Climate Change‐related Aarhus Conflicts: How Successful are Procedural Rights in EU Climate Law?

Date01 November 2014
Published date01 November 2014
DOIhttp://doi.org/10.1111/reel.12076
Climate Change-related Aarhus Conf‌licts:
How Successful are Procedural Rights in
EU Climate Law?
Marjan Peeters* and Sandra Nóbrega
This article provides insights into the consequences of
the Aarhus Convention in the field of European Union
(EU) climate change law. It discusses climate change
cases concerning environmental procedural rights that
are decided by the Court of Justice of the EU and the
Aarhus Convention Compliance Committee (ACCC).
Regarding access to environmental information, cases
reveal reluctance on the part of governments to provide
climate-related information. Regarding public partici-
pation, the ACCC has illustrated that the EU Renewable
Energy Directive falls short in light of the Aarhus Con-
vention. Given the need to adopt even more stringent
measures to reduce greenhouse gases, more case law is
expected. A systematic analysis of case law will help us
to understand to what extent EU climate policy com-
plies with the Aarhus Convention. Such an analysis will
also show what lessons can be learned from the Aarhus
Convention for putting the procedural provisions of the
UNFCCC into practice.
INTRODUCTION
The United Nations Economic Commission for Europe
(UNECE) Convention on access to information, public
participation in decision making and access to justice in
environmental matters (‘the Aarhus Convention’)
establishes procedural rights in the entire field of envi-
ronmental law.1After its entry into force in 2001, its
consequences for environmental practice have become
gradually visible by means of case law and through the
non-binding decisions of the Aarhus Convention Com-
pliance Committee (ACCC). The wide scope of the Con-
vention implies that climate change policy is covered,
but what this exactly entails has not yet crystallized.2In
particular, it still needs to be clarified: (i) to which
extent the procedural rights of the Aarhus Convention
are applicable in the field of climate policies; and (ii), if
applicable, what the potential role of such rights might
be. This article provides, for the first time, insights into
the consequences of the Aarhus Convention in the
emerging but already broad and complex field of EU
climate law. It focuses on climate change cases concern-
ing environmental procedural rights that are decided by
the Court of Justice of the European Union (CJEU). In
addition, it discusses an important decision from the
ACCC concerning renewable energy planning in the EU.
The article first briefly explores the meaning of the
Aarhus Convention for the specific field of climate law,
including its interrelationship with procedural provi-
sions of the United Nations Framework Convention on
Climate Change (UNFCCC).3It then explains the rela-
tionship of EU law and the Aarhus Convention and
discusses climate change-related Aarhus cases that have
emerged before the CJEU. The article next moves to a
recent decision from the ACCC which found EU renew-
able energy law to be incompatible with the Aarhus
Convention. The conclusions point to the need to
examine cases that have emerged before national courts.
THE AARHUS CONVENTION AND
CLIMATE CHANGE
PROCEDURAL RIGHTS RELATED
TO CLIMATE CHANGE IN
INTERNATIONAL LAW
The Aarhus Convention is not the only relevant treaty
when examining procedural rights in the field of
* Corresponding author: Marjan Peeters, Professor of Environmental
Policy and Law, Maastricht University, Faculty of Law & ICIS institute,
P.O. Box 616, 6200 MD, Maastricht, The Netherlands.
Email: marjan.peeters@maastrichtuniversity.nl
1Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters
(Aarhus, 25 June 1998; in force 30 October 2001) (‘Aarhus Conven-
tion’). The Aarhus Convention consists of three pillars. The f‌irst pillar
focuses on the right of access to environmental information held by
public authorities (Articles 4–5); the second pillar is dedicated to the
right of the public to engage in public decision making that affects or
is likely to affect the environment (Article 6); and the third pillar
recognizes the right to access to justice in order to enforce the rights
guaranteed in pillars one (Article 9.1) and two (Article 9.2), as well as
the ability to challenge acts of private and public entities that contra-
vene national environmental law (Article 9.3).
2The non-exhaustive def‌inition of ‘environmental information’ in the
Aarhus Convention, ibid., Article 2.3, enables anyone to ask for a
wide variety of environmental information; the right of the public
concerned to participate in governmental decision making on specif‌ic
activities covers all activities that may have a signif‌icant effect on the
environment (Article 6.1(b)).
York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’).
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Review of European Community & International Environmental Law
RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12076
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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