Recent Environmental Law Developments in Sweden

Minna Gillberg and Håkan Hydén

In 1996 the Social-democratic Government presented a proposal for a new all-embracing environmental Code which entered into force 1 January 1999 (SFS 1998:808). Much can be said about this Code but practice has not yet been established. The new law does not substantially change the situation for the public and potentially affected parties The most obvious change the Government has proposed, is that the Licensing Board is re-named and "transformed" into the Environmental Court, and perhaps this was done in order to cope with the addressed problem of Article 6 § 1 of the European Convention on Human Rights, see below. One would then assume that the constellation of the court would change from the form of the Licensing Board. Surprisingly, this is not the case since the Environmental Court more or less will be composed in the same way as its predecessor, when issuing permits for environmental hazardous activities. In other words, this fact raises a distressing prospect, regarding a situation where a license shall be issued for an industry which then will have a "representative with industrial experience" acting as "judge". The Government will in most cases, no longer act as the last instance of appeal. This function will be taken over by the Environmental Court of Appeal (miljööverdomstolen). However, the Government will still function as the final decision making instance in cases rendered as being of national importance.

An interesting aspect of the new law is that it claims to open up possibilities for the public and NGOs to participate in the environmental decision making process. The law actually grants NGOs a right to appeal certain decisions of the Environmental Court, but this right is greatly limited through two demands that are placed on the NGOs. Namely, the organisation must have over 2000 members and must have existed for more than three years. In practice, these qualification demands eliminates the participation of all Swedish environmental NGOs but one, the Swedish Society for Nature Conservation (SSNC) which is the oldest, substantially wealthiest and most politically established environmental NGO in Sweden. SSNC does not have its roots in the environmental movement of the 70s, but was founded in 1919 by amongst others, members of the Royal Scientific Academy. At this time their activities were very much focused on issues relating to ornithology and tourism. SSNC has generally never been particularly interested in legal environmental issues and is the least controversial environmental NGO in Sweden.

The implication of the rule is that all local and well established, but poor and small, NGOs are excluded from this right (not counting the potential ad hoc groups that might be created around an environmental conflict). In many cases these groups are initially local environmental protest groups that were created at the end of the 60s and the beginning of the 70s. These small and committed NGOs have a strong local connection and have over the years accumulated great experience and knowledge in environmental matters. Not surprisingly, these groups are often the ones that have been most critical of the Licensing Board's and the Government's decisions. It appears as though the Social Democratic Party have succeeded in defining which actor (NGO) shall be the official bearer of environmental interests and represent society in the decision-making process. I would like to conclude by quoting a letter from the Minister of the Environment, Anna Lind, which is a response to Aktion Rädda Skåne Miljö and their question as of why they (as an old local, small and poor NGO) are excluded by the proposal. This letter explicates the core of the matter and the great deficit of democracy that the Government's attitude and approach constitutes.

The Cabinet Office
The Ministry of the Environment

Hallo Östen,
Thank you for your letter from Aktion Rädda Skåne Miljö. The proposal for a new environmental code suggests that organisations which have existed for at least three years and have at least 2,000 members shall be given legal standing in the Environmental Courts. The cost for the Environmental Courts are very high. Due to this reason, amongst others, it is not possible to also allow very small organisations to have legal standing in the Environmental Court. Furthermore, this would also obstruct the efficiency of the decisions. By putting demands on a certain number of members no room is given to lobbying organisations with very few members, but a lot of money. The Government still considers that the opinions of small local environmental organisations are interesting! As before, they can continue to express their opinions to politicians and the public, for example through letters and notes to newspapers.

Yours sincerely,
Anna Lind
Minister of the Environment

In conclusion, the new Code does not imply substantial changes as regards civil rights and given the Swedish experience, we would like to argue, in the perspective of the EU-Charter of Fundamental Rights, that the issue of environmental protection should be framed both as an objective principle and as a subjective constitutional right.

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