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Access to Justice in Environmental Decision-making in Sweden.: Standing for the public concerned, the scope of review on appeal and costs.
Uppsala University, Disciplinary Domain of Humanities and Social Sciences. (Juridiska fakulteten)
2015 (English)Report (Other academic)
Abstract [en]

Sweden has a “universally” applicable Environmental Code, which harmonised the general rules and principles in this field. The Code applies to all human activities that might harm the environment. However, certain activities are also regulated in special pieces of legislation, such as the Planning and Building Act. Infrastructure installations also have regulations of their own, as do mining and forestry. Fauna is protected, in part, through hunting law. As for environmental decision-making, the municipalities play a key role under both the Environmental Code and the Planning and Building Act. The County Administrative Boards are also responsible for important environmental legislation and issue permits for environmentally hazardous activities. Installations and activities involving a substantial environmental impact must obtain a permit from the Land and Environmental Court, as must all kinds of water operations. Also national authorities, such as the Environmental Protection Agency and the Swedish Chemicals Agencyare responsible for some environmental decision-making. Sweden has administrative courts for the appeal of administrative decisions and ordinary courts for civil and criminal cases. The administrative courts decide cases on the merits in a reformatory procedure, meaning that they replace the appealed decision with a new onefollowing analysis of all the relevant facts of the case. Furthermore, the ultimate responsibility for the investigation of the case rests with the court according to the “ex officio principle”.The Environmental Code establishes a system of five Land and Environmental Courts and one Land and Environmental Court of Appeal. They are all divisions within the ordinary courts, but essentially act as administrative courts for cases under the En-vironmental Code and the Planning and Building Act. A Land and Environmental Court has some of the characteristics of a tribunal, consisting of both law-trained judges, technicians and experts. All members of the courts have an equal vote. The route for appeals in cases concerning the environment is always the same: Municipal level → County Ad-ministrative Board → Land and Environmental Court → Land and Environmental Court of Appeal (MÖD). Some cases can also be brought to the Supreme Court. Thus all appeals of environmental decisions follow this route, although the starting-point and terminus differ. The decision-making procedure in environmental cases in Sweden is open, meaning that in principle everybody can participate in the proceedings leading to the first decision. On appeal, the scope of the trial is set by the claims of the action, which the appeal body will decide upon in accordance with the “ex officio principle”. Thereby, the appeal body or court decides the case on the merits, thus addressing both substantial and procedural issues raised in the administrative decision. The procedure may includeall kinds of “actions” for annulment, performance, altering the decision, remit, etc.The Swedish concept of standing in administrative cases is strongly “interest-based”. If the provisions in an Act are meant to protect certain interests, the representatives of those interests can challenge the decision by way of appeal. Standing is generally definedas belonging to the “person to whom the decision concerns”. Additional criteria are that the decision affects him or her adversely and that it is appealable, which it always is as long as the decision entails factual or legal consequences in a very broad sense.To get a clearer picture of that scope of persons, one must study the case law that has been established in each administrative area or even under specific pieces of legislation. Under the Environmental Code, the courts have applied a generous attitude, stating that in principle, every person who may be harmed or exposed to more than a minor inconvenience by the environmentally harmful activity at stake is considered a party with interest. Thus,everyone who may be harmed by an activity or exposed to even minor risks – for example neigh-bours, people affected by emissions or other disturbances from the activity – should have the right to appeal the decision in question. As the Environmental Code brought together all kinds of legislation which previously was separate, this formula is generally applicable. Accordingly, if a permit concerns water operations such as a marina, neighbours who will be affected by the road traffic to the marina are allowed to appeal. The determination of the public concerned is straightforwardand depends on the kinds of disturbance (discharges into air and water, noise, odour, traffic, and so on) that the person in question can be affected by, and at what distance. In contrastto this case law created state of affairs, standing for ENGOs is decided by criteria in express legislation, at least as a starting point. In recent years, however, and in the wake of the case law of CJEU, ENGO standing rights have expanded by way of national courts applying the “so as to enable” formula according to the Slovak Brown Bearcase. In the Environmental Code,standing is given to certain organisations in orderto appeal decisions on permits, approvals or exemptions, the criteria being that it is a non-profit association whose purpose according to its statutes is to promote nature conservation, environmental protection or outdoor recreation interests. Additionalcriteriaare that the organisation has been active for at least 3 years in Sweden and has at least 100 members or else can show that it has “support from the public”. Thus, ENGOs meeting those criteria are able to defend the public interest according to their statutes, without any further qualification.These criteria have also been used by the courts in areas to which ENGO standing rights have been expanded in case law. As the administrative procedure in Sweden in all instances is reformatory, the starting point is that the court scrutinizes every part of the appealed decision. Once the applicant is allowed to appeal, the scope of review is complete, meaning that s/he can invoke all kinds of interests in favour of the cause. No arguments are precluded. Thus, the appellant can plead any private or public interest in the case irrespective of the instance of appeal in a higher level of administration or in the courts. Moreover, all kinds of administrative decisions can be brought to the administrative courts by way of appeal, including administrative omissions. Any member of the public who is affected by a certain activity can notify the supervisory authority and ask for administrative action in his or her interest. In this situation, the authority is obliged to issue a decision on the case, be it to take action or not. That decision is appealable using the route described above, and accordingly, the matter will be dealt with in substance by the environmental courts. Thus, there does not exist any administrativediscretion in Sweden, at least as a general rule.The environmental procedure in Sweden is as a general rule free of charge. There are no court fees, no obligation to pay the opponents’ costs, no bonds to be paid for obtaining injunctive relief, or other costs to be paid, irrespective of whether the case is on adminis-trative appeal or goes to court. As the ultimate responsibility to investigate the case lies with the administration and the environmental courts – which both have technicians par-ticipating inthe decision-making – neither are there any witness or experts’ fees to be paid. Basically, this makes the environmental procedure cheap and easily accessible to the public. The other side of the coin however is that when applicants want to be represented by counsel or use experts of their own– which may be necessary in complicated cases – they will have to pay out of their own pocket and the costs cannot be remunerated from a losing opponent. It is alsonoteworthy that there is no obligation to use lawyers in court, not evenatthe higher judicial levels.

Place, publisher, year, edition, pages
Uppsala, 2015.
, www.jandarpo.se/In English
National Category
Law (excluding Law and Society)
URN: urn:nbn:se:uu:diva-270407OAI: oai:DiVA.org:uu-270407DiVA: diva2:889756
Available from: 2015-12-28 Created: 2015-12-28 Last updated: 2015-12-28

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