European Law and Practice for Public Participation:

The Aarhus Convention

(slides from presentation)

Svitlana Kravchenko, Environmental Lawyer

L Before 1989 (perestroika and collapse of the former Soviet Union)

1.1. Western Europe-Election Day Democracy

1.2. Central and Eastern Europe (CEE)-outside of the Doors to
Democracy

1.3. Former Soviet Union-Democracy on Paper. All public
participation rights existed in the Constitution.

Environmental movement as a part of the movement for political changes. The role of the Green Party (Germany, Ukraine).

Chernobyl disaster and "waking up" of public for the freedom of information.

H. After 1989

Political changes: New Constitutions and laws with clear provisions on right to a safe (favorable) environment, access to information, and access to the court-in CEE and NIS. Public involvement in creation of new legislation (examples: Ukraine, Hungary).

New environmental impact assessment (EIA) laws and public participation (Example: Pasichna, Ukraine, project on public participation in oil development, organized by US EPA, US AID, and Ministry of Environment of Ukraine).

Public participation in EIA for the Moscow-St.Petersburg highway ("Ecojuris", Russia). First law suits against the government.

III.   Road to Aarhus

3.1. UN Conference on the Environment in Stockholm, 1972-rightto
live in the environment of a quality that permits a life of dignity and
well-being.

Its impact on national legislation.

3.2.        UN Conference on the Environment and Development, Rio de
Janeiro, 1992

3.3.        Rio Declaration, principle 10: access to information, public
participation, and access to justice

3.4.        Sofia Guidelines on Access to Information and Public
Participation in Environmental Decision-Making. "Environment for
Europe" process and public participation.

IV.   Aarhus Convention

4.1.        Preparation, negotiations and role of European ECO Forum, NGO
Coalition

4.2.  Three pillars of the Convention, main provisions on

-  access to information

-  public participation

-  access to justice

A. Access to information (art. 3.2, 3.3, 4 and 5)

Definition of "environmental information"

Request on information without interest having to be stated, in form

requested

Access to information passive (upon request) and active (duties of the

government to collect and disseminate information)

Time limits (one month) for public authorities to respond

Transfer of information request Reasonable costs

Using electronic tools and Internet Example: Garbage incinerator plant in Lviv.

Fundamental Role of Public Participation

-  establishes partnership between government and public

-  improves quality of the decision

-  promotes transparency of decision-making and accountability
of public authorities

-  contributes to public awareness

-  makes an opportunity for public to express concerns

-  enables public authority to take due account such concerns

-  creates a mechanism for the public to assert the right to live in
favorable environment and to fulfill the duty to protect the

environment

1. Public participation in decision on specific activities, which may have significant environmental impact (art.6)

-  notification of the public at early stage, when all options are
open

-  must provide enough time for public for preparation and
effective participation

-  comments in writing or public hearing

-  decision takes due account outcome of public participation

-  public must be informed about final decisions (with reasons and
considerations)

EIA as a main tool of public participation in decision-making in NIS region.

EIA and Ecological Expertise in NIS. Public Ecological Expertise. Examples:

Completion of Rivne and Khmelnitsky nuclear power plants and role of public

"Terminal" case: NGO won the case in High Arbitration Court against illegal decision of the Ministry of the Environment of Ukraine

2. Public participation concerning plans, programs and policies-
SEA (art. 7)

Parties shall, as minimum, make practical provisions in plans and programs.

SEA is legally required in Bulgaria, Czech Republic, Denmark, Finland, the Netherlands and Slovakia.

Example: National Environment and Health Plan (NEHAP) in Ukraine (draft was sent to 400 NGOs; eleven regional public hearings and one national hearing were organized).

3. Public participation in preparation of executive regulations and
other legally binding instruments (art. 8)

The applicability of the Convention to law-making was thoroughly discussed during negotiation. "The desirability of transparency in all branches of the government" and "invites legislative bodies to implement principles of the Convention in their proceedings".

Comparatively soft obligation to use best efforts for the steps to be taken in order to fulfill objectives of the Convention. The Convention requires to promote public participation in the preparation of laws and laws by public authorities.

In many UN ECE countries the public authorities play a major role in the preparation of legislation that is than submitted to the legislative branch.

The environmental ministries in some countries, such as Czech Republic, Hungary, Ukraine and the UK have developed a practice of publishing draft laws on the electronic network, using their own facilities or taking advantage of NGO initiatives.

In many countries there is no legal requirements of public participation in law making, but good practice exists. More difficult and less transparent is public participation in preparation of regulations.

Examples:

Hungary: The Ministry for Environment of Hungary publishes half-yearly the list of laws and regulations being drafted and also requests the list of other ministries' legislation significantly affecting the environment. NGOs can check in expressing their intention to be involved to the elaboration. The Ministry for Environment completes the list of such NGOs-a so-called "lobby-list"--and sends them the draft acts and decrees. The drafts are also published on the Green Spider network.

Latvia: Experience of involvement of different stakeholders into the development of normative acts, plans, and programs being developed in terms of diversity of tools used, such as working groups, round tables, workshops, seminars, conferences, consultations, public hearings, publications, information/public awareness raising campaigns.

The EC SEA Directive was published at Official Journal no. L 197 from July 21,2001

Draft Protocol SEA Protocol under the Convention on EIA in Transboundary Context (including plans, programs, policies and legislation)

C. Access to Justice (art. 9)

Third pillar of the Convention concerns legal mechanisms which can be used to gain review of potential violation of access to information and public participation provisions as well as domestic environmental law. It helps ensure effective implementation of the other pillars.

Independent environmental lawyers willing to take on the job of citizen enforcement.

Legislation assuring the right of citizens and NGOs to sue government agencies exists in mostly all countries of the region.

Removal of financial barriers for citizens and NGOs enforcing the law, and even subsidies to them for doing so.

These are just examples of some of the public-interest, independent, environmental law firms orNGOs doing legal cases in Europe:

- Ecological Association Demeter in Bulgaria

- Environmental Law Service in the Czech Republic

- UfU in Germany

- Environmental Management and Law Association in Hungary

- Environmental Law Center in Poland

- Center for Environmental Public Advocacy in Slovakia

- Ecojuris in Russia

- Lawyers for Rights and the Environment in Russia

- TERRA in Spain

- Ecopravo-Lviv, Ecopravo-Kyiv, and Ecopravo-Kharkiv in
Ukraine

- Earthrights in UK

Legislation on public participation, access to information, or environmental impact assessment can be ignored or watered down by the bureaucracy if the legal system does not also ensure that citizens can go to court when the laws are implemented only poorly. Three components are needed to prevent the participation requirements from being only "paper requirements".

V.   Ratification status.

Seventeen countries ratified and their documents received by UN. Sixteen countries are needed for entering into force, which will take place on October 30, 2001.

VI.   Changes in the legislation to comply with the Aarhus
Convention

Bulgaria: Water Act

In the new Water Act, in the water management bodies, there are representatives of the public.

Bulgaria: The Protected Areas Act

The Protected Areas Act provides two types of public participation:

- the public can open the procedure for declaring an area as
"protected area" and take part in the procedure;

- the public can prepare the plans for management of the
activities in the protected areas;

Hungary: National Environmental Council

One of the most important opportunities for public participation is the National Environmental Council, an advisory board to the Government which was established in 1996. One third of the Council members are representatives of environmental nongovernmental organizations. Further respected representatives ensure participation of the scientific organizations and the business sector, as well on a one third basis.

Slovenia: 1999 Law on Nature Conservation

Slovenia's Law on Nature Conservation, adopted in 1999, recognizes legal standing for all public interest environmental NGOs to participate in all administrative and judicial procedures to defend the interest of nature conservation.^1II] NGOs are considered to be acting in the public interest if their charters and actual activities exceed the particular interests of individual members. Additionally they must be active in the field of nature conservation.

VII. New EIA Legislation in Europe

NIS: In many NIS countries, EIA is still an internal governmental procedure, nontransparent, without public participation and without independent checks. The practical experience of full-scale EIA has been largely limited to few major developments funded by Western .investorsand international aid agencies. The legal framework for public participation is still unclear.

Official Gazette of the RS, No. 56/99. This information and analysis was author by Slovenian environmental lawyer Milada Mirkovic.

Example: Regulation on Public Participation in Environmental Decision-Making in Ukraine. It was prepared and discussed with NGOs via Internet, comments were taken into account.

Eastern Europe: The picture is quite different in Central and Eastern Europe. In large part because of the EIA Directive of the European Union, and the plans of the countries of Central and Eastern Europe to become members of the EU, EIA legislation is good and getting better.

Examples.

Czech Republic: Passed a new law on Environmental Impact Assessment (EIA). Act No. 100/2001, has been under preparation for over five years, and replaces Act No. 244 on EIA of 1992.

Estonia: Environmental Impact Assessment and Auditing Act was adopted on June 2000 and entered into force on the 1^st of January 2001.

Poland: New Act on Access to Information on the Environment and its Protection and on Environmental Impact Assessments, passed by the Polish parliament on 9 November, 2000, and which came into force, January 1, 2001.^2[21 The new legislation harmonizes the EU Directive on Access to Information (90/313/EEC) and brings closer compliance with the Directive on Environmental Impact Assessment (337/85/EEC).

VIII. Obstacles for public participation in NIS and CEE:

-  lack of enforcement

-  lack of traditions

-  low level of public awareness

-  limitation of resources

Some description in: Jerzy Jendroska, New Environmental Framework Poland, in Environmental Liability, Vol 9, issue 1, February 2001, pp. 13-1^ (Lawtext Publishing, UK).

IX.  Future development

Montevideo III Program: Good governance and public participation

Rio + 10 Summit: global or regional (sub-regional) convention or another legally binding instrument? UN ECE, IUCN (CEL) initiatives

X.  Conclusion:

Aarhus is applicable in Asian context, it is not purely a European

creation.

"Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration ... As such it is the most ambitious venture in the area of the environmental democracy so far undertaken under the auspices of the United Nations" (Kofi A. Annan, Secretary General of the United Nations).