Practicable access to the courts and administrative complaints procedures for individuals and public interest groups will ensure that their legitimate interests are protected and that prescribed environmental measures are effectively enforced and illegal practices stopped.
Rights to participation and to information are of limited value if there is no mechanism to challenge breaches of such rights. Therefore access to justice is a key element in affording the public a meaningful involvement in environment matters.
While most states provide some form of legal recourse for the public on environmental matters, it has become clear, with the cost of legal services and the effective legal power of vested interest groups (i.e. polluters), that further measures are necessary to safeguard the environmental rights of people and enable people concerned by environmental degradation to directly confront those harming the shared environment.
In order to protect the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, it is necessary to guarantee the individual right of access to justice in environmental matters.
In most countries it is very difficult for ordinary citizens or environmental NGOs to go to court to defend environmental interests, primarily because of restrictive standing rules. Even if the standing problem is overcome there are problems of high costs which in many countries mean that access to justice is only something for the wealthy. In some countries, it is difficult or impossible to get injunctive relief for example to put a temporary stop to a polluting activity, or else there are high financial risks involved. While some countries have well developed low cost, highly accessible appeals mechanisms, such as the ombudsperson systems, many do not. Such systems can reduce the numbers of cases going to the courts and provide some measure of access to justice for those who do not have the means to go to court.
Broad rights of standing should be granted where environmental and public health interests are at stake, to increase public involvement in enforcement of the law. Where interests (including non-human interests) of a generalized or dispersed nature may be affected, NGOs representing the potentially affected interests should be granted the right of standing.
Efforts should be made to overcome practical and financial barriers to access to justice, e.g. through the provision of legal aid mechanisms and waivers of costs where cases are taken in the public interest. Injunctive relief should be available to prevent actions which could result in serious or irreversible damage to health or the environment.
Given that the possibilities of being granted legal standing or obtaining injunctive relief are often dependent on establishing a certain probability of causation, it is desirable that clear legal rules be set out for establishing causation and for the admissibility of evidence before the courts in environmental and health cases, taking into account the need to apply the precautionary principle when faced with scientific uncertainty or divergent standards.
In order to lower the threshold to access to justice and ensure more specialized expertise in the adjudicating body, governments should consider establishing an ombudsperson's office with competence to deal with environmental and health issues.
The Ã…rhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) spells out the public authorities duties towards the public at large and covers such areas as water, air, soil, chemicals, human health, land-use planning, genetically modified organisms, etc. Its provisions lay down specific requirements in terms of openness and transparency, so setting an example for strengthening democracy throughout the UN/ECE region and beyond.
Environmental laws often incorporate a moral vision, and strive to advance civic values that are ignored in the free market. Environmental law responds to the failure of the free market to prevent pollution and the destruction of natural resources. While environmental laws should weigh economic issues, the laws should not substitute economic considerations for the important social considerations that motivated legislators to enact environmental laws in the first place.