New study about settlements in law suits (2011)

New study (2011): Environmental NGOs and settlements in law suits

Environmenmental organisations can review the decisions, acts and omissions of public authorities in court.

Premises

Among Germany´s environmental NGOs the question whether settlements in such law suits are acceptable, and if so, under which circumstances, is controversial. Questions NGOs find themselves confronted with in this context are for example:

  • settlements in most cases imply that a compromise has to be made concerning the realisation of a project and the environmental damage caused thereby: Should NGOs accept compromise at all, and if so, what is an acceptable compromise?
  • settlements including a payment to an environmental organisation can be especially problematic: Under what circumstances may such payments be legitimate?
  • several public actors tend to draw a picture of environmental organisations as permanently inhibiting infrastructure projects and economic development by court procedures: Should NGOs be ready to agree to settlements more frequently in order to oppose this problematic image?
  • court procedures often come with significant financial burdens and settlements may be an option for NGOs to avoid being overwhelmed by costs endangering their future work, especially if the outcome of the case is not clear: Is a settlement already a success if it helps to avoid high costs, even if the environmental damage caused by the project in question is neither avoided nor compensated by other measures?

 

Main questions

In its new study UfU examined empirical data on the law suits conducted by environmental NGOs in Germany. The analysis aimed at the following questions:

  • How often and in what constellations did environmental NGOs agree to a settlement in a law suit over the last decade?
  • Are there relevant differences between the particular organisations or in respect to the different federal states?
  • What could environmental NGOs achieve by agreeing to a settlement? Did the settlement immedeatly promote the protection of the environment or otherwise result in a positive outcome of the law suit?
  • How were the settlements implemented in practise?

To this aim, the study examined the general legal framework relevant for law suits filed by environmental NGOs and the legal options open to them.

The study also identified the legal, ethical, political or internal considerations concerning settlements which the different environmental NGOs took into account. Additionally, the study reflected the discussion among environmental NGOs on the question if they should rule settlements out completely in certain constellations.

Summary of the study´s results

To examine the quantitative shares of settlements versus cases leading to a court´s decision the study could rely on data for the years 1979 up to 2006. The results show that from all law suits originated by environmental NGOs a rather constant average of 15% leaded to a settlement over the years. However, when looking at the different federal states, significant variations appear as well in the number of law suits as well as in the rate of settlements.

54 settlements from the years 1996-2002 were part of the study´s qualititive analysis. Here the study showed that a vast majority of settlements were about law suits against planning approval in permit procedures and against special permits to realize projects in protected areas.

The analysis also showed that in most cases the environmental NGOs could achieve additional measures for the protection of the environment which would otherwise not have been introduced. Among these measures were especially measures to avoid harmful impacts to the environment by cancelling a part of a project or by realising less harmful alternatives, and also measures for compensating impacts. The content of most settlements thus was in line with the rules of environmental law about how to balance environmental damage caused by projects  and also following the criterion discussed among environmental NGOs.

In three cases, however, the settlement included payments to environmental NGOs which were not linked to a specific project. In two of this three cases, a foundation for the preservation of the environment was established with this money which seems to have been accepted as a justifiable solution in the discussion process among environmental NGOs, especially because the damage to the environment in these cases was already realized by the time of the settlement and could not be prevented or directly compensated any longer. The other case was widely frowned upon. This shows that environmental NGOs don´t oppose settlements including payments generally, but judge their legitimacy according to the circumstances of the specific case.

The analysis also showed that in some cases measures of monitoring and safeguarding were agreed to in the settlement, especially concerning the specific compensation of damages to the environment caused by a project. However, this option seems still to be chosen only rarely, and it appears to be difficult to enforce this kind of measures in practise.