Students test operation of European environmental law in Comparative Environmental Law Moot Court
During the course 'Comparative Environmental Law Moot Court', master students at the School of Law conduct a truthful 'reenactment' of a current environmental law case. This year's case revolved around the question of whether the environmental impact assessment – which is mandatory when applying for a license to exploit natural gas resources – should also include so-called 'scope 3 emissions' (emissions released by end users, such as companies and consumers). The answer to this depends on how EU environmental legislation is interpreted by the Dutch administrative courts. Interestingly, law students from other European countries are doing the same assignment. “Because it is an EU law case, in theory the outcomes should be the same. But in practice, however, they often are not. The question then is why not?” explains Professor Chris Backes, who introduced this course into the curriculum seven years ago.
The case the students examined this year is very timely. Only recently in the United Kingdom, the Supreme Court ruled on a similar case and agreed that these downstream emissions must be taken into account during Environmental Impact Assessments (EIA) of fossil fuel projects. Currently there is also a request for an Advisory Opinion from the EFTA Court on this matter. Within the EU there is still no legal clarity about including scope 3 emissions in EIAs.
Three steps
During phase one, in the three weeks leading up to the court hearing at the Council of State (which took place on February 28), the students, divided in three subgroups, drafted either an appeal, a statement of defense, or a declaration for the different parties they represented. These were: the initiator of the gas extraction project applying for the permit (the fictitious 'Drill Baby Drill B.V.'), the Minister of Climate & Green Growth who has to issue the permit, and an also fictitious NGO (baptized 'Keep it in the Ground') objecting to the project. During the hearing, the students argued their positions, in English, before a court consisting of Nicolien van den Biggelaar (State Counsel at the Administrative Law Division of the Council of State), assisted by Herman Kasper Gilissen (Professor of Climate Change, Regulation and Deltas, and coordinator of the course) and Chris Backes (Professor of Environmental Law).
The next step, which will take place in a few months (and, like the final phase, falls outside the regular study program), involves teams from all universities taking part, comparing the results and progress of the procedure in their respective countries. This year, university teams from Lyon, Dublin, and Greifswald/Münster participated. This presents a unique opportunity to analyze the interpretation and application of EU environmental law across different member states and to examine how national procedural law and associated legal traditions influence the substantive outcome.
Finally, students and lecturers will travel to Brussels at the invitation of the European Commission (EC) to discuss the findings of this comparison with legal experts from the Directorate-General for Environment and judges from various EU countries. Backes explains: “This is also of interest to the EC, as they have little comparative information on how EU law actually operates at the level of member states and, in particular, how national judges handle it. Phases 2 and 3 are extracurricular for both students and us, but everyone is eager to do this extra work because it is both interesting and enjoyable.”
Collaboration
At its core, this is an academic assignment designed to equip students with knowledge and skills, such as independently researching relevant scientific literature, legislation, and case law, analyzing and critically reflecting on these sources, and ultimately formulating a legal solution and presenting it convincingly in English. What makes this course particularly special is that it is open to students from three master's programs: Constitutional and Administrative Law, European Law, and Law and Sustainability in Europe. “Students, who are often somewhat confined to ‘their’ master's program, get to meet peers from other programs and collaborate in teams, as both EU law expertise and national legal knowledge are required”, says Backes.
Impact on Practice?
As a ‘bonus,’ the outcome of the legal comparison could potentially influence European legal or policy practices, as it covers relatively unexplored territory. However, this impact will not be immediate, notes Chris Backes. “The ruling is delivered verbally and is not allowed to be formally documented in writing. After all, the legal issues at stake are highly topical and, in some cases, are currently before or could soon be brought before the Council of State. Indirectly, however, there may be an effect. During discussions with the Commission, it sometimes becomes evident that certain insights prompt reflection (and possibly action) on their part. I cannot be more specific than that, nor can I prove it.”
