The Role of NGOs in Environmental Litigation against

The Role of NGO’s in Environmental Litigation against Public Authorities Emperical and Normative Observations on Judicial Review and Access to Justice Jans & Bert Marseille

ENGOs: Champion Litigators under Threat? › A study commissioned by the European Commission on access to justice in environmental matters in eight European countries showed that in the period 1996 to 2001 environmental organisations in the Netherlands brought by far the most cases. › In 2007, a motion by a member of the Lower House of Parliament, Mark Rutte, aiming to deprive ‘professional complainants’, who he claimed were obstructing necessary measures by ‘abusing’ their rights and thus delaying economic development, of access to the courts was rejected only narrowly.

The Genesis of a Right of Access to Court › Until the mid 1970 s the administrative courts had largely kept environmental organisations out of the courts › Dutch Supreme Court 1986 in the groundbreaking Nieuwe Meer case allowed environmental organisations to bring an action in the civil courts › Under influence of this case law administrative law courts changed their case law as well and finally the case law on the locus standi of NGOs was incorporated in the law, in 1994

Dutch General Administrative Law Act Article 1: 2 1. ‘Interested party’ means a person whose interests are directly affected by a decision. 2. Interests entrusted to administrative authorities are deemed to be their interests. 3. The interests of legal entities are deemed to include the general and collective interests which they particularly represent pursuant to their objects and as evidenced by their actual activities.

Threathening NGOs Right of Access in the Netherlands › ‘(…) that merely bringing legal proceedings against decisions cannot as a rule be regarded as actual activities within the meaning of subsection 3. ’ › Introducing a ‘Protective Rule Requirement’ • Cf. German/Austrian Schutznorm requirement › Healing of procedural and substantive failures

Threathening NGOs Right of Access Elsewhere › Numeric criteria for NGOs? • Swedish DLV: ECJ case C-238/08 oending › Substantial interest requirement in Ireland; C-427/07 › Protective Rule requirements • German case C-115/09, pending › No Duty to give reasons in the UK; Mellor case C 75/08

Beyond Locus Standi in the Netherlands › Costs • in environmental cases the standard court fee to be paid by individuals is € 150 • No: loser pays rule • No barrister/sollicitor required • Cf. Ireland UK Irish case law!

Basic Tenets of Environmental Litigation in the Netherlands › Central role of the Dutch Council of State › One stop shop! › ± 2, 000 environmental cases and 1, 000 applications for interim relief are brought annually › Primarily written nature of the proceedings › simple cases are heard by 1 judge only and will take as an average 30 -45 minutes › At an average hearing day, the Council of State will hear 4 -6 cases

De facto use of judicial review procedures by NGOs Representation of NGOs in environmental procedures: Appeal against: refusal of an environmental license / decision to take environmental action 29% (175) Appeal brought forward by non-NGO 29% (175) All the appeals brought before the Second Chamber of the Administrative Jurisdiction Division 100% (603) Appeal brought forward by NGO 0% (0) Appeal against: decision to grant an environmental license / refusal to take environmental action 71% (428) Appeal brought forward by non-NGO 59% (354) Appeal brought forward by NGO 12% (72)

Effect of the use of judicial review procedures by NGOs I Appeals well-founded/unfounded Decisions of the AJD concerning appeals against: decisions to grant an environmental license/refusal to take environmental action 100% (354) Appeals brought forward by non-NGOs 82% (291) Appeal non-NGO well-founded 39% (113) Appeal non-NGO unfounded 61% (178) Appeals brought forward by NGOs 18% (63) Appeal NGO well-founded 59% (32) Appeal NGO unfounded 41% (26)

Effect of the use of judicial review procedures by NGOs II Grounds of annulment All the appeals against decisions to grant an environmental license / refusal to take environmental action that are well-founded and result in the annulment of the contested decision 139 Annulment as result of an appeal by a non-NGO 105 Annulment on procedural grounds 80% (84) Annulment on substantive grounds 20% (21) Annulment as result of an appeal by a NGO 34 Annulment on procedural grounds 50% (17) Annulment on substantoive grounds 50% (17)

Effect of the use of judicial review procedures by NGOs III How many of the new decisions the public autority has to take after the annulment of its original decision are ready after 3 and 12 months? Social Security After 3 months: After 12 months: 67% 90% ‘ Other’ After 3 months: Environment After 12 months: 32% 75% After 3 months: After 12 months: 17% 61% Yet to be taken after 12 months: 10% 25% 39%

Effect of the use of judicial review procedures by NGOs IV If a public authority takes a new decision after the annulment of its orgininal decision by the administrative court, how do the interested parties react? Social security decisions (District Court) ‘Other’ decisions (District Court) Environmental decisions (Council of State) Accept: Appeal: 91% 9% 78% 22% 62% 38%

Standard of Review › The quantitative analysis shows that in particular two grounds of review take the center stage in Dutch environmental judicial review procedures: • The principle of due car; • The duty to give reasons. › Hardly any substantive review › Consequence: lack of procedural finality