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Hamsters cannot go to court (?) : judicial activism as legal tool to avoid a sixth extinction?

Hamsters cannot go to court (?) : judicial activism as legal tool to avoid a sixth extinction?. 5th EELF Conference Wroclaw – 14-16 September 2016. Overview. Sixth extinction A concrete case-study Procedural obstacles Substantive aspects New pathways Main conclusions.

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Hamsters cannot go to court (?) : judicial activism as legal tool to avoid a sixth extinction?

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  1. Hamsters cannot go to court (?): judicial activism as legal tool to avoid a sixth extinction? 5th EELF Conference Wroclaw – 14-16 September 2016

  2. Overview • Sixth extinction • A concrete case-study • Procedural obstacles • Substantive aspects • New pathways • Main conclusions

  3. I. Sixthextinction

  4. II. A very concrete case-study

  5. Plight of the European Hamster

  6. Under threat! Plight of the European Hamster • in France, Germany, the Netherlands and Belgium, the European Hamster is considered critically endangered • urban sprawl, loss of habitats and mono-culture of corn main culprits – increased vulnerability to inbreeding and rapid loss of gene diversity in the current populations • strictly protected species under EU law – in spite of the strict protection, on the road to extinction due to failure to implement effective protection and restoration programmes Extinctionthroughinaction?

  7. Under threat! Plight of the European Hamster

  8. Goingto court…

  9. Orphan! Goingto court… • “The fish cannot go to court." AG Sharpston at the Trianelhearing (C-115/09) • "The environment cannot defend itself before a court, but needs to be represented, for example by active citizens or nongovernmental organisations" AG Kokot Hamsters cannot go to court?

  10. Alternative (1): infringementproceedings? “the wider context”

  11. Alternative (2): opposeprojects? Heerlen doet eerst natuuronderzoek HEERLEN (ANP) - De gemeente Heerlen heeft de aanleg van het grensoverschrijdend bedrijventerrein (GOB) Heerlen-Aken tijdelijk stopgezet voor een natuuronderzoek. Bij voorbereidende werkzaamheden ontdekte de gemeente holen die vermoedelijk door de beschermde inheemse veldhamster zijn gegraven. “Construction of a cross-border industrial estate blockedby hamster”

  12. Alternative (3): shakingthehabitual? Public interest litigationbeforedomestic courts?

  13. Judicialactivism! Public interest litigation! Legallyenforceabledutytoavoidextinction/torestore?

  14. Judicialactivism? Public interest litigation! • Reactive cases: administrative decisions attacked before administrative courts • More activist approach: can national or regional authorities ordered by court to adopt more stringent measures to protect and/or restore endangered species? Legallyenforceabledutytoavoidextinction/torestore?

  15. III. Proceduralhurdles

  16. III. Proceduralhurdles • Past case-law – contingent on stringent national standing rules: ‘The objective of protection laid down by Article 6(2) and (3) of the habitats directive is to conserve habitats and species within areas which form part of Natura 2000. Unlike in the case of rules on the quality of the atmosphere or water, the protection of common natural heritage is of particular interest but not a right established for the benefit of individuals. The close interests of individuals can be promoted only indirectly, as a reflex so to speak’ (Opinion AG Kokott, C-127/02, Waddenzee) (1) Locus standi?

  17. III. Proceduralhurdles • Article 9(3) of the Aarhus Convention: State Parties must ensure procedure to challenge acts or omissions contravening provisions of national environmental law • Individuals: national criteria - sufficient interest or being impaired (CJEU – C-137/14, Com/Ger) – NO? • NGOs: no actiopopularis – access to justice should be the presumption, not the exception (ACCC/2005/11(Belgium)) – YES? Sufficientlegal standing (II)?

  18. III. Proceduralhurdles • NGOs: ‘It follows first that the concept of ‘impairment of a right’ cannot depend on conditions which only other physical or legal persons can fulfill, such as the condition of being more or less close neighbor of an installation or suffering in one way or another the effects of the installation’s operation’ (CJEU C-115/09,Trianel – context of Article 11 Directive 10a Directive 85/337/EU - schutznorm) Sufficientlegal standing (III)?

  19. III. Proceduralhurdles • EU law as complementary tool: obligation under EU law to give effect to EU law and provide for effective remedies • Subjective right: right to clean air, which can be enforced by individuals and NGOs in national courts (CJEU C-404/13, Client Earth): ‘It follows that the natural or legal persons directly concerned by the limit values being exceeded after 1 January 2010 must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an air quality plan (…)’ • Question: is there subjective right to see endangered species protected which can be enforced before national courts? Sufficientlegal standing (IV)?

  20. III. Proceduralhurdles • Slovakian brown bear case: ‘Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law. It follows that, so far as concerns a species protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest exent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention’ (CJEU – C-240/09, Lesoochranárskezoskupenie) Sufficientlegal standing (V)?

  21. III. Proceduralhurdles • more activist approach: not merely challenging an administrative decision in court but pressing for a mandatory injunction (not merely a declaration) • Article 9(4) of the Aarhus Convention: adequate and effective remedies, including an injunctive review aimed at forcing a competent authority to adopt certain measures in order to prevent further damage • EU law – effective legal remedies: effective remedy which is recognised in Article 47 of the Charter of Fundamental Rights of the European Union (CJEU – 416/10, Križan) (2) What type of action?

  22. III. Proceduralhurdles (3) Seperation of powers? • Shifted approach: 2015 Urgenda-ruling ‘with this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the environment, while respecting the government’s scope for policymaking’ + 2015 Clean Air-ruling (CJEU –C-404/13, Client Earth) + 2011 ruling on legal ratification in the context of EIA Directive (eg CJEU – C-128/09, Boxus)

  23. III. Proceduralhurdles Seperation of powers (II)? • Contested: ‘(…) the Court violated the rule of law, and made new law, rather than applied the existing law. The court exceed the boundaries of its authorities, and thereby undermined the public’s trust in the judiciary’ (Bergkamp 2015) <> clear legal duty (not merely duty of care) • separation of powers revisited – when exactly is a procedure ‘too political’ to be adjudicated? Eg. the Dutch court emphasized in Urgenda explicitly that it did not specify the acts steps to be taken in order to achieve the 25% reduction targets, this is left to the discretion of the Dutch government (Dutch District Court, 24 June 2015)

  24. III. Proceduralhurdles (4) Costs? • Practical obstacle: legal proceedings can prove too costly, and that the potential financial consequences of losing challenges is preventing NGO’s and individuals from brining cases against public bodies • Article 9(4) of the Aarhus Convention: State Parties are required to provide review procedures that are not ‘prohibitively expensive’

  25. III. Proceduralhurdles Costs? (II) • Objective and subjective: ‘the court should not exclusively look at the estimated financial resources of an “average” claimant, as this may have little connection with the situation of the person concerned. Nor must one look solely at the claimant’s financial situation, one must carry out an objective analysis of the amount of the costs’ (CJEU – C-260/11, Edwards) • What is at stake: ‘Court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime’ (CJEU – C-260/11, Edwards)

  26. III. Proceduralhurdles (5) Timely? • At the brink of extinction: no time to waste, however, in some countries legal procedures before court are characterized by many delays (eg Belgium – klimaatzaak-proceedings – two years without a ruling on the merits) • Article 9(4) of the Aarhus Convention: State parties have to provide for the timeliness of their review procedures – expeditious proceedings

  27. IV. Substantiveaspects

  28. Substantiveaspects Legallyenforceabledutytorestore? concrete policy targets: • Aichi Target 15: By 2020, …, including restoration of at least 15 per cent of degraded ecosystems… • EU Biodiversity Strategy Target 1: “To halt the deterioration in the status of all species and habitats covered by EU nature legislation and achieve a significant and measurable improvement in their status (…)” • EU Biodiversity Strategy Target 2: “By 2020, ecosystems and their services are maintained and enhanced by establishing green infrastructure and restoring at least 15 % of degraded ecosystems.”

  29. Substantiveaspects 1. Mandatorylegaldutytoprotect? • Article 12(1) of the Habitats Directive: 1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting: (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places.

  30. Substantiveaspects Mandatorylegalduty (II) • strict protection – both in theory and in practice: “this legal framework was not capable of ensuring strict protection” (C-103/00, Com/Gre) – obligation of result • requirement of strict interpretation: “it follows that, […] the Member States are under a particular duty to ensure that their legislation […] is clear and precise” (C-6/04, Com/UK; Case C-98/03, Com/Ger.)

  31. Substantiveaspects • Definition of conservation in Habitats Directive: maintain or restore natural habitats and species at a favourable status (art. 1, a) • General obligation of Habitats Directive: measures to maintain or restore at favourable conservation status habitats and species of Community interest (art. 2, § 2) = result obligation! 2. Mandatorydutytorestore?

  32. Substantiveaspects Species in a favourableconservation status? • Population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and • the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and • there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis; • No explicit referencetohistoric levels (deliberately!!!!) 3. What baseline - FCS?

  33. Substantiveaspects • Status quo? are Member States allowed to limit their restoration efforts to simply maintaining a strict protected species at an unfavourable conservation status? • A-G: “the populations of the species are so small that they may die out because of natural fluctuations in numbers, an effective system of protection must aim to achieve a sufficient increase in stocks” (CJEU C-183/09, Com/Fra) FCS?

  34. Substantiveaspects • Back to 1994 levels? France required to restore its population of the European hamster to pre-1994 levels under Union law? • a restoration claim, especially when it is linked to past omissions in providing sufficient protection for an Annex IV species since the entry into force of the Habitats Directive, appears to be in line with the Habitats Directive and EU law (not derive advantage from its failures to act – cf. CJEU C-374/98 Com/Fra) Historic levels?

  35. Substantiveaspects • measures: species action plans, recovery plans, conservation agreements, additional protection measures…. margin of discretion (?) • Guidance document European Commission 2007– species action programs: based on sound scientific evidence + set forward conservation measures aimed at FCS • explicit duty (?) – CJEU C-183/05 Com/Ire 4. Whatmeasures?

  36. Substantiveaspects • Focus on FCS – also recovery measures? • No: “In relation to the species protection section, it is important that proactive management measures (such as restoration of habitats/populations, improvement of habitats) are not an obligation under Article 12 (…) ” (Commission Guidance 2007) • Yes: AG Kokott held that prohibitions for the protection of species can also influence habitat management and, in the end, may foster species recovery (eg ban on ploughing) (CJEU C-383/09 Com/Fra) 5. Contents of themeasures?

  37. Substantiveaspects • No: “measures in areas where there are no hamster burrows are not necessary. Measures of that kind are certainly sensible for the future repopulation of those habitats by the European hamster and, therefore, presumably also necessary for the restoration of a favourable conservation status for the species in Alsace generally. However, the measures required by Article 12(1)(d) relate only to the breeding sites and resting places of existingpopulations” <> ecological reality • CJEU: underlined responsibility MS in ensuring the long term viability of vulnerable and threatened Annex IV species on its territory (CJEU C-383/09 Com/Fra) Contents of themeasures?

  38. Substantiveaspects • no second-guessing:US case-law with respect to recovery-duty under ESA- only in cases where an authority refuses to base its decisions on the available scientific evidence – arbitrary and capricious • strict substantive review – challenge the content of the plan: analogy clean air-cases (eg. CJEU C-404/13 Client Earth) and Hamster-case, in which the content of the French recovery programs was actively scrutinized (CJEU C-383/09, Com/Fra) 6. Judicialdeference?

  39. Substantiveaspects • proportionalityprinciple: is a MS obligedtoinvest in therestoration of species that are almostextinctwithintheirboundaries? • strict case-lawdevelopments: ‘With regard to the steps that may be considered in the review of alternatives, including the possibility of demolishing a structure such as that at issue in the main proceedings, it must be stated that if a step were to entail risks of deterioration or disturbance which could be significant, within the meaning of Article 6(2) of the Habitats Directive, such a step would, as the Commission argued during the hearing, be contrary to the objective of that provision and therefore could not be regarded as an alternative solution within the meaning of Article 6(4) of that directive.’ (CJEU – C-399/14, GrüneLiga Sachsen eV) 7. Financial considerations?

  40. V. New pathways?

  41. Rights of Nature

  42. Equardor’sConstitution

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