Access to Courts in the European Union

• Pages: 22-22

Page 22 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2011

noTice & commenT

was passed over Nixon’s veto but

which the president favored then

canceled due to its cost) and a sec-

ond batch was signed by President

Reagan during a time when the

Republicans controlled the Senate.

A slew of Republican members of

Congress were staunch advocates of

environmental lawmaking during

this era, including Howard Baker,

Robert Staf‌ford, and John Chafee.

Today, no Republican member of

Congress is known as an environ-

mentalist, just the opposite.

Why Laws Aren’t

Getting Passed

As has been recognized in many

places, the steam has gone out

of environmental lawmaking at a

statutory level. It’s been 15 years

since any signif‌icant environmental

law has been passed or reauthorized,

really 21 years if you count only

major acts. Polls consistently show

the public in favor of environmen-

tal action, yet the Congress has been

quiescent in this area. Indeed, the

failure of climate change legislation

in the last term signaled, probably,

the last chance for major legislation

in a generation due to the Senate’s

supermajority requirement for pas-

sage of a law.

Why is that so? It could be be-

cause the activism of the New Deal

generation, which lasted more than

half a century, has been expiated. e

New Deal signaled federal action to

confront a national problem, with

a slew of reforms. Changes in the

Supreme Court were necessary f‌irst,

but once President Roosevelt had a

majority he was able to pass legisla-

tion regulating the securities mar-

kets and setting up the f‌irst national

welfare system, Social Security. And

when World War II rolled around,

it was the federal government that

gathered together the state armies to

confront the Axis powers.

After the war, President Eisen-

hower continued the ascent of fed-

eral activism based on its commerce

powers. After the Sputnik scare,

strong laws were passed, with billions

of dollars in funding, to build a na-

tional system of “defense highways”

— that’s how the Interstate system

was sold — and to fund public edu-

cation in the national interest.

Twice during that time the fed-

eral government rolled out national

campaigns to eradicate polio, the

f‌irst major ef‌fort to protect public

health with governmental action.

And strong federal laws were passed

in the 1960s protecting the rights of

ethnic minorities, based on the com-

merce clause and foreshadowing the

right-to-know laws and measures

ensuring access to justice.

It’s hard to remember, but the

era of environmental lawmaking

that followed these ef‌forts occurred

during a time of divided govern-

ment and Republican control of the

White House or the Senate. e f‌irst

major batch of statutes were signed

by Presidents Nixon and Ford (ex-

ception: the Clean Water Act, which

“In the United States, public

support for a “nuclear

renaissance” has crumbled.

For an industry that can’t get

private f‌inancing or liability

insurance, can’t deal with its

wastes, and can’t guarantee

a reliable supply of uranium,

the whole future now turns on

the pitched battle being waged

to kill $36 billion in new

construction loan guarantees

that President Obama has

slipped into the 2012 budget. ”

— The Progressive

it? It turns out you can-

not go to the cour ts

in your own country

because the EU can-

not be sued in those

courts. Also, you can’t

go to the courts of the

EU, because for the last

30 years the EU has re-

fused to be sued in its

own courts.

This means that when

the EU violates environ-

mental law, you as a

citizen have no forum,

In America, we think

the grass is always

greener. We assume

that Europe is more civi-

lized and sophisticated

than we are. This turns

out to be entirely wrong

when it comes to access

to justice for citizens, in

which the United States

is a model.

If you’re a citizen of

the EU and the EU vio-

lates environmental law,

what can you do about

you have no access,

and you have no justice.

A democracy which re-

fuses to allow citizens

to challenge the govern-

ment when it violates

the law is an incomplete

democracy.

ClientEarth is trying

to change that. This

week we celebrate a

victory in an interna-

tional tribunal, which

has ordered the EU to

change those policies,

and its refusal to give

access. It is now up to

the courts of the EU

to grant access, to put

the entire EU in viola-

tion of international law.

Our victory should force

open the doors of the

courts to environmen-

tal groups throughout

Europe.

—James ornton in

the Huf‌f‌ington Post,

May 7, 2011

Access to Courts in the European Union