Chapter IV
Climate Change, Access to Information and the Mechanism of a Confirmatory Review: Mounting Discrepancies
p. 75-99
Résumé
The European Union is a party to the Aarhus Convention. The EU is, however, known for its lack of ambition when it comes to fulfilling the environmental and human rights secured in the Convention. This paper discusses access to information as it is realised in the EU Commission’s confirmatory review decisions with regard to the Aarhus Convention from 2017–2020, with a focus on access to documents relevant to climate change. It is found that the Commission has used not only the inherent features of climate change but also the chosen regulatory strategies against information transparency, resulting in a situation where access to climate information is even more restricted than access to other environmental information, jeopardising the coherence of the EU legal system in this regard. In practice, the Commission interpreted the pivotal ‘emission into the environment’ test so that information relevant to climate change – witnessed in global scale processes, and commonly regulated with quotas and reference values – falls outside of it. As the Commission also upheld the tradition of submitting transparency to commercial interests or confidentiality of infringement procedures, the procedural human rights that the Convention ought to secure have been compromised. Although the 2021 revision improved the norms of the Aarhus Regulation concerning access to justice, it unfortunately did not do the same for the clauses on access to information, leaving the improvement of the situation in the hands of the interpreter.
Texte intégral
I. Introduction: The Triangle of Climate Change, Institutional Transparency, and the EU
1Decisions regarding climate change include not only those taken in the limelight of international attention. As climate change is a multi-scalar and multi-dimensional problem addressed at various instances and levels of law, climate-relevant decisions are multifarious and individual, taken within various national, regional, or transnational processes across regulatory sectors.1 These decisions can be highly individual and contingent, and their individual contribution to addressing climate change is not necessarily striking.2 The importance of these individual administrative decisions are, however, elementary in effectively addressing climate change – as Bouwer argues, analysing ‘small-scale climate change cases’ is crucial owing to their cumulative and representative importance.3
2This paper analyses one legal avenue available to the EU for its sustainability transition, and pivotal for transparent climate policy: the right of access to information. In the EU this translates as the right of access to documents, as the legal foundation is built on a regulation dealing with access to documents, not access to information, as is described in detail below. When decisions with climate relevance are made, access to information is crucial, as it is only with this right adequately secured that can one make informed choices on where to try to make an impact with other means of public participation. In this chapter the focus is thus on the EU regulation on environmental democracy, as the confirmatory review decisions of the Commission of the European Union (the Commission, the EU, or the Union) are examined. The confirmatory review process, explained in detail below, is a mechanism through which the dissatisfied applicant can seek the review of a rejected access to information request.
3In short, the outcome of the analysis is rather bleak and leaves much to hope for in the Commission’s actions, and for the coherence of EU legal order. Importantly, this is not only because of the traditionally poor transparency of the Union’s actions, but also owing to the characteristics of climate change itself.4 The legally disruptive nature of climate change policy and law create legitimacy challenges, and this study highlights one of them.5 The confirmatory review decisions I have analysed are not climate change policy or legislation in sensu stricto, but run-of-the-mill administrative decisions the Commission has taken that can have, and are of, significance to climate change. In doing so, the present study adopts a tactic popular in the Global South where the ‘perfecting’ category of climate litigation has been common: in it, the pre-existing regulatory regime is used to address climate change.6
4My analysis is presented in five sections. In section 2, I map out the legal landscape relevant to the Commission’s decision-making. In section 3, I present a short quantitative examination of the decisions analysed. The substantial analysis in section 4 analyses the decisions that tell us most about the Commission’s interpretation of the Aarhus Convention in relation to climate: the interpretation on the ‘emission into the environment’ test, and the confidentiality versus transparency discourse. In the conclusions in section 5, I discuss the findings from three viewpoints, reflecting the triangle of question-setting.7 Also, as the revision of the relevant Union regulation, the Aarhus Regulation (AR, the Regulation), was approved in October 2021, after the Commission’s decisions analysed here were made – I consider its potential impact on the Commission’s future decisions8 in the conclusions.
5The data analysed has been sourced with access to document requests. The first request was made in May 2021, covering the years 2019 and 2020, and the second in October 2021, covering the years 2017 and 2018. I thus have a total of 43 decisions on confirmatory requests from four years: 2017–2020. These were analysed to obtain a better understanding of the Commission’s interpretations of the scope and depth of the Regulation, especially bearing climate-relevant information in mind. Does the Commission treat requests with significance to climate change differently from those regarding other environmental concerns? Which arguments does the Commission validate in its reasoning: the traditional restrictive interpretations or more progressive, human rights-influenced ones?9 What do the Commission’s decisions tell us about access to information rights in the era of environmental degradation identified and measured on a global scale? I begin next by explaining the pertinent regulation.
II. The Aarhus Regulation and the Confirmatory Review Process
6When it comes to participatory rights in the Union, the EU has adopted an instrumental view: in practice, participation is understood as complimentary, as the expert knowledge of environmental matters is prioritised.10 This ‘complimentary discourse’ was also present in the data, resulting in rather strict interpretations on access to information rights. The demand for transparency lies at the heart of the legitimacy of governance, and access to document claims are not only about the information itself, but also about ensuring the democracy of governance – access to information held by the Union bodies and institutions is crucial for the legitimacy of the Union as ‘information is a tool through which these agencies govern’.11 However, the challenges of employing general environmental conventions and regulations to address climate change are known, including with regard to the Aarhus Convention.12 The Aarhus Convention is an international agreement of hybrid character: it is as much a human rights instrument as it is an environmental agreement.13 The rights it grants are directly enforceable, and the citizens of the Parties can directly report occurrences of non-compliance to the Convention’s Compliance Committee (the ACCC).14
7The three pillars of the Aarhus Convention are: access to information, public participation, and access to courts; here the first is in the limelight.15 The essence of the Convention is more in-depth than these three, however. The Convention has been described as having three purposive ambitions guiding its interpretation: environmental democracy, environmental rights, and environmental stewardship. The work is about the most traditional – and, hence, most hotly debated – ambition of the three, environmental democracy. In other words, the interpretations of the Convention’s implementation are purposive, seeking to advance the execution of this general goal. However, it is worth bearing in mind that the demands I set out are rooted in the Convention itself.16 In general, the EU’s relations with the Aarhus Convention are threefold.17 The Convention is implemented in the Member States (‘MS’) with two Directives, one of them on access to information, but when it comes to the EU’s own institutions and bodies, these Directives do not apply. Instead, the Union augmented its pre-existing legislation with a specific regulation when it introduced the Aarhus Regulation. This choice has aroused criticism of its own: the Union requires higher standards of its Member States than it abides by itself, in its own bodies and institutions.18 As discussed in the conclusion, a similar Janus-faced pattern exists in the European Union’s climate action: the Union wishes to have certain aims in its climate policy in general, but fails to acknowledge the importance of climate transparency in the actions of its own bodies and institutions.
8The Aarhus Regulation builds upon the Access to Documents Regulation and the EU has been stern in its stance that the Aarhus Regulation merely secures compatibility between the Aarhus Convention and the Access to Documents Regulation (Regulation No 1049/2001).19 The Union joining the Convention partially prompted the revision of the latter.20 The analysis below reveals how this fundamental legislative choice has played its part in creating a regulatory landscape where it is even more difficult to gain access to information relevant to climate change than it is to gain access to information relevant to other environmental concerns. The fact that the Regulation has failed to secure compatibility between EU legislation and the Convention has not prevented the Commission from referring to these ‘complimentary relations’ in almost every decision I have analysed. The Commission is keen to claim that the Aarhus Regulation complements the general system on access to information put in place by the Access to Documents Regulation, and that the processes created with the Aarhus Regulation are not separate.21 However, the Union legislator has not established a hierarchical setting between the two pieces of regulation. The Aarhus Regulation itself has also been subject to critical accounts through its lifespan: it lacks the desired levels of coherence and clarity, and access to information regulation does not include effective judicial remedies.22 The conclusive summary of the critique23 is that the Union has not taken its procedural human rights obligations seriously. This evaluation of the Aarhus Regulation’s malfunctions has been present from its inception.24
9Importantly, the Aarhus Regulation defines environmental information very broadly. The environment is understood holistically, and all environmental elements are included in AR Art. 1(d)(i):
iii. he state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
10Also, the means by which the environment could be impacted are not limited – the list of factors in AR Art. 1(d) is not exclusive:
i. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i).
11It would not be entirely mistaken to assume that such broad definitions could also include climate emissions. Alas, when the interpretative powers are vested with the Commission, the outcome can be to the contrary.
12As already mentioned, the confirmatory review is the administrative decision-making process in the limelight here. The Access to Documents Regulation establishes a review mechanism where, when an access to document request is faced with administrative silence, declined, or only partially accepted by some Union institution or body, the applicant can approach the Commission with a confirmatory application. The unsatisfied applicant can ‘make a confirmatory application asking the institution to reconsider its position’.25 If still unsatisfied, the applicant can take the matter to the General Court or European Ombudsman. Thus, in the EU, the first stage of the review is internal and administrative, and external review is only the second stage.26
13Under the Access to Documents regime, the right to review is of ‘administrative acts’. One of the key articles of the Aarhus Regulation, Article 2(1)(g), defines these as ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects.’27 Illustrating the challenges that the EU has encountered with the Aarhus Convention, even from this definition, not only legal scholars but also the Aarhus Convention Compliance Committee (ACCC) have consistently criticised three points: that ‘individual scope’, ‘under environmental law’, and ‘legally binding and external effects’ are unnecessarily restrictive and hamper access rights that the Convention ought to ensure within the EU and its institutions.28 In 2021, the Aarhus Regulation was revised to address some of these concerns but, with regard to information rights, it unfortunately remains unlikely that the Aarhus Regulation can do justice to the Aarhus Convention, even in its revised form, as the revised Regulation improved access to justice norms in particular, not access to information, which is the object of the enquiry here.29
III. The Confirmatory Review Decisions in Numbers
14In order to examine the Commission’s patterns in deciding the confirmatory requests, I executed the rights as granted in the Aarhus Regulation. I made an access to documents requests myself: first in March 2021, covering the year 2020, again in May 2021, covering the year 2019, and a third time in October 2021, covering the years 2018 and 2017.30 I sought decisions ‘that are relevant to the application of the Aarhus Convention’. Importantly, it was in the Commission’s discretion to identify which of the confirmatory decisions fulfilled the criteria: there is no way to verify their decision-making or verify credibility. The data set analysed in this paper is thus these confirmatory review decisions from the four years dating 2017–2020. I begin the analysis by examining the quantitative aspect of these decisions in the light of several key indicators. Table 1 annexed below details the number of decisions I received and their outcomes.31 The first initial finding based on numerical data is the very limited number of decisions that the Commission identified as being relevant to the Aarhus Convention. The second column to the left mentions the total number of confirmatory applications received by the Commission, according to its own reporting mandated by AR Art. 17(1). Comparing these total amounts to the number of decisions identified as relevant to the Aarhus Convention, in the best year (2017), the latter were 5 per cent of all decisions – in 2018, the proportion is a minute 1.2 per cent; in 2019, 3.8per cent, and in 2020, 3.6per cent. This highlights one aspect left unrevealed by the approach adopted here: a crucial – and completely opaque – decision-making step takes place when the Commission decides whether or not a matter is relevant to the Aarhus Convention. One can only conclude that, of all the confirmatory review applications the Commission receives, only a few per cent relate to environmental matters. That appears marginal – but as one cannot review all of the Commission’s decisions (without a massive amount of work) in this regard, nothing further can be said on this matter.
15Immediately after the Aarhus Regulation was issued, the lack of popularity of the confirmatory review process became an issue.32 In roughly half of the decisions analysed here, the confirmatory review granted wider access to documents than originally. Then again, the number of complete refusals is somewhat consistent over all four years. However, when the Commission deems only 1.2–5 per cent of all confirmatory applications ‘Aarhus Convention relevant’, success gained within that limited group is somewhat marginal. The Court has repeatedly ruled against the Commission’s unduly narrow understanding of the scope.33 It is good to bear in mind that, in my own access request, I sought decisions ‘with relevance to the Aarhus Convention’. Consequently, in all the decisions I was granted access to, the Aarhus Regulation was at least mentioned in the Commission’s reasoning – whether it had a normative impact on the decision is another story.
16With these thoughts from numeric data it is time to move on to the following sections, which examine the substantive content of the decisions. Many of the decisions confirmed stances the Commission had taken earlier, and those decisions are not analysed herein. Instead, the focus is on decisions that reveal new insights on the Commission’s understanding on climate vs. environmental information, and the treatment of the former under the Aarhus Regulation, as analysed below in Section 4.1. Thereafter, in Section 4.2, decisions discussing the confidentiality vs. transparency discourse are analysed, and the chapter is concluded with the discussion in Section 5 on future access to information on climate change in the EU.
IV. The Limited Room of Manoeuvre of the Aarhus Regulation
A. ‘Emission into the Environment’ – the Test that Climate Change Impacts can Never Overcome?
17As mentioned in the introduction, the Aarhus Regulation and the discussion about it revolve around the concept of ‘information relating to emissions into the environment’, and passing or failing this test is pivotal to the legal significance of the Aarhus Regulation. The data analysed here seconds this: of the confirmatory decisions I have received, the largest number of decisions have discussed this definition of whether the underlying decision was about ‘emission into the environment’. In its decision-making, the Commission has attributed significance to all concepts in this definition: ‘information’, ‘relating’, ‘emissions’, ‘environment’. In the following, I first analyse each one separately, and subsequently discuss what the Commission’s established doctrine might imply for decisions with climate relevance – or as one might put it in this context, ‘information relating to emissions with relevance to climate change’.
18As the question of what constitutes ‘emission into the environment’ has been debated since the birth of the AR, there is ample CJEU case law on it, and the Commission frequently refers to these rulings. In the 2017 HFC decision, the applicant sought confirmatory review in a situation where their original request had been rejected.34 The original request had been made before the CJEU’s Stichting Greenpeace (C-673/13P) ruling was given – in the applicant’s opinion, the Commission’s reasoning and decision should now reflect the amended legal landscape.35 The ruling indeed changed the interpretations of the Aarhus Regulation as, according to it:36
It is also necessary to include in the concept of ‘information [that] relates to emissions into the environment’, information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct, and the data relating to the effects of those emissions on the environment. […] [t]he public must have access to information enabling it to ascertain whether the emissions were correctly assessed and must be given the opportunity reasonably to understand how the environment could be affected by those emissions.37
19The HFC decision concerned the reference values, quotas, and quota quantities of hydrofluorocarbons (HFCs), as they are stored in the HFC Registry.38 The applicant saw that Stichting Greenpeace had changed the previous interpretation on the concept so that quotas and reference values could also be categorised as ‘emissions into the environment’. Alas, the Commission disagreed. It relied on its stances on emissions causing climate change, and the argumentation it had used on the then-pending General Court case Rogesa v Commission (Case T-643/13), on which the court later ruled in favour of the Commission. The Commission argued that:
Similar to the ETS system, the Commission takes the view that the public cannot derive information on ‘known or foreseeable emissions from normal use’ of equipment containing HFCs, only by knowing the allocation of the reference values of HFC and the allocation of quotas per undertaking./The ‘foreseeable’ emission at the stage of import or production is zero, as any ‘leakage’ (emission) at this stage is either accidental or intentional. – – –. There is no link between these possible accidental or intentional leakages and the allocation of reference values or quotas per undertaking./Indeed, the reference values and quotas are allocated to individual importers and producers, and there is no link to when/how/where these gases are used – – –. The Commission does not have any information on gases leaking at the stage of usage, or when and where this might occur – –. Furthermore, there may be emissions from the normal use of equipment containing HFCs or from other uses of these gases – – but this information cannot be derived in any way from information on the reference values/quota allocation process.39
20In its ruling, the General Court did not assess the significance of ‘the allocation of the reference values of quotas per undertaking’ to the matter, but based its ruling on the Access to Documents Regulation Art. 4(2). In the assessment on whether the information requested considered the environment in the meaning of Art. 6(1) of the Aarhus Regulation, the Court ruled that, as the underlying matter was about the CO2 efficiency of certain installations, not the actual CO2 they emit, the information could be withheld.40 Although the Court ruled in favour of the Commission, and the Commission later used this to consolidate its own argument in this confirmatory review decision – this part of the ruling is more broadly significant for climate information transparency. It is worth emphasising that the Court used this opportunity to ponder the difference between the information on actual CO2 emissions and CO2 efficiency, and included a consideration on whether the data ‘allows the public to know what is actually released into the environment’. The Court stated that:
However, it should be recalled that the documents in question do not contain information on the total amount of CO2 emitted by a given installation, but information on the CO2 efficiency of the installations, i.e. about the amount of CO2 that is emitted during the production of one tonne of coke, iron ore sinter or liquid pig iron. Consequently, this data does not allow the public to know what is actually being released or expected to be released into the environment, i.e. the amount of CO2 emissions from the installations concerned. Thus, the information contained in the documents in question does not constitute information concerning emissions into the environment within the meaning of Article 2(1)(d) of Regulation No 1367/2006.41
21The fact that the Court took its time to explain this is important. The Court did not imply at all that information on CO2 emissions would fall outside of the scope of the relevant Regulations – on the contrary, it practically hinted at what some hopeful future applicant may wish to require access to: ‘the amount of CO2 emissions from the installations concerned’. This is important and will be revisited in the conclusions. In this case, as the confirmatory decision shows, this did not prevent the Commission from referring to its own argumentation in the matter in ensuing processes. In this decision, as no overriding public interest was at hand in its view either, the Commission’s review did not alter the original decision.
22In 2020 the Commission was made to return to the matter of HFCs. In the 2020 HFC decision, the applicant sought access to information on the topic.42 In this case, in the view of the Commission, neither the quotas nor reference values constituted information on emissions that are being or may be potentially released into the environment. The Commission cited its decision from 2017 (and from 2014, when the applicant had first asked for the documents), and concluded that there was no need to revise the stance taken at that time.43 However, access to some other documents relating to the matter was granted – these documents included information, inter alia, on the number of incumbents or new entrants receiving the quotas. Limitations to this partial access were justified with consideration to commercially sensitive information and protection of privacy. As no overriding public interest was found, access was denied. Although the applicant was denied access to what could be understood as the main part of their application, the number of documents released in this second part was nonetheless high: 400 documents were identified as belonging to its scope.44
23As climate change is an inherently global and diffuse phenomenon, marked only by processes on the global level, and thus best regulated with indirect means that cannot have an impact on the immediately observable environmental medium, the Commission’s logic here forces us to consider whether any information of relevance to climate change could ever be disclosed under the Aarhus Regulation.45 This difference between climate and ‘environmental’ impacts (as understood in the AR, and also traditionally in the environmental regulation) is further illustrated with the BAT decision.46 This dealt with an original application seeking access to documents with information on the Best Available Technique (BAT) reference document for large combustion plants. The BATs are a regulatory technique used in the Industrial Emissions Directive, central to the EU environmental regulation, targeting point-source environmental pollution from industrial sites.47 In this decision the Commission granted partial access, with only personal data removed, to some of the requested documents. Importantly, in withholding the original decision, the Commission’s reasoning was based on commercially sensitive information and overriding public interest clauses, without reference to the test on emissions into the environment. The choice was logical as the requested documents were about the BATs, which, as they are part of the IED regime, would clearly pass that test. I revisit these considerations in the concluding discussion.
B. Confidentiality vs Transparency discourse: the Unavoidable Hurdle
24The relationship between the confidentiality of commercially sensitive information and the need for transparency of environmental information has traditionally been the focal point of the EU’s institutional decision-making. In essence the discourse is between confidentiality and institutional transparency.48 Today, many Union agencies also need to balance the competing aims of confidentiality of industry information and know-how, and the requirements that procedural human rights impose on them – and are renowned for their bias toward the former.49 As already mentioned, the interpretation of AR Art 6(1) has been defined in the CJEU, most famously in its Stichting Greenpeace ruling. The Commission keeps referring to the case when interpreting ‘emission into the environment’, irrespective of the type of information sought. Even though the ruling has improved the transparency of information, for example, in the chemicals sector, where a welcome development of the traditional bias has been identified, the material unfortunately shows that progress has its limitations, as it has not impacted the treatment of climate-relevant information.50
25In the Emission allowances decision, the Commission delved into these concepts of ‘emission’ and ‘environment’ in a matter that deals directly with the EU’s climate policy and law.51 The applicant had sought information about ‘all transactions from 1 May 2016 to 1 May 2019 of EU emissions allowances (CO2 quotas)’.52 The applicant gave the reason for their request as the information on the Emission Trading System (ETS) being of the highest public interest, particularly owing to the urgency of climate action. The data would be made public eventually but there is an embargo of three years before it is publicised. This was argued as also favouring its instant publication, when the information is not deemed unattainable for good. Initially, the request was declined as the information was protected under the economic policy and commercial interest clauses, and as including personal data.53 Emission allowances are tradeable financial instruments and, as instruments of commercial value, the Commission interprets them as commercially sensitive information. And, because information on the positions of market players in a regulated market can destabilise the ETS, such information would ‘undermine the protection of the economic policy of the EU’ – after the three-year embargo, this could no longer take place.
26Pertinent to the definitions of ‘environment’ and ‘emission’, the Commission decoupled the link between the emission allowances and actual emissions. The Commission deemed the allowance to be an ‘abstract ceiling’ having no link with the possible source of the emission. Thus the information request was rejected: emission allowances do not reflect actual or foreseeable emissions that the doctrine developed in the Stichting Greenpeace ruling would have required. The reading of the Commission can of course be criticised. The competing aims of protecting information sensitive to commercial and public policy interest, on the one hand, and securing access to information in environmental matters, on the other, were decided in favour of the former group of interests. The interpretation of ‘emission’ is rather strict, following the Commission’s traditional doctrine, and not reflecting the broader interpretation emerging elsewhere. Although the Commission did not decide the matter solely in the light of commercial sensitivity, the outcome is still unpromising. Climate change as a phenomenon eludes the traditional definitions of environmental degradation, and thus choosing to review it against the thresholds developed for more geographically local environmental harms is not in line with the purposive interpretation that the underlying Convention would require of the Commission.
27The data also included other decisions where the Commission upheld its tradition of favouring commercial interests over transparency.54 The Pesticides Decision C(2019) 3120 dealt with access to information about various pesticides, such as chlorothalonil, glyphosate, and mepanipyrim. At the time of the decision-making, there was an ongoing draft at the Commission, implementing regulation processes on the substances. The issue was narrowed down to certain figures presented in the company’s business strategy document, disclosure of which would – in the Commission’s understanding – create a ‘real and non-hypothetical risk’ of negatively affecting the company. On top of this, the decision also discussed the role of overriding public interest in the meaning of the Aarhus Regulation. Consistent with its other decisions, the Commission failed to identify elements of such interest that could balance out the commercial interest in question, or the protection of the Commission’s decision-making process. Also, information on the cost of the substances was not ‘information relating to emissions into the environment’ at all. As the pesticides would be authorised at the MS level, the emissions into the environment were to be evaluated there, thus supporting the argument that they were not present in the process at hand.55 In other words, in this decision the Commission found arguments only to support the narrative of confidentiality and none in favour of transparency. Instead, it relied on the complete legal remedies narrative, where access to court at the MS level is used to justify the lack of access at the EU level.56
28The CJEU rulings have also had an impact on the Commission’s decisions, which has been positive in the view of the applicants and information transparency. In the Endocrine disruptors decision, the underlying matter concerned documents relating to substances adversely affecting the human endocrine system.57 The Commission had declined the offer to grant access to the requested information once, but the applicant took the matter to the General Court. The General Court demanded that the Commission review the request once again.58 Even though multiple arguments were originally presented, only the argument on overriding public interest was contested in the General Court.59 Thus, the Commission renewed its review of the matter on that part. The re-review was also successful, as the Commission granted access to two new documents, which had not been made available in the first round.
29The decisions I analysed were affirmative in the sense that not all claims of commercial sensitivity were automatically approved. Also, not all ongoing proceedings are judged or protected similarly in the Commission’s decisions. Relations between Member States and the Commission are protected even prior to the infringement proceedings – but existing court proceedings, where the requested documents may play a role, do not necessarily constitute reasons for rejecting access to them. In this regard, the Commission’s decision-making appears to be consistent with the traditional pattern, prioritising protecting the EU’s interests and finding other values of lesser interest.
V. The Challenge of the Global Scale and the Purposive Approach Nowhere to Be Seen
A. The Unresolved Challenge of the Scale of Climate Change
30The confirmatory review decisions I analysed offer various points for consideration. The first, more general conclusion would be that, every now and then, the Commission did augment information transparency. The system of confirmatory review is thus neither completely in vain nor unnecessary, but has an impact on how access to information is concretised in the EU. After this somewhat affirmative conclusion, the remaining conclusions on the role of information relevant to climate change are less promising.
31Most often, when arguing considerations of confidentiality, the Commission decided not to grant access to the information requested. In other words, if the Commission framed the discourse as being of corporate interest or ‘Member State confidentiality versus environmental betterment or rights’, the former prevailed. In this I can only concur with scholars who criticise the EU for falling short of its commitment to the Convention.60 The challenge of the incompatibility of the environmental issues that are witnessed only at a global scale, and the environmental legal system that is built for issues in which the geographical distance between the emission and the source is smaller – or not detectable at all – was depicted in the rulings I analysed. This challenge is crucial to participatory rights and climate change: as Ebbesson has noted, ‘it has not yet been established who may enjoy participatory rights in cases of global scale and planetary dimensions’.61 The challenge is intensified by the fact that climate change is a multi-scalar and multi-dimensional problem, thus easily falling into the cracks of legal systems.62 The decisions I analysed are an illustrative example of the disruptive nature of climate change.63 Climate change is a phenomenon detected by global level systems, where the total amount of emissions matters more than their source.64 As a consequence, climate change is often regulated with quotas, reference values and trading systems, making the ‘conventional application of legal doctrine’ often inapplicable as the facts are not ascertainable in the same way they are in more geographically constrained environmental issues.65 The Commission’s decisions are exemplary in illustrating the details of this challenge: it appears that the system created with the Access to Documents and Aarhus Regulations is working actively against the disclosure of information relevant to climate change.
32The nature of climate change is not, however, any reason to absolve the Commission of its omissions. If desired, even this significant boundary between ‘environmental and climate impacts’ could be crossed. When it comes to the Aarhus Regulation, the purposive approach, described at the beginning, could be employed to bridge the gap. Unfortunately, the Commission’s decisions reveal its unwillingness to take even incremental steps in this direction. In access to information requests having clear or direct links with climate change emissions, the Commission chose to argue them as business as usual, following the logic it (and the Courts) had created for the Regulations when interpreting them in the context of other, more geographically restricted environmental issues or issues having nothing to do with the environment.66 According to the Commission’s logic, the emission into the environment test cannot be passed by emissions that are regulated with reference values or quotas – they are not precise and direct enough to fit the definition of emissions. If interpreted purposively, with the aim of securing the purpose of the Convention, the Commission could abandon this interpretation. In its failure to do so, it falls short of its obligations to the Convention.
33The underlying reason for this may be that, in the Commission’s eyes, the Aarhus Regulation is only complimentary to the Access to Documents Regulation. This may result in resistance to broadening the scope of the Aarhus Regulation: as all information other than ‘environmental’ falls under the narrower scope of the Access to Documents Regulation, it is logical to consider that all information outside of the scope of the Aarhus Regulation is to be treated in a stricter fashion than the information to which the latter applies.67 The complimentary role of the Aarhus Regulation is also seen from the fact that, of the decisions given to us, less than half referred to Aarhus Regulation with more than just a short mention. This most often means that the Commission considers the demands of the Convention fulfilled by referring to the legal base of the Access to Documents Regulation only, without the Aarhus Regulation shedding any further light on the matter. This also shows one constraint of my own request for access to documents. As I requested for confirmatory review decisions with mentions of the Aarhus Regulation, I cannot assess the number of cases of potential relevance to climate change that the Commission has reviewed without even mentioning the Aarhus Regulation – after all, why should the Aarhus Regulation have been referred to, when climate change implications have nothing to do with it?
B. The Underdeveloped Potential of Purposive Approach
34Legal imagination is increasingly cited as one solution that the legal profession could offer in solving the ongoing environmental crises.68 Let us then imagine – but use the Aarhus Regulation’s revision as our foundation. In general, it has been established that the revised Aarhus Regulation does not ensure compatibility between the EU law and the Aarhus Convention.69 However, some of the revisions are promising as concerns the inclusion of climate impacts in the concept of ‘emission’. Most important is the change to AR Art. 2(1) defining the administrative acts that could be reviewed. The new formulation no longer includes only acts ‘under environmental law’, but also acts that ‘contravene environmental law’.70 As Hough has noted, this change will likely enable eNGOs to seek reviews of other than purely environmental acts (or omissions).71 With regard to acts and omissions of relevance to climate change, the new formulation is intriguing. In the decisions, the Commission relied on CJEU case law, allowing the exclusion of information with climate relevance, as the impact is regulated with quotas and reference values that fail the ‘foreseeable or actual emission’ test. If the Commission – and the Union institutions and bodies in general – wished, they could adopt a purposive approach with the reformed Aarhus Regulation and deduce that, as information with climate relevance could contravene environmental law, the information ought to be disclosed.
35If desired, the argumentation that the General Court offered in its Rogesa v Commission ruling could be used to support the more inclusive approach. In it, the Court elaborated on the difference between the information on ‘CO2 emissions’ and the ‘CO2 efficiency’ of the installations at hand. Importantly, the Court did not state that ‘information with relevance to climate change’, such as CO2 emission, ought to be considered as beyond the scope of the Aarhus Regulation’s regime. As the courts do not include unnecessary or irrelevant statements in their rulings, I would be inclined to interpret that the Court purposefully mentioned this difference – between CO2 emissions and efficiency – and, also, that it was a deliberate act not to continue the thought to a declaration that the former would fall outside of the scope of access rights similarly as the latter did.
36Important possibilities also lie in continuing to highlight the line of thought that the CJEU introduced in the Stichting Greenpeace ruling. As mentioned above, even when the ruling brought change to the chemical pollution regime, it did not alter the Commission’s interpretations as concerns information with climate relevance. In the ruling, the court broadened the interpretation of the concept of ‘emission into the environment’: after the ruling, both actual and foreseeable emissions are included.72 It is good to bear in mind that the ruling did draw a line between actual emissions and purely hypothetical emissions. However, emissions driving climate change do not become hypothetical only because they are regulated with quotas or reference values.73 If the purposive approach is followed, the inclusion of climate impacts in the concept would be just another step in the direction that the CJEU has paved. Instead of becoming entangled with the ways in which different emissions are calculated or regulated, and using this as an excuse to exclude climate emissions, the Commission could focus on the concept of emissions, acknowledge that emissions impacting climate change could be interpreted as emissions in this context, and work towards a more inclusive interpretation from there and, by doing so, actually secure compatibility between the Aarhus Convention and the Union’s regulatory framework.
37Another aspect to take into consideration is reimagining the content of the overriding public interest doctrine. In the confirmatory review decisions I have analysed, the Commission almost never found such ‘overriding public interest’ to exist that would have justified the disclosure of the requested information. What the Commission failed to notice is that combatting climate change can – easily – be considered as being of overriding public interest. Public interest is an inherently political notion, and as such it can be interpreted in various ways – leaving such leeway for consideration is a deliberate tactic of the legislator to postpone certain decisions to be taken at a later stage.74 As Wyatt has noted, the ‘undefined and amorphous’ overriding public interest clause is interpreted in the CJEU so that the content of the term is solely in the hands of EU administrators.75 Unfortunately, the decisions I’ve analysed confirm this, as the Commission has used its interpretative powers against transparency aims. This is troubling, as the overriding public interest clauses are a means of procrastination: the legislator leaves certain aspects to be decided at a later stage, by other decision-makers.76 In this context, the clause is a placeholder for the act of weighing and balancing the competing aims of transparency and institutional secrecy – but when the latter is constantly favoured, the clause does not work as the legislator desired. Regarding access to information with climate change relevance, this is especially disturbing, as the Commission has chosen another path in its other actions. For example, in the EU Green Deal or EU climate law, the Commission recognises the urgency for the need to act in order to avoid a climate catastrophe. But in moving from policy-making to the use of the Commission’s own administrative powers, it has not identified climate transparency as a goal to be pursued. In this setting, the Commission appears to be Janus-faced, driving climate action on one front, obstructing it on the other, and must be criticised for doing so. Interpreting the transparency of climate-relevant information as ‘overriding public interest’ would be an effective way to synchronise the practice of access to information with the overall sustainability goals pursued by the Commission. But the Commission very much appears to be resisting this aspect: it may be a longer while before this transition takes place.
VI. Conclusions
38At the time of writing, the international order and geopolitical realities of Europe are, however, going through a tectonic shift. The Russian invasion of Ukraine, starting on 24 February 2022, proved to Europe, the Commission included, that a successful sustainability transition is an existential matter to the EU, as without one, dependence on fossil fuel providers may cause unprecedented consequences and existential threats to free and democratic Europe.77 In this new reality currently being created, understanding the ‘protection of the EU’s interests’ to conflict with environmental rights is an untenable position. The legitimacy and transparency of the Union’s governance – governing with information included – are coupled with the European Union’s most fundamental interests. The purposive approach teaches us that all these pieces of reasoning, currently harnessed against the execution of procedural human rights, could be interpreted differently, if desired, and if an overriding reason to do so were found.
39Acknowledgments: This chapter is written in the research project entitled 2035Legitimacy, funded by the Strategic Research Council of Academy of Finland (Decision No 335561). I would like to thank the colleagues from the 2035Legitimacy project for discussions over the theme.
Annexe
Table 1
Year | Confirmatory applications in total | Identified by Commission as AC-relevant, in total | Full access granted | Partial or wide partial access granted | Access refused |
2017 | 299 | 15 | 2 | 6 | 7 |
2018 | 318 | 4 | 1 | 1 | 2 |
2019 | 334 | 13 | 3 | 5 | 5 |
2020 | 309 | 11 | 0 | 6 | 5 |
In total | 43 | 5 | 18 | 19 |
Notes de bas de page
1 E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80 The Modern Law Review 173, 185; K. Bouwer, ‘When Gist Is Mist: Mismatches in Small-Scale Climate Change Litigation’ (2015) Environmental Law and Management 12.
2 O. W. Pedersen, ‘The Contingent Foundations of Environmental Law’ (2018) 30 Journal of Environmental Law 359.
3 K. Bouwer, ‘When Gist Is Mist’ (n 1 above) 12; B. J. Preston, ‘The Contribution of the Courts in Tackling Climate Change’ (2016) 28 Journal of Environmental Law 11. Also, transnational law in general is best analysed if taking the question to the various means and mechanisms in which law negotiates and moulds societal realities, L. Mai, ‘(Transnational) Law for the Anthropocene: Revisiting Jessup’s Move from “What?” To “How?”’ (2020) 11 Transnational Legal Theory 105; see also: E. Lees, ‘Value in Comparative Environmental Law – 3D Cartography and Analytical Description’ in J. E. Viñuales and E. Lees (eds), The Oxford Handbook of Comparative Environmental Law (Oxford, Oxford University Press, 2019) 35–56.
4 For a list of the perennial problems of the EU and its transparency see: J. Mendes, ‘The Principle of Transparency and Access to Documents in the EU: For What, for Whom and of What?’ (2020) SSRN Scholarly Paper ID 3557795 3: papers.ssrn.com/abstract=3557795.
5 E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (n 1 above) 174–75.
6 N. Singh Ghaleigh, ‘“Six Honest Serving-Men”: Climate Change Litigation as Legal Mobilization and the Utility of Typologies’ (2010) 1 CLIMATE L. 31, 44, as referred in J. Peel and J. Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113 American Journal of International Law 679, 689.
7 J. Ebbesson, ‘Public Participation’ in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (Oxford, Oxford University Press, 2021) 357; E. Barritt, The Foundations of the Aarhus Convention (Oxford, Hart Publishing, 2020) 5; D. Wyatt, ‘The Anaemic Existence of the Overriding Public Interest in Disclosure in the EU’s Access to Documents Regime’ (2020) 21 German Law Journal 686.
8 The revised Aarhus Regulation: Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending 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 Community institutions and bodies. The original Aarhus Regulation: Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 Community Institutions and Bodies [2006] OJ L264/13.
9 The claim of the importance of the latter is of course normative but not uncommon, J Mendes, ‘The Principle of Transparency’ (n 5 above) 2.
10 M. Lee, ‘Experts and Publics in EU Environmental Law’ in D Chalmers and A Arnull (eds), The Oxford Handbook of European Union Law (Oxford, Oxford University Press, 2015) 994–95.
11 E. Korkea-aho and P. Leino, ‘Who Owns the Information Held by EU Agencies? Weed Killers, Commercially Sensitive Information and Transparent and Participatory Governance’ 54 Common Market Law Review 1065; G. Majone, ‘The New European Agencies: Regulation by Information’ (1997) 4 Journal of European Public Policy 262.
12 M. Peeters and S. Nóbrega, ‘Climate Change-Related Aarhus Conflicts: How Successful Are Procedural Rights in EU Climate Law?’ (2014) 23 Review of European, Comparative & International Environmental Law 354, 358. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 38 ILM 517 (Aarhus Convention).
13 E. Barritt, ‘The Foundations of the Aarhus Convention’ (n 8 above) 5.
14 Ibid., 5.
15 Ibid., 9–10.
16 Ibid., 7, The Aarhus Convention: An Implementation Guide (2000) ECE/CEP/72 (Implementation Guide, 1st edn) foreword.
17 U. Etemire, ‘Access to Environmental Information under EU Law’ in M. Peeters and M. Eliantonio (eds), Research Handbook on EU Environmental Law (Cheltenham, Edward Elgar, 2020) 117, 119.
18 J. Hadjiyianni, ‘Judicial Protection and the Environment in the EU Legal Order: Missing Pieces for a Complete Puzzle of Legal Remedies 58.3’ (2021) 58 Common Market Law Review 777.
19 Commission Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to European Parliament, Council and Commission Documents [2001] OJ L145 43 (EC); U. Etemire, ‘Access to Environmental Information’ (n 20 above) 121; S. Wolf, ‘Access to EU Environmental Information: EU Compliance with Aarhus Convention’ (2013) 14 ERA Forum 475, 479.
20 Commission, Proposal for a Regulation of the European Parliament and of the Council regarding public access to the European Parliament, Council and Commission documents, COM(2008) 229 final, 2.
21 E.g.: C(2019) 8679 (para 8).
22 S. Wolf, ‘Access to EU Environmental Information’ (n 23 above) 481, 490; U. Etemire, ‘Access to Environmental Information’ Etemire’ (n 20 above) 121 ff.
23 O. Kelleher, ‘Systemic Climate Change Litigation, Standing Rules and the Aarhus Convention: A Purposive Approach’ (2021) 34 Journal of Environmental Law 107.
24 G. J. Harryvan, ‘Internal Review of EU Environmental Measures It’s True: Baron van Munchausen Doesn’t Exist! Some Remarks on the Application of the So-Called Aarhus Regulation’ (2010) 3 Review of European Administrative Law 53.
25 Access to Documents Regulation, Art. 6 (to which Aarhus Regulation defers). This fundamental choice is in accordance with the Aarhus Convention as it accepts that the first round of reviews can be administrative, not judicial.
26 The latter has its frailties, S. Wolf, ‘Access to EU Environmental Information’ (n 23 above) 481.
27 In the revised AR, the section reads ‘(g) “administrative act” means any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law within the meaning of point (f) of Article 2(1)’.
28 Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) concerning compliance by the European Union Adopted by the Compliance Committee on 17 March 2017, 9–10; A Keessen, European Administrative Decisions. How the EU Regulates Products on the Internal Market (Europa Law Publishing, 2009) 151-53; J. H. Jans, ‘Did Baron von Munchhausen Ever Visit Aarhus? Some Critical Remarks on the Proposal for a Regulation on the Application of the Provisions of the Aarhus Convention to EC Institutions and Bodies’ in R. Macrory (ed) Reflections on 30 Years of EU Environmental Law; A High Level of Protection? (Groningen, Europa Law Publishing, 2006); E. Korkea-aho, ‘NGOs as Lobbyists: A Casualty of Environmental Law’s Tunnel Vision?’ (2022) 34 Journal of Environmental Law 233.
29 A. Hough, ‘Final Report: Analysis of the Revised Proposal to Amend the Aarhus Regulation Agreed 12 July 2021’ (EJNI 2021); G. C. Leonelli, ‘Access to the EU Courts in Environmental and Public Health Cases and the Reform of the Aarhus Regulation: Systemic Vision, Pragmatism, and a Happy Ending’ (2021) 40(1) Yearbook of European Law.
30 The requests were made at the ‘AsktheEU’ website. Links to the requests in chronological order: www.asktheeu.org/en/request/decisions_relevant_to_aarhus_con; www.asktheeu.org/en/request/decisions_relevant_to_aarhus_con_2; and www.asktheeu.org/en/request/decisions_relevant_to_aarhus_con_3.
31 As my own request was made in 2021, it is not part of the analysed decisions, nor this table. See annex I.
32 G. J. Harryvan, ‘Internal Review’ (n 30 above) 53, 57.
33 E.g. Case T-9/19, ClientEarth v EIB, ECLI:EU:T:2021:42; Case C‑612/13 P, ClientEarth v Commission, EU:C:2015:486 and Case C‑57/16 P, ClientEarth v Commission, ECLI:EU:C:2018:660.
34 C(2017) 2252 final.
35 Case C-673/13 P, Commission v Stichting Greenpeace Nederland and PAN Europe, ECLI:EU:C:2016:889, paras 79 and 80 I cited in the confirmatory review decision. Also in the Sufloxaflor decision (C(2018) 5271) the ruling was debated; also there the Commission withheld the original decision. See also: U Etemire, ‘Access to Environmental Information’ (n 20 above) 125; E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above) 1081.
36 E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above) 1081; L. Krämer, ‘Emissions into the Environment and Disclosure of Information Comments on ECJ C-442/14 and C-673/13P’ (2017) elni Review 25.
37 Case C-673/13 P, Commission v Stichting Greenpeace Nederland and PAN Europe, ECLI:EU:C:2016:889, para 80 (emphases by the author).
38 The DG Clima had declined access based on both AR and the Access to Documents Regulation. The justification was the protection of commercial interests, a topic I will examine in the next section.
39 C(2017) 2252 final, 3.
40 Case T‑643/13, Rogesa v Commission, ECLI:EU:T:2018:423 para 103. The matter was appealed to the Court of Justice, but it considered the matter to be of purpose, and that the substance of the matter had been settled. The Commission then likely granted access to the requested documents after the General Court ruling though the court decisions do not explain why. Case C-568/18 P, Rogesa v Commission, ECLI:EU:C:2019:1092 paras 23–24 and 34.
41 The translation is the author’s own as the ruling is available only in French and German. The German version reads: ‘Es ist jedoch daran zu erinnern, dass die fraglichen Dokumente keine Informationen über die Gesamtmenge des von einer bestimmten Anlage emittierten CO2 enthalten, sondern Informationen über die CO2-Effizienz der Anlagen, d. h. über die Menge an CO2, die bei der Herstellung einer Tonne Koks, Eisenerzsinter oder flüssigen Roheisens emittiert wird. Folglich ermöglichen diese Daten es der Öffentlichkeit nicht, Kenntnis darüber zu erlangen, was tatsächlich in die Umwelt freigesetzt wird oder voraussichtlich freigesetzt werden wird, also über die Menge an CO2-Emissionen der betreffenden Anlagen. Somit stellen die in den fraglichen Dokumenten enthaltenen Informationen keine Informationen, die Emissionen in die Umwelt betreffen, im Sinne von Art. 2 Abs. 1 Buchst. d der Verordnung Nr. 1367/2006 dar.’
42 C(2020) 5651.
43 C(2020) 5651 3 and 5.
44 C(2020) 5651 8. Extensive partial access – with only information protected as private redacted – was granted to 26 of them, and partial access – with commercially sensitive information redacted as well – granted to 337 documents.
45 At least it has been so thus far, L. Rajamani and J. Werksman, ‘Climate Change’ in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (Oxford, Oxford University Press, 2021) 492, 509–10; .J Peel, L. Godden and R. J. Keenan, ‘Climate change law in an era of multi-level governance’ (2012) 1(2) Transnational Environmental Law 245–80.
46 C(2017) 5966.
47 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) [2010] OJ L334.
48 E. Korkea-aho and P. Leino, ‘Who Owns the Information’ n 14 above) 1059; J. Mendes, ‘The Principle of Transparency’ (n 5 above).
49 E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above); J. Hadjiyianni, ‘Judicial Protection’ (n 21 above).
50 E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above) 1059.
51 C(2020) 1534.
52 The request was specific to Denmark, continuing with ‘concerning “Transferring Registry: Denmark” and “Acquiring Registry: Denmark”, including Transaction ID, Transaction Type, Transaction Date, Transaction Status, Transferring Account Type etc’.
53 Arts 4(1)(a) and (b) and 4(2) of Regulation 1049/2001.
54 E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above).
55 In this the Commission relied on a General Court ruling from 2018: Case T-545/11 RENV, Stichting Greenpeace Nederland and Pesticide Action Network Europe v European Commission, ECLI:EU:T:2013:523, para 88 (also 56, 58). In the data, another confirmatory review decision C(2018) 5271 also dealt with information on the pesticide sulfoxaflor. This decision confirmed the original decision rejecting access.
56 J. Hadjiyianni, ‘Judicial Protection’Hadjiyianni (n 21 above). The Commission’s stance can be further criticised with the Ombudsman’s recent decision that, contrary to the Commission’s stance, the confidentiality of gathering statistics does not necessarily prevail over the transparency of environmental information on pesticides, case 1170/2021/OAM.
57 C(2017) 430 final.
58 Case T-51/15, PAN Europe v Commission, ECLI:EU:T:2016:519.
59 The public interests balanced were the international trade negotiations at that time, the TTIP negotiations, and the right of the public to be informed about the process for the definition of criteria for endocrine disruptors.
60 U. Etemire, ‘Access to Environmental Information’ (n 20 above) 120–21; E. Korkea-aho and P. Leino, ‘Who Owns the Information’ (n 14 above) ; Kelleher (n 23 above).
61 J. Ebbesson, ‘Public Participation’ in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (Oxford, Oxford University Press, 2021) 357.
62 K. Bouwer, ‘When Gist Is Mist’ (n 1 above) 11, with reference to J. Peel, L. Godden and R. J. Keenan ‘Climate change’ (n 45 above) 272.
63 E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (n 1 above) 174–75.
64 N. Stern, ‘Why are we waiting? The logic, urgency and promise of tackling climate change’ (Cambridge, MIT Press 2015) 4; E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (n 1 above) 179.
65 E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (n 1 above) 176–77.
66 The Aarhus Regulation has also been interpreted to favour business as usual when it comes to access to justice, M. van Wolferen and M. Eliantonio, ‘Access to Justice in Environmental Matters in the EU: the EU’s Difficult Road towards Non-Compliance with the Aarhus Convention’ in M. Peeters and M. Eliantonio (eds), Research Handbook on EU Environmental Law (Cheltenham, Edward Elgar Publishing, 2020) 148, 162.
67 S. Wolf, ‘Access to EU Environmental Information’ (n 23 above) 479.
68 E. Fisher, ‘EU Environmental Law and Legal Imagination’ in P. Craig and G. De Burca (eds), The Evolution of EU Law (3rd edn, Oxford, Oxford University Press); E. Scotford, ‘Legislation and the Stress of Environmental Problems’ (2021) 74 Current Legal Problems 299, 315. Legal imagination has its risks, however, as it has often been used as an instrument of oppression instead of justice, M. Koskenniemi, ‘Less Is More: Legal Imagination in Context’ 31 Leiden Journal of International Law 469.
69 A. Hough, ‘Final Report’ (n 35 above) 6–7.
70 Ibid., 2.
71 The recitals of the informal consolidated version of the revised Regulation support the interpretation, ibid.
72 A. Hough, ‘Final Report’ (n 356 above) 2.
73 L. Krämer, ‘Emissions into the Environment’ (n 36 above) 25.
74 D. Wyatt, ‘The Anaemic Existence’ (n 8 above) 686.
75 Ibid., 686, 688.
76 Ibid., 691.
77 Commission, ‘REPowerEU: Joint European Action for more affordable, secure and sustainable energy’ (Communication) COM(2022) 108 final.
Auteur
Associate Professor of Environmental and Sustainability Law, University of Helsinki, Finland
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