38 - Latest communications, and protest in peril?

Hello again, dear readers, and welcome back to the Aarhus blog: the legal blog that is so niche, it only listens to University Challenge jungle remixes.

Today in Aarhusland we are discussing the newest communications from the public, plus some worrying domestic developments that have provoked comment from the UN Special Rapporteur on Environmental Defenders.

ACCC/C/2024/209 Italy

Summer is upon is, and so naturally we must first go to Italy. But alas, it isn’t always sunny in the Apennines. In an admirably brief communication the complainants, a local group called Voices from the Valley, allege that Italy permitted a new tunnel connecting the mountain regions of Marche and Umbria by way of a planning process that involved “a total lack of information towards the affected population”, involving subsequent expropriations (compulsory purchase) without those affected “having had the opportunity to intervene in the initial stages of the decision-making process that began in 2018.”

No doubt residents were concerned by the potentially deleterious effect of the proposal on the tranquil beauty of the central Italian mountains. I am not sure why they are worried: I have only ever visited Italy to admire its world-famous road infrastructure. But I suspect I may be in the minority.

Italy argues in response to the complaint that it is not admissible because the public participation phase of the project was carried out as part of the EIA procedures in which the Italian Ministry guaranteed the maximum possible participation of the public: and in any event, the complainants did not challenge the decision in the administrative courts in Italy, as they were entitled to.

Taking Italy’s response at face value, this does seem like an ambitious ACCC complaint. The EIA requirements are not exactly new in EU countries, and so it would be quite a thing for those requirements to have been unintentionally ignored. We will have to see how it plays out.

There is, however, one aspect of the complaint that offers some food for thought regarding the accessibility of our own EIA processes. Here’s what Voices from the Valley have to say about the process that was undertaken in Italy:

“Art. 6.6 – The information regarding the project is not transparent, nor it is effectively accessible. It is very difficult for the public concerned to find the website where this information is available. Once you find the right site and page (…), you are faced with a list of almost 700 technical documents that are impossible for a general public to sift through, interpret and understand. We were not able to find among these documents a non-technical summary of the above (Art. 6.6.d), a description of the main alternatives considered (Art. 6.6.e) or a description of the measures planned to prevent and/or reduce negative effects on the environment (Art. 6.6.c).”

Perhaps not miles away from what we sometimes (often?) see in the UK. A lesson for us all, then: if you have an application in the pipeline, and you think aspects might be a bit too technical for local residents to understand, do make sure your non-technical summary is clearly flagged and signposted – or the UK government might get annoyed with you for prompting another communication to the ACCC.

ACCC/C/2024/208 Germany

To Germany next- where a group called Green Legal Impact are complaining about a very deliberate circumvention of the long-established EIA process. They are arguing that Germany’s LNG (Liquified Natural Gas) Accellaration Act is non-compliant with the Aarhus Convention because it specifically disapplies key aspects of EIA.

This is quite an interesting one, and it may well have implications for Labour’s future planning reforms, inasmuch as they try to circumnavigate EIA. What happened? Well, through the LNG Accellaration Act, Germany shortened the public participation period for LNG projects from six weeks or eight weeks to just two weeks, as well as exempted those projects from EIA. A bit of an Aarhus red flag, you might think! The Act also determined energy industry necessity in Germany from the outset- without, it would seem, any public participation. Compare and contrast with our National Policy Statements on Energy, which also determine that national need should be assumed, but were heavily consulted on.

Clearly, the LNG Acceleration Act arose in the context of Germany’s heavy reliance on natural gas imports from Russia, and its desire to rapidly reduce that reliance. But what does Germany have to say in response to the complaint?

Germany’s response so far has been firstly to question the admissibility of the complaint on the basis of adequate alternative remedy – which does not seem a particularly strong argument, given the legislation is primary, and only subsequent regulations made under it can be challenged in the German courts (as in the UK).

More persuasive is Germany’s second argument that the LNG Acceleration Act was a response to Russia effectively turning the gas off, and the need to install floating LNG terminals on the German coast to guarantee necessary continuing distribution in the context of that emergency situation. Germany’s response notes:

“The LNG Acceleration Act served the purpose of ensuring the LNG infrastructure's swift construction. The Act proposed new regulations to allow the quick construction of land-based and floating LNG terminals as well as necessary connections…

Finally, it has to be emphasised that the LNG Acceleration Act only applies to floating and land-based LNG terminals that are exhaustively listed in the Annex of the Act. Most of the Act’s provisions, including those on the shortened duration of the procedure for public participation and on the option of the preliminary permits, will cease to be in force by 30 June 2025. That means, in a good year’s time from now these provisions will no longer be applicable. In the view of the Federal Republic of Germany, these facts – the limited scope of application of the LNG Acceleration Act as well as its time limit – prove all the more that the intention was to modify the regimes for public participation and access to justice as little as possible, namely only to overcome the crisis.”

In responding to Germany’s response, the complainant does not quite dispute the time-limited nature of the Act, but instead notes that “Since the LNGG, there has been a significant trend in Germany and in the whole European Union to curtail public participation and access to justice for the sake of acceleration of infrastructure projects. Not without reason, the LNGG was and is still often referred to as a blueprint for other laws…”

This is definitely one to watch (although we might be watching it for some time, given the current resourcing issues at the ACCC…). What happens when public participation requirements collide with pressing national need? More complaints to ACCC…!

Of course, there is a possible exemption from the public participation requirements of the Convention – for national security and defence issues under Article 6(1)(c). Interestingly, the complainant here argues that is not relevant to an Act that exempts whole groups of projects from EIA, given the exemption only applies on a “case-by-case basis.” We’ll have to see what the Committee make of that.

On a related note – there is also a live complaint to the ACCC about Ukraine’s compliance with environmental law during times of war, consideration of which has been postponed, due to the war. The environment is, of course, a huge casualty of any war.

5 years for a Zoom meeting?

And if that wasn’t depressing enough, some climate protestor news from our UK correspondent.

Earlier this month Just Stop Oil founder Roger Hallam was sentenced to five years in prison for planning a peaceful climate protest- his co-conspirators Daniel Shaw, Louise Lancaster, Lucia Whittaker De Abreu and Cressida Gethin (for it was, once again, the broad charge of conspiracy that brought them down) were sentenced to four.

Regardless of what you think about disruptive climate protests, the length of sentence does seem very hard to justify in a modern democracy. 5 years just for planning a climate protest. Compare and contrast with other recent high profile criminal sentences. All seems a bit off to me.

The severity of the sentencing has prompted UN Special Rapporteur on Climate under the Aarhus Convention Michael Forst (featured on these pages before- see here and here) to issue a furious broadside. The gloves are off: the Aarhus is loose (You’re fired- Ed).

Mr Forst began by noting it was a “dark day for peaceful environmental protest.” He focused in particular on the 4 year sentence handed to Daniel Shaw, a 38 year old social worker. He stated as follows:

“What happened to Mr. Shaw today is unacceptable, both from a legal and a societal standpoint. A young man has been sent to prison for four years due to his decision to come together with others to discuss how to prompt government action through entirely peaceful means to address the serious threats posed by the climate crisis. This sentence should shock the conscience of any member of the public. It should also put all of us on high alert on the state of civic rights and freedoms in the United Kingdom. One must ask what comes next when an individual like Mr. Shaw who sought to exercise his right to peacefully raise his concerns about the existential threats posed by the climate crisis and the failure of his own government to take adequate steps in response is treated like a serious criminal and put behind bars for four years. Rulings like today’s set a very dangerous precedent, not just for environmental protest but any form of peaceful protest that may, at one point or another, not align with the interests of the government of the day.

Given the gravity of the situation, I urge the new United Kingdom government, with absolute urgency and without undo delay, to take all necessary steps to ensure that Mr. Shaw’s sentence is reduced in line with the United Kingdom’s obligations under the Aarhus Convention. I underline once again that, prior to his conviction, Mr. Shaw already spent 113 days in a prison cell on remand for the same Zoom call, in itself a highly draconian and deeply questionable measure against someone who participated in a call on peaceful environmental protest. I will remain deeply engaged with Mr. Shaw’s case until I see concrete action by the United Kingdom to protect Mr. Shaw’s rights as an environmental defender.”

Whether any changes will be made by the new government to the UK’s protest laws remains to be seen. Failing that: another complaint to the ACCC? (DM me your ideas…)

That’s all for today, dear reader. It is now nearly August, the time where every barrister signs off their last opinion, puts on their out-of-office, and curls up in their burrow to hibernate for a few weeks, ready to emerge from the ground revitalised and refreshed in September. And so – all that’s left for me to do is wish you a good summer. Enjoy the sunshine! It is quite hot today, but unfortunately I am not allowed to tell you why.

This blog was written by Alex Shattock- own views.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.