LL. M., Lecturer of Environmental Law, University of Tartu
Standing of NGOs in Relation to Environmental Matters in Estonia
It has become increasingly evident that basic rights depend on the quality of our environment. This, in turn, has resulted in an understanding that everyone may have a personal interest in the state of the environment. It also has become clear that the implementation of environmental law by the state is not always flawless1. For these reasons, environmental protection based on private initiative has gained prominence in Europe. Non-governmental organisations have a special role in this form of environmental protection, as they are often considered to be the best candidates to further collective environmental interests. One of the prerequisites for fulfilment of this role is access to justice in respect of environmental matters.
Recently, a number of studies have been carried out on access to justice in relation to environmental matters in Europe. These reveal a great diversity among the regimes studied2. However, the studies are focused on Western European countries, leaving the picture of access to justice in the EU incomplete. The motive for writing the present article is a desire to contribute to filling this gap with respect to Estonia. The aim of the article is to examine access of NGOs to review procedures where environmental matters are concerned. The article focuses on the extent of standing in administrative court review because the administrative courts play a central role in adjudication of environment-related disputes in Estonia. For this purpose, firstly, the general framework for environmental standing in the European context is briefly examined; secondly, the basic criteria for environmental NGO action in Estonia are analysed; and, finally, the various developments that have expanded the standing of NGOs before the administrative court system are scrutinised.
The ideology of liberalism calls for the distinction of private and public interest. The first consists of the various personal interests of individuals and the latter collective interests that cannot be meaningfully attributed to any one specific individual. Interest in the good quality of the environment is generally considered to fall into the category of public interest. It is the task of state authorities to promote and protect public interests. The role of NGOs in protecting the public interest is limited. In liberal thinking, private associations are often regarded as peculiar individuals, no more suitable for a role in promoting public interests than any of their members are. The approach is well illustrated in an English court case concerning the protection of the site of the Elizabethan Rose Theatre. A pressure group was formed for the purpose of defending the theatre. Some of the members were locals, including a local member of the British Parliament, and many others had undoubted expertise and distinction in archaeology and historical preservation, as well as knowledge of the theatre, the literature, and other relevant matters. However, the court stated: "The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest. [...] The fact that those without an interest incorporate themselves and give the company in its memorandum power to pursue a particular object does not give the company an interest." Obviously, the group was denied standing in the case3.
The decision has been much criticised 4 , as has the liberal approach to interests in general5. Nonetheless, as a basic concept the approach still seems to have force. The predominance of administrative court review in relation to environmental matters is, at least partly, a result of the liberal approach. Since protection of the environment is primarily the task and the privilege of public authorities, environmental disputes tend to focus on the adequacy of government actions. For instance, when a nature conservation society is not satisfied with construction by a private real estate developer, the focus of the dispute is, in most countries, on the consent of the authority to the building activity instead of the activity itself. Due to the role of public authorities in environmental protection, the extent of environmental standing largely depends on the access to the institutions that review government actions.
The requirements for standing before these reviewing institutions vary considerably. The actual approaches can be accommodated between two theoretical models: (1) the model that allows actio popularis, under which everyone has standing when it can be demonstrated that a certain public interest has been violated, and (2) the model of protection of subjective rights, under which the prerequisite for standing is violation of a norm that specifically protects the rights of a person who filed an action. Under the first system, the complaint is simply a means for commencing investigation of the misuse of power; in the other, the infringement of a person's subjective rights has central importance. Abuse of power by the government often encroaches on personal rights but not always: under the second model, the review procedure is terminated if and when it is established that the person's rights have not been infringed.
The choice of a model for standing is a legal-political question. Accordingly, the various rules on standing reflect the traditions and history of the country in question6. For instance, the manner of administrative court control in France has evolved from self-control of the administration and therefore is oriented toward objective control of actions involving administrative entities7. On the other hand, control of administration in the German court system focuses on the protection of subjective rights, as a reaction to the state fascism of the Nazi regime8. As a third example, Denmark has relatively restrictive requirements concerning standing before the courts but rather lenient requirements for standing before quasi-judicial administrative appellate bodies, due to the context being a consensus-oriented society that does not offer an incentive for initiating court disputes9. It should be noted as well that, in most countries, the standing requirements vary significantly depending on the object of the dispute. For instance, despite the country's generally restrictive standing criteria, most German federal states enable certain NGOs to file actions with administrative courts concerning matters of nature conservation - i.e., in the public interest10.
Administrative court review is practically the only type of effective review proceedings available to NGOs in relation to environmental matters in Estonia. Unlike in a number of other European countries 11 , access to civil courts in Estonia is limited to cases of interference with a set of narrowly construed personal rights. Access to criminal courts for environmental protection is also barred. Although an association can draw the attention of a public authority to a violation, the authorities have a wide margin of discretion in deciding whether to start criminal proceedings12. There are some non-judicial procedures accessible to NGOs. An NGO can ask for review by the legal chancellor (the ombudsman); however, the number of cases the legal chancellor can take is limited and the final decision not binding. Finally, internal review by the administration, the so-called challenge procedure, is in theory a powerful tool for reviewing environmental decisions. In practice, the usefulness of such proceedings is limited due to the fact that in typical environmental cases the same authority that made the original decision is the reviewing body.
The administrative court system was implemented in Estonia in 1993. In the same year, the Code of Administrative Court Procedure was adopted. The code was amended significantly in 1999. In similarity with many other areas of Estonian law, the administrative court procedure has been strongly influenced by the German model13. The reliance on the model of protection of subjective rights is evident in the Code of Administrative Court Procedure 14 (CACP), which sets out the basic criteria for standing. Subsection 7 (1) of the CACP stipulates that only a person who finds that his or her rights have been violated or his or her freedoms have been restricted by an administrative act or measure has the right to file an action with an administrative court15.
The theoretical point of departure is the classical one: only certain public authorities can bring actions for the protection of public interest; individuals and NGOs have standing only where their subjective rights under public...