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The European Commission will submit a study and a proposal to reassess individuals’ right to challenge crucial decisions before EU courts.

By Rosa Espín and Leticia Sitges

The Council of the European Union (the EU) has recently issued a formal decision requesting that the European Commission submit a study to identify options for addressing identified non-compliance with the United Nations Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dated 25 June 1998 (the Aarhus Convention). Additionally, to submit a proposal, if appropriate, to amend the current EU Regulation 1367/2006 (together, the Decision).

What is the Aarhus Convention?

The Aarhus Convention is a multilateral environmental agreement that will guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The three pillars of the Aarhus Convention are as follows:

By Paul Davies and Samuel Pape

Key changes to the Protective Cost Order regime (PCO) came into force on 28 February 2017, which could directly limit the ability of individuals and organisations to bring environmental-related legal challenges in England and Wales.

Background

The PCO was introduced in 2013 in part due for the purposes of implementing the Aarhus Convention and its requirement that public bodies ensure that the public have access to procedures that are not “prohibitively expensive” for challenging decisions relating to the environment. For environmental-related proceedings, adverse legal costs were capped to £5,000 for individuals and £10,000 for organisations. Before these caps were introduced, the risks of substantial adverse costs orders could  deter organisations from bringing public interest litigation. For example, in 1998, WWF was ordered to pay the government’s legal costs of over £200,000 after losing its legal challenge against the construction of a funicular up Cairngorm Mountain.