Chapter 5: Understanding the nuts and bolts: scientific and technical knowledge in environmental litigation – national solutions, EU requirements and current challenges
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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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