In the book edited by Mariolina Eliantonio, Emma Lees, and Tiina Paloniitty forthcoming at Hart Publishing – EU Environmental Principles and Scientific Uncertainty before National Courts – The Case of the Habitats Directive, the increasing number of legal disputes involving uncertain scientific appraisals raises questions on how EU judges engage with science, and how this translates into more effective enforcement of EU environmental law.
In a national chapter focused on Romania (Chapter 13. The Habitats Directive in the Romanian Courts: Procedure vs Substance), we tackled the issue from the perspective of Romanian courts. We argue that in Romania, the judicial review of the Habitats Directive (HD) revolves around the procedure and not substance, due to the reluctance of courts to go into the details of the case which would require, for their complete resolution, environmental or other technical expertise.
We show in this chapter that the legislation transposing the key EU environmental law Directives – Environmental Impact Assessment (EIA), Wild Birds Directive (WBD) and HD – has been slow. Both the HD and WBD have been transposed mainly through the legislation on protected natural areas. Between 2008 and 2016, the transposing legislation was the subject of numerous amendments and modifications required by the European Commission. As a result of poor progress in the designation of special protection areas for birds during this period, the Commission undertook the first steps of an infringement procedure.
When it comes to practical issues relating to the application of the Habitats Directive, the case law of the Romanian courts shows a general reluctance to assess the substance of environmental law cases. There is instead a reliance on procedural analysis (e.g., focussing on the conduct of the Environmental Impact Assessment). Consequently, there is no real discussion of scientific uncertainty in Romanian case law and how to approach it.
The courts regularly refer back to the administrative authorities when it comes to technical issues that need environmental expertise. The issue of uncertainty is dealt with only tangentially, as the courts impose on the decision-makers a duty to assess the relevant facts during the EIA process, seconded by a duty to give proper reasons, and do not order court expertise (except in exceedingly rare cases).
The intensity of the judicial review in environmental matters is low – the legality review is the norm, with exceptional cases where courts review the exercise of administrative discretion, which will be limited to reviewing whether there has been a case of ‘abuse of discretion’. This is applicable to environmental law procedures as well.
There is scarce case law on scientific uncertainty. Most cases found in Romanian case law concern EIA and the need to conduct a proper assessment of the impact on the environment, including on the birds and habitats in Natura 2000 sites. Indeed, a decision has been made to streamline these processes so that there is no separate appropriate assessment under the biodiversity directives, but rather these assessments are ‘folded into’ the EIA. Second, the body of Romanian case law dealing with the WBD and HD concerns questions which are procedural rather than substantive in nature, and in most of the cases, no outside expertise was requested. The analysis of the court mainly deals with the necessity of an EIA and thus dwells on the unlawfulness stemming from a lack of EIA. Courts generally conclude that an EIA is needed to assess the impact on the natural habitat, the insufficient assessment of it, or the resuming of EIA after new elements occur.
The few cases existent suggest that Romanian courts are reluctant to enter into discussions around scientific uncertainty or certainty and prefer to tackle environmental law cases mostly from a strictly procedural perspective. This is a feature of Romanian judicial review in general, not only in environmental law cases.
The Romanian courts do not assess themselves the likelihood of detrimental impacts of a project or the risk of endangering protected species or habitats, nor do they apply the concept of risk, or that of scientific uncertainty. The courts instead rely on administrative authorities (which in turn rely on developers) to conduct such assessments, and they only require that this procedural step be taken, and that proof be presented as to the impact on the environment. In other words, the existence of an EIA is mandated, and its absence is censored by the courts, but the latter will not venture into controlling its content. This might be a cultural issue that has an impact on the actual proceedings in the court. However, this happens perhaps due to the stack of cases piling up on the judge’s desks in the administrative law field, which makes them eager to deal with the case as swiftly as possible. Therefore, in our opinion, the lack of time might be more of a structural explanation for the absence of expert witness involvement in environmental court proceedings.
Consequently, there is no real talk about the notion of uncertainty in Romanian case law. The courts safely limit themselves to a mere procedural review and, with few exceptions, do not challenge the expertise of public authorities. The Romanian administrative courts very much frame the question of uncertainty as a duty to investigate the relevant facts seconded by a duty to give reasons on the part of the authorities.
In environmental law cases, the precautionary principle may be invoked to request a new EIA or the completion of an already existing one when necessary. In that sense, the imposition on the developer of a duty to show that there are no detrimental effects on the environment based on scientific evidence was considered to be proportionate.
The Romanian courts have become accustomed to invoking principles of environmental law, such as the precautionary principle, to request that plans and projects be preceded by a proper environmental impact assessment. In that sense, a Europeanisation of environmental judicial review is slowly creeping in.
Although this is not discussed either in case law or doctrine, the current scope and intensity of review in our opinion do not comply with EU law and in particular article 47 of the EU Charter of Fundamental Rights as the remedies are not effective. The review is mostly ‘on the surface’ and only on the procedure. When looking at the notion of ‘substantive legality’ required by the Aarhus Convention (art 9), again, the conclusion is that courts do not provide enough guarantees that the administration weighs impartially competing interests when a decision regarding the environment is made, as their focus lies only on procedure instead of substance.
We argue in the end that courts should have more audacity to enter the substance of environmental law cases and assess the national decision-making process in light of EU law and standards and challenge the expertise based on which some cases are dealt with at the administrative level. One should not forget that the Romanian administration is not yet as fair and public interest minded as it should be, especially in areas where vested private interests are powerful. The full protection of the environment needs fair and impartial administration seconded by a more effective judicial review by courts.
Posted by Dacian Dragos (Babes Bolyai University of Cluj-Napoca, Romania) and Bogdana Neamtu (Babes Bolyai University of Cluj-Napoca, Romania)
Suggested citation: D Dragos and B Neamtu, “The deference of Romanian courts to administration when it comes to scIEntific expertise“, REALaw.blog available at https://wp.me/pcQ0x2-w6.