or set of facts (status quo) until a final court decision is issued. For example, a government or NGO may bring a legal challenge to a developer’s plan to erect a block of flats within a city park, claiming that the develop-er failed to comply with public participation requirements.
However, unless the developer’s construction activities are stopped while the lawsuit proceeds, the ultimate court decision may be rendered meaningless.
At the beginning of proceedings, a court may therefore
issue an injunction — an enforceable order prohibiting a specified activity, such as any further construction of the flats. By prohibiting an action during the entire duration of a court proceeding, an injunction ensures that complete relief will be possible when a final decision is issued. A defendant could not employ a strategy that seeks to delay, on the one hand, legal proceedings through all available means while, on the other hand, implementing its potentially illegal activ-ity before the court could issue a final decision.
Types of injunctions: Temporary versus final
In many countries, including the UK, Ireland, Slovenia and Austria, courts may issue both “temporary” and “final”
(or “permanent”) injunctions.103A temporary injunction — the primary focus of this discussion — is issued at an early phase in the legal proceedings in order to preserve the matter in dispute for the duration of the proceedings. A final injunction, on the other hand, would be incorporated into the court’s final decision, for example, ordering that a block of flats could never be built in the location and man-ner proposed by the developer, due to incompatibility with green space and planning laws. In essence, the final injunction is an aspect of the court’s final ruling, rather than a separate, interim order. However, when appropriate, a court may incorporate the temporary injunction into its final ruling, in whole or in part.
Parties involved in an injunction
Injunctions may be used among a variety of parties, with variations from country to country. Usually, the gov-ernment can seek an injunction when challenging a private party’s action. Also, an NGO may seek an injunction against a private party. In a number of countries, NGOs may also seek an injunction against the government when the government is the party alleged to be undertaking an illegal action.
The broad impact of injunctions
Injunctive relief is of particular significance in environ-mental cases. Environenviron-mental cases typically include two components: an ecological question or fact pattern, and a set of legal requirements. The ecological question, for example, may be a proposed construction in an open space, or a potential discharge of pollutants into the water or air. The legal requirements in such a situation may include holding public hearings, releasing information about planned activi-ties, getting the approval of environmental ministries or other public authorities, or performing an EIA.
Injunctive relief, specifically a temporary injunction, acts to prevent the alteration of the ecological status quo while legal requirements are being scrutinised, thus increasing the focus on these legal requirements. This increased focus assures the integrity and validity of the
process in each specific case, and also establishes a norm of behaviour with all sectors of society understanding that legal procedures are an integral part of the decision-mak-ing process, rather than mere nuisances or formalities to be ignored until after work has commenced.
A typical example of how an injunction can preserve the ecological status quo and maintain focus on the legal requirements in an environmental lawsuit is Germany Case 4 (the Nature Preserve Case). In this case, a private investor applied in 1994 for a planning exemption to allow him to develop a section of a nature reserve into one-family homes and commercial buildings. He initially applied to build 46 houses. He was at first denied permission, but after reducing his project by half, was granted permission by the Brandenburg State Public Administration to build in the protected area. The conservation group NABU opposed the development during the public participation procedure related to the initial 46-unit proposal.
Subsequently, the group was not informed about a second round in the public participation process related to the revised 23-unit proposal. NABU sued the Brandenburg State Public Administration both for failure to implement its public participation obligations properly and for issuing an exemption of unlawful size. The court battle was protract-ed and the first instance decision was not issuprotract-ed for three years. However, the environmental group received a tem-porary injunction early in the proceedings, preventing any development or construction from occurring in the nature reserve during the entire three-year period.
NABU eventually won the case. Perhaps more impor-tantly, the injunction ensured that the victory accomplished its objective, because the investor could not begin con-struction while the court case was pending, and the nature reserve remained untouched. Further, by preserving the status quo, the injunction kept the final outcome of the case in suspense, which increased the interest of the local com-munity, who followed the case and saw important legal requirements played out before them. Had construction begun while the case proceeded, the legal proceedings might have been easily dismissed by the public as irrelevant to the method by which decisions are “really” made.
Injunctions also can significantly reduce overall court expenses and greatly increase the timeliness of legal deci-sions. Netherlands Case 2 (the “Indispensable” Pesticides Case) clearly demonstrates these points. The case involved a variety of pesticides that were illegal under Dutch and EU law, but for which a special exemption was given through a ministerial regulation, on the theory that they were “indis-pensable” to Dutch agriculture. During the first instance trial, the administrative court provided injunctive relief to the plaintiff, preventing the pesticides from being used dur-ing the spraydur-ing season. After the first instance victory, the agricultural interests successfully lobbied for a new law to exempt the pesticides. This was significant because any challenge to the validity of the law would be heard not in
administrative court, but in civil court, which, for a variety of reasons, is much less likely to grant an injunction.
As an aspect of the new law, however, there was an administrative requirement that only those pesticides for which new applications had been submitted would be considered registered under the law. When the list of pes-ticides with completed applications was published, the plaintiff took the view that this amounted to an “adminis-trative decision” — an affirmative act to register these pes-ticides — and proceeded to challenge this decision in administrative court. Informed that this case would be heard in administrative court, and realising that another injunction was likely, the ministry announced one day before the hearing that none of the pesticides could be used that year because it realised upon further review that their applications for the new legal exemption were incomplete.104
In order to save face, the ministry backed down in effect from defending the new law, because it anticipated an injunction would be granted. Clearly, the ministry was prepared to defend the new law in civil court. With no injunction in place, spraying could have begun, even while the civil court case proceeded.
Making injunctive relief a reality among all parties to the Aarhus Convention
Recognising the unique aspects of the injunction in environmental litigation, article 9(4) of the Aarhus Convention specifically states that the remedies of access to justice procedures under articles 9(1), 9(2) and 9(3) shall include injunctive relief. However, practice and experience with injunctive relief vary greatly throughout the region. In many countries that are signatories or parties to the Convention, injunctions are structured with vague provi-sions or other procedural requirements that greatly curtail or eliminate their effectiveness. The challenge for imple-mentation is to ensure a coherent legal framework for injunctive relief, so that it is available consistently and employed effectively in all cases arising under article 9.
Obstacles to effective injunction
The case studies highlight a number of successful uses of injunctive relief, as well as many instances of current obstacles to effective usage. Some obstacles render injunc-tions too expensive or financially risky, while other sys-temic problems generally discourage their use altogether.
Bond payment
When issuing an injunction, courts in many countries may require the plaintiff to post a bond to cover the losses of the party that is forced to stop its activities.105 If the plaintiff ultimately loses its case, the bond is then used to offset the damages. Typically, these damages are both dif-ficult to calculate and potentially enormous, well beyond
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the means of NGOs and ordinary citizens, thus making this requirement the single greatest obstacle to the effective use of injunction in many UNECE countries.
In Russia, for example, there is no formula by which the bond amount is calculated. The decision is left to the judge’s discretion, with no guidelines to inform his calcu-lations. There is not even a standard when the bond itself is required: a defendant must first request it, and then the court, in its discretion, determines whether or not to require it. Again, there are no standards to guide the judge in this determination. The situation is the same in other EECCA countries, with the result that complainants are often prevented from seeking an injunction.
Threat of defendant lawsuits
Closely related to the problem of bond requirements is the possibility in many countries that a defendant whose activities have been halted by an injunction may sue the plaintiff for damages if the plaintiff loses the case.
The magnitude and uncertainty of such damages are as onerous for complainants as the bond requirement, cre-ating another major financial obstacle to the effective use of injunction.
For example, in Moldova Case 1 (the Sarmi Park Case), the first instance trial court granted an injunction at the request of the plaintiff. However, upon appeal to the Court of Appeals and the Supreme Court, the defendant made it clear that, if the plaintiff requested another injunction but ultimately lost the case, it would bring a legal action to
“request payment of damages.” Faced with this potentially enormous financial liability, the plaintiff refrained from requesting the injunction.106
Similarly, in Georgia Case 2 (the Vake Park Case), lawyers representing the plaintiff hoped to secure an injunction against a company seeking to construct a hotel in a park in Tbilisi. However, the plaintiff feared that the defendant would sue him for damages if the case was eventually lost. The potential damages resulting from a delay in completing and operating a 16-storey hotel were unknown, but potentially enormous. For this reason, the client refused to pursue an injunction.107
Lack of judicial capacity and independence In addition to a lack of standards to guide consistent practice, other common hindrances to the effective use of injunctions include a lack of understanding about injunc-tions within the judiciary, and a lack of judicial independ-ence (see chapter 5 above). Judges in many countries, especially those in courts of first instance where injunction cases are usually heard, may be unfamiliar with its use.
While the process of appeal can and does act as an impor-tant check on lower court decisions, appeal courts in many countries are also faced with relatively undeveloped law and practice regarding injunctions, making the appeal process an unsure mechanism in ensuring the fair use of
injunctive relief. In many countries, this problem is com-pounded by the judiciary’s unfamiliarity with environmen-tal law in general.
Lack of enforcement
Another obstacle that hinders effective injunctive relief is the lack of proper enforcement of issued injunctions.
While courts issue injunctions, a bailiff, the police, or another government official is usually responsible for ensuring that injunctions are obeyed and that those who violate an injunction order are punished. In several coun-tries, however, these agents do not perform their function, rendering the injunctions meaningless.
In Armenia Case 1 (the Victory Park Case), injunctive relief was not available to the Environmental Public Advocacy Center in its fight to prevent illegal construction in Victory Park. Furthermore, even in countries where injunctions are enforced, this enforcement is often delayed, resulting in needless environmental harm.108In the Netherlands, enforcement of an injunction issued by an administrative court is often left to the administrative agency with jurisdiction over the matter. If the agency is unwilling or slow to require compliance with the injunc-tion, the plaintiff must return to the administrative court to compel the agency to take enforcement steps, or must go to the civil court to ask for an order compelling compliance with the injunction. These additional steps result in further expense and delay before an injunction is enforced.
Strategies for effective injunctive relief
While the obstacles described above are varied and complex, there are a number of concrete steps that can be considered to ensure coherent and effective injunctive relief under article 9(4). Considering the magnitude of the obstacle to citizen advocacy posed by bond requirements and defendant lawsuits, these provisions should be a pri-mary target of reform.
Eliminating the bond
and defendant lawsuit barriers
The simplest approach would be to eliminate bond and defendant lawsuit provisions altogether in countries where they still exist. In many countries with well-developed injunction practice, bond requirements and defendant law-suits are not in use. Another option is to retain these pro-visions, but to establish fixed limits on the amount of bond or potential defendant damage recoverable in a public interest case. For example, in order to obtain an injunction, a citizen or NGO could be required to post a bond of 50 minimum salaries. Such an amount, while not insignificant, is within the ability of many public organisations and advo-cates. Known as the “symbolic bond” approach, such an appropriate fixed limit would serve to ensure that plaintiffs only sought injunctions in pressing cases where they
believe they have a strong chance of prevailing on the mer-its in the final decision, thus addressing one concern that the bond and lawsuit provisions were presumably designed to alleviate.
In addition to limiting the cases in which plaintiffs would seek injunctions, however, bond and lawsuit requirements are also intended to address another issue.
An enterprise that is forced by injunction to cease its activ-ities suffers large financial losses as a consequence, and is often otherwise unable to recover these losses if it eventu-ally wins on the merits. In seriously considering the elimi-nation or reduction of bond and defendant lawsuit provi-sions, this issue must also be addressed.
Many countries have responded to this problem by developing precise legal standards for when an injunc-tion may or may not be issued. While the wording of these standards varies from country to country, the end result is the same. Injunctions are used in limited circum-stances, when the potential for irreversible harm is great, and only after a variety of factors, including economic impact, are considered.
In Hungary, an injunction may be issued (1) if it is
“indispensable” to avert damages; (2) to avoid a change in the factual basis of the legal proceedings; or (3) if nec-essary in other instances deserving special attention. If the court finds that any one of these conditions is satisfied prior to issuing the injunction, it must further find that the harm caused by the injunction will not exceed the advan-tage gained by its issuance.109This legal test allows the court the flexibility to decide whether an injunction is appropriate on a case-by-case basis, while at the same time creating a standard that each party to the proceeding can understand and use to argue whether the injunction is necessary.
In the US, courts have developed various methods to balance the interests involved in an injunction proceeding.
According to the US Supreme Court, the plaintiff must show that, if the injunction is not issued, he will suffer
“irreparable injury” and that he is likely to prevail on the merits. However, courts must weigh carefully the interests of both plaintiff and defendant in making their determina-tion. Interpreting this standard, many US courts use a four-part test: 1) the significance of the threat of irreparable harm to the plaintiff if the injunction is not issued; 2) the balance between this harm and the injury that granting the injunction would inflict on the defendant; 3) the probabili-ty that the plaintiff will succeed on the merits; and 4) the public interest.110
In the Netherlands, a large number of judges have grappled over the years with the merits of issuing an injunction in a wide variety of cases. Thus, according to a Dutch environmental lawyer, a sort of “case law” system has developed, where both judges and lawyers know the type of case where an injunction is appropriate. The stan-dard employed by a Dutch judge is roughly akin to the US
standard in assessing 1) whether there is justification to take “immediate measures”; 2) whether action is necessary to maintain a “balance of interests” that may otherwise be altered in the absence of an injunction; 3) whether the probable duration of the case would impede justice if an injunction is not used; and 4) whether the plaintiff is likely to succeed on the merits. While unwritten, the test is clear and, most importantly, is well understood within the Dutch legal community, which compels a high degree of consis-tency and accountability.111
Recognising the potential impact on the party ordered by injunction to cease an economic activity, these stan-dards function on two levels. First, they reflect a social choice expressed through law that, when an injunction is employed, the risk of economic harm to the party ordered to cease its operations will be greatly outweighed by other important factors and therefore can be tolerated. Second, these standards provide a consistent and transparent test by which the legal system can determine when an injunc-tion is appropriate. In countries using these or similar stan-dards, bond or defendant lawsuit provisions are not employed. The legal standards are in and of themselves the manner in which these societies balance interests and man-age the risk of economic harm to the defendant.
Consistently implemented, these standards thus enable the effective application of injunctive relief in all appropriate instances without imposing unreasonable financial bur-dens on those plaintiffs seeking it.
Georgia provides another approach to eliminating bond and defendant lawsuit problems. Article 29 of the new Georgian Code of Administrative Procedure states:
“Bringing of an action in the [administrative] court shall result in the suspension of the concerned administrative act.”112Considering that an underlying administrative act is involved in the vast majority of environmental law cases, this provision serves as an automatic injunction. For example, Russia Case 3 (the Shrinking Park Case), Germany Case 4 (the Nature Preserve Case), Moldova Case 1 (the Sarmi Park Case) and the Netherlands Case 2 (the “Indispensable” Pesticides Case) all involved an underlying government decree, permit or other adminis-trative act that enabled an activity potentially damaging to the environment to occur. Under Georgian law, by begin-ning a case in an administrative court that challenges the underlying administrative act, the requisite legality of the activity is also removed, thus requiring that the activity itself ceases. This automatic injunction remains in place until the final court decision, and, since the injunction actually directly refers to an administrative act rather than the economic activity enabled by such an act, there is no bond requirement, and no possibility of a defendant law-suit for damages.
The above approaches provide concrete, focused means by which bond and defendant lawsuit provisions can be reformed in the use of injunctions. However,
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