EU environmental principles and scientific uncertainty before national courts : the case of the Habitats Directive

This comparative book explores the dynamics driving how courts across Europe and beyond understand and analyse scientific information in nature conservation. The Habitats and the Birds Directives – the core of EU nature conservation law – are usually seen as the most ‘uniform’ parts of EU environmental law. This book analyses the case law from 11 current and former EU Member States’ courts and explores the dynamics of how, and crucially why, their understandings of scientific uncertainty on the one hand, and EU environmental principles on the other, vary. The courts’ scope and depth of review, access to scientific knowledge, and scientific literacy all influence such decisions – as does their interpretation of norms and principles. How have the courts evaluated scientific evidence, encompassing its essential uncertainties? This book answers this and many more questions pertinent to EU environmental law, comparative environmental law, administrative law, and STS studies. Co-edited by experienced leaders in the field, and with outstanding contributors, this book is an essential guide to the dynamics of nature conservation law. Table of Contents Contributors Table of cases Table of legislation Introduction I. Aims of and Justification for Comparative Analysis II. The Thematic Landscape III. Structure PART I: COURTS, SCIENCE AND THE HABITATS AND WILD BIRDS DIRECTIVES 1. 'Science' in Court – The Importance of Specificity I. Introduction II. The Habitats Directive and Scientific Tests III. Defining 'Science' IV. Conclusions 2. The European Court of Justice's Approach to Scientific and Factual Matters in the Habitats Directive – Between Uncertainty and Precaution I. Introduction II. The Classification of Natura 2000 Sites III. Species Protection and the Assessment of their Favourable Conservation Status IV. 'Appropriate' Environmental Assessment and Best Available Scientific Knowledge V. Concluding Remarks PART II: REVIEWING SCIENCE AND LAW IN THE MEMBER STATES’ COURTS 3. Judicial Review and Enforcement of the Habitats Directive in Ireland I. Introduction II. Legal Framework Governing Judicial Review of Planning Decisions III. The Habitats Directive in Judicial Review Proceedings IV. Conclusion 4. The Boundaries of Administrative Judicial Review in Lithuania in Natura 2000 Cases I. Introduction II. General Approach Towards the Scope and Intensity of Judicial Review of Lithuanian Administrative Courts III. The Issue of Scientific Uncertainty in the Case Law on the Habitats, Birds and EIA Directives IV. Conclusions 5. The Scrutiny of Scientific Evidence by UK Courts in Environmental Decisions: Legality, the Fact-Law Distinction, and (Sometimes) Self-Limiting Review I. Introduction II. The National Implementation of the WBD and HD in the UK III. Avenues for Challenging Decisions Relating to the WBD and HD in the UK IV. An Analysis of the Use of Scientific Evidence in the UK Legal System V. Conclusion: Assessing Conformity with Constitutional Norms 6. Judicial Review of the Application of Art 6(3) Habitats Directive: How the Dutch Council of State Integrates Science, Expertise and Scientific Uncertainty I. Introduction II. Legal Context III. Expert Knowledge in the Courts IV. Key Points in Judicial Review of the Application of Art 6(3) V. Conclusion 7. Of Ostensible Self-Restraint, Explicit Environmental Protection, and a Missing Link: The Appropriate Assessment in Italy I. Introduction II. The Italian Implementation of the HD and WBD: A Paper Tiger? III. The Intensity of Review and the Rules on Evidence before Italian Administrative Courts: Of Hands-Off Doctrines and Limited Access to the Facts of the Case IV. Case Law in the Fields of the HD and WBD V. Conclusion 8. Legal Approaches to Scientific Uncertainty in Germany – The Case of EU Nature Conservation Law I. Introduction II. Environmental and Technology Law, Scientific Uncertainty, and the Role of the Courts III. Scientific Uncertainty in EU Nature Conservation IV. Conclusions 9. Reasoning Styles, the Role of Discretionary Judicial Choices and the Limits of Judicial Review: The Hungarian Courts' Experience with the Habitats and Wild Birds Directives I. Introduction II. The Habitats Directive in Hungary: Domestic Rules and Implementing Authorities III. Evidentiary Rules and Procedural Powers of the Executive and the Judiciary IV. Demarcating Scientific and Legal Assessments and the Limits of Judicial Review V. Concluding Remarks: How Deep Do Judges Go when Scrutinising Scientific Complexities? 10. The EU Nature Conservation Law in Finnish Judicial Review: Various Avenues, Coalescing Case Law? I. Introduction II. The Implementation of the HD in Finland and the Competent Authorities III. The Foundations of Finnish Environmental Judicial Review IV. Case Law Concerned with the HD – Reflecting the Procedural Dichotomy? V. Conclusion 11. The Intensity of Judicial Review in Environmental Litigation in Greek Law with Special Regard to Habitats Sites I. Introduction II. Implementation of the Birds, Habitats and EIA Directives in Greek Law III. General Introduction to the Greek Legal System Regarding Review of Administrative Action, Especially with Regard to the Rules on Intensity of Review and on Evidence IV. Case Law on Scientific Uncertainty in the Fields of Habitats, Birds and EIA Directives V. Conclusions 12. The Weakness of the Judiciary and the Poor Implementation of the Habitats Directive: How Judicial Self-Restraint Endangers Biodiversity Protection in France I. Introduction II. The Implementation the WBD, HD and EIA Directives in France: A Patchwork of Different Instruments III. Judicial Review of Administrative Action in France: Some Basic Elements IV. The Case Law: A Comprehensive Approach to Scientific Uncertainty V. Conclusion 13. The Habitats Directive in the Romanian Courts: Procedure vs Substance I. Introduction II. The National Implementation of the Wild Birds, Habitats and EIA Directives III. The Intensity of Review and the Rules of Evidence before Romanian Courts in Environmental Matters IV. Case Law on Scientific Uncertainty in Relation to the HD, WBD and EIA V. Scientific Evidence and the Precautionary Principle VI. Conclusion PART III: BROADENING THE VIEW 14. Biodiversity in the Court: The Certainty of Contests about Uncertainty I. Introduction II. The Limits of Environmental Knowledge III. Types of Uncertainty IV. Stages in Biodiversity Conservation where Uncertainties Occur V. Courts' Responses to Uncertainties VI. Conclusion 15. Scientific Uncertainty before the Court of Justice and the General Court: Is the Judicial Toolbox Sufficient? I. Introduction II. The Judicial Toolbox III. Substantive Law and the Burden of Proof IV. Empirical Investigations in Judicial Proceedings V. The Techniques of Judicial Engagement with Science VI. Conclusions Conclusions I. Introduction II. Decision-Making Process III. The Procedural Eco-System IV. The Level of Protection V. Conclusions Index "This comparative book explores the dynamics driving how courts across Europe and beyond understand and analyse scientific information in nature conservation. The Habitats and the Birds Directive-the core of EU nature conservation law-are usually seen as the most 'uniform' parts of EU environmental law. This book analyses the case law from 11 EU current and former Member States' courts and explores the dynamics of how, and crucially why, their understandings of scientific uncertainty on the one hand, and EU environmental principles on the other, vary. The courts' scope and depth of review, access to scientific knowledge, and scientific literacy all influence such decisions-as does their interpretation of norms and principles. How have the courts evaluated scientific evidence, encompassing its essential uncertainties? This book answers this and many more questions pertinent to EU environmental law, comparative environmental law, administrative law, and STS studies. Co-edited by experienced leaders in the field, and with outstanding contributors, this book is an essential guide to the dynamics of nature conservation law."-- Provided by publisher