Case No. 2007-11-03 (Latvia) – on the Land Use Plan
Latvia
In a landmark decision, Latvia’s Constitutional Court nullifies a land use plan for procedural defects in violation of the right to a healthy environment.
Credit: Emils Vanags, Stock photo ID 1328655725
Casebook Info
In 2005, Riga’s City Council in Latvia sanctioned a new Land Use Plan, heralded as a strategic roadmap for land utilization and urban development. However, this blueprint faced a challenge from the Coalition for Nature and Cultural Heritage Protection (plaintiff). They contended that the Plan disregarded Article 115 of the Latvian Constitution, a provision safeguarding the right to a healthy and nurturing environment (R2HE). The plaintiff argued on two fronts: procedural violation and substantive violation in the Plan. They insisted that Article 115 mandated that the State provide comprehensive environmental information and preserve and ameliorate the environment. Their contention stemmed from the Plan’s anticipated adverse environmental impacts, potentially exacerbating living conditions and disrupting communities. In a landmark decision, the Constitutional Court ruled in favor of the plaintiff, nullifying the City Council’s Land Use Plan.
Year Filed
2007
Year of Most Recent Ruling
2008
Year of Final Ruling
2008
Jurisdiction
Latvia
Court Name
Constitutional Court (Satversmes tiesa)
Plaintiff(s)
Coalition for Nature and Cultural Heritage Protection
In the early 2000s, the Riga City Council created new long-term development plans. It took five years to adopt and approve the city plans, which included significant changes in land use and building regulations. These changes would affect protected lands and allow for more regional industrialization. However, the plaintiff, a domestic association focused on environmental and cultural heritage, claimed the Plan was unconstitutional. According to them, it violated Article 115 of the Constitution, which guarantees the right to a healthy environment (R2HE).
The plaintiff challenged the Council’s plan and argued that it infringed on the rights of those working in the environmental protection field. They interpreted the Constitution as requiring the State to establish regulations and systems that effectively protect the environment. The Plan’s drafting and enacting process was flawed, resulting in the Plan potentially causing irreversible harm to people and the environment. Namely:
(1) The Plan included protected nature areas of regional significance. Before any land use changes could be made, a detailed assessment was required to determine their feasibility. However, the Plaintiff claimed that the assessment process was deficient because it was incomplete or lacked sufficient detail. The Plaintiff also argued that the proposed changes could cause harm to the environment, society and people living in the surrounding areas;
(2) The plaintiff claimed that the regional Treaty Establishing the European Community was violated as its environmental policies were not upheld;
(3) The plan’s final version was not made public for comment and consultation, violating domestic regulations. The Plaintiff alleged that this was a substantial procedural violation;
(4) The Council ignored domestic environmental laws protecting cultural and natural reserves and skipped other legally required procedures;
(5) The Plan included residential areas without considering international commitments, precautionary or prevention principles, sustainable development and environmental and community impacts.
The plaintiff won, as the Constitutional Court rendered the Plan null and void, citing glaring procedural flaws that violated R2HE. Incomplete strategic assessments, environmental impact reports, and the absence of consultations with interested agencies were determinative for the Court’s decision. While holding that the Constitution required the application of the precaution and prevention principles, the Court highlighted the importance of making information accessible and complying with international law. However, the Court did not agree that the public consultations were procedurally deficient, as the government maintained authoritative discretion when addressing comments.
Article 115 of the Satversme
The Latvian Constitution enshrines the right to a benevolent or healthy environment, which requires environmental preservation and information sharing.
Access to Information
The plaintiff and Court cite domestic and international law, including the Aarhus Convention, requiring public access to environmental information and participation.
Environmental Impact Assessments
EIAs were determined to be key to ensuring that public authorities adhered to the principles of precaution and prevention. The Court found that the EIAs performed were inadequate.
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
Article 115 of the Latvian Constitution recognizes the right to a benevolent environment, another articulation of R2HE. It provides a framework for individuals to bring environmental claims to the courts and challenge actions that violate R2HE. Article 115 specifically guarantees the right to access information on environmental conditions and encourages the preservation and improvement of the environment. It also invokes internationally recognized principles such as precaution, prevention, sustainable development, access to justice and a responsibility to regulate.
This constitutional R2HE must be upheld in all stages of environmental regulation, from formulation to implementation. The plaintiff referenced multiple domestic laws governing land use, development plans and the protection of natural areas, including statutes governing environmental impact assessments. Each law meticulously delineated the procedures that authorities must adhere to, underscoring their responsibility to follow procedures that help ensure R2HE is protected.
The Court reiterated that R2HE is a fundamental constitutional right, affirming the government’s obligation to guarantee robust environmental protection. The obligation materializes by way of comprehensive measures, including thorough environmental impact assessments, transparent dissemination of environmental information and active collaboration with pertinent entities and organizations. Nonetheless, the Court underscored that while pivotal, this right is not absolute, acknowledging its potential curtailment in specific instances to safeguard other fundamental rights, democratic principles, public security, the welfare of the populace and the moral fabric of Latvia.
Using an established international body of law to support R2HE
The plaintiff cited regional and international environment-related commitments that Latvia had agreed to, which support environmental protection. They claimed that public authorities must consider those commitments’ positive obligations when formulating development plans. First, the plaintiff argued that the Council breached the environmental provision of the Treaty Establishing the European Community. The provision required the preservation, protection and improvement of the environment and human health, as well as the sustainable use of natural resources and the application of the precautionary principle. Referencing a UN convention on intangible cultural heritage, the plaintiff emphasized the prerequisite to assess living conditions before embarking on development initiatives. They further argued that expanding Riga’s port into new communities would detrimentally impact living standards and impede community access to the river, a contravention of the international convention due to the absence of a comprehensive impact assessment for the proposed expansion.
The Court underscored its adherence to international obligations beyond those presented by the plaintiff, highlighting additional agreements that Latvia had ratified. It emphasized that the domestic Constitution and international commitments safeguard fundamental rights, necessitating access to information, public engagement and adherence to the precautionary principle.
The two international commitments invoked by the plaintiff demonstrate how commitments not exclusively focused on the environment can be utilized to support R2HE. This is possible as environmental provisions that call for precautionary and prevention principles — as well as sustainable development, among other obligations— can be interpreted to include R2HE.
Utilizing a variety of legal arguments
The plaintiff leveled various legal arguments against the City Counsel. While many of the plaintiff’s arguments focused on procedural deficiencies, they claimed that the Council’s failure to follow the mandated procedures would ultimately lead to a substantive violation of R2HE by causing irreversible environmental degradation.
Furthermore —and as explained above— the plaintiff relied on domestic and international law, emphasizing legal principles and norms across the spectrum of agreements and legislation to which Latvia bound itself. The tactic of variety ensures that if the Court does not consider one legal argument persuasive, it has an array of options to base its decision on.
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
The government holds a constitutional responsibility to uphold a healthy environment, reinforced by various laws pertaining to environmental safeguarding, land utilization and impact assessments. These legal frameworks mandate the government’s diligent adherence to its responsibilities. The legal challenge against the Plan stemmed from its alleged procedural flaws. The plaintiff contended that the Council had not met its due diligence requirements, particularly in implementing measures aligned with the precautionary principle. These measures included coordination with other State bodies and conducting comprehensive strategic environmental assessments.
The Court’s decision rested on the due diligence argument. The Council failed to adequately fulfill its constitutional obligations to protect R2HE.
Take Aways
The positive outcome in the case demonstrates the power of exposing procedural deficiencies where legislation is designed to protect fundamental rights. The Court’s decision led to reinstating the previous development plan and it reiterated the imperative for public authorities to fulfill their procedural obligations so that individuals’ substantive R2HE is safeguarded. Ultimately, the Riga City Council needed to draft a new Land Use Plan that follows domestic and international laws that mandate R2HE.
Terms
Element
Healthy Biodiversity and Ecosystems
R2HE includes healthy biodiversity and ecosystems among its substantive elements. This internationally recognized right encompasses the entitlement of individuals and communities to live in a balanced environment that supports diverse and thriving ecosystems. It necessitates safeguarding and preserving ecological diversity, ensuring the resilience and well-being of ecosystems and promoting the sustainability of natural habitats for present and future generations. Additionally, this right entails the protection of various species, habitats and ecological processes essential to the maintenance of a healthy and functional environment.
Element
Pollution
R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element
Procedural Elements / Components
R2HE encompasses and guarantees a range of core procedural rights. Corresponding obligations include the duty to: (i) ensure access to environmental information, (ii) enable public participation in environmental decision-making, (iii) guarantee access to justice and effective remedies, and (iv) mandate the execution of Environmental Impact Assessments prior to the commencement of potentially impactful operations or activities.
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Reinforcing the status of the R2HE as a fundamental and independent human right
Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy
Using an established international body of law to support R2HE
Relying on well-established international treaties, norms and principles in making arguments advancing and protecting R2HE. Commonly cited international bodies of law include UN Reports, jurisprudence from international and/or regional courts, General Comments by UN bodies, Declarations and more.
Strategy
Utilizing a variety of legal arguments
Asserting numerous and diverse legal claims arising out of different bodies of law to increase the likelihood that at least one of the plaintiff’s arguments will succeed before the court. This could take the form, for instance, of a plaintiff bringing both an administrative challenge and a challenge based on the violation of their fundamental rights.
Due Diligence
The level of care, attention, and investigation that individuals, organizations, or entities must exercise to prevent harm to the environment or to ensure compliance with environmental regulations and standards. It involves taking reasonable steps to identify, understand, and mitigate potential environmental risks associated with particular activities or operations.
Environmental Impact Assessments
A process used in environmental management to evaluate the potential environmental consequences or impacts of proposed projects, policies, plans, or developments before they are carried out. The primary goal of an EIA is to identify, predict, and mitigate any adverse effects that these activities might have on the environment. It often involves modeling potential harms and exploring alternatives, if any, to avoid them.
Precautionary Principle
This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.
Prevention Principle
This environmental law principle provides that states and other actors must take meaningful steps to avoid environmental harms before they occur. In other words, if there is a tangible risk of environmental harm that is imminent and demands an emergency response, authorities are obliged to implement the necessary measures before damage is caused to the environment.
Procedural Violation
A breach or infringement of the established procedures, processes, or methods outlined by law, rules, regulations, or agreements rather than a direct breach of substantive rights or obligations.
Substantive Violation
A breach or infringement of the substantive aspects or core elements of a law, regulation, contract, or legal principle rather than a procedural error or technicality. In essence, it involves a breach of the essential or substantial aspects of a rule, law, or right.
Sustainable Development
This concept provides that states should pursue measures that allow present generations to meet their essential needs without compromising the ability of future generations to do the same. Moreover, it recognizes the need for states to work towards their economic development while also ensuring the realization and protection of fundamental human rights. In some jurisdictions, sustainable development is regarded as a guiding principle, while in others, it is treated as a right with binding consequences.
