Discretion and Judicial Review in European Environmental Law
According to the treaties that establish governance of the European Union (EU), lawmakers must aim to achieve sustainable development, with an eye towards attaining a high level of protection and improvement of the quality of the environment. The treaties also set key principles of European environmental policy, which bind EU institutions and member states.
Yet making, applying, and enforcing the European environmental law and policy involves the exercise of discretionary powers at multiple levels of government. Balancing the discretion afforded to multinational and domestic authorities presents special challenges to judges in ensuring effective application of EU environmental law.
EU treaties endow governing institutions with broad discretion to define environmental policy, especially with respect to setting a suitable timetable for achieving the envisaged objectives. The decision to afford institutions such discretion was purposeful: the successful shaping of environmental policy requires the ability to make certain political, economic and social choices, which must be tailored to current circumstances.
In addition, most EU rules are enshrined in directives, which must be transposed into the domestic legal frameworks of each member state. These nations have a duty to ensure that directives are fully effective. Within the contours of this mandate, however, member states enjoy some discretion to choose the means to achieve their goals.
For instance, national authorities enjoy broad latitude in deciding the management system they want to use to ensure that waste producers carry out and bear the cost of treating that waste. Member states also may introduce more stringent protective measures within their territories, provided the state policies remain compatible with the treaties.
Finally, national public administrations, which also exercise discretionary powers, apply and enforce environmental law. In fact, public administrations are a cornerstone of environmental protection. Many environmental law provisions are addressed to administrative authorities, which bear responsibility for adopting secondary legislation, monitoring compliance with the legal order and exercising the corresponding executive powers. Activities relevant to the environment are typically subject to planning, authorizations, inspections and, where appropriate, administrative sanctions, or may benefit from state aid. Furthermore, in many member states regional and local authorities apply certain environmental rules, such as town planning and land use measures.
Discretion, in conjunction with the decentralized application of European environmental law, raises several challenges. The most obvious challenge is ensuring the enforcement of these laws. In fact, one of the goals of the 7th Environment Action Programme is to enforce EU environment law “at all administrative levels” by 2020.
Decentralization also gives rise to a serious problem of consistency in the application of European environmental law. In this context, judicial review plays a critical role in effective application: judges must balance environmental protection with creation of a level-playing field in the internal market and, ultimately, the protection of individual rights.
Aggrieved parties can bring actions for judicial review before European courts. However, legal standing requirements before European courts raise significant compliance difficulties for individuals and environmental organizations. The vast majority of cases involving EU environmental law are decided by national courts. After EU rules have been incorporated into the domestic laws of member states, national courts may decide legal questions under them just as they do for any other national law.
Moreover, individuals can bring EU environmental law enforcement actions before national courts, provided that the given law directly confers rights to them. Legal standing requirements—a question of domestic law—vary among the member states. Some nations accord standing to organizations representing collective interests and commercial competitors.
The scope of judicial review is closely linked to individual EU members’ respective legal traditions. Yet across the EU, judges tend to employ common legal principles, aimed at controlling the measure at issue. The limits of judicial review arise when an issue shifts from a question of judicial control to government decision-making. The principle of separation-of-powers prevents courts from becoming legislators.
Within these limits, however, courts carry out a comprehensive review of issues of law. Courts also control compliance with the procedural rules, which are especially relevant in case of discretionary powers. In particular, measures taken by the EU institutions must state the reasoning and legal authority upon which they are based.
Judicial review also extends to the facts on which the measure is based. In this regard, we will need to focus on the application of legal concepts that are not precisely defined. Consider, for example, conservation measures concerning the habitat of certain wild birds—as well as the appraisal of complex assessments. In some cases, the application of legal concepts involves a margin of appraisal—such as using the best available technology—so that, under the circumstances, a range of possible solutions might be acceptable. In such cases, only if the public authority’s decision is not rational can a court substitute its own point of view for that of the authority .
In the same vein, in cases involving complex assessments, the reviewing court must decide whether the decision-maker had enough evidence to act the way it did. In claims arguing that precautionary measures are unlawful, the European Court has proved reluctant to examine the scientific merits of the issue at stake. EU community institutions enjoy a broad discretion when determining the level of risk deemed unacceptable to society.
Finally, courts must also have control over the substance of the exercise of discretionary powers, which have to comply with the general principles of law—including proportionality, equal treatment, precautionary principle, and protection of legitimate expectations. Nevertheless, because courts are not the decision-makers, judicial review tends to be limited to verifying whether a manifest error of assessment occurred.