Environmental Organization is exempted from bearing the trial costs, Spanish Supreme Court rules

An unprecedented order of the Spanish Supreme Court of March 2019 declares null and void the decisions approving the trial costs assessment, which the International Institute for Law and the Environment (IIDMA) was initially ordered to pay. IIDMA, a non-profit environmental organization, had recognized the right to legal aid by the corresponding Legal Aid Commission. This right was recognized through direct application of Spanish Law 27/2006 (Aarhus Law) because of IIDMA status as an environmental NGO that fulfills the requirements established in that Law. The effect of the Court´s decision is that IIDMA will not have to pay the 11,260 euros that the Supreme Court approved as trial costs after dismissing its lawsuit against the TNP. In its ruling, the SC recalls that non-profit organizations fulfilling the requirements established in the above-mentioned Law are not required to prove insufficient means for litigation in these cases and switches its doctrinal approach by rendering null and void the decisions approving the trial costs assessment.

In 2017, IIDMA filed a lawsuit before the Administrative Judicial Review Chamber of the Supreme Court challenging the agreement of the Council of Ministers that approved the Spanish Transitional National Plan for Large Combustion Plants (LCP). This Plan, to which most Spanish coal power plants are subject, is a derogation from the obligation to operate in compliance with stricter emission limit values established in European regulations to reduce polluting emissions.  After a year and a half of proceeding, the Supreme Court dismissed IIDMA´s lawsuit in its Judgment of 12 July 2018 and ordered the organization to bear the costs. In January 2019, the decisions approving the costs assessment were challenged by the Institute.  The Supreme Court has ruled in favor of the claimant organization, recognizing  for the first time that a non-profit environmental organization that has been recognized legal aid under Aarhus Law is not required to pay the trial costs, otherwise, it would be contrary to the Spanish legal order. The Aarhus Law incorporates into Spanish law the obligations of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, to which Spain is a party since 2005.

This ruling represents a huge step towards access to justice by environmental NGOs. In fact, the Aarhus Convention Compliance Committee and the Meeting of the Parties to that Convention  had requested Spain to take measures to recognize free legal aid to environmental organizations, something that the Ministry of Justice had omitted.  IIDMA also recalled this issue during its participation in the Sixth Meeting of the Parties held in Budva in 2017.

“The fact that the Supreme Court has for the first time recognized that non-profit environmental organizations must not have to pay trial costs, regardless of their resources, is a major step towards protecting the environment in Spain, and a victory for the rule of law. Thanks to the Aarhus Convention, known as the environmental democracy convention, one of the main barriers for access to justice in environmental matters has been overcome. Environmental organizations are often forced to go to court because legislation is not always respected. Let´s not forget that environmental law responds to the need to protect our planet. Therefore, once this barrier is overcome, our work becomes easier”, says Ana Barreira, Director of IIDMA.

Legal challenge against the Transitional National Plan.

The lawsuit filed by IIDMA in 2017 asked for the nullity of the TNP, as Spanish law required a Strategic Environmental Assessment, a procedure that was not carried out by the Government. Nor did it comply with the public participation requirement of the Aarhus Convention. In addition, there were delays in the court proceeding given the Administration’s tardiness in providing the administrative file which is necessary to file the lawsuit

The TNP, approved in November 2016, included 29 combustion plants, out of which 21 were coal-fired power plants, which were emitting high levels of NOx, SO2 and particles harmful to health and the environment. Although the TNP was approved in November, the plants had been operating under the TNP since January, that is almost 11 months before its approval and entry into force, with emission limits less restrictive than the ones set in European legislation. IIDMA has recently published the report “A dark outlook: the aftermath of coal” (2019), which points out that between 2015 and 2016 emissions from coal-fired power plants in Spain have been related, among others, to more than 1,500 premature deaths and health costs of between 1,871 and 3,568 million euros.

In the past year, the situation has improved, and several coal power plants included in the TNP have submitted closure requests, and at least 9 of them are expected to close before July 2020. However, despite the lack of a legally binding instrument in Spain including a clear date for coal phase-out, which should be 2025 at the latest, at least 5 coal plants are expected to continue operating from 2020 onwards.

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