Participation and the EU Climate Transition: A Rule of Law Question

13 December 2021 

By Professor Chiara Armeni, Chair of Environmental Law at the Faculty of Law and Criminology, Université Libre de Bruxelles

At its core, the notion of rule of law serves to contrast arbitrary power through ‘stable’, ‘prospective, open and clear’ laws and an independent judiciary¹. In its extensive interpretation, the rule of law is essential to a democratic process and the functioning of its institutions, as much as democratic participation strengthens and protects the rule of law. This relationship between rule of law and democracy makes the protection of the right to participate in decisions on climate change a rule of law question.

The climate crisis challenges our democratic institutions and the rule of law as guarantee for open and participatory decisions. In an English context, multiple pressures – from technocratic approaches to populists - are leading to a day-to-day ‘erosion of legal rights to participate’. But this erosion starts also to become visible in the European context, where the European Green Deal (EGD) seems to be repurposing the scope for the right to participate in decisions on the climate transition.

The EU Green Deal and the Right to Participate

The EGD is the new EU “green” growth strategy. The European Climate Law sits at its centre, entrenching a legally binding EU-wide target to reduce the EU net greenhouse gas emissions by at least 55% by 2030 (compared to 1990 levels) and achieve carbon neutrality by 2050. The EGD is a monumental roadmap to guide the socio-economic and technical transition towards a post-carbon economy in all sectors. Recognising the technical challenges and the imbalances in economic redistribution arising from the transition, the EGD mobilises large – although possibly insufficient - financial resources to address them.

But decisions on a transition of this scale are not simply economic or technical decisions about ‘hitting the carbon numbers’ set by experts. They are decisions about multiple options, their socio-political implications and the values underpinning them. They are, for instance, decisions about reshaping our familiar landscapes and rethinking our experience of places to develop large wind farms. They are decisions that require public participation, as well as expertise.

The right of the public to participate in decision-making is central to EU environmental law. Reinforced by the Aarhus Convention, this right is embedded in the Treaty and the EU environmental acquis. With some variation, it is a procedural right of individuals and organizations to submit opinions and information in the decision-making on projects, plans and programmes, early in the process and ‘when all options are open and effective public participation can take place’ (Aarhus Convention article 6.4).

But a close reading of the EGD suggests that public participation in decisions on the EU climate transition has been repurposed away from seeing it as a procedural right to have a say, in favour of a much weaker mechanism to support individual and collective behavioural change and climate action.

This is visible in two areas: The European Climate Law and the European Climate Pact.

1. The European Climate Law

Article 9 of the European Climate Law shapes public participation in the EU-wide climate transition. However, this provision could be puzzling to lawyers concerned with participation.

First, the purpose of the European Commission’s engagement with ‘all parts of society’ is ‘to enable and empower them to take action towards a just and socially fair transition to a climate-neutral and climate-resilient society’ (art 9.1). This is fundamental. Participation here is not about contributing - through knowledge and values - to the decision-making process. It is about what citizens can do to implement the transition, for which decisions are set elsewhere.

Second, the role of the Commission is to ‘facilitate an inclusive and accessible process […] for the exchange of best practice and to identify actions to contribute to the achievement of the objectives’ of the European Climate Law (art 9.1). Arguably decision-making includes exchange of best practices and discussion on actions, but it is more than that. The familiar language of procedural rights is absent here. The purpose of participation in this context is to help reach targets, not to ensure a democratic process and the legitimacy of its outcome.

Third, the Commission ‘may’ rely on ongoing processes of consultation and the - less intuitive - ‘multilevel climate and energy dialogues’ at national level provided by the Regulation on the Governance of the Energy Union and Climate Action (art 9.2). While this is an important cross-reference, it shows that occasions for legal participation are delicately scaled towards national decisions.

2. The European Climate Pact

The repurposing of the scope for participation is also apparent in the new European Climate Pact. The EGD acknowledges that ‘active public participation and confidence in the transition is paramount’. For this reason, the Commission has launched the European Climate Pact ‘to engage with different stakeholders and civil society with the aim to commit them to climate action and more sustainable behaviour.’ The Pact will primarily encourage information sharing and awareness, and provide a space to share ideas and work on ‘ambitious actions, both at individual and collective level’.

Here again we see a move away from participation as a procedural right to contribute to decisions, towards a conceptual understanding of participation as a collaborative space to enable citizens to change behaviour and act.

Defending Participation

From a legal perspective, public participation is not (just) about individual or collective action. Nor is it about behavioural change, however urgent. Public participation is a procedural right to contribute to and shape decisions. The role of law is essential in creating and protecting this right. The climate crisis is severe and we need targets, expertise and technical knowledge. But the setting of those targets and the way to achieve them cannot be left to experts alone, asking ‘all parts of society’ to act on them and change.

Rather than rejecting – or repurposing – participation, ‘we should seek to improve the legal framing of public participation’. Politics is unavoidable and a democratic process is necessary. This process is shaped by law through carefully crafted rights and institutions, and is to be defended to give participation meaning. As Maria Lee and I have recently pointed out,

‘[a] process ensures a ‘seat at the table’ and an opportunity to be heard. Participation is about attending to and staying open to different ways of understanding the world, and different insights into our situation. Broad participation, including non-expert knowledge and values, allows for a better appreciation of the problems, social contexts, alternatives, and underlying societal values.’ 

This is what the notion of rule of law seeks to protect, especially in a time of crisis.

 ¹ Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford; New York: Oxford University Press 2009) 212.

Image: "EU Flag" by Craig Nagy is licensed under CC BY 2.0.