EIA Directive Procedural Guarantees as Substantive Individual Rights in IL v. Land Nordrhein-Westfalen

Abstract

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did not affect the outcome of the project’s authorization decision, Member States may restrict standing only to individuals’ claims based on procedural defects where it prevented their participation in the entire decision-making process. Drawing from Advocate General Hogan’s opinion in IL v. Land Nordrhein-Westfalen, this paper advocates for designating the procedural guarantees themselves as substantive individual rights. The existing EIA Directive and Aarhus Convention procedural rights are rendered ineffective if the information required to be disseminated in environmental impact statements is not provided. Lacking this information and blocked from challenging these decisions in court, individuals cannot be informed participants, cannot access a review procedure, and cannot fully execute their rights under EU law. If unchanged in light of this rights designation, current Member State laws may violate the Charter of Fundamental Rights of the European Union, the Treaty on the Functioning of the European Union, and general principles of Community law.