Att klaga för klimatet : En funktionsanalys av klagorätten i miljöbalkens 16 kap. 13 § och dess intersekt-ion med den EU-rättsliga tolkningen av Århuskonventionen

Sammanfattning: The number of climate litigations brought to court by non-governmental organ-izations promoting environmental protection have increased. In Sweden such organizations can challenge the decisions of public authorities through chapter 16 section 13 of the environmental code. The implementation of art. 9(2) and art. 9(3) of the Aarhus convention in different directives of the EU, but especially through the case-law of court of justice of the European Union has led to a sig-nificant increase of the impact of the Aarhus convention in Swedish law mostly led by EU-consistent interpretation of the right to challenge the decisions of the authorities in Swedish case law. This have been achieved by connection the con-vention with primary union law and by concluding that art. 9(3) of the conven-tion is part of union law. The effects of this have largely been to ensure the mem-ber states lives up the environmental standards of the union. In Sweden what constitutes an environmental organization is determined by if it has publicsupport. Further the Swedish courts have tended to allow envi-ronmental organizations to challenge most decisions by the authorities, even out-side of the environmental code, even when the link to union law has not been entirely clear. The exception to thishas been a decision about consultation be-tween a public authority and an individual regarding logging. The case has on the other hand lead to some unwanted consequences and might not be in line with union law and the Aarhus convention.According to the function theory of law the aims of administrative and envi-ronmental procedural law is to as far as possible ensure that the aim of environ-mental law gets realized through the court procedure. This is mostly ensured by affects individuals and institutions ways of acting in broader society. Another important function of procedural and especially environmental law is to allow the courts to clarify vague laws. The theory falls in that conceptualizes common interests as a collection of “smaller” individual interests rather than, such in en-vironmental law, actual common interests. In a procedural order where physical and legal individuals are the only ones who can challenge a decision a contradic-tion between the common interest and the individual form of the litigant is inev-itable. This contradiction would not be alleviated by letting individuals use com-mon interests-arguments when arguing for a personal interest or through a public interest agency. Letting a public authority challenge decisions in line with the common interests leads to among others, problems other with the law-making function of the court. The thesis concludes by stating that environmental organ-izations have a vide ability to challenge decisions and that this order is flawed but the least flawed option.