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Approaches to Access: Ideas and Practices for Facilitating Access to Justice in Environmental Matters in the Areas of Loser Pays Principle, Legal Aid and Criteria for Injunctions

This report represents a step towards meeting the goal of the Aarhus ConventionAccess to Justice Task Force to develop a set of good practices and analyses on threepriority issues:- The loser pays principleArticle 9(4) of the Aarhus Convention requires that procedures for obtainingaccess to justice must not be prohibitively expensive. In some legal systems, theloser of an administrative or judicial action must pay all, or a portion of, thewinner's litigation costs. These costs may include court fees, attorney fees, witnessfees, and various other types of expenses. The loser pays principle may lead to aninability to control or even predict exposure to risk, and thus unreasonably deterpublic interest environmental litigation. Good practices in this category are thosethat help potential public interest claimants manage their risk and preventenvironmental legal procedures from becoming prohibitively expensive.- Legal aid and other methods of funding for public interest lawyers andNGOs. One way in which many countries address the requirement that proceduresnot be prohibitively expensive is to provide legal aid, or some other method offunding. Good practices in this category are those that enable meritoriousenvironmental disputes to proceed when potential claimants lack the funds topursue claims on their own.· Criteria for injunctionsArticle 9(4) of the Aarhus Convention requires that access to justiceprocedures provide adequate and effective remedies, including injunctive relief. Tobe effective, procedures must provide a means for actually stopping anenvironmentally harmful activity or illegal administrative decision. Without theability to obtain injunctive relief, serious and irreversible damage may occur beforethe legal dispute is decided. Good practices in this category are those that facilitateinjunctive relief leading to an effective level of environmental protection.

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