10 Feb Urgent measures needed to tackle the climate emergency, lawyers warn
The International Institute for Law and the Environment (IIDMA) has organized, together with the ICAM (Madrid´s Bar Association), a Workshop on Access to Justice in Environmental Matters within the framework of the European Project A2J-EARL, partly financed by the European Commission’s LIFE Programme. During the workshop, the need to adopt urgent measures in the areas of access to information, public participation and access to justice in Spain was confirmed as an unavoidable step to tackle the climate and environmental emergency recently declared by the Government.
The lawyers warned that the climate and environmental emergency requires not only the adoption of mitigation and adaptation measures, but also the need to take structural measures. In this regard, it is necessary to address certain challenges within public administrations and the administration of justice that require specific solutions from the legal sphere. The lawyers propose 7 key points to place Spain as a leading country in Europe in access to justice in environmental matters:
- Effective application of the three pillars of the Aarhus Convention: The Aarhus Law 27/2006 reflects the provisions of the Convention and its three pillars (access to information, public participation in decision-making, and access to justice in environmental matters), and is directly applicable in Spain as it forms part of our legal system. The Convention recognizes effective judicial mechanisms to guarantee the environmental democracy, but its application must be generalized.
- Training of public employees: Spanish citizens have the right to request and receive information from the Administration, which must respond within 1-2 months. However, there are still obstacles that make it difficult to exercise this right. For instance, the delay in responding to requests, information denied without justification, or inappropriate use of confidentiality. On many occasions, these deficiencies are linked to the lack of training of the civil servants in this area. During the Workshop, some advances were discussed. For instance, the Andalusian Administration is beginning to offer training in this area with specific programs, in view of the growing demand for this type of training, but this trend should be generalized throughout Spain. With adequate access to environmental information, citizens will be better prepared to face the climate and environmental emergency.
- Reducing procedural delays: Why are environmental legal proceedings not effective? The main obstacle in Spain is their excessive duration. Environmental proceedings are among those with the longest delays, sometimes up to 10 years. On many occasions, when the judicial decision is issued it is late to prevent damage to the environment or an increase in greenhouse gases. The delay of the procedures is critical in environmental matters, due to the urgency of the impacts on both the environment and other rights, such as people’s health.
- Removing financial barriers: the environment is a matter of general interest: it does not imply individual but collective benefit. The high cost of litigation is a disincentive to defending the environment in court. In this regard, 2019 was a turning point in Spain thanks to the Supreme Court’s Order of 13 March 2019, which exempted IIDMA from paying the trial costs*. This decision annulled for the first time in Spain the assessment of costs approved in an environmental legal process in favour of a non-profit organization with recognized legal aid. This puts Spain ahead of countries such as Germany, Austria, Estonia and Hungary, where the “loser pays” principle applies. However, it is now necessary to unify this criterion by reforming the Free Legal Aid Law.
- Training of the judiciary: There is hardly any specific training in environmental law for the judiciary in Spain. This is an obstacle to the effective application of rules or the recognition of existing rights. The Aarhus Convention Compliance Committee already warned Spain in 2017 of its failure to comply with the obligations of the Convention: addressing these gaps in environmental training with members of the judiciary and public administrations is a priority**. This training would allow the judiciary to contribute to the fight against climate change, as has happened with the Urgenda ruling in the Netherlands.
- Creation of specialized environmental courts: many environmental matters are dealt with by contentious-administrative or criminal courts. The creation of specialized environmental courts, which already exist in more than 50 countries, such as Chile, Canada or China, would speed up the procedures and allow for a more effective enforcement of existing environmental regulations due to the specialization and greater understanding of environmental issues. It would also help to reduce delays in legal proceedings and thus prevent environmental damage.
- Constitutional reform: Many countries already incorporate environmental protection as a fundamental right in their constitutions. The Spanish Constitution includes the right to an adequate environment in its Article 45, but not as a fundamental right requiring special protection. In the current situation it is essential that the Carta Magna follows these international conventions and recognizes this right as a fundamental right protected with special guarantees such as the Recurso de Amparo (appeal for special protection).
“For many years we have had sufficient scientific evidence on climate change. Now we find ourselves in a critical situation, as a climate and environmental emergency has been declared. There are many different legal and administrative existing instruments to act, but their application is often deficient. Lawyers have an essential role to play in this increasingly important fight, and we must work in this direction. The ruling of 20 December 2019 in the Urgenda Case has been a milestone in this regard, as it achieved something that COP25 did not: to recognize the impact of climate change on fundamental rights included in international treaties such as the European Convention on Human Rights, and forces the Dutch authorities to take action. It shows how, through a legal case and the work of a group of lawyers, historic advances can be made for the protection of the planet,” added Ana Barreira, director of IIDMA.
“The A2J Project is an ambitious initiative that seeks to address and reduce the obstacles to the development of environmental justice, highlighting in particular the importance of the Aarhus Convention as a key tool to guarantee the rights of environmental democracy. The Aarhus Convention is fundamental in facing the climate emergency, since it allows citizens to act through its three pillars: the right of access to information, the right of public participation in decision-making and the right of access to justice, thus motivating an effective application of environmental legislation by the judiciary or the adoption of necessary measures to guarantee the protection of the environment” says Alba Iranzo, lawyer at IIDMA.