Collective Actions as an Instrument for Environmental Protection in the US and the European Union (EU)
Abstract
1. According to Article 10 of the Rio Declaration, produced at the 1992 Earth Summit (UN- Conference on Environment and Development), “environmental issues are best handled with the participation of all concerned citizens.” This encompasses appropriate access to infor-mation concerning the environment, participation in decision-making processes and effective access to judicial and administrative proceedings, including redress and remedy. Inspired by this principle, the UN-Economic Commission for Europe adopted on 25 June 1998 the Aar-hus Convention,1 which grants the public i) the right of access to environmental information (first pillar), ii) the right to take part in decision-making processes (second pillar) and iii) public access to justice (third pillar).
2. The Aarhus Convention has an important impact on the law of the European Union. The EU signed the Aarhus Convention on 25 June 1998 and approved it on 17 February 2005. The obligations deriving from the convention are implemented by secondary legislation. In order to implement the obligations on community level, the EU adopted the Aarhus Regulation,2 which supplements existing Community legislation granting access to documents held by the Commission, the European Parliament and the Council. It covers the institutions, bodies, of-fices or agencies established by, or on the basis of the EC Treaty, which had to adapt their internal procedures and practice to the provisions of the Regulation until 28 June 2007. With respect to the laws of the 27 EU-Member States, the EU adopted several directives providing for public access to environmental information and justice.3 The 2004 Environmental Liabil-ity Directive (ELD),4 which establishes a framework of environmental liability to prevent and remedy environmental damage (concentrating on the prevention and restoration of con-taminated sites and on loss of biodiversity), also provides for collective action by allowing non-governmental organisations to require the competent authorities to act (see Article 12 ELD).
3. The ELD is heavily influenced by US-law. An eminent similarity lies in the fundamental premise that public authorities are "the guardian" of the environment as a public good. This corresponds to the traditional Anglo-American public trust doctrine, according to which all lands, water and wildlife are held in trust by the state for the benefit of the public. The public thus has the right to be compensated for the loss of the resource itself, and any lost use or en-joyment and the loss of any service that the resource provided. Consequently many federal and state law provisions entitle the federal government, the states and Indian tribes as trustees to recover damages from responsible parties for natural resource damage (e.g. sections 107 CERCLA, 311 (f) (4) CWA, 1002 OPA). Furthermore, the rules on class action (see Art 23 Federal Rules of Civil Procedure), often used to gain compensation for victims of environ-mental damage (“mass toxic torts”), and the citizen suits, provided by many US environmen-tal statutes in order to eliminate shortcomings in the enforcement of these laws, are effective instruments for group litigation in US-law.
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Footnotes:
1 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Envi-ronmental Matters, ECE/CEP/43 (in force since 30 October 2001, 44 parties).
2 Regulation (EC) No. 1367/2006 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 Com-munity institutions and bodies, OJ L. 264, 25.09.2006, pp. 13-19.
3 Directive 2003/4/EC on public access to environmental information; Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and Proposal for a Directive on access to justice in environmental matters, COM (2003) 624 final, 24 October 2003.
4 Directive 2004/35/CE on Environmental Liability with Regard to the Prevention and Remedying of Environ-mental Damage, OJ L 143, 30.4.2004, p. 56 (in force since 30 April 2004).