Environmental Justice in the European Union and UK Laws - Essay Example

Environmental Justice in the European Union and UK Laws The environmental policy of the Community has several objectives such as preserving, protecting, enhancing the quality of the environment, protection of human health, conservation of natural resources and their prudent and rational utilization and the implementation and promotion of measures that address international and regional level environmental problems. The Commission published the guidelines for the protection of environment. These guidelines, integrate environment policy with the other policies of the Commission (COM (1998) 333 final). The Commission had also published an amendment to a Council directive, which deals with several measures and strategies with regard to the environment (OJ [1999] C83/13). Environmental rights are recognized as a component of human rights. The Member States of the EU are under an obligation to comply with Article 8 ECHR. Moreover, this obligation has also been extended to private organisations. This extension poses some problems to the Member States, while arriving at a balance between individuals’ interests and the nations’ economic well – being. The human rights of individuals have to be respected and protected; and at the same time the states have to ensure their economic welfare the community at large. Individual rights include the freedom of individuals and organisations to reap advantages from competition in business (Goulbourne). It is the principal objective of the policy adopted by the EU, to accord the same importance to all the goals of the Community. Thus, it would be incorrect to assume that Article 6 of the EC Treaty accords greater importance to issues affecting the environment, than it does to other issues that relate to the Community. As such if a disagreement arises between the policy relating to the protection of the environment and other policies of the EU, then conciliation has to be arrived at by the Member States and the institutions of the EU (Hooydonk, 2006. pp. 28 – 29). The Community negotiated with several international treaties and has been striving hard, since 1970 to protect the environment. It had joined hands with the United Nations, other international environment agencies and promoted several programmes so as to achieve its goal. The Commission made environmental protection an essential criterion for the accession of the Eastern European nations into the EU. It regards environmental policy very seriously and has included it as an important requirement, while making agreements with various international trade pacts (Reid, 2000). The ECJ had initially accorded significant importance to environmental protection in its rulings. Its first decision regarding environmental issues was in the case of Handelswekerij Bier v Mines de Potasse d’Alsace (Case 21/76 Handelswerkerij Bier v Mines de Potasse d’Alsace). The Court has delivered several decisions, subsequently, in respect of environmental matters. The ECJ established in a particular case that protection of the environment was a very important and vital objective of the Community (Case 240/83 Procureur de la République v Association de Défence des Bruleurs de lHuiles Usagées ). The case of Powell and Rayner v. UK deals with the noise pollution caused by the increased number of flights operated through the Heathrow Airport. The European Court of Human Rights held that the high levels of noise produced by the aircraft could be justified as per the provisions of Article 8(2) ECHR. The ECtHR also opined that operation of aircraft is essential for economic stability and welfare (Powell and Rayner v UK). In contrast to this decision, the ECtHR held in Hatton and other v. UK that Article 8 ECHR had been infringed by the UK, as it had modified several restrictions that regulated the operation of night flights at Heathrow Airport. In that case, the plaintiff Hatton argued that the government of the United Kingdom had either rescinded or altered policies regarding night flights. The plaintiff had developed sleep disorders due to these changes, and she argued that her private life had been violated by the government. The Court found that the government of the UK had failed to maintain a balance, while establishing its 1993 scheme. It also held that there was lack of balance between the rights and interests of property owners and those of the community as a whole (Hatton and Others v UK). The UK had failed to estimate the outcome of increased number of night flights before implementing the 1993 scheme. Furthermore, it could not assess the adverse effect of the increased night flights on the health and sleep pattern of individuals. It was unable to establish the economic advantages provided by increased night flights. Hence, the Court had opined that in the absence of such information, the government could not contend that it had maintained a fair balance. As such, the government had failed to find an alternative solution that would not have affected the interests of individuals. Hence, its action could be construed to be a violation of Article 8 ECHR (Noise pollution, 2003). In the case of Anna Maria Guerra and others v. Italy (Case 14967/89 Guerra and Others v. Italy), the plaintiffs brought an action against the government for the pollution caused by a chemical factory, which was located in their village. They had also complained about the possibility of major accidents in the factory and the absence of governmental initiatives to regulate the activities of the plant. The plaintiffs invoked Article 10 ECHR, which provides for freedom of information. They claimed that the government had failed to intimate the members of the town about the possible risks inherent in the chemical plant. The government had also failed to intimate them of the steps to be initiated in the event of any major accident in the plant. Precautionary measures had been recommended by the EC Seveso Directive (EEC Directive on the Major Accident Hazards of Certain Industrial Activities, 82/501/EEC, 1982 O.J. 230, amended by 87/216/EEC, 19 March 1987). The European Commission on Human Rights found that the government of Italy had violated the right to information. However, the Commission refused to accept the claim of the applicants that the damage caused by pollution would directly affect the right to life. The Commission examined the application of right to information to the government. It also scrutinized, whether that right required the government to inform the public, in advance, of the dangers posed by the chemical plant. The Commission had recognised that Article 10 imposed a positive obligation on the states, which required them to collect such information, collate and publicise it. This was due to the fact that the public would be unable to access such information by themselves. According to the EC law, in the context of environmental danger, the public dissemination of such information protects and ensures the welfare and general health of the community (Shelton, 2002). Furthermore, the ECtHR had found that there was a breach of Article 8 ECHR. In addition, the Court had found that the public were deprived of the right to family, home and private life. It also found that the applicants had spent considerable time to obtain essential information from the fertiliser company. Such information would have been of immense help to them, in knowing about the probable risks they would have to encounter if they were to continue to live in the village, where the factory was situated. The Court also conceded that environmental pollution would certainly affect the health, well – being, privacy and family life of individuals (Shelton, 2002). The ECtHR refused to examine the violation of the right to life provided by Article 2 ECHR, even though there were several cases of cancer deaths in the factory, on the grounds that these deaths had been compensated. The Court held that the applicants were entitled to non – pecuniary damages, and set aside their appeal for issuing a clean – up order, stating that it was not empowered to issue such orders (Shelton, 2002). Article 6 EC states that the requirements for environmental protection must be included in the definition and implementation of Community policies, which must aim at enhancing sustainable development. Furthermore, the Treaty of Amsterdam had made it easier for Member States to derogate from the standards established by the EC. There are no guidelines for Member States, with regard to the Community objectives that must be accorded importance, in the event of conflict between implementation of other Community objectives and environmental protection. However, the fundamental objective of the Community is to develop the single market within the community. The achievement of the single market has been based on several economic objectives, which should not take precedence over the environment policy of the Community. A pragmatic approach to environmental policy had not been drafted in the EU, and this problem was ignored. At that juncture, the European Court of Justice provided the answer for the problems relating to the implementation of environmental policy. The ECJ developed the relevant case law in the cases of Commission v Denmark (Case C302/86 Commission v Denmark) or the Danish Bottles Case and Commission v Belgium (Case C-2/90 Commission v Belgium) or the Belgian Waste Case (Reid, 2000). The ECJ in Commission v. Council held that Article 100a EC would be more appropriate for meeting the goal of environmental protection, rather than Article 130s EC. The underlying principle of this ruling is that the legislation of environment may be adopted by a qualified majority rather than a unanimous accord. Article 130s may be appropriate where the harmonisation of market conditions have been supplementary to the adopted legislation (Case C-300/89 EC Commission v EC Council). In the Ditle v. Bluhme (Case C-67/97 Ditle v Bluhme) case, the ECJ held that prohibiting the growing of a species of bees by a Member State in its territory would be tantamount to the concept of quantitative restriction laid down by Article 30 EC. However, Article 36 EC justifies such measures. This justification is based on the principle of maintaining the bio – diversity, under which the health and life of animals must be protected (Reid, 2000). Environment cases are brought by the Commission, under Article 226 EC, before the ECJ. However, Article 227 EC is employed less frequently. Moreover, environment cases based on Article 234 EC have been very infrequent. The Danish Bees case was brought before the ECJ, under Article 234 EC. As such, the foundation and basis of the EC and EURATOM environmental laws have been constantly challenged by Member States; and Article 230 EC provides for judicial review of the decisions of the Community. Despite these setbacks, the Commission had not taken any effort to set out substantive environment legislation in the EU. The European Parliament had taken initiatives to establish stringent environmental legislation by using its prerogatives (Joined Cases C-164/97 and C-165/97 Parliament v Council). However, Article 230 EC has been used very rarely. The problem involved in invoking this Article is establishing locus standi. Thus, seeking judicial review through Article 230 EC has always been very difficult and usually ends in failure (Reid, 2000). A very famous case in this regard was the Greenpeace case, in which an appeal was sought against the decision of the Court of First Instance. The CFI had declared that the organisation Greenpeace International and Others lacked locus standi to seek a judicial review; regarding a decision taken by the Commission to provide aid to two power stations to be established in the Canary Islands. The Commission had granted the funding through the European Regional Development Fund. The Council Regulation 2052/88 provided that any environmental measures financed by these funds would have to be in accordance with the principles inherent in the various Treaties. The fundamental objective of the Community is to develop environmental protection in a systematic manner. Greenpeace contended that the Commission had to provide immediate attention to environmental protection. However, in the context of the Commission, it was not the only concern in the interests of the Community; which could be having significant internal and external impact on the operation of the Community (Reid, 2000). The ECJ is also under an obligation to implement the principles and human rights contained in the European Convention on Human Rights. In addition, it has to ensure that all the Member States respect human rights (Case 5/88, Wachauf v Germany (1989) ECR 2609). Moreover, the ECJ has to ensure the uniform application, throughout the Community, of the EC; and it has to resolve conflicts between EC law and the ECHR. It should ensure that the rights provided by the ECHR are not infringed by the Community law. Eventually, the ECHR has to be respected and treated as part of the Community legal order (Case 260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (1991) ECR I-2925). For these reasons, the ECJ operates with utmost care and refrains from intruding upon national legislation, if it lacks the competence to do so. In the Kremzow case, the ECJ had attempted to identify the extent up to which Community law can interfere with national legislation. In that case the ECJ had refused to interpret the provisions of the ECHR, because the latter was not a part of the Community legal order (Case C-299/95 Kremzow v Austria). This approach is similar to that in the Greenpeace case, wherein the ECJ had refused to accept that environmental interests had been affected indirectly. The ECJ does not allow any deviation from the principles of the Community law, nor their abuse by any Member State or individual. This was established in the case of Keck and Mithouard (Cases 267-268/91 Criminal Proceedings against Keck and Mithouard). The ECJ maintains that infringements of EC Law provisions would result in an indirect effect on the environment. The case law of the ECJ such as the Kremzow and Keck cases, established the fact that the ECJ prevents the exploitation and abuse of Community law provisions in any manner. At this juncture, the Greenpeace argument coincides with the restraint of the ECJ. However, the Court had refused to view the contention of the Greenpeace in the context of indirect effect upon the environment. This clearly shows the stand of the ECJ with regard to direct effects caused by the infringements of the EC. Hence, proving a direct link with environment could be complex. Individuals can prove direct effect upon their human rights under Article 230(4), rather than infringement of environment matters. The Community had delivered urgent requirements with regard to the external factors for human rights, as well as environmental matters. The Community is also prepared to address the execution of international obligations (Reid, 2000). Of late the Community had developed new objectives and requirements to provide considerable protection to human rights and environmental interests. These new principles mainly focus on the economic well being of the Member States. The new developments are concerned with the proof of locus standi by individuals in the event of their seeking a judicial review of the Community’s actions. The Greenpeace case had unearthed the requirements for proving the locus standi. The ECJ had dismissed the case without considering the arguments, on the basis of indirect affect. The case of Greenpeace established the fact that the ECJ prevents any abuse of Community provisions and their exploitation. The ECJ had failed to resolve the issues thrown up by this case (Reid, 2000). The protection afforded by Article 8 of the ECHR to the environment is limited. The court held in the Greenpeace case that the cancer caused to the people of the village was not due to the direct effect of environmental pollution. Considering locus standi to be essential is also unjustified, because environmental pollution affects society at large. Therefore, insistence on locus standi renders the task of proceeding against those who pollute the environment, very difficult. The issue of locus standi brings to the forefront the practical problem inherent in any court ruling that relates to the environment. Such decisions, perforce affect a large number of individuals; however, there will generally be a sub class of persons, who are directly affected, due to their location being very near to place where the environment was adversely affected. These people should be permitted to appeal against or challenge the court’s ruling. A large number of new entrants, into the EU have rendered the task of reaching consensus on any policy, very difficult. Some of these new Member States are comparatively poorer, which has further increased the level of such difficulty. Several of its economic policies have proved significantly detrimental to the environment, for instance the Common Agricultural Policy. In achieving its objective of economic integration, the EU has encouraged the free movement of goods and people. This has caused greater damage to the environment, than the benefit to the environment by its policies regarding the environment (Carter, 2007. pp. 286 – 287). In the recent past, the EU has included human rights and environmental protection to its policies. However, a perusal of the case law, disclosed that the courts were attaching greater importance to economic development and integration of the Community. A major issue that had emerged from these developments was in respect of the issues of locus standi of persons who desired to initiate judicial review proceedings, which was an undesirable development. This is due to the fact that environmental issues have wider ramifications. The ECJ had decided in a number of cases relating to the abuse of the environment, that unless direct effect could be established, it would treat environmental issues like any of the other objectives of the Community Policy. This clearly reveals that the ECJ accords greater priority to economic development of the EU, rather than the protection of human rights and the environment. List of References Carter, N. (2007. pp. 286 – 287). The Politics of the Environment: Ideas, Activism, Policy. Cambridge University Press. ISBN: 0521868025. Case 14967/89 Guerra and Others v. Italy, 1998-1 ECHR, Judgment of 19 February 1998.. Case 21/76 Handelswerkerij Bier v Mines de Potasse d’Alsace, (1976) ECR 1735. Case 240/83 Procureur de la République v Association de Défence des Bruleurs de lHuiles Usagées , (1985) ECR 531. Case 260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (1991) ECR I-2925. Case 5/88, Wachauf v Germany (1989) ECR 2609. Case C-2/90 Commission v Belgium, (1992) ECR I-4431. Case C-299/95 Kremzow v Austria, (1997) ECR I-2629, (1997) 3 CMLR 1289. Case C-300/89 EC Commission v EC Council, (1991) ECR I-2867. Case C302/86 Commission v Denmark, (1988) ECR 4067. Case C-67/97 Ditle v Bluhme, (1999) 1 CMLR 612. Cases 267-268/91 Criminal Proceedings against Keck and Mithouard, (1993) ECR I-6097. COM (1998) 333 final. (n.d.). (82/501/EEC, 1982 O.J. 230, amended by 87/216/EEC, 19 March 1987). EEC Directive on the Major Accident Hazards of Certain Industrial Activities. Goulbourne, S. (n.d.). Airport Noise and the Right to Family Life: A legitimate Application of Article 8 of the European Convention? Retrieved April 9, 2008, from http://www.springerlink.com/content/x42xm2466h587557/ Hatton and Others v UK, Application No. 36022/97. Hooydonk, E. V. (2006. pp. 28 – 29). The Impact of EU Environmental Law on Waterways and Ports. Maklu. ISBN: 9046600556. Joined Cases C-164/97 and C-165/97 Parliament v Council. Noise pollution. (2003, August 7). Retrieved April 9, 2008, from http://www.yourrights.org.uk/your-rights/chapters/the-protection-of-property-rights/protecting-a-persons-home:-environmental-pollution-and-flooding/noise_pollution.shtml OJ [1999] C83/13. (n.d.). Powell and Rayner v UK, (1990) 12 EHRR 355. Reid, E. (2000). Judicial Review and the Protection of Non – commercial interests in the European Community. Retrieved April 9, 2008, from http://webjcli.ncl.ac.uk/2000/issue1/reid1.html Shelton, D. (2002). Human Rights, Health & Environmental Protection: Linkages in Law & Practice. Retrieved April 9, 2008, from http://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdf Read More