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

• Date: 01 November 2014
• Published date: 01 November 2014
• Author: Marjan Peeters,Sandra Nóbrega
• DOI: http://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)).

3United Nations Framework Convention on Climate Change (New

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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