Inter-Environnement Wallonie v. Walloon Region

In 2005, the Inter-Environnement Wallonie filed a lawsuit in the Belgian courts, challenging regressive environmental policies regarding industrial development. The Walloon Region was amending its regional land use plans to create “deferred development zones of an industrial nature.” Previously, the development of such zones required a municipal planning scheme for the entire area and included certain environmental and procedural protections, such as public participation. The Amendments to the Walloon Town and Country Planning Code (2005) aimed to change this rule. It would permit development without a comprehensive regional land use plan and allow economic activities, except “agro-economic neighborhood activities” and “wholesale distribution.”

The Petitioner, an environmental NGO, criticized the contested decree for eliminating the municipal planning scheme without providing equivalent safeguards. They argued that this abolition constituted a regression of procedural guarantees and obligations under R2HE, guaranteed by Article 23 of the Belgian Constitution. Before the decree, an environmental impact assessment (EIA) was required by the municipal planning scheme. Eliminating this requirement would prevent affected parties from meaningfully participating in decision-making. The Petitioner also alleged a violation of Constitutional Articles 10 and 11, asserting that local residents were treated unequally before the law and were discriminated against in the enjoyment of their rights and freedoms.

The Court ruled in favor of the petitioner, finding a breach of Article 23 of the Constitution, considering European parliamentary directives, the Treaty establishing the European Community, and the Aarhus Convention.

The Court emphasized that the amendment’s new environmental guarantees, such as the obligation of justification, did not compensate for the loss of those procedural guarantees established by the former municipal planning scheme, indicating a significant decline in the protection provided by previous legislation. The Court echoed the Petitioner’s concern about the absence of public participation, agreeing that international treaties required it. The court invalidated the revised amendments, emphasizing the significance of preserving environmental protections and procedural guarantees in land-use planning. The court’s ruling reinforced its dedication to upholding R2HE and ensuring that the public’s participation in environmental decision-making is meaningful.

Using an established domestic body of law

The Belgian Constitution upholds rights afforded to everyone under the law. The Petitioners invoked Articles 10, 11, and 23 of the Constitution, contending that the legislative amendments breached the rights enshrined in those provisions. Article 23 acknowledges R2HE, while Articles 10 and 11 assure equality and non-discrimination before the law. The Petitioners argued that the amendments streamlined the project approval process, bypassed public participation, expanded officials’ permit-issuing powers, and granted public permits with fewer procedural protections, all infringing upon constitutional rights. These actions led to a reduction in environmental protection previously guaranteed by the legislation, constituting a regression in protection.

The Petitioner referred to the “standstill effect,” akin to the principle of non-regression, urging the court to apply this principle to deem the reduction in environmental protections unconstitutional. They cited the Legislative Division of the Council of State, which criticized the inadequacy of the Walloon government’s justifications for the environmental protection rollbacks.

The Court sided with the Petitioner, asserting that the new legislation failed to provide the substantive (R2HE) or procedural protections as mandated by Article 23. The Walloon government’s failure to justify the amendments fell short of the requirements set by domestic constitutional law and regional and international law.

Using an established international body of law to support R2HE

The Petitioners pointed out that in addition to the domestic legislation, the Walloon Region had also committed itself to various regional and international agreements. These obligations included Article 10 of the treaty that established the European Community, articles 3 to 6 of the directive 2001/42/EC of the European Parliament and of the Council of June 27, 2001 on the assessment of the effects of certain plans and programs on the environment, and Articles 7 and 8 of the Aarhus Convention.

Directive 2001/42/EC lays out the minimum requirements for EIAs of any plans with significant environmental effects. Article 5 of the directive requires consultation with competent environmental authorities and the public while drafting projects or plans. Such consultation is also required following the environmental report. The Aarhus Convention, also known as the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, was ratified by Belgium in 1998. Article 7 of the Convention details public participation procedures for plans and programs related to the environment, mandating a transparent, fair, and informed framework.

The Petitioners claimed that the proposed Article 55 did not comply with the public participation procedures mandated by the Aarhus Convention. The Court concurred with the Petitioner, stating that the disputed Article 55 was deficient, not meeting the standards set by Directive 2001/42/EC or the Aarhus Convention.

The Court underscored the inadequacy of the new legislation in meeting the protections mandated by both domestic and international legal frameworks. The case exemplifies the rejection of new environmental legislation that offered fewer procedural and substantive protections, asserting that regressive policies constitute a violation of the constitutional R2HE. Upholding the level of protection and safeguards for individuals and the environment was integral to the rights at issue.