Procedural Environmental Rights Research Articles

The Aarhus Convention and the Latent Right to a Healthy Environment

Abstract The Aarhus Convention is an ambitious environmental agreement that recognises the right to a healthy environment in its opening article. However, the ambiguous language surrounding this right gives the impression that it is ornamentation and not something requiring serious legal attention. At the same time, the procedural environmental rights which are the centrepiece of the Convention are being eroded, either by design on the part of Contracting Parties or because of a broader malaise about the value of public participation in environmental decision-making. This contribution suggests that closer attention to the legal significance of the substantive right contained in the Convention can help to reinvigorate the procedural Aarhus rights. In so doing, it draws attention to the radical vision of the Aarhus Convention to protect the right of present and future generations to live in an environment adequate to human health and well-being.

The substantive right to environment and the procedural environmental rights under the Aarhus Convention – Part I

Niniejszy artykuł stanowi część I artykułu, którego celem jest zbadanie wzajemnych relacji między materialnymi i proceduralnymi prawami do środowiska na tle typologii materialnych praw do środowiska i wyzwań napotykanych przy projektowaniu prawa do zdrowego środowiska. Część I zawiera analizę kontekstu w tym zakresie. Przedstawiono w niej pochodzenie terminu "prawo do środowiska" oraz różne podejścia do jego znaczenia, w szczególności różnice pomiędzy "prawem do dostępu do środowiska naturalnego" a "prawem do zdrowego środowiska". Następnie przedstawiono dwa możliwe podejścia do znaczenia terminu "prawo do zdrowego środowiska" i ich konsekwencje. Na tej podstawie artykuł przedstawia trzy główne metody rozwiązywania problemów dotyczących jakości środowiska w ramach systemu praw człowieka oraz relację między podejściem antropocentrycznym i ekocentrycznym. Następnie w artykule przedstawiono główne wyzwania napotykane przy tworzeniu "prawa do zdrowego środowiska", w szczególności kwestię dopasowania tego prawa do istniejącego systemu ochrony praw człowieka oraz ograniczenia związane z "zazielenianiem" innych praw człowieka. Niniejszy artykuł zawiera też krótki przegląd rozwoju odpowiednich przepisów prawnych dotyczących praw środowiskowych, w tym zarówno praw człowieka, jak i praw przyrody. Część I kończy się kilkoma uwagami na temat tendencji do rozwijania proceduralnych praw środowiskowych i oczekiwań wobec Konwencji EKG ONZ z Aarhus oraz jej roli w ochronie materialnych praw środowiskowych i demokracji uczestniczącej - co jest łącznikiem z częścią II, w której szczegółowo omówiono te kwestie i stwierdzono, że przepisy dotyczące dostępu do wymiaru sprawiedliwości w ramach Konwencji z Aarhus ani nie zapewniają wystarczających środków ochrony praw środowiskowych, ani - w świetle koncepcji leżących u podstaw Konwencji - nie powinny być traktowane jako pełniące jedynie taką rolę.

Significant EU Environmental Cases: 2021–2022

This overview covers a selection of case law relevant to EU environmental law from a pool of more than 130 judgments delivered by the Court of Justice of the European Union (CJEU) in 2021 and 2022. These are presented in two categories: ‘vertical issues’ and ‘sectoral judgments’ under which entries are listed alphabetically according to theme (for the former) and sector (for the latter). Ultimately, EU environmental case law continues to reinforce both the precautionary principle and procedural environmental rights, including via the port of entry of the Aarhus Convention1 and its implementation in the EU. Implementation of the Habitats-2, EIA3 and Wild Birds4 directives likewise continues apace, with the Court taking, what could be called, a strictly ‘environmentally protective’ view in its answer to often very technical questions in the context of those directives. The same is true for the Water Framework Directive (WFD),5 and to some degree the Waste Framework Directive.6 Yet the Court has also confirmed its strict approach to standing requirements, and a limiting view on whether air quality law grants rights to individuals.

A Study on the Strategy of Sustainable Governance of NIMBY Movements: Focusing on Civil Environmental Rights.

It is a common problem faced by countries in the process of industrialization and urbanization that citizens oppose the construction of negative externality facilities near their residence. Environmental right is one of the basic rights enjoyed by citizens and also an important part of human rights, allowing citizens to participate in their own environmental use decisions and defend their own environmental rights and interests against infringement. This paper focuses on the basic environmental rights of citizens, essentially defines the NIMBY movement as a movement for justice in which citizens advocate for equal environmental rights and interests, and analyzes the movement's rationale or the fundamental environmental rights of citizens. Disregard for citizens' substantive and procedural environmental rights and interests is linked to NIMBY movements. At the same time, compared with the traditional campaign-styled governance paradigm, the sustainable development governance emphasizes joint negotiation and multiple interactions, which can better maximize the environmental benefits of the whole governance cycle. Therefore, this paper discussed the governance path of NIMBY from two dimensions: determining the boundaries of citizens' substantive environmental rights and interests for enhancing their sense of identity and protecting citizens' procedural environmental rights and interests by laying more emphasis on the sustainable governance of NIMBY movements.

TOWARDS JUDICIAL COORDINATION FOR GOOD WATER GOVERNANCE?

AbstractThis article explores the procedural environmental rights practice of regional human rights and environmental protection systems through a comparative lens in order to identify the ways in which existing developments and current trends can inform and enrich the procedural dimension of the right to water. The study suggests that enhanced levels of transparency, public engagement and justiciability in water-related decisions are significant steps towards the achievement of the substantive dimension of the right to water and highlights the potential for cross-fertilization between such regimes towards good water governance.

Renewable Energy in the International Arena: Legal Aspects and Cooperation

This article aims at investigating the relevant aspects of international law and cooperation in the field of renewable energy. Part I provides an overview of the multiple soft law developments within and outside the UN framework as well as an assessment of a chosen set of extant treaty obligations either fostering or potentially constraining the development of the renewable energy sector. In light of these norms, Part II analyses a series of recent cases and international disputes triggered by non-environmental interests and rights allegedly impaired by the implementation of certain renewable energy-related plans and projects. In particular, this section considers the compatibility of renewable energy development with extant norms in the areas of human rights (ECHR), procedural environmental rights (Aarhus Convention) and international trade law (WTO). Despite the scarcity of binding norms on renewable energy generation and the persistence of various factors leading to disputes, global cooperation in the field of renewable energy is gaining momentum. Starting with an overview on CDM renewable energy projects under the Kyoto Protocol, Part III then shifts to the latest developments in renewable energy cooperation prompted respectively by the creation of the International Renewable Energy Agency (IRENA) and by the growing number of transnational private partnerships operating in the field of renewables.

Critical Thoughts on the Implications of Brexit for Procedural Environmental Rights in the United Kingdom

In 2016, the UK held a referendum in which voters elected to leave the EU. The two-year process is already underway. This move is however raising a lot of concerns about its implication for environmental regulation in the UK post-Brexit. Indeed, these concerns are fuelled by the substantial contribution of the EU to the development of environmental law in the UK since the latter became a member of the Union in 1973. This article is a contribution to this discourse. It primarily attempts to unravel the implications of Brexit for the future of procedural environmental rights in the UK, among other related issues that will receive some exposition. It is hoped that this will be a step towards understanding more clearly and preparing better for the post-Brexit era with respect to securing and progressing, as much as possible, procedural environmental rights in the UK.

Critical Thoughts on the Implications of Brexit for Procedural Environmental Rights in the United Kingdom

In 2016, the UK held a referendum in which voters elected to leave the EU. The two-year process is already underway. This move is however raising a lot of concerns about its implication for environmental regulation in the UK post-Brexit. Indeed, these concerns are fuelled by the substantial contribution of the EU to the development of environmental law in the UK since the latter became a member of the Union in 1973. This article is a contribution to this discourse. It primarily attempts to unravel the implications of Brexit for the future of procedural environmental rights in the UK, among other related issues that will receive some exposition. It is hoped that this will be a step towards understanding more clearly and preparing better for the post-Brexit era with respect to securing and progressing, as much as possible, procedural environmental rights in the UK.

Editors’ Introduction

Editors’ Introduction

Toward Environmental Democracy? Procedural Environmental Rights and Environmental Justice

The global trend toward adopting environmental rights within national constitutions has been largely regarded as a positive development for both human rights and the natural environment. The impact of constitutional environmental rights, however, has yet to be systematically assessed using empirical data. In particular, expanding procedural environmental rights—legal provisions relating to access to information, participation, and justice in environmental matters—provides fertile ground for analyzing how environmental rights directly interface with conditions necessary for a functioning democracy. To understand the extent to which these provisions deliver on their lofty aspirations, we conducted a quantitative analysis to assess the relationship between procedural environmental rights and environmental justice, while also controlling for the extent of democracy within a country. The results suggest that states with procedural environmental rights are more likely than nonadopting states to facilitate attaining environmental justice, especially as it relates to access to information.

Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home

Research on legal opportunity structures has focused on how existing law, standing rules, and the costs of litigation shape the likelihood that social movement groups will mobilize the law. Yet there has been relatively little research on how and why legal opportunity structures change over time. This article focuses on a case study of the mobilization of procedural environmental rights contained within the Aarhus Convention. It addresses the following empirical puzzle: how did rights that were designed to help Eastern Europeans achieve environmental democracy eventually contribute to a reshaping of the structure of legal opportunities in Britain? Through a two‐step historical process‐tracing analysis that relies on a social constructivist theoretical approach, this research shows that environmental groups mobilized Aarhus rights in a number of ways and across different judicial venues, resulting in an evolution over time of the meaning of access to justice so that it included being “not prohibitively expensive.” This research builds on previous work to show that civil society agents are not passive agents situated within legal opportunity structures but instead are strategic actors who can develop and shape access to justice through policy entrepreneurialism and litigation.

Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention

Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental decision-making. This view needs reconsideration. Comparing the procedural environmental rights guaranteed in Europe by the European Convention on Human Rights (ECHR) and the Aarhus Convention (AC), this article argues that these rights differ considerably in objective, content and scope. Taking note of these differences helps to concretize the doctrine of procedural environmental rights and supports more realistic conclusions about the contribution of procedural environmental rights to environmental governance.

DEVELOPMENT OF ENVIRONMENTAL RIGHTS IN CHINA: SUBSTANTIVE ENVIRONMENTAL RIGHTS OR PROCEDURAL ENVIRONMENTAL RIGHTS

The relationship between environmental and human rights is very significant. On this basis, humans shall have the right to claim to live in a healthy environment. In China, the study of environmental rights began in the 1980’s. After more than thirty years of discussions on environmental rights, there are a series of environmental rights theories in China. However, scholars have not formed a consensus on some fundamental theories of environmental rights. Moreover, some experts consider that environmental rights include substantive environmental rights and procedural environmental rights, whereas others argue that environmental rights only include substantive environmental rights. Furthermore, the nexus and difference between the right to environment and environmental rights are not clear. “Environmental rights” are treated as a broad concept, its scope includes all rights which are related to the environment. They certainly do not only include substantive, but also procedural environmental rights. Even though the introduction of substantive environmental rights has faced both legislative and practical difficulties, the topic has become a central issue in Chinese academic research.

Discovering the Diversity of Procedural Environmental Human Rights: The European Convention on Human Rights and the Aarhus Convention

Discovering the Diversity of Procedural Environmental Human Rights: The European Convention on Human Rights and the Aarhus Convention

Procedural Environmental Rights and Environmental Justice: Assessing the Impact of Environmental Constitutionalism

The global trend toward the adoption of environmental rights within national constitutions has been largely regarded as a positive development for both human rights and the natural environment. The impact of constitutional environmental rights, however, has yet to be systematically assessed using empirical data. In particular, the expansion of procedural environmental rights — legal provisions relating to access to information, participation, and justice in environmental matters — provides fertile ground for analyzing how environmental rights directly interface with conditions necessary for a functioning democracy. In order to understand the extent to which these provisions deliver on their lofty aspirations, the authors conduct a quantitative analysis designed to evaluate the relationship between procedural environmental rights and environmental justice. The results demonstrate that states with procedural environmental rights are more likely than non-adopting states to facilitate the attainment of environmental justice, especially as it relates to access to information.

The arguments for environmental rights in Niger Delta: a theoretical framework

Purpose– This paper aims to examine the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country. The Niger Delta region of Nigeria is rich with abundant hydrocarbon resources and plays host to numerous multinational oil companies. For over five decades, oil spills and gas flaring from the operations of these companies have polluted water bodies and degraded farmlands on which the inhabitants depend for their livelihood. However, the absence of a legal regime of environmental rights has made it difficult for inhabitants of the region to seek legal remedy against these companies.Design/methodology/approach– This paper examines the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country.Findings– Nigeria does not have constitutional environmental rights. The legal implication of this provision is that it is not justiciable as such no court of law can exercise jurisdiction to hear any matter that is connected with the provisions of that chapter. In other words, even the government’s “constitutional” responsibility to protect the environment cannot be judicially enforced, let alone environmental rights for victims of environmental damage.Originality/value– The original and significant contribution of this paper is to highlight the real issues and address them through substantive and procedural environmental rights provisions either in the constitution or positive legislations.

The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment

The proposition put forth in this paper is that whether—and the extent to which—harm or potential harm to the environment (its natural resources, living beings, and their ecosystems) is identified, resisted, mitigated, or prevented is linked to the nature and scope of public access to information, participation in governmental decision-making, and access to justice—which are often referred to as “environmental due process” or “procedural environmental rights.” Using examples in the United States of attacks on law school clinics and denial of standing in court, this paper argues that restrictions on public access to information, participation in decision-making, and access to justice create legacies and “cultures of silence” that reduce the likelihood that future generations will be willing and able to contest environmental harm.