John E. Bonine
ing such standards. This purportedly neutral rule, there-fore, had the effect of allowing business interests into the court to complain about violations of the law more readily than members of civil society.
Article 9 of the Aarhus Convention was designed to lib-eralise the classes and categories of persons (natural or legal) who can file lawsuits against public authorities and others when they perceive there to be a violation of law.24 The liberalisations that have occurred mostly appear to have been already in place before ratification of the Convention and are discussed below.
A party must ensure that members of the public can file challenges to actions of private persons as well as public authorities that are alleged to contravene national environ-mental law, or have official status in administrative proce-dures leading to enforcement “where they meet the crite-ria, if any, laid down in its national law.” The provision does not state that members of the public can file lawsuits if permittedby national law. Instead, it grants the right to sue or complain and then permits parties to lay down “cri-teria” if they wish to do so. If specific criteria are not laid down in national law, the logical interpretation would be that members of the public should be deemed to have the right to go to court or to an administrative body. This obvi-ously raises questions of determining whether any criteria arelaid down, whether they are laid down in “law,” and what they determine.
Judicial interpretation can play a significant role in implementing the Aarhus Convention (see section on con-stitutional interpretations expanding standing below).
Although article 9 of the Convention can be read as being of little directhelp to a prospective litigant, it can also be read as modifying or overriding pre-existing national law and thereby having direct effect.25
National legislation for expanded enforcement/standing
Several broad legislative models are used with respect to standing in the UNECE area: actio popularis;NGO stand-ing; sufficient interest standstand-ing; and legal rights standing.
Actio popularis
Some countries use a model in which legislation declares that “any person” can sue the government when it breaks the law — an actio popularis. This is fully consistent with article 9 of the Aarhus Convention, even though it is not required by the Convention.
The Netherlands may well have the least restrictive leg-islative criteria in Europe for accessing the courts.26 Furthermore, the Netherlands links administrative standing and judicial standing by allowing “anyone” to participate in the consultation process with a public authority and then granting anyone who has lodged objections at the consul-tation stage the right to ask a court for judicial review of the
decision.27 Additionally, the Netherlands also extends standing to NGOs in civil lawsuits much like Italy, Switzerland, or many German Lander.28 As explained in Netherlands Case 2 (the “Indispensable” Pesticides Case):
“Since 1987 environmental NGOs in the Netherlands are ... recognised in every court to have an interest in protecting the environment. This is a general interest and there is no need for ownership or other more spe-cific interests.”
These developments were largely the result of the jurisprudence of court decisions and were codified in sec-tion 3.305a of the Civil Code, which has been treated by the courts as making no restrictive changes to the broad Dutch jurisprudential rule of NGO standing.
Further provisions are found in the Dutch Environmental Protection Act, adopted in 1993. This law, which consolidates a number of previous statutes into a comprehensive statute, controls licensing and other mat-ters, sets out provisions for public participation, and pro-vides for judicial review of such matters. The question of standing for judicial review requires consultation of both the General Administrative Law Act and the Environmental Protection Act. Betlem explained this as follows:
“The combined effect of these two Acts entitles those who have lodged objections in the consultation stage of the decision making process to apply for judicial review of the decision. Because ‘anyone’ has the right to make reservations in the preparatory phase of the licensing process, a two stage actio popularis accordingly applies.
In technical legal terms, in the main it [is] so-called ‘inter-ested persons’ who have locus standi, including public authorities and non-governmental organisations.”29 A well-known court case in the Netherlands also recog-nised NGO standing. In the Reinwater case, the highest Dutch court gave environmental organisations standing to sue where (1) the stated purpose of an organisation has been affected, (2) the interests in the lawsuit lend them-selves to grouping, and (3) the interests served by the liti-gation are protected by civil law.30
As a final note, environmental NGOs in the Netherlands are allowed to appear in the administrative court (but not the civil court) without being represented by a lawyer.
Thus, in practice, many cases in the administrative courts are argued by economists, scientists and engineers.
Legislated NGO standing for recognised NGOs
The second model can be loosely termed NGO stand-ing. Under this model, several countries grant a special right to NGOs to file lawsuits without showing that they are personally interested or in some way affected by a deci-sion. Legislation either specifies the characteristics of NGOs that are given standing, or it provides that a state
authority will create and maintain a list of NGOs that are automatically granted standing and permitted to take claims of illegal acts by government to the courts.
According to a 1992 study, Switzerland was the first European country to legislate a right of action (or standing to sue) for environmental NGOs.31In Switzerland, article 12 of the Federal Nature and Heritage Conservation Act of 1966 allows appeals against administrative decisions to the Supreme Court, for nationwide nature associations. The same can be found in article 55 of the Environmental Protection Act of 1983 for nationwide nature NGOs, pro-vided they were founded at least ten years before the law-suit and are officially recognised by the federal govern-ment.32A third law, the Trails and Footpaths Act of 1987, also uses this accreditation procedure.33
In Italy, articles 13(1) and 18(5) of Law no. 349 of 1986 grant environmental associations the right to sue in admin-istrative courts if they have been recognised for this pur-pose in a ministerial decree.34
Sufficient interest: Flexible subjective requirements for standing
A third model, sufficient interest standing,grants legal standing to those who are “affected” (sometimes “interests”
have to be affected). This may be granted either in general terms for all persons, or as a part of granting legislated NGO standing.
The case studies included in this handbook often men-tion standing as an issue. Standing is often governed by legislation that requires the litigant to have an “interest” of some kind, in order to be among those who are allowed to bring a court case.
What exactly is the “interest” of an NGO organised to serve a broader public interest, and not the narrow interest of its “owners?” Article 3.4 of the Aarhus Convention answers that, unless there is national legislation imposing special requirements, interest is simply the fact that an NGO is devoted to environmental protection.
In Belgium, legislation requires that a person have an
“interest.” The courts have generally interpreted the legis-lation to require that a natural or legal person must show a personal and direct interest in order to have access to any courts.35 Belgium Case 1 confronted the question in 1981 of determining whether an NGO’s definition of its “interest” in its own statute (charter, or legal registration) could be used in deciding whether it can sue to enforce environmental laws. The Council of State (which hears administrative cases) decided that protection of the environment was a public interest and that an environmental group only needs to represent a point of view that concurs with that of a group interested in the environment.
The Council of State’s broadened approach to standing was not followed in the civil courts. In the same year as Belgium Case 1, the Supreme Court ruled (and has since reaffirmed on numerous occasions) in a civil case involv-ing the same issue and plaintiff that a purpose in an NGO’s
“statute” cannotbe considered a personal and direct inter-est for the purposes of the civilcourts.
A second method of gaining access to the Council of State to challenge administrative acts is for an NGO to show that its “statutory purpose” is affected by the decision that it is challenging. The question of NGOs satisfying the
“personal and direct interest” requirement before the Council of State has continuously arisen in several cases. In Belgium Case 3, the Council of State ruled that NGO pur-poses such as promoting nature conservation and protect-ing wildlife are only “general” interests and not “personal”
ones for the purposes of gaining access to justice; that an interest in nature reserves is not a personal interest if the act being challenged does not directly impact on one of the reserves being operated by the NGO; and that an interest in protecting birds is not sufficient to challenge a decision that will harm frogs.36
This question was also fermenting in the Belgian legal system because of legislation adopted in 1993 that sought to broaden access to the courts by NGOs, using a “special procedure.” One commentator notes that Belgium’s Right of Action Relating to the Protection of the Environment Act of 1993 “recognizes a restricted right in associations: they must be registered as environmental protection associa-tions for at least three years, can challenge specific ele-ments in environmental statutes, and may request either injunctive relief or imposition of preventive measures.”37
One judge in the civil courts has been willing to treat the broadened standing approach of the 1993 legislation as relevant even in cases not covered by it. Belgium Case 2 involved a challenge to night-time flights disturbing the sleep of residents near an airport. The airport asserted that the NGO had no standing to sue in the “normal” proce-dure, because it lacked a “personal” interest. The court of first instance decided, however, that the meaning of inter-ests had, in effect, been broadened by the legislature to include collective interests in the 1993 legislation (even though the plaintiffs were not using the procedures in this legislation). He stated that the legislation added some meaning to the right to a healthy environment enshrined in article 23 of the Belgian Constitution. Since the judge did not suspend the flights, the interpretation is not likely to be reviewed any time soon by the Supreme Court.
In Georgia,according to chapter XLIV of the Code of Civil Procedure (1999), citizens are entitled to sue against an administrative act only in cases where it directly affects their legal rights. Georgia Case 2 (Vake Park Case) involved NGOs proving that they had a “sufficient interest” to meet this test. They were successful, showing that the “plaintiff had no information about issuance of the administrative acts [the permits were never published] — he even had no chance to be involved in the decision making process.” In Georgia Case 1 (Defence of National Park) NGOs found themselves in the unusual position of arguing that the plain-tiff (a group of farmers) in the case had nolegal standing.
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In some instances, where legislation recognises broad-ened standing in environmental cases, the public authority claims that the matter is not environmental, and the broad-ened standing test therefore does not apply. This was the situation in Hungary Case 1 (the Balaton Highway Case).
The Somogy Nature Conservation Organisation was denied standing in cases opposing permits for a new road that would cut through a forest. The courts, including ulti-mately the Supreme Court, ruled that, even though envi-ronmental NGOs have standing without doubt in “environ-mental” cases, a case related to the construction of a high-way is not an “environmental” case. The court apparently ruled that a matter has to be explicitly classified as “envi-ronmental” by the Act on Environmental Protection, such as EIA and environmental audit cases.
Legal rights or individual interests:
restrictive subjective requirements for standing
Countries using the fourth and oldest model, legal rights or legal interests standing,grant legal standing only to those with economic interests, or similar very specific interests, to protect. A variety of terms is used, such as a requirement for a “direct and personal” interest, the “viola-tion of a right,” or a “legal interest.” It is important to note that a person with an economic interest will usually be admitted into the court under the fourth model, while those with an interest in non-economic values or enforce-ment of the rule of law will often not be able to sue.
The legislation in some jurisdictions appears to restrict standing more explicitly on its face, granting standing only for those with a “direct and individual” or “direct and per-sonal” interest. Interpretations of these terms can vary dra-matically, however, as can be seen when comparing deci-sions of the European Court of Justice and the Council of State of Greece. For those jurisdictions where courts have issued restrictive interpretations that appear to deny rights granted by article 9 of the Aarhus Convention, a significant question arises: must the legislation be amended in the light of the Aarhus Convention, or will it be interpreted differ-ently by the courts, in order to give effect to the commit-ments expressed by parties in ratifying the Convention? It could be argued that both branches of government have an equal obligation to take account of the rights in article 9.
The European Court of Justice refused to take a broad view of standing in environmental matters in the 1998 case Stichting Greenpeace Council et al. v. European Commission (see appendix B).38 Several individuals and NGOs brought suit in the European court of first instance, contesting the legality of EC funding for two fossil fuel-fired power plants being built by Spain in the Canary Islands. The court denied standing. On appeal, the European Court of Justice also denied standing. The rele-vant provision of the Treaty Establishing the European Community39is article 230(4):
“Any natural or legal person may, under the same con-ditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”
The court of first instance said that the individual plain-tiffs (including local residents, farmers and fishermen) would not suffer from the decision in any way other than that of other residents of the Canary Islands, and therefore the matter could not be of “direct and individual concern.”
Furthermore, Greenpeace, as an NGO, could not have standing since it did not simply represent individuals who would have standing, nor did it have some special, indi-vidualised interest of its own. Furthermore, participating in prior proceedings was not enough to give Greenpeace a special, individualised interest. The European Court of Justice upheld the lower court. For individuals, it said:
“[T]he specific situation of the applicant was not taken into consideration in the adoption of the act, which concerns him in a general and abstract fashion and in fact, like any other person in the same situation, the applicant is not individually concerned by the act.”40 As for Greenpeace, its arguments for general public interest standing and about the vacuum in enforcement of EU laws created by restrictive interpretations of article 230 fell on deaf ears. So did its argument that the right to be informed and consulted in an EIA procedure gives it a right to go to court.41
In Greece administrative acts can be challenged in front of the Council of State, which is the supreme admin-istrative court in the country. The situation can be com-pared to that in Belgium, as discussed above. According to a professor of public law and environmental law at the University of Athens, “[t]he jurisprudence of this court, on environmental matters, has been very rich and very inno-vative, since 1977.”42 The Council of State’s jurisdiction over environmental law is based on the fact that article 24 of the Constitution of 1975 makes the protection of the environment an obligation of the state. At the beginning of the 1990s, the Fifth Section, a separate section of the Council of State was created for environmental disputes.
The court has annulled illegal administrative acts, sus-pended the execution of harmful administrative acts, and formulated fundamental environmental principles that have strongly influenced environmental legislation.43
Locus standiin front of the Council of State to annul an administrative act is available to both natural and legal per-sons (organisations and businesses), but only if they prove
“a personal, direct and present legal interest.”44 But this
“legal interest” has been interpreted by the Council of State to be broader in environmental disputes than in other mat-ters. If a natural person has “any kind of a territorial
rela-tion with the area” of environmental damage, the person can have standing. This allows an interest that need not be strictly personal, may be only indirect, and can even be merely potential rather than already in existence.45This is based on article 24 of the Constitution which, by creating a dutyon the state is considered to create a collective and
“supra-individual” right.
Traditional legal doctrine in Germany has disfavoured allowing the public to go to court to require the state to abide by the law. As one writer has put it, “German stand-ing doctrine is built on deeply-engrained principles against the general legality view of access to court and the right of citizen groups to challenge administrative action.”46On the other hand, many of the Lander, or states, have been notably more progressive and open toward granting stand-ing to sue, particularly for established environmental NGOs. This openness at the legislative level has not neces-sarily led to expansive court decisions, however. For example, in a case in the 1980s, a public authority used an informal procedure with no public participation, in order to avoid the formal planning procedure that would have clearly allowed public participation (with regard to certain issues on a controversial extension of a runway at Frankfurt Airport). An NGO sued and won in the trial court, but the Court of Appeals ruled that the NGO could not challenge the failure to use the formal procedures that guaranteed participation, because its lack of participation itself precluded court litigation concerning whether it should have been allowed to do so.47But as Germany Case 3 (the Windmill Case) shows, other German courts have been receptive to NGO lawsuits under Landerlegislation.
In this case, involving a nature conservation association recognised in accordance with §29 of the Federal Nature Conservation Act, the court ruled that an NGO could take legal action in accordance with §42, paragraph 2, of the Code of Administrative Procedure, without being required to prove that its own rights had been infringed.
Some countries with seemingly restrictive “legal inter-est” tests have found a way to liberalise standing through interpretation. For example, environmental protection associations have had some success in gaining standing in Norway even though it uses a “legal interest” test.48As long ago as the Alta case in Norway in 1979, Norges Naturvernforbundet (Norwegian Society for the Preservation of Nature) successfully achieved legal stand-ing. The Norwegian Supreme Court stated:
“It has been accepted under the circumstances that a plaintiff may have a legal interest in bringing an action even though the decision has no direct influence on his own legal position. Depending on the circumstances, also an interest organization may have the required legal interest even though the decision in the matter is of no direct consequences to the organization’s or the mem-bers’ rights. The need for judicial control of the public administration may be the decisive factor here.”49
According to one scholar, “[t]he grounds in the Alta case for accepting the organization’s legal interest were the allegations concerning nature conservation interests.”50
Judicial interpretations and expanded standing
Legislative changes are not the only means for broad-ening or narrowing categories of those who can enforce environmental or other laws. The judicial system in many countries has something important to say about standing
— whether it is the interpretation of statutes (discussed above), the explicit common law reasoning of England, Wales and Northern Ireland, or the use of constitutional interpretation as a tool.
Common law expansion of standing
A series of decisions made it clear how broad the right of legal standing is in England, at least in environmental cases. The environmental group Greenpeace was granted standing in the Thorp Nuclear Case to challenge a pro-posed licence for a nuclear power plant. The High Court said that Greenpeace was a “responsible and respected body with a genuine concern for the environment” and that the granting of standing to pursue the litigation would save the court’s time. Greenpeace would efficiently and effectively represent the interests of 2,500 of its supporters living in the area of the proposed nuclear plant. This may be seen as a kind of “representational standing,” or per-haps “third-party standing,” in lieu of others who would have had ordinary standing.51Judge Otton said:
“I reject the argument that Greenpeace is a ‘mere’ or
‘meddlesome busybody’ … I regard the applicants as eminently respectable and responsible and their gen-uine interest in the issues raised is sufficient for them to be granted locus standi.”52
Ex parte Richard Dixon53 continued the liberalisation and the exposition of the viewpoints that public law is about duties, not rights. Justice Sedley wrote:
“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs — that is to say, misuses of pubflic power; and the courts have always been alive to the fact that a person or organisation with no partic-ular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparent misuse of public power.”54
Constitutional interpretations expanding standing
The constitutions of a growing number of countries form the basis for increased access to justice through
judi-C H A P T E R 3 : T H E P U B L I judi-C ’ S R I G H T T O E N F O R judi-C E E N V I R O N M E N T A L L A W