Abstract
An environmental impact assessment (EIA) is a process to ensure that a given decision’s impact on the environment will be considered before such a decision is made. The Aarhus Convention includes rules stipulating the form of judicial review for environmental assessment violations. In conjunction with the ratification of the Aarhus Convention, the EU has enacted laws necessary for its implementation, some of which involve amendments to the Environmental Impact Assessment Directive to add new rules on judicial review. After reviewing the judicial review standards introduced by the rules of the Aarhus Convention, this paper examines how the EU’s Environmental Impact Assessment Directive was amended by the Aarhus Convention, and how EU case law applies to the amended portions. In doing so, I hope to demonstrate that these standards will lead to new international standards in judicial review of environmental assessment violations that will constitute fundamentally new international standards from the perspective of international law. While EU efforts to address judicial review of environmental assessment violations are fairly advanced, Japan has been strongly criticized, in both academia and elsewhere, for its relatively slow response in these matters. The lethargy in Japan’s response can perhaps be attributed to the special nature of these new international standards. I will explore the implications of the new environmental assessment violation standards on international law introduced by the Aarhus Convention, while also addressing the state of judicial review of environmental assessment violations in Japan.
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Notes
- 1.
42 U.S.C. §§4321 et seq.
- 2.
Ministry of the Environment Government of Japan (1997).
- 3.
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, O.J. L 175/40 (1985).
- 4.
See, e.g., the Convention on environmental impact assessment in a transboundary context done at Espoo, Finland, on 25 February 1991 (Espoo Convention).
- 5.
Lindstrom and Smith (2001), pp. 100–124.
- 6.
The Convention on access to information, public participation in decision-making and access to justice in environmental matters done at Aarhus, Denmark, on 25 June 1998.
- 7.
The theme of the 2013 annual meeting of the Japanese Association of World Law whose members are almost international law researchers was “Constitutionalization” of international law.
- 8.
Principle 4“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”
- 9.
Principle 10“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
- 10.
Banner (2015), p. 2.
- 11.
“Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.”
- 12.
“Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
-
(a)
Having a sufficient interest or, alternatively,
-
(b)
Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.”
-
(a)
- 13.
“What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.”
- 14.
“In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”
- 15.
“In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”
- 16.
Economic Commission for Europe (2004).
- 17.
“States should ensure that any natural or legal person who considers that his or her request for environmental information has been unreasonably refused, in part or in full, inadequately answered or ignored, or in any other way not handled in accordance with applicable law, has access to a review procedure before a court of law or other independent and impartial body to challenge such a decision, act or omission by the public authority in question.”
- 18.
“States should ensure that the members of the public concerned have access to a court of law or other independent and impartial body to challenge the substantive and procedural legality of any decision, act or omission relating to public participation in decision-making in environmental matters.”
- 19.
“States should ensure that the members of the public concerned have access to a court of law or other independent and impartial body or administrative procedures to challenge any decision, act or omission by public authorities or private actors that affects the environment or allegedly violates the substantive or procedural legal norms of the State related to the environment.”
- 20.
“States should provide broad interpretation of standing in proceedings concerned with environmental matters with a view to achieving effective access to justice.”
- 21.
“States should provide a framework for prompt, adequate and effective remedies in cases relating to the environment, such as interim and final injunctive relief. States should also consider the use of compensation and restitution and other appropriate measures.”
- 22.
Council of Europe (2012), pp. 93–109.
- 23.
Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, O.J. L 158/56 (1990).
- 24.
Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, O.J. L 41/26 (2003).
- 25.
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, O.J. L 156/17 (2003).
- 26.
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, O.J. L 257/26 (1996).
- 27.
Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters/COM/2003/0624 final
- 28.
Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, O.J. L 264/13 (2006).
- 29.
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, O.J. L 26/1 (2012).
- 30.
Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, O.J. L 124/1 (2014).
- 31.
For an analysis of the jurisprudence from the viewpoint of direct effect of EU law, see Darpö (2014).
- 32.
Case C-201/02 Wells [2004] ECR I-723.
- 33.
Case C-201/02, paragraph 65, 67.
- 34.
For the principle of procedural autonomy of the Member States, see Galetta (2010).
- 35.
Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen [2011] ECR I-3673.
- 36.
Case C-115/09, paragraph 43, 44.
- 37.
Ibid., paragraph 13.
- 38.
Ibid., paragraph 18.
- 39.
Ibid., paragraph 50.
- 40.
Economic Commission for Europe (2014).
- 41.
Case C-72/12, ECLI:EU:C:2013:712, paragraph 37, 38.
- 42.
Ibid., paragraph 48.
- 43.
Ibid., paragraph 50, 51.
- 44.
Ibid., paragraph 53.
- 45.
Case C-137/14: Action brought on 21 March 2014—European Commission v Federal Republic of Germany, O.J. C 159/16 (2014).
- 46.
- 47.
Japan Federation of Bar Associations (2010).
- 48.
Tokyo Bar Association (2009).
- 49.
Okubo (2011), pp. 59–65.
- 50.
Ministry of Justice Government of Japan (2010).
- 51.
Yanagi (2011), pp. 369–370.
- 52.
Okubo (2011), p. 60.
- 53.
See, e.g., Okubo (2012), pp. 140–146.
- 54.
A scholar of Japanese constitutional law analyzed the relationship between the judicial review of environmental interest and the representative democracy. Matsumoto (2012), p. 153.
- 55.
Cf. Kuwabara (2012), p. 164.
- 56.
Matsumoto (2012), p. 154.
- 57.
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Minami, Y. (2016). The Aarhus Convention and Cases of Non-compliance with Environmental Impact Assessment Requirements: The EU and Japan. In: Nakanishi, Y. (eds) Contemporary Issues in Environmental Law. Environmental Protection in the European Union, vol 5. Springer, Tokyo. https://doi.org/10.1007/978-4-431-55435-6_4
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