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News perspectives on energy from the human right to environment

News perspectives on energy from the human right to environment. The situation in Catalonia , Spain and EU Alexandre Peñalver i Cabré IUCN 2014. Contents. Human Right to Environment and energy Aarhus Convention. EU. Spain. Catalonia.

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News perspectives on energy from the human right to environment

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  1. News perspectives on energy from the human right to environment Thesituation in Catalonia, Spain and EU Alexandre Peñalver i Cabré IUCN 2014

  2. Contents • Human Right to Environment and energy • Aarhus Convention. • EU. • Spain. • Catalonia. • Effective protection of this Human Right to Environment to enforce energy law • Two main requirements of Aarhus Convention. • Effective protection of Human Right to Environment in EU, Spain and Catalonia. • The three pillars. • Conclusions

  3. 1. HumanRight to EnvironmentandEnergyAarhusConvention • Right of every person of present and future generations to live in an environment adequate to health and well-being. • Broad definition of environment which includes energy.

  4. 1. Human Right to Environment andEnergyAarhus Convention • Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (25th June 1998). • ItwasadoptedbyUnited NationsEconomicComission for Europe (UN/ECE): • ECE- countries: European countries, USA, Canada, Australia, Israel and EU. • Non ECE-countries.

  5. 1. Human Right to Environment andEnergyAarhus Convention • Process: • Signedby 39 countries and by EU on 25 June of 1998. • Entry into force on 30 October 2001 after 16 ratifications. • As of 7 January 2014, there were 46 Parties.

  6. 1. Human Right to Environment andEnergyEuropean Union • Environmental public policy: art. 37 of the Charter of Fundamental Rights of the European Union, December 7, 2000 (with binding legal effect in December 1, 2009): “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. • Human Right to Environment: Aarhus Convention - Decision of the Council of the European Community 2005/370, February 17 (OJEU L-124, May 17, 2005).

  7. 1. Human Right to Environment andEnergySpain • Art. 45 of Spanish Constitution of 1978: • Human Right to Environment:“(1) Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it.” • Environmental Public Policy: “(2) The public authorities shall watch over a rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment, by relying on an indispensable collective solidarity. • Legal consequences: “(3) For those who break the provisions contained in the foregoing paragraph, criminal or, where applicable, administrative sanctions shall be imposed, under the terms established by the law, and they shall be obliged to repair the damage caused.

  8. 1. Human Right to Environment andEnergyCatalonia • Human Right to Environment: art. 27 Spanish Organic Act 6/2006 of the 19th July, of the Statute of Autonomy of Catalonia. • “1. Each individual has the right to live in an environment that is balanced, sustainable and respectful of health, in accordance with the standards and levels of protection established by law. Each individual also has equal rights to enjoy the landscape and natural resources, and has the obligation to use these responsibly and to avoid squander and damage of natural resources. • 2. Each individual has the right to protection from different forms of pollution, in accordance with the standards and levels determined by law. He or she also has the obligation to collaborate in the conservation of the natural heritage and in actions designed to eliminate any form of pollution, with the objective of maintaining and preserving the natural environment for future generations. • 3. Each individual has the right of access to environmental information held by the public authorities. The right to information may only be limited for justifiable reasons of public order, within the terms established by law.”

  9. 1. Human Right to Environment andEnergyCatalonia • Environmental public policy : art. 46 Spanish Organic Act 6/2006 of the 19th July, of the Statute of Autonomy of Catalonia. • “1. The public authorities shall ensure the protection of the environment through the adoption of public policies based on sustainable development and on collective and inter-generational solidarity. • 2. Environmental policies shall be particularly addressed to the reduction of different types of pollution (…). • 3. The public authorities shall create conditions for the preservation of nature and biodiversity, promote the integration of environmental objectives into sectorial policies (…). • 4. The public authorities shall ensure economic and territorial cohesion (…). • 5. The public authorities shall provide citizens with environmental information and encourage education in values concerning the preservation and improvement of the environment as a common heritage.”

  10. 2. Effective protection of this Human Right to Environment to enforce energy lawAarhus • It must be provided a real and effective protection for the Human Right to Environment. • Three broad tools or 'pillars‘ to protect this right: access to information, public participation and access to justice.

  11. 2. Effective protection of this Human Right to Environment to enforce energy lawEuropean Union • Real and effective protection standard: • Aarhus Convention. • New law to develop Aarhus Convention: • Directive 2003/4/EC on public access to environmental information • Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC • Regulation 1367/2006/EC on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. • Right to an effective remedy and to a fair trial (art. 47.1 Charter of Fundamental Rights of the European Union and art. 19.1 of the Treaty on EU).

  12. 2. Effective protection of this Human Right to Environment to enforce energy lawSpain • Real and effective protection standard: • Aarhus Convention. • New law to develop Aarhus Convention: • Spanish Act 27/2006, of 18 of July, on rights of access to information, public participation and access to justice in environmental matters • Spanish Constitution 1978: • Right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests (art. 24.1). • General constitutional mandate to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life (art. 9.2)

  13. 2. Effective protection of this Human Right to Environment to enforce energy lawCatalonia • Regulations shall respect the rights from the Statute (among them, Human Right to Environment as we’ve seen) and shall be interpreted and applied in the most appropriate way so as to ensure their full effectiveness (article 37 of the Statute). • Judgments of the Council for Statutory Guarantees in relation to Government bills and Members’ bills in Parliament that develop or affect the rights recognized in this Statute, are binding in nature (art.38 of the Statute). • Special appeal to the Supreme Court of Justice of Catalonia (art. 38 of the Statute) • The bad impact of Spanish Constitutional Court Decision 31/2010, 28 June.

  14. 2. Effective protection of this Human Right to EnvironmentAccess to environmental information • Any person without an interest having to be stated has the right of access. • Broad definition of environmental information. • Broad definition of public authorities. • Restrictive regulation of exceptions or limits. • Fast procedureto get information. • Rightto get the information in the form requested. • Reasonable amount.

  15. 2. Effective protection of this Human Right to EnvironmentAccess to environmental information • Judicial and non-judicial protection (art. 9.1 Aarhus Convention): • Non-judicial review mechanisms are more efficient, timely and cheaper than court procedures, but that the court proceedings should be kept in place (Committee on Environmental Policy of UNECE for the First Meeting of the Parties to the Aarhus Convention 2001).

  16. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to Environmental Information • There is not an effective non-judicial review procedure in EU neither Spain to protect the right of access to environmental information: • Appeals to the same public authority. • These appeals don’t provide for adequate and effective remedies and they aren’t fair and equitable procedures. • Aarhus requirements force to create a new non-judicial independent and impartial bodies which resolve these appeals or, at least, make a preliminary and binding report. • There is not an effective judicial review procedure to protect the right of access to environmental information: • 10 years in Spain for a final Court decision to get environmental information.

  17. 2. Effective protection of this Human Right to Environmentto enforce energy lawPublic participation • General requirements for the effectiveness of public participation (art. 6 Aarhus Convention): • Public concerned: shall be informed early in an environmental decision-making procedure, and in an adequate, timely and effective manner. Also it must be promoted a “private” participation before the procedure between future applicants and public concerned. • Public: reasonable time-frames, sufficient time for informing the public and for the public to prepare and participate effectively during the environmental decision-making. Also early public participation, when all options are open and effective public participation can take place.

  18. 2. Effective protection of this Human Right to Environment to enforce energy lawPublic participation • European, Spanish and Catalan environmental law have reproduced all these general requirements. • But they haven’t developed them so much in order to specify what is early, adequate, effective or reasonable. • This is the main challenge for the future legislation on public participation.

  19. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to justice • Three sorts of access to justice (Aarhus Convention): • Article 9(1): allows public to protect the right to access to environmental information. • Article 9(2): allows public concerned to challenge the substantive and procedural legality of any decision, act or omission from public authorities. • Article 9(3): allows public to enforce environmental law against private persons and public authorities who violate law relating to the environment

  20. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to justice • Two sorts of access to justice (EU and Spain): • There are only two sorts of access to justice: • Article 9(1): public to protect the right to access to environmental information. • Article 9(2): public concerned to challenge the substantive and procedural legality of any decision, act or omission from public authorities. • There isn’t article 9(3): public to enforce environmental law

  21. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to justice • General requirements of access to justice (Aarhus): • Shall provide adequate and effective remedies, including injunctive relief as appropriate. • Procedures must be fair, equitable and timely. • They are not prohibitively expensive and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice

  22. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to justice • General requirements of access to justice (EU and Spain): • They are the big challenge for environmental protection in EU, Spain and Catalonia and legislative reforms and more economic resources must be need. • Procedures in civil and administrative courts in Spain provide adequate and effective remedies for individual private’s rights or interests but not for environmental interests. • Procedures, in general, are not timely in EU neither in Spain. • Spain has 10,2 judges for 100.000 population while the average in Europe is 21,3 (Evaluation Report on European judicial systems 2012 of the European Commission for the Efficiency of Justice of the Council of Europe).

  23. 2. Effective protection of this Human Right to Environment to enforce energy lawAccess to justice • Procedures to protect environment in EU and Spain are so expensivewithout appropriate assistance mechanisms to reduce economic barriers to access to justice. • Formal access to justice for environmental matters. • As Aarhus Convention, there are general principles at constitutional level to remove economic barriers. • All these general requirements are not well and fully developed • Spanish Act 27/2006 regulates only legal aids but not other mechanisms in public interest litigation to protect environment such as: special regulation of fee shifting in order to encourage legitimate lawsuits, elimination of taxes and deposits for lawsuits and appeals or special regulation of bonds for criminal lawsuits or interim reliefs.

  24. 3. Conclusions • Human Right to Environment has been recognized by Aarhus Convention and by EU, Spain and Catalonia law and environment includes energy. • The most important goal of Aarhus Convention is to provided a real and effective protection for Human Right to Environment and it’s an important tool to enforce energy law . • EU, Spain and Catalonia doesn’t provide a real and effective protection for this Right.

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