Can EU Environmental Policy be left to Judges and the Market?

When Jean-Claude Juncker presented the priorities for his new Commission as an agenda for jobs and growth, it was noted that, with the exception of a reference to climate change in relation to EU energy union, environmental protection was largely absent from his list. This concern was reinforced when Juncker merged the portfolio for the environment with that for maritime affairs and fisheries. In a similar vein, the Commission recently presented a major environmental policy initiative (for a circular economy) as “fully compatible with the jobs and growth agenda”. While there might not be a fundamental contradiction between economic growth and environmental protection, the Commission’s rhetoric at this point suggests that if both objectives came to a crunch, growth and jobs would trump the environment. A decade ago, this may have deeply troubled those concerned with environmental protection. The Commission sat at the core of both the EU’s environmental policy agenda and the enforcement of existing EU environmental law, and individuals and interest groups relied almost wholly on the Commission to enforce obligations. But this has changed markedly. Since the entry into force of the Aarhus Convention, its transposition into EU law and the subsequent judicial expansion of access to courts for interest groups in particular, environmental law now has many more guardians with access to enforcement and the incremental policy development that judicial procedures offer. The proposed paper demonstrates how increased access to courts can compensate for a lack of substantive legislative development. Based on litigation data over the last decade, it demonstrates how the expansion of public interest litigation in environmental policy not only leads to a greater impact of EU environmental law, but also much hitherto unenforceable national law, and how environmental policy may well prosper even if left to judges and the market.