Understanding the nuts and bolts: scientific and technical knowledge in environmental litigation – national solutions, EU requirements and current challenges

As the reader is well aware, environmental decision-making under EU law is often based on complex scientific assessments made by administrative authorities. Those assessments may be challenged in court by different actors who oppose environmentally hazardous activities and non-sustainable use of natural resources, contesting the legality of the decisions at stake. Against this backdrop, the ability for the national courts to independently evaluate scientific and technical information is of the utmost importance for the effectiveness of EU obligations in this field of law. It is evident that when analysing how different legal systems within the Union use scientific evidence in environmental cases, we must deal with an(other) encounter between the procedural autonomy of Member States and the EU law requirement for effective justice. In this article I shall discuss what this encounter means when environmental decision-making is challenged in court in some of the legal systems of the EU. I shall start with a few remarks on the characteristics of environmental law and the use of legal-technical standards in this sphere of law. This is followed by a couple of conclusions that can be drawn from the case-law of the CJEU concerning what requirements EU law set up for how national courts should take scientific and technical information into account on environmental litigation. Thereafter, I will discuss a couple of key issues concerning the use of scientific and technical evidence in environmental litigation in the national courts. To begin with, who are the providers of scientific evidence in environmental cases and what obstacles litigants may meet in different legal systems, for example; concerning costs and the availability of independent experts. The next key issue concerns the possibilities different legal systems provide for the national courts to make their own evaluation of scientific and technical information. Here, I shall discuss issues concerning both the competence of the reviewing court itself, and the potential for them to ask for advice from independent experts and expert panels outside the administration. To a certain degree, this question is related to how deeply the national courts will examine the administrative decision-making, the so-called intensity of review in environmental litigation. In this respect, the legal systems of the Member States show significant varieties which can be partly explained by different traditional legal philosophies concerning the relationship between policy-makers and judiciary. The article is closed with a couple of conclusions about the main challenges concerning scientific and technical evidence in environmental litigation.