7. Procedural Rights
Environmental rights also include procedural rights. The procedural rights are not about the content of decisions, but they place certain requirements on the procedure in climate and environmental cases.
The main category of procedural rights is what one might call participatory rights. Participatory rights include the right to environmental information, the right to participation in decision-making processes and the right to effective legal remedies. A key justification for these types of rights is that citizens should be able to exert influence over the government’s decisions in the field of climate and the environment. In other words, participatory rights are closely linked to democratic principles.1See Leib, Human Rights and the Environment. Philosophical, Theoretical and Legal Perspectives (2011) pp. 85–86 and Atapattu, Human Rights Approaches to Climate Change. Challenges and Opportunities (2016) p. 47.
Another category of procedural rights is the authorities’ duty to investigate.2It is worth already here emphasising that our perspective in the following is limited to investigative obligations that can be derived from human rights norms. The duty to investigate establishes certain requirements for the quality of government investigations prior to decisions that have or may have negative climate or environmental consequences. In addition, there is a close connection between the duty to investigate and the right to environmental information. In the following, a general overview will be given of the most important sources of law (7.2), before a discussion of the participatory rights (7.3) and the authorities’ duty to investigate (7.4).
7.2. Overview of the most important legal sources and institutional arrangements
As stated in Chapter 4 of the report, Section 112 of the Constitution establishes a right to a healthy environment.3 The outline in this chapter is not intended to be exhaustive, but focuses on the provisions that are most central from a human rights perspective. To safeguard the substantive aspects of this general right, the provision sets out procedural rights that provide citizens with the right to information about the state of the natural environment and about the effects of planned and initiated interference with nature. In its climate case judgement of 2020, the Norwegian Supreme Court stated that the rights under Section 112 evidently apply in relation to climate change and GHG emissions.4HR-2020-2472-P para 147. Furthermore, the Court held that the procedural rights are subject to full judicial review, and that both the content of the rights and the intensity of the judicial review will be increasingly rigorous according to the severity of the environmental consequences in question.5HR-2020-2472-P para 183.
Internationally, the Aarhus Convention from 1998 is the central instrument when it comes to participatory rights.6Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. United Nations, Treaty Series, vol. 2161 p. 447. The Convention is a rights convention, and the ECtHR has also referred to it in several cases.7See e.g. Grimkovskaya v. Ukraine (38182/03) paragraph 69 and Di Sarno et al. v. Italy (30765/08) paragraph 107. For more, see Peters, “Unpacking the diversity of procedural environmental rights: the European Convention on Human Rights and the Aarhus Convention,” Journal of Environmental Law, 2018, Vol. 30 No. 1, pp. 1–27. The purpose provision, Article 1, reads as follows:
The definition of “environmental information” in Article 2(3) is so wide that it must be seen as also including the climate system and greenhouse gas emissions.8As pointed out in the United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An Implementation Guide (2nd ed. 2014) p. 50, the Convention does not contain any definition of “environment”. It is therefore natural to apply the definition of “environmental information” also to cases where the Convention uses the term “environment”, e.g. in Art. 9(3).
Furthermore, some of the provisions of the ECHR contain procedural rights. As mentioned in Chapter 5, the ECtHR interprets positive obligations to protect against the risk of environmental damage into Articles 2 and 8 of the ECHR. These obligations also have procedural aspects. Authorities’ procedural duties also follow from the freedom of expression and information of Article 10 of the ECHR, as well as the right to a fair trial in Article 6 of the ECHR. It is also worth mentioning that international climate cooperation has promoted procedural rights as key commitments in the fulfilment of climate agreements. For example, Article 12 of the Paris Agreement highlights the right to participation and information as important elements for strengthening climate action under the agreement.
In Norwegian law, procedural environmental provisions can be found in a number of places, including the Environmental Information Act of 2004.9Environmental Information Act of 2003. The law came into force on 1 January 2004. The Act aims to implement Norway’s international obligations, such as the Aarhus Convention, and to operationalise Article 112, second paragraph of the Constitution.10See Ot.prp.no.116 (2001–2002) Section 7.2.4. In short, the law states that, as a general rule, everyone is entitled to environmental information from public bodies and private enterprises, and it also gives the public the right to participate in certain decision-making processes that are of importance to the environment.
Another legal provision of significance, even if it is not a rights provision, is Section 6 of the Climate Change Act. It states that the Government will report annually to the Parliament on climate change, including how Norway can meet the established climate targets. The provision is important from a procedural point of view, since it contributes to the public disclosure and distribution of information about climate efforts.
In terms of institutional reforms concerning climate, it should firstly be mentioned that Article 15 of the Aarhus Convention calls for the States Parties to establish a voluntary supervision scheme. Norway submitted its previous report on the implementation of the Convention in December 2017, and in June 2020 submitted a draft for a new report for hearing with a consultation deadline of 30 September that year.11The 2017 report is available on http://www.unece.org/env/pp/reports_implementation_2017.html. It is also possible for individuals to bring appeals against Norway before the Aarhus Convention’s Compliance Committee.12As of 31 August 2020, the Committee has heard two appeals against Norway, one of which was rejected while the other was not upheld. See the overview on http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom.html. Secondly, it should be mentioned that at the national level, the Appeals Board for Environmental Information was created to hear rejected claims for environmental information aimed at enterprises.13See Section 19 of the Environmental Information Act and regulations concerning the Appeals Board for Environmental Information. In recent years, the Appeals Board has received about 10-15 appeals a year, see the annual report for 2019 p. 2. Available on www.miljoklagenemnda.no. Rejected claims for environmental information aimed at public bodies can be heard by the Parliamentary Ombudsman.14As of ca. 2017, the Parliamentary Ombudsman had received approximately 20 appeals concerning the right to environmental information from public bodies, see Falkanger and Bartels, “Menneskerettighetenes betydning for Sivilombudsmannens arbeid” in Føllesdal, Ruud and Ulfstein (eds.), Menneskerettighetene og Norge. Rettsutvikling, rettsliggjøring og demokrati (2017) pp. 112–134, at p. 124.
7.3. Participatory rights
7.3.1. Right to environmental information
While Section 112, second paragraph, of the Constitution seems to limit the right to environmental information to “citizens”, foreign citizens and legal persons may nevertheless invoke the general right of access to information in Section 100, fifth paragraph of the Constitution. Article 4(1) and 2(4) of the Aarhus Convention grants a right to access information to the “general public”, i.e. both natural and legal persons.15The relationship between the “citizens” in Article 112, second paragraph and “[e]veryone” of the Environmental Information Act, was not mentioned in the preparatory work of the Act, see Ot.prp.no. 116 (2001–2002) p. 71. The expressions are also used interchangeably, see p. 20 and also NOU 2001: 2 p. 34. Article 3 (9) of the Aarhus Convention also prohibits discrimination on the basis of citizenship, nationality and residence, among other things.
In addition to the public’s general right of access, the authorities may in certain cases have an active duty to inform persons who are particularly vulnerable to environmental threats. Practices from the ECtHR show that inadequate information from the authorities, e.g. to persons living near factories that release harmful substances, may constitute a violation of the right to privacy under Article 8 of the ECHR.16See Guerra et al. v. Italy (14967/89), Sections 56–60. Requirements for the dissemination of environmental information in the event of imminent environmental threats are also regulated in Article 5(1)(c) of the Aarhus Convention.
In two cases under consideration by the ECtHR, the Court has explicitly referenced the Aarhus Convention in its questions to the parties.17 Association Burestop 55 et al. v. France (56176/18 et al.), communicated 18 November 2019; Duarte Agostinho et al. v. Austria et al., communicated 19 November 2020.
7.3.2. Right to participation in decision-making processes
Article 6–8 of the Aarhus Convention concerns the general public’s right to participate in decision-making processes. While Article 6 applies to the right to participation in the hearing of individual cases, Articles 7 and 8 apply to the decision-making processes under the preparation of regulations, plans, strategies etc. There are certain nuances between the provisions, but in essence they state that the general public should be given a real and effective opportunity to obtain information about and provide input in environmental matters, and that these inputs should be taken into account in the decision-making process.
The ECHR does not contain any right of participation for the general public, but the involvement of parties affected in environmental matters will be given emphasis when assessing legality pursuant to Article 8.18See Dubetska et al. v. Ukraine (30499/03) Section 143 and Grimkovskaya v. Ukraine (38182/03) Sections 67 and 72. See also Chapter 5 of the report on climate and the ECHR. Also in soft law material from the UN system, public participation is central.19See the UN Special Rapporteur on Human Rights and the Environment, “Framework Principles on Human Rights and the Environment,” 2018, Principle 9.
7.3.3. Right to effective legal remedies and access to justice
The rights to effective legal remedies and access to justice relate to the control and enforcement of rights. The right to effective legal remedies can be found in several of the general human rights conventions, such as Article 13 of the ECHR. This right is meant to ensure that everyone receives an effective review of human rights violations. The right to access to justice, which is included inter alia in Article 95 of the Constitution and Article 6 of the ECHR on the right to a fair trial, is more general and assumes that everyone has the right to have their litigation settled by an independent and impartial court.20Here there is an important difference between ECHR Article 6 and Article 95 of the Constitution. Pursuant to the former, one has the right only to have ones “civil rights and obligations” decided by a court, while the Constitution gives everyone the right to have “their case” settled. In other words, Article 95 of the Constitution has a wider scope of application than ECHR Article 6, for more on this, see Aall, Rettsstat og menneskerettigheter (2018) p. 423 f.
The right to effective remedies in environmental cases is enshrined in Article 9 of the Aarhus Convention. The first and second paragraphs of the provision are about the enforcement of the right to environmental information in Article 4 and the right to participate in decision-making processes in Article 6. Generally speaking, the provisions state that there shall be access to try violations of these provisions before a court or another independent and impartial body. The third paragraph of the provision has a considerably wider scope of action, and states that:
“where they meet the criteria, if any, laid down in its national law, members of the public [shall] have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”21On this point, the translation in NOU 2001 is: 2, Appendix 1, modified somewhat, in that “national law” is translated as “nasjonal rett” instead of “nasjonal lovgivning.”
A common feature of the procedures required under the first to third paragraphs is that they must ensure “adequate and effective remedies, including interim measures when this may be required to safeguard the appropriate right, which shall be fair, reasonable, timely and not prohibitively expensive.”22The translation is modified at several points compared to NOU 2001: 2, Appendix 1.
The wide scope of Article 9, third paragraph, seen in conjunction with all the procedural requirements of the fourth paragraph, means that the provision could potentially play an important role in the design of the procedural rules of national legal systems. This also means that the design of these rules is of great importance for the enforcement and control of the substantive climate and environmental law.23For more on this, see Nylund, “Klima, miljø og domstoler i et komparativt perspektiv” in Fauchald and Smith (2019) pp. 101–117.
An initial important question is who can bring cases before the courts or take advantage of other appeal schemes. The issue is central to the climate and environmental field since some issues involve ideal and public interests where it is not necessarily individuals who have a personal interests in the case. The scope of the right of appeal and action – especially for environmental organisations – is therefore significant to the effectiveness of control in this area.24See Chapter 9 of the report on climate-relate legal cases based on human rights.
Article 6 of the ECHR and Article 9(3) of the Aarhus Convention do not allow for so-called actio popularis actions in the environmental field. Actio popularis means that anyone will be able to bring an action in matters of public interest. The ECtHR, however, has acknowledged that environmental organisations may have rights under Article 6 after a closer examination of their attachment to the case.25 L’Érablière A.S.B.L. v. Belgium (49230/07), see Section 29 where the ECtHR stated that they specifically emphasized “the nature of the impugned measure, the status of the applicant association and its founders and the fact that the aim it pursued was limited in space and in substance.” The Aarhus Convention’s Compliance Committee has also concluded that there are limits to the strictness of the legal terms by which Member States may operate under Article 9 (3).26Se United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An Implementation Guide (2nd ed. 2014) p. 198, citing a case against Belgium (ACCC/C/2005/11) in which the Committee states that “… the parties may not take the clause ‘where they meet the criteria, if any, laid down in its national law’ as an excuse for introducing or maintaining so strict criteria that they effectively bar all or almost all environmental organizations from challenging acts or omissions that contravene national law relating to the environment.”
In Norwegian law, the conditions under which organisations may bring an action before the courts are regulated in Sections 1-3 and 1-4 of the Disputes Act. In general, it can be said that organisations have a wide right of action, and it is largely case law concerning the right of action of environmental organisations that has precipitated this wide access.27See Backer, Norsk sivilprosess (2015) p. 236. Key decisions in the development of the law are Rt. 1980 p. 569 (Altasaken), Rt. 1992 p. 1618 (FIVH) and Rt. 2003 p. 833 (Stopp Regionfelt Østlandet). For appeals about individual decisions in administration, the view is that the right to appeal pursuant to Section 28 of the Public Administration Act is at least as wide as the right of action before the courts.28Graver, Alminnelig forvaltningsrett (5. ed. 2019) p. 490 and Eckhoff and Smith, Forvaltningsrett (11th ed. 2018) p. 296. There is also a proposal to continue this in the new public administration act, see NOU 2019: 5 Ny forvaltningslov p. 381. In addition, “[a]nyone who believes to have been a victim of wrongdoing” from the administration’s side may appeal to the Parliamentary Ombudsman.29Civil Ombudsman Act of 1962 Section 6.
Another important procedural issue concerns legal costs. While strict conditions for action can be a legal obstacle to sufficient access to justice, high legal costs can be a practical obstacle. According to the United Nations Economic Commission for Europe (UNECE), high costs are the biggest obstacle, alongside strict conditions for action, to access to legal remedies in environmental cases in many countries.30UNECE (2014) p. 203. This will depend on various rules and mechanisms, such as court fees, access to free legal aid, the scope of the legal proceedings and the distribution of legal costs between the parties.
As regards the distribution of the costs of the case, the starting point in ECtHR practice on Article 6 of the ECHR is that although a “loser pays” principle, in which the losing party must bear the opponent’s legal costs, is a limitation on access to justice, the principle safeguards a legitimate purpose.31 Klauz v. Croatia (28963/10) Section 84 and Ulemek v. Croatia (21613/16) Section 107. In special cases, however, paying the opponent’s costs may be a disproportionate burden on the losing party. In a 2016 case, the ECtHR concluded that the application of the “loser pays” principle was contrary to the Convention, and justified this by the fact that the case raised an unresolved legal issue, that the opponent was the State and that the legal costs were substantial in view of the financial position of the losing party.32Cindrić and Bešlić v. Kroatia (72152/13) Sections 122 and especially 110. See also Kjølbro, Den Europæiske Menneskerettighedskonvention: for praktikere (5th ed., 2020) p. 571.
As for the Aarhus Convention, as mentioned above, it is a requirement that judicial processes in the environmental field must not be “prohibitively expensive”, see Article 9, third and fourth paragraphs. The Convention’s Compliance Committee has dealt with several appeals about this. An overarching requirement, according to the Committee, is that the cost level “should not effectively bar all or almost all environmental organisations from challenging acts or omissions that contravene national law relating to the environment.”33ACCC/C/2014/111 (18 June 2017), paragraph 76. In a case like this, the Committee will assess the entire cost system in its context. A “loser pays” arrangement is not in itself contrary to the Convention, but the issue of incompatibility with the Convention must be considered on the basis of “the outcome in each specific case and the existence of a clear rule that prevents prohibitively expensive procedures.”34ACCC/C/2008/33 (24 September 2010), paragraphs 128–129. One of the factors the Committee emphasises in matters brought by environmental organisations is whether the case raises questions of public interest – if so, this calls for limiting the liability for costs in the event of a loss.35ACCC/C/2008/33 (24 September 2010), paragraph 134, ACCC/C/2012/77 (2 July 2014), paragraph 73-74 and ACCC/C/2014/111 (18 June 2017), paragraph 75. Furthermore, a concrete assessment of the financial situation of the relevant environmental organisation must be made.36ACCC/C/2014/111 (18 June 2017), paragraph 74. The Committee also seems to prefer a legal framework that ensures predictability and is not overly based on the judge’s discretion in the individual case.37ACCC/C/2008/33 (24 September 2010), paragraphs 135–129.
Norwegian law is based on a general rule that the party that loses the case must pay the counterparty’s legal costs, see Section 20-2, first paragraph of the Dispute Act. There is an exception to this general rule if “weighty reasons make it reasonable” to exempt the losing party in whole or in part for the liability, see third paragraph. The exception rule specifies a non-exhaustive list of relevant assessment elements. Whether the case has been questionable is one of the assessment elements, but beyond this, neither the provision nor the preparatory works provide any clues of particular relevance to climate and environmental issues. Granted, the overarching criterion for “weighty reasons” is sufficiently discretionary to include, for instance, an assessment of whether the case raises questions of public interest, as demonstrated in the Court of Appeal’s assessment of the issue of legal costs in the climate action.38See Borgarting Court of Appeal’s judgement of 23 January 2020 (LB-2018-60499) Section 6. The Court of Appeal exempted the environmental organisations from paying the state’s legal costs. One could nevertheless ask whether the current state of law provides sufficient predictability. It would in any case be more in line with the statements of the Aarhus Convention’s Compliance Committee if the Norwegian Parliament or the Supreme Court established clearer criteria for how the exemption rule in Section 20-2, third paragraph, is to be applied in climate and environmental cases, based on the Convention’s requirement that the processes should not be “prohibitively expensive.”
In addition, NIM believes it is worth noting, as several others have also pointed out, that few environmental cases are brought before the courts in Norway.39Anker, Fauchald, Nilsson and Suvantola, “The Role of Courts in Environmental Law – a Nordic Comparative Study”, Nordic Miljörattslig Tidsskrift 2009 pp. 9–33, on p. 23. See also, based on these figures, Nylund (2019) p. 101, Bugge, Lærebok i miljøforvaltningsrett (2019) p. 241 and Bragdø-Ellenes, “Overprøving av vedtak i miljøsaker – i domstol eller klagenemnd?” in Fauchald and Smith (eds.) (2019) pp. 119–134, on p. 122. A possible explanation presented is exactly the legal cost involved, and there has been a question of whether Norway adequately safeguards Article 9, fourth paragraph of the Aarhus Convention in this regard.40Bugge (2019), p. 241. Bragdø-Ellenes (2019) p. 122 also believes that the figures are partly due to the cost level. A further assessment of this will have to rely on a more thorough empirical review of the courts’ interpretation of the rules, something NIM has not had the opportunity to undertake. However, two more recent cases initiated by environmental organisations (the climate action and a case on the killing of wolves) can be used as an illustration.41In the wolf case, WWF sues the State over the validity of decisions on licenses for the killing of wolves. WWF succeeded in the Court of Appeal. The case is due before the Supreme Court and is scheduled for 12-19 January 2021. See Borgarting Court of Appeal’s judgement of 29 January 2020 (LB-2018-128035). In the District Court, environmental organisations were ordered to pay the opponent’s legal costs of NOK 580,000 and approximately NOK 450,000 respectively – the latter amount had even been reduced by 50 per cent.42See Section 5.5. and Section 7 of the decisions, respectively. This was in addition to their own legal costs. It should be mentioned that the results in both cases changed in the Court of Appeal, and that the cases are coming up before the Supreme Court. In any case, one may compare the cost level to a case against the UK before the Aarhus Convention’s Compliance Committee, where the Committee found that it was contrary to the Convention to impose legal costs of about NOK 437,000 (£39,454) on the losing environmental organisations.43ACCC/C/2008/27 (24 September 2010), paragraph 44. We have based the conversion on a course of 11,070, in accordance with the Norwegian Customs Service’s overview of historical conversion rates. See https://toll.no/no/verktoy/valutakurser/History?SelectedExchangeRate=GBP. This implies, in NIM’s view, that the authorities should consider conducting a review of the relationship between the legal cost rules in climate and environmental cases and the obligations under the Aarhus Convention.
More generally, several people have advocated for strengthening control mechanisms in the environmental field. There has been a debate about whether it is necessary to establish an environmental commissioner, an environmental appeals board or separate environmental courts.44See in particular Bragdø-Ellenes (2019), also with further references in footnote 18 (p. 122). See also Nylund (2019), who argues that the procedural systems in Finland and Sweden, where environmental cases are heard in administrative tribunals and separate environmental courts respectively, are better suited to safeguard environmental considerations than the Norwegian system. See also the more general criticism at Bugge, (2019), Section 6.8.4. The UN Special Rapporteur on Human Rights and the Environment, in the report on Norway, also made a recommendation to “[c]onsider the creation of a specialised environmental court or tribunal.”45A/HRC/43/53/Add.2, Section 95 (c). According to the Special Rapporteur, it is increasingly common for other nations to establish such specialised appeal bodies.46A/HRC/43/53/Add.2, Section 27. Any duty to establish an environmental court or a similar body can probably not be derived from Norway’s human rights obligations. However, in light of the criticism raised against the current system from several quarters, as well as the importance of effective control mechanisms in the climate and environmental field, NIM agrees with the Special Rapporteur that the question should be considered.
7.4. The authorities’ duty to investigate
7.4.1. According to the rules of international law
Neither the Aarhus Convention nor international conventions on human rights require State authorities to conduct specific investigations into cases where a decision will or may have negative consequences for the climate and the environment. However, the ECtHR’s practice in pollution cases shows that the Court will consider whether impact studies have been made when assessing such cases against Article 8(2) of the ECHR. The Court has established the following general principle:
“In scrutinising the procedures at issue, the Court will examine whether the authorities conducted sufficient studies to evaluate the risks of a potentially hazardous activity […], whether, on the basis of the information available, they have developed an adequate policy vis-à-vis polluters and whether all necessary measures have been taken to this policy in good time […].”47 Dubetska et al. v. Ukraine (30499/03) Section 143, also with further references.
In a 2011 case concerning traffic noise and pollution, the absence of an adequate investigation before a decision on the location of a road was one of the factors leading the ECtHR to conclude that the Convention had been violated.48 Grimkovskaya v. Ukraine (38182/03) Sections 67 and 72.
7.4.2. Section 112, second and third paragraph, of the Constitution
In the 2020 climate case, the Norwegian Supreme Court held that paragraphs two and three of Section 112 read in conjunction set out a duty for the State to investigate the consequences of planned environmental intereferences.49HR-2020-2472-P para. 183. The Court stated that an investigatory duty is necessary in order for the citizens to be able to safeguard their substantial rights under Section 112. Furthermore, the Court held that the requirements of the duty become stricter as the potential consequences of the interference become more severe. The duty to investigate is subject to judicial review with the level of scrutiny dependent on the severity of the consequences in question.
As to the more specific requirements of the duty to investigate, the Court held that a number of factors will have to be taken into consideration. In addition to the severity of the potential consequences, this includes the nature of the intervention in question and the geographical location of the intervention. In relation to petroleum activites in the Barents Sea, for example, the scope of the investigation will be affected by the specific challenges relating to the ice front and the polar front. Furthermore, the Court stated that the climate impact of an environmental intervention has to be given special consideration when assessing the scope of the duty to investigate, as the effects of GHG emissions will be the same regardless of where they occur.50HR-2020-2472-P para. 225.
Section 112 thus establishes relatively strict requirements for impact assessments in connection to permits allowing major greenhouse gas emissions. Permits allowing for the extraction of oil and gas from the continental shelf (PUD) would have to assess the climate effect of the totality of the emissions the permit may entail, regardless of where the carbon is finally combusted. The investigation and disclosure of such matters is fundamental for citizens to be able to participate in decision-making and hold politicians accountable in elections.