Searching for ‘Environmental Justice’ in EU Environmental Law

Abstract

Environmental justice (‘EJ’) receives a lot of attention in the environmental social sciences and in U.S. law. But in Europe, it has so far been largely ignored in legal literature and policy debates, which seems difficult to reconcile with an anthropocentric understanding of current environmental law. This article focuses on distributive and procedural dimensions of EJ and on considerations of intragenerational fairness within the EU. General features of EU environmental law are examined in search of ‘hidden’ elements that might help or frustrate this goal. Themain finding is that other fields of law and policy are likely more significant enablers of EJ in Europe. To the extent that EU environmental law contributes, it seems largely an accidental result that is not guaranteed by its design. Substantive EU environmental law pursues a territorially uniform level of environmental protection and seems to have, with the possible exception of environmental impact assessments, no direct mechanisms to consider inequities between human populations. Examples are found of rules that even have clearly adverse consequences for underprivileged populations. The Aarhus Convention provides theoretical opportunities for procedural justice, but the current implementation in practice fails to achieve those and might even operate counterproductively as a mechanism that further benefits the already powerful. Primary EU environmental law largely mirrors these findings. Nevertheless, a correct interpretation of sustainable development in Article 11 of the Treaty on the Functioning of the European Union (TFEU) is identified as a potential key to better integrate EJ in EU policy. environmental justice, EU environmental law, anthropocentrism, distributive effects, offsets, procedural justice, Aarhus Convention, offsets, Article 191 TFEU, Article 11 TFEU