Stockholm Conference on Environmental
Law and Justice,  6-9 September 2006

Jan Darpö (Uppsala University, Sweden):
Environmental Justice through Environmental Courts?

All over Europe, there is a vivid discussion about the role of the courts in the environmental area. In some countries, the focus has been on the advantages and disadvantages of environmental courts. This debate relates to and has much in common with the concept of “Access to Justice” and the implementation of the Aarhus Convention. However, in an area of law which is characterized by a strong imbalance of powers between the actors, “access to justice” is more than just access to the courts in a formal meaning. In the environmental procedure, private persons, neighbours and others, are challenging large companies (often multinational) and public enterprises. Thus, on the one side: major resources, all kinds of expertise (technical, economic and legal) and every-day experience of permit procedures, appeal cases, trials for damages etc. On the other side: one-shot litigants with no money and seldom advisers. This picture has remained the same, even though NGOs have entered the litigation arena in the last decades. Essentially, the work of the organisations is based on voluntary efforts (in Sweden the numbers of lawyers employed by the NGOs totals to one (1!)). In addition to this, in many countries the procedural system in itself brings major obstacles for the weaker par-ties. The first and most apparent of course is spelt MONEY; court fees, litigation costs and – in recent days – “SLAPS” (strategic law suits against the plaintiff for damage because of the delay in business). But even beside these pecuniary obstacles, the environmental procedure often poses other difficulties that complicate for the weaker parties to have their say.

There is no common understanding of “environmental procedure” in the legal systems of Europe. The processes for decision-making (including appeal) and enforcement in this area of law, can be based on administrative, civil or criminal law procedures. All varieties are represented, sometimes even within the same country. When it comes to “procedural obstacles” and “access to justice”, there are substantial differences between the systems where decisions of the administrative body can be challenged on the merits in a reformatory procedure based on the inquisitorial principle (e.g. Sweden and Finland), compared with systems which only offer the possibility to challenge the legality of the decision in a cassatory procedure based on civil law principles (e.g. the UK). Therefore, when discussing these issues, one must – as in all comparative studies – define a number of concrete “key issues” and relate them to the different systems.

The starting-point for this presentation is the Swedish system with specific Environmental Courts. These courts – containing legal and technical expertise – work within the line of administrative appeal and are dealing with all kinds of cases from all kinds of environmental law ("blue", "green" and "brown"); decisions and orders of the environmental authorities, fees, administrative sanctions etc. Beside this, some cases start in the environmental court; permits for major industrial activities (IPPC) and water works, damages and certain kinds of enforcement. Thus, the Swedish system can be used as a platform for a discussion about the procedural aspects of Environmental Justice and Access to Justice in the light of the Aarhus Convention. Relating to some key issues, an interesting comparison can be made between the Swedish system and some of the other procedural systems for environmental decision-making in Europe.

The aim of presentation is to contribute to the examination of the demands to be posed on the administrative and judicial systems for decision-making and the possibility to challenge those decisions. Which are the key issues to obtain “equality of arms” in the environmental procedure? Which are the pros and cons of the administrative procedure compared with the court procedure? To give some answers to these questions, the presentation is focusing on the following issues:

• The administration and the courts in relation to decision-making and enforcement; along the same line or different systems?
• Administrative and/or environmental court or tribunal: what is the difference?
• Technical expertise within or out-side the court?
• Who can initiate administrative or judicial proceedings?
• Can the decisions (including “0-decisions”) of the administration be challenged?
• Who can appeal and what can be appealed?
• The need for effective remedies in different systems
• Environmental permits and their legal effects
• Procedural complications and (compulsory or factual) demands for legal assistance


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