Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article
Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth.
The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?
The first ECHR right to be considered is Article 8. The leading cases include Lopez Ostra - “severe environmental pollution” may affect individuals’ well being and prevent them from enjoying the homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health – and the air noise case of Hatton v. UK - Article 8 comes into play only when an individual is “directly and seriously” affected by environmental damage or risk. So a high threshold of severity is adopted.
But this does not mean that such pollution or damage must have already happened; the Court has been satisfied in one 2012 case, Hardy – see my post that the potential risks by Liquified Natural Gas terminals were such as to establish a sufficiently close link with the applicants’ private lives and homes for the purposes, simply because of the general subject-matter (fire, explosion) rather than via some sort of threshold investigation of any claim that the terminals had not been adequately assessed or that the risk were higher than had been assessed.
By contrast with these potential human impacts, see the case of Kyrtakos v. Greece - destruction of wetlands near K’s isolated house, where the Court said that even if this environment had been severely damaged by urban development, the effect of protected species was not of such a nature to directly affect their Article 8 rights. Convention rights are not
specifically designed to provide general protection of the environment; other international instruments and domestic legislation are more pertinent…
Bizarrely, the Court added that it might have been otherwise if, for instance, the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house, a situation which could have affected more directly the applicants’ own well-being. The logic of this apparent distinction between wetlands and woodland is not clear, to say the least.
Two themes can be detected in the Court’s reluctance to move from a narrowly anthropocentric stance. The first comes from the Court’s wariness in enforcing other environmental rules under guise of an expansionist interpretation of the Convention. The second is to stop the Court being flooded with mass claims arising from environmental impacts arising further and further away from the polluting incident – say, generalised water pollution affecting a whole region. The rhetoric used to clamp down on such claims is that Strasbourg prohibits an actio popularis, i.e.
cases being brought before the Court by individuals complaining of the mere existence of a law applicable to any citizen of a country, or of a judicial decision to which they are not party
See e.g. L’Erabliere ABSL v. Belgium – a case to which we will return under Article 6(1).
Pavoni considers various post-Kyrtakos cases at pp.10-14 of – which, like a lot of Strasbourg cases, are difficult to square with each other.
So Atanasov v. Bulgaria concerns someone whose house is 1km from an old copper mine complaining about its restoration using contaminated sludge – contamination which even according to a government report might affect “a 10km perimeter around the former tailings pond”. The applicant, according to the Court, was “at a considerable distance from the pollution’s source” – What, 1 km? This was accordingly found not to engage Article 8. (The case is useful because it contains a good and recent summary of environmental cases before the Court). Contrast Lemke - Article 8 applicable to the potentially contaminating effects of a gold mine some 50km from the applicant’s house. Pavoni speculates that the prospect of a mass claim may have played its unspoken part in the Atanasov decision.
Pavoni also discusses remedies for environmental infringements when established by the Court. In some cases (Lemke), people get moral damages in the sum of 3,000 euros. In others such as Tatar, they get nothing, because a declaration of breach is sufficient reparation. In my view, both responses are readily defensible on human rights principles. Either there should be some damages award to reflect the breach or, conceivably in a true public environmental case, there should be recognition that the litigation really concerns the ending of the problem. But it is indefensible that Strasbourg give no reasons for the latter decision. The decision drew a vigorous dissent in Tatar -two judges called the outcome “scandalous” or rather, because the case has not been translated into English:
Je trouve scandaleux qu’aucune réparation pour préjudice moral ne soit accordée aux requérants…. C’est d’ailleurs la seule affaire de ce type où la Cour ait décidé de ne rien allouer pour préjudice moral.
“Scandalous” indeed not to explain why this case is indeed the “seule affaire” in which moral damages have not been awarded.
This, the right to a fair trial, and in this context, right to access to court, is the other principal route for an environmental claim. Strasbourg’s way of throttling these claims back is to insist on a genuine dispute over a civil right coupled with a requirement that the outcome is directly decisive for the right in issue. Pavoni puts it well
thus tenuous links connecting the proceedings and the right, or remote consequences of the former for the latter, do not engage Article 6.
This orthodoxy was laid down in Balmer-Schafroth - complaint that challenge to the operating licence of a nuclear power plant had not been heard by a court. The Court said that the applicants had failed to show that they were personally exposed to a serious and specific danger. As Pavoni delicately observes, there is
an evident tension…between the stringent test of an imminent danger and the principles of prevention and precaution
which latter principles are a fundamental part of international environmental law. The case itself obviously exercised Strasbourg; the Commission initially, and a minority in the Court went the other way.
Balmer-Schafroth has been much considered in later cases. The conflict within that case was rendered more explicit by Goraiz Lizarraga – an NGO and residents challenge to the flooding of nature reserves and villages as a result of a dam project. The Court held that Article 6 was applicable only because in the domestic proceedings the applicants had sought to vindicate their private and economic rights. But the aspect of the case which related to public interests did not concern a civil right which the individual applicants could have claimed on their behalf, and therefore Article 6 was inapplicable.
One problem that the Court has not yet articulated clearly is posed by the presence in many countries’ constitutions of a right to a healthy environment. Is this a civil right counting under Article 6 or is it a public (non-civil) right? Taskin (another polluting gold mine) raised this head-on, but the Court ducked it – finding more traditional rights to underpin an Article 6 claim. You can see why they ducked it, because not doing so would have forced the court to explain what a civil right means in this specific context.
Pointing in a different direction is Okyay (2005) – a classic case of public interest environmental law. Domestic courts had ordered the shut-down of three power stations which were polluting the Aegean sea. The authorities failed to obey those courts. The applicants were ten lawyers (!) living about 250 km from the plant. The Court rejected the Balmer-Schafroth argument; the domestic proceedings were concomitantly aimed at protecting the environment and the “life and health of the Aegean population, to which the applicant belonged”. Recall the poor claimant in Atanasov who failed to recover despite being 1 km away. The Court then struggled away to explain why this case was different. But the real explanation must be that it was an arrant breach of the rule of law by Turkey.
Seasoned Strasbourg-watchers will not be surprised that later cases retreat somewhat from the high point of Okyay without convincingly explaining why. In Sdruzeni Jihoceske Matky (another nuclear plant case, untranslated) it ducked the point by its reading of the evidence – it claimed this did no more than raise the general threat from nuclear so was in substance an actio popularis. In Association Greenpeace France (nuclear reprocessing, en Francais) the domestic proceedings were “very essentially the general interest in the protection of the environment rather than a “civil” “right” of the applicant NGO” – excuse my literal translation.
This is not a true dichotomy. A challenge to some nuclear operations (if the underlying concerns are well-founded in science) will almost inevitably be about both – the health and safety of the individual and the collective – think Fukushima. But this distinction has led to some very odd decisions. L’Erabliere ABSL v. Belgium was a challenge to a landfill expansion project brought by an NGO. The Court avoided the actio popularis objection by focussing on the local nature and narrow statutory objectives of the NGO, (coupled with the impact upon its members) so Article 6 was engaged. This suggests that if, say, Greenpeace had taken up this local campaign and ran precisely the same arguments, it would have lost. We don’t know why this makes a difference, because, as Pavoni notes, the Court did not explain what “civil right” belonging to the NGO was at stake; he says
Arguably, this was simply the NGO’s capacity to take legal action in order to safeguard its own statutory aims and the substantive rights of its members.
Moral damages of 3,000 euros were awarded for a violation of Article 6.
Procedural rights under Articles 6 and 10
In recent times, the Court has been less wary of other procedural rights such as the rights to information, participation and access to justice. So in Collectiv Stop Melox et Mox, (encore, pas en Anglais) the Court (again troubled with a challenge to nuclear reprocessing) refused to exclude an Article 6 claim; it felt able to apply the requirements of Article 6 with “souplesse” or “flexibility.” As Pavoni notes, this is because the Court finds the “hook” as being the public’s right to information and participation in decision-making. The Court quotes the UN-ECE Aarhus Convention to show that the public’s right to information includes the right of NGOs – not perhaps surprisingly because there is a good deal of overlap between Council of Europe members and those signed up to Aarhus.
More creatively, the Court has fashioned another right in this context out of Article 10 (right to freedom of expression), namely the right to receive information, again in the Sdruzeni Jihoceske Matky case, albeit that it did not find a violation of this newly-minted right. This right to receive information is not a one-hit wonder – the decision was approved in the non-environmental case of Tarsasag, and see my post on this general topic – the right to receive must not be pushed too far.
Evidently, the Court feels more comfortable in this procedural territory. The right to be informed about, say, a nuclear plant is a rather apple-pie-like right – who can be against it? But a right to challenge a highly political decision to build such a plant is a much more difficult one to adjudicate upon, with the Court faced with directly opposed and highly technical arguments about nuclear safety which are not easily capable of resolution in any Court, let alone one which almost never hears any evidence.
Pavoni’s central point is well-made. As long as one starts with some element of a human right in a claim, there is nothing wrong with the Court acknowledging various claims adjectival to that; so if locals have an arguable Article 8 claim, then NGOs representing them should have an Article 6 claim. It is not too much of a stretch to recognise this even though the number of potential applicants is large, and the rather knee-jerk recourse to the actio popularis principle is not necessary to keep things within bounds. The Court is plainly right to maintain a high threshold for Article 8 claims, and to require some reasonably precise evidence (rather than vague generalities) to underpin any Article 6 complaint of lack of access to the Court. So some gentle evolution in principle should not swamp the Court with unmeritorious claims.
Astute readers who have got this far will note how few UK cases I have considered, and the same goes for Pavoni’s paper. The reasons for this reflect well on the UK system. We have a very relaxed system of standing before our courts for environmental challenges (for a classic statement of this, see Lord Hope on ospreys). This means that most environmental challenges get before a court, and so it is only the rare one which gets to Strasbourg on Article 6 grounds. We also have a well developed law of nuisance which has a close overlap with the sort of case which might amount to an Article 8 breach (see, e.g. a post on a case I was involved in – sewage and mosquitoes). There is a significant and unresolved debate about how substantive the grounds of public law challenge are, but that is another matter. It is telling that one of the two cases in my survey which got to Strasbourg was Hatton, where the domestic right to sue for air noise has long been abrogated by statute.
Finally, a plea to the ECtHR. Can we have more official translations of these environmental cases into English, please? It is notable that a good half-dozen recent important cases are to be found only in French. But the ECtHR is not alone in this. The untranslated judgments or AG’s opinions seems to be increasing in the CJEU as well.
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