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Public participation in environmental decision making: the international and European

perspectives

Lina PapadopoulouAss. Professor of Constitutional Law

Jean Monnet Chair for European Constitutional Law and Culture

Law School – Aristotle University of Thessaloniki – Greecelinapapa@gmail.com

Trier, December, 11th, 14.30 – 17.00

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Agenda

2. International law2. International law

2a. Espoo Convention2a. Espoo Convention

4. European law4. European law

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1. Why participation: a theoretical account1. Why participation: a theoretical account

2b. Aarhus Convention2b. Aarhus Convention

A THEORETICAL ACCOUNT

Why participation?

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• participation is considered tantamount to (participative) democracy

• differences between representative and participative democrac

• Proponents of deliberative democracy view• participation as capable of loosening the traditional vertical separations of

state and citizen,• diffusing tensions.• enhancing government legitimacy and accountability

Is it a good thing for the public to participate in decisions affecting the environment? If so, why?

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• potential for administrative expedience,

• legitimacy through representativeness, and problem-solving

• state organised participation • a taming effect on civil society • which neuters the strength of opposition

• representative than traditional top-down decision making

many supporters and few critics of public participation

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• = participant equality-• he considers that equal communicative power is inherent

within the positive vision of deliberative discourse• However, the imbalance of power between State and citizen

leaves participatory exercises open to manipulation• moreover, empirical research often proves that participation is

rarely representative of the masses, • instead an opportunity for privileged groups to exploit their

communicative competency to the marginalisation of vulnerable communities

Habermas : the ideal speech scenarioIs it real?

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THE FIRST STEPS TOWARDS PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONS

International law

• The 1972 United Nations Conference on the Human Environment in Stockholm• the Stockholm Declaration not regarded has having

made a significant contribution to the participation agenda,

• Principle 19 of the Declaration recommended the creation of environmental information provisions in domestic laws

• have become part of the participation principle

The first steps: the Stockholm Declaration (1972)

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• some further infant steps taken in the 1980s

• Principle 23 of the World Charter for Nature declared

• “All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage or degradation”

• United Nations General Assembly, G.A. Res. 37/7, U.N. Doc. A/37/51 (1982)

The first steps: World Charter for Nature (1982)

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• Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. Stateshall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

• Principle 20: Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.

• Principle 22: Indigenous people and their communities and other local communitiehave a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Rio Declaration on Environment and Development (1992)

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• Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shalhave appropriate access to information concerning the environment that is held bpublic authorities, including information on hazardous materials and activities in thecommunities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by makininformation widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

• the Aarhus Convention ‘owes everything’ to the articulations

• in Principle 10 of Rio Declaration

• because it gave ‘explicit support in mandatory language to categoryof procedural rights

Rio Declaration & Aarhus Convention

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THE ESPOO-CONVENTIONInternational law

Espoo (EIA) UNECE Convention • sets out the obligations of Parties

• to assess the environmental impact • of certain activities • at an early stage of planning

• lays down the general obligation of States • to notify and consult each other • on all major projects under consideration • that are likely to have a significant adverse environmental impact across

boundaries

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Espoo (EIA) Convention • adopted in 1991, into force in1997 , within UNECE (United Nations

Economic Commission for Europe )

• First amendment• adopted in 2001 - into force on 26 August 2014 • opened the Convention to accession by UN Member States that not UNECE

members

• Second amendment• adopted in 2004, not yet in force• it will allow affected Parties to participate in scoping• Require reviews of compliance

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• nuclear power plants radioactive waste

• expansion of repository

• The Espoo Convention has been applied to four nuclear projects

• Nuclear power plants automatically require application of the Convention

• if significant transboundary impact is likely

spoo Convention example: Expansion of a planned pent nuclear fuel repository in Finland

Source: http://www.unece.org/env/eia/pubs/factsheet6.html

Loviisa Power Plant area, with illustration of Loviisa 3. Source: Fortum Power and Heat Oy

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EIA procedure in Finland: nuclear fuel repository

1) Participation, 2) International law, 2a) Espoo Convention, 2b) Aarhus Convention, 3) EU law17

EIA procedure in Finland: the licensing process

issue of the construction licenseissue of the construction license

ratification of the decision in principle by Parliamentratification of the decision in principle by Parliament

the “decision in principle”the “decision in principle”

Phase 1Phase 1 Phase 2Phase 2 Phase 3Phase 3

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Phase 4Phase 4

issue of operating licenseissue of operating license

Espoo Convention procedure: application in case of nuclear fuel repositories in Finland

Final decision

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THE AARHUS CONVENTION (1998)International law

The three pillars of Aarhus Convention

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• does not address specific substantive areas of policy

• Article 2 = a broad definition of environmental information • including information on material relating to the ‘cost-benefit and other

economic analyses and assumptions used in environmental decision-making• information on human health and safety, • conditions of human life, • cultural sites and built structures, • inasmuch as they are or may be affected by the state of the elements of the

environment

1st pillar: access to information

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• access to information pillar

• the most burdensome of the three pillars

• strict time limits • within which public authorities must respond to requests

for information

1st pillar: access to information: proactive dimension

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• which a public authority can rely upon

• to prevent the release of information

• examples contained in Article 4(4); include derogations on the basis of • confidentiality, • public security, • commercial sensitivity or intellectual property

• exemptions are to be applied restrictively in light of a balancing act between the at-risk interest and the potential public benefit from disclosure

1st pillar: access to information: permissible derogations

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• contained in Article 2(5)

• opened up to include ‘non-governmental organizations promoting environmental protection

• significant in light of the role of NGOs in environmental affairs

• potentially blurs the boundary between• participation and representation, • in that NGOs are sometimes portrayed as representing the public in

a non-electoral manner

2nd pillar: “the public concerned”

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• Article 6 of the Convention relates to

• public participation in specific activities

• of particular importance • provisions relating to and stemming from environmental assessment

(EIA) regime procedures • public participation is seen as a fundamental component of EIA

• Article 6(8) provides ‘each Party shall ensure that in the decision due account is taken of the outcome of the public participation.’

2nd pillar: Public participation and EIA

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The three pillars of Aarhus Convention

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• departure from hyperbole and

• adoption of procedural obligations on States

• many of the features of the Convention have been adopted by the European Union (see next part)

• forcing MS to take positive steps to ensure ratification and implementation in domestic regimes

• Aarhus has had a transformative effect on the landscape of public participation in environmental matters

From Aarhus Convention to EU law

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TRANSFERRING INTERNATIONAL LAW THROUGH DIRECTIVES

European law

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• Parliament and Council Directive 2003/35/EC of 26 May 2003

• providing for public participation

• in respect of the drawing up of certain plans and programmes

• relating to the environment

• and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L176/57

Parliament and Council Directive 2003/4/EC of 28 January 2003

on public access to environmental information

and repealing Council Directive 90/313/EEC [2004] OJ L 41/26

European LegislationParliament and Council 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation inDecision-making and Access to Justice in Environmental Matters to Communityinstitutions and bodies [20060 OJ L264/19

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Conclusions

• Is the State genuinely committed to participatory decision-making with the public?

• Who are the winners and losers in the participation play?

• Is participation good for the non-human Environment?

• NGO’s = • participative or • (atypical) representative democracy?

Open questions to think about

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Thank you very much for your attendance

and participationLina Papadopoulou

Ass. Professor of Constitutional LawJean Monnet Chair for European Constitutional Law and

CultureLaw School – Aristotle University of Thessaloniki – Greece

linapapa@gmail.com

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