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Jan Darpö

Chapter 5 discusses some key aspects of scientific and technical evidence in EU law and what challenges these requirements may pose for national courts in national environmental litigation procedures. As the reader is aware, environmental decision-making under EU law is often based on complex scientific assessments performed by the administrative authorities. Those assessments might be challenged in court by different actors who oppose environmentally hazardous activities and non-sustainable use of natural resources, contesting the legality of the decisions at stake. Against this backdrop, the possibilities open to national courts to independently evaluate scientific and technical information are of the utmost importance to the effectiveness of EU obligations in this field of law. It is evident that, when analysing how different legal systems within the Union use scientific evidence in environmental cases, we have to deal with an(other) encounter between the procedural autonomy of Member States and the EU law requirement for effective justice. This chapter discusses what this encounter means when environmental decision-making is challenged in court in some of the legal systems of the EU. It starts with a few remarks on the characteristics of environmental law and the use of legal-technical standards in this sphere of law. This is followed by an analysis of the case-law of the CJEU on the requirements imposed by EU law on national courts to evaluate scientific and technical information in environmental litigation. Subsequently, some observations are made about who are the providers of scientific evidence in environmental cases and what obstacles litigants might encounter in different legal systems, eg concerning costs and the availability of independent experts. The next key issue concerns the power, available in different legal systems, of national courts to engage in their own evaluation of scientific and technical information. Both the competence of the reviewing court itself as well as the possibility to seek outside advice (eg independent experts and expert panels from outside the administration) will be looked at. To a certain degree, this question relates to the level of scrutiny exercised by the national court regarding administrative decision-making, referred to as the ‘intensity of review’ in environmental litigation. In this respect, the legal systems of the Member States show significant variations, which are partly due to the different traditional legal philosophies concerning the relationship between policy-makers and the judiciary. The chapter finishes with a couple of conclusions concerning the main challenges posed by scientific and technical evidence in environmental litigation.

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Jan Darpö

Abstract Principle 10 of the Rio Declaration provides for the three ‘pillars’ of environmental democ-racy, that is, the right of the public to obtain environmental information, to participate in environmental decision-making procedures, and to have access to justice in environmental matters. This chapter deals with some key issues concerning the third pillar’s rights on access to justice. First, it covers the relevant historical background and outlines develop-ments in international law in this area. Following on from setting the context, access to jus-tice in different regional human rights conventions is discussed in respect of their strengths and shortcomings. Although there has been a significant ‘greening’ of the provisions therein relating to the protection of family and home, as well as the requirement for a fair trial, most of these conventions are confined to ‘individual’s rights’ in a more traditional sense. As for the protection of general environmental interests, the international human rights instruments remain far less effective. Instead, the most advanced instrument on envi-ronmental democracy currently is the regional 1998 Aarhus Convention from UNECE with 47 signatory Parties. Under Article 9 of this Convention, the public is entitled to have access to justice to challenge refusals to make environmental information accessible, decisions and omissions about permits for large installations and operations which may have a significant impact on the environment, as well as other kinds of activities which may breach environmental legislation. These provisions and their implementation in EU law are analysed, using recommendations from the Aarhus Compliance Committee and case-law of the Court of Justice of the European Union (CJEU) as sources of interpreta-tion. The main focus is on standing for individuals and environmental non-governmental organizations (ENGOs), the requirement for a review on both substantive and procedural legality, the effectiveness of the review procedure and costs. The chapter concludes with a short note on future prospects for access to justice for the public concerned in order to protect a healthy environment, on a more regional and global level.
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Edited by Lorenzo Squintani, Jan Darpö, Luc Lavrysen and Peter-Tobias Stoll

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Lorenzo Squintani, Jan Darpö, Luc Lavrysen and Peter-Tobias Stoll

This chapter brings to the foreground the tension perceivable in the field between the need to engage the public and the need for professional expertise in environmental governance. Indeed, not only can public opinion deviate from scientific knowledge, scientific knowledge itself can be lacunose or contradictory. In this chapter, the structure of the book is explained and the focal point of each chapter composing the book is provided.

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Lorenzo Squintani, Jan Darpö, Luc Lavrysen and Peter-Tobias Stoll

This chapter reflects on the unique insight into techniques for the reconciliation of facts and feelings – two main components of environmental decision-making procedures – offered by the various contributions composing this book. This insight reveals a path leading to a new role for environmental administrations and courts in decision-making procedures. Accordingly, this chapter discusses how the progressive relevance of public participation procedures and science-based reasoning, coupled with the development of digital means of communication and decision-making, open the door to what can be called ‘environmental administration 3.0’.

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Edited by Lorenzo Squintani, Jan Darpö, Luc Lavrysen and Peter-Tobias Stoll

This timely book brings to the foreground the considerable tensions between the need to engage the public in the importance of environmental governance and the need of professional expertise to address the issues which arise. In doing so, it highlights that not only can public opinion deviate from scientific knowledge, but scientific knowledge itself can be lacunose or contradicting. Drawing together insights from some of the leading scholars, this engaging work will provide guidance to decision makers, including judges, on how to govern public participation procedures and professional expertise and the role that the precautionary principle can play in this regard.