Environmental Democracy and Law : Public Participation in Europe 9789089521460, 9789089521491

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the avosetta series 11

Environmental Democracy and Law Edited by Gyula Bándi

Europa Law Publishing

Environmental Democracy and Law

Europa Law Publishing, Groningen/Amsterdam 2014

Environmental Democracy and Law Public Participation in Europe Edited by Gyula Bándi

The Avosetta Series (11)

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, the authors severally, 2014 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam ISBN 978-90-8952-146-0 This project has been funded with support from the European Commission. This publication reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.

The Avosetta Series publishes texts that present innovative discourse on European Environmental Law.

Preface Public participation as a practical approach of environmental democracy has always been a core element of European environmental policy in the past years, as it is clear from the 6th EAP, making the issue as an important means of developing the strategy1. It is even more so the case in the proposal for the 7th EAP2, where the elements of environmental democracy are even more elaborated. This growing interest towards this subject may also be experienced from the field of international law – the Aarhus Convention itself, but we may also refer to the Rio+20 process, etc. – to different examples of domestic environmental policy and legislation, within which public participation may also be taken as a tool that is integral part of all levels of decision-making, and supposed to remedy the democratic deficit in environment. That has been the idea behind the Jean Monnet Centre of Excellence project (176278-LLP-1-2010-1-HU-AJM-PO Democracy in environment – Public participation in EU environmental law), run by the Pázmány Péter Catholic University in Budapest, Hungary. This book is the outcome of the research part of the project, also consisting of a substantial education activity. This book is a combination of the introduction of the research and the outcome of the project conference. In addition to the University, there were three distinguished partners in the project: the ombudsman of future generations of Hungary (the history and current status of which one may have a look in details in Chapter 14), the Regional Environmental Center for Central and Eastern Europe (a survey of their role of promoting public participation beyond the EU is in Chapter 12) and the Environmental Management and Law Association, a leading partner of the European Justice and Environmental network, a public interest legal office (their vision on the present practices and problems in the region one may read in Chapter 9). The reader may find first in this book the conceptual foundations of environmental democracy – an introduction into the concept of ‘environmental democracy’ (Chapter 1), the theoretical foundations of public participation in administrative decision-making (Chapter 2), the survey of the three pillars in a European perspective (Chapter 3) and also the human rights aspects (Chapter 4). Also, there is a methodological analysis of the possibility of drawing up an 1

See Article 3 (Strategic approaches to meeting environmental objectives), point 9 of the Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme, Official Journal L 242 , 10 September 2002 p. 1-15

2

Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet”, Brussels, 29 November 2012, COM(2012) 710 final 2012/0337 (COD), Annex, Priority objective 4: To maximise the benefits of EU environment legislation, points 54-63, but there are also other elements of environmental democracy, among other in connection with Priority objective 3: To safeguard EU citizens from environmentrelated pressures and risks to health and wellbeing.

v

institutional answer to meet the challenges of future generations’ equity, based on the unique Hungarian experiences (Chapter 8). The international and EU integration relations are covered next – the relationship of international and EU legal requirements related to public participation with an emphasis on international law (Chapter 5), some major implementation problems of the Aarhus Convention (Chapter 6), a summary of EU experiences related to the implementation of public participation principles (Chapter 7). Environmental democracy needs to be operational; consequently, this book would not be complete without the practical examples. Our first illustration is from Ireland (Chapter 10), then an interesting case study from Hungary (Chapter 11) and also a sociological survey (Chapter 13). We should also learn, finally, how the sectoral legislation turns towards the public participation matter: in connection with GMOs (Chapter 15), with waste legislation (Chapter 16) and finally, European energy utilization (Chapter 17). December 2013 Gyula Bándi, Editor Director of the Jean Monnet Centre of Excellence

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contents

Preface Contents Authors

v vii xvi

chapter 1 Introduction into the Concept of ‘Environmental

Democracy’ Gyula Bándi

1 The Definition of Environmental Democracy and its Constituents 2 The Collective or ’Community’ Dimension 3 Common Concern of Humanity 4 Common Heritage 5 Common Good 6 Subsidiarity 7 Environmental Justice 8 Different Practical Rationales of Public Participation

3 8 9 11 13 14 16 18

chapter 2 Theoretical Foundations of Public Participation

in Administrative Decision-Making Gerd Winter



1 Problems of Public Participation 2 Theoretical Backgrounds for Public Participation 3 Choosing a Theory and Deriving Solutions for Public Participation 4 Denationalisation of Administrative Decision-Making and Public Participation 4.1 Participation in EU Administrative Procedures 4.2 International and Transnational Spheres

23 25 30 32 32 33

chapter 3 The Three Pillars of Environmental Democracy

in a European Perspective Gyula Bándi



1 European Environmental Policy and Environmental Democracy 2 European Legislation and Jurisdiction – A Demonstration 3 Participation in Decision-Making 4 Access to Justice

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39 45 55 61

environmental democracy and law

chapter 4

Right to Environment – Procedural Guarantees Gyula Bándi

1 Right to Environment – Procedural Guarantees 2 Summary

79 93

chapter 5 Public Participation – Human Right or an Instrument of

International Administrative Law Marcel Szabó



1 Historical and International Law Origins of Public Participation 2 The Direct Antecedents of the International Rules on Public Participation 3 Theoretical Issues Related to the International Rules of Public Participation 3.1 Public Participation is One of the Cornerstones of International Human Rights 4 The Current Best Practices of Public Participation and their Critique 4.1 The Union Implementation of the Aarhus Convention – Strengths and Weaknesses 4.2 The North-American Agreement on Environmental Cooperation (NAAEC) 4.3 The Rules of Public Participation in Other Parts of the World 5 The Way Forward: Transboundary Public Participation 5.1 The Possibilities of Private Persons for Transnational Public Participation 5.1.1 Private Litigation 5.1.2 Civil Participation in Consultative Bodies 5.1.3 Civil Action Related to the Financing Activity of Banks 6 En Route to Implementation of International Agreements on Environmental Protection and the Enforcement of International Environmental Law 6.1 Participation of NGOs in the Implementation of International Conventions 6.3 Environmental Civil Society Organisations Before the Courts: Amicus Curiae Briefs 7 Conclusion

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97 98 101 102 103 103 105 106 108 108 108 109 109

110 110 111 112

contents

chapter 6 Public Participation under Article 6 of the Aarhus

Convention. Role in Tiered Decision-Making and Scope of Application Jerzy Jendrośka



1 Article 6 and its Role in the Second Pillar of the Convention 115 2 Decisions under Article 6 and Decisions under Articles 7 and 8 of the Convention 116 3 The Requirement for “Early Public Participation”, the Concept of Tiered Decision-Making and the “Zero” Option 118 4 Legal Nature of Decisions under Article 6 122 5 Application of Article 6 to Multiple Decision-Making 124 6 Activities Covered by Article 6(1)(a) 131 7 Activities Covered by Article 6(1)(b) 132 8 Reconsiderations and Updates under Article 6 Paragraph 10 135

chapter 7 Implementation of Public Participation Principles.

Experience of the EU Eva Kružíková

1 2 2.1 2.2 3

Introduction EU Implementing Measures Access to Information (First Pillar) Access to Justice (Third Pillar) Regulation 1367/2006 (Aarhus Regulation), Title IV

141 141 142 144 149

chapter 8 Clarification and Networking. Methodology for an

Institution Representing Future Generations Sándor Fülöp

1 2 3 4 5 6

Introduction The Challenges The Real Challenges Experiences of the Hungarian FG Institution Experiences that Could be Generalised Law as a Tool in the Hands of the Future Generations

155 156 158 161 165 171

chapter 9 Problems and Questions of Public Interest Environmental

Litigation in Hungary and in the EU Csaba Kiss



1 1.1

Definition of the Topic Area What are these Layers or Fields?

175 175

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environmental democracy and law



1.2 What is the Essence of Public Interest Litigation in Environmental Matters? 1.3 What are the Public Interest Cases? 2 Pros and Cons of Public Interest Environmental Litigation 3 Conditions of Public Interest Litigation 3.1 Legal Barriers 3.1.1 Lack of Forum 3.1.2 Restrictive Legal Standing Criteria 3.1.3 Difficult or Inefficient Injunctive Relief 3.2 Practical Barriers 3.2.1 Lack of Timely Judicial Decisions 3.2.2 Costs of Judicial Proceedings 3.2.3 Lack of Free Legal Aid 4 Legal Standing Criteria for Public Interest Environmental Litigation by NGOs in Selected EU Member States 5 Conclusion 6 Future Prospects

176 176 177 179 179 179 180 180 181 181 181 183 183 186 188

chapter 10 Public Participation in Environmental Decision–Making

in Ireland. The Good, the Bad and the Ugly Yvonne Scannell



1 Public Participation in Land Use Planning Law 2 Public Participation in Decision-Making on Applications for Permissions to Develop Land 3 Experiences with Public Participation in EPA Decisions on IPPC Licences 4 The Actio Popularis in Planning Legislation 5 Enforcement of IPPC and Waste Legislation 6 Judicial Review of Planning Decisions 7 Conclusions

193 196 203 205 207 209 215

chapter 11 National Defence vs. Environmental Protection. The Saga

of a Radar Station in Hungary Attila Pánovics

1 Introduction 2 Preliminaries 3 The “Battle of Zengő” 4 The Ombudsman’s Report 5 The Activity of the “Zengő Committee” 6 Effects of the Accession to the European Union 7 New Location: The Tubes 8 Solution to the Case 9 Conclusions x

221 222 223 224 226 228 229 231 231

contents

chapter 12 Promoting Public Participation beyond the EU. The Road

to Environmental Democracy Marta Szigeti Bonifert

237

chapter 13 Participation and Indifference. The State of Social

Participation in Hungary

Benedek Jávor & Zsolt Beke 1 The Institutional Side 2 Social Needs and Capabilities 3 Research Methodology and Database 3.1 Results 4 The Impact of the Place of Residence on Participation 5 Education and Participation 6 Conclusion Appendix

244 245 246 247 251 255 264 268

chapter 14 The Hungarian Parliamentary Commissioner

for Future Generations István Sárközy



1 Establishment of the Office of the Hungarian Parliamentary Commissioner for Future Generations 273 2 Impact of the Parliamentary Commissioner for Future Generations 274 3 Independence and Long-Term Vision 275 4 Competences of the Parliamentary Commissioner for Future Generations 275 4.1 Competences Determined by Law 277 5 Activities and the Impact of the Commissioner 278 5.1 Investigation 278 5.1.1 Recommendations 280 5.1.2 Measures of Direct Legal Effect 280 5.2 Policy Advocacy 280 5.3 Strategy and Research 281 6 Map of Environmental Conflicts – Examples from the Cases of the Commissioner’s Practice 282 6.1 Municipal Spatial Planning 283 6.2 Protection Against Noise 284 6.3 Air Protection 284 6.4 Water Protection 285 6.5 Nature Conservation 286 6.6 Traffic 287 6.7 Energy Production 287

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6.8 Waste Management 288 6.9 Animal Husbandry 289 6.10 Public Participation 289 7 International Relations, Activities 290 7.1 Participation in Decision-Making on European Union Issues291 7.2 Activities Aimed at Following the Enforcement of International Treaties 291 7.3 Cooperation with Prominent Partners 292 7.4 Participation at the Rio+20 Summit 292 8 Conferences and Appearance in the Media 293 9 The Transformation of the Hungarian Ombudsman System, the Fundamental Law of Hungary and the New Ombudsman Act 293  9.1 Drafting of the Fundamental Law and its Provisions in Connection with the Right to a Healthy Environment 293 9.2 Activity in the Press Related to the Drafting of the Constitution 296 9.3 Reflections on the FGO’s Proposals 296 9.4 The Commissioner at the Parliament’s Plenary Session 297 10 Analysis of the Fundamental Law and its Comparison with the Former Constitution 297 10.1 The New Ombudsman Act and the Fundamental Law 299 11 Conclusions 303 chapter 15

Public Participation in GMO Regulation Ágnes Kovács



1 2 3 3.1 3.1.1 3.1.2 3.1.3 3.1.4 3.2 3.2.1 3.2.2 3.2.3 3.3 4 4.1

Global Effect Principle of Public Participation Public Participation as Regulated by Law Public Participation in International Law Convention on Biological Diversity Cartagena Protocol Aarhus Convention Nagoya Protocol EU Legislation Policy Making Directive 2001/18 Regulation 1829/2003 Legislation at National Level Informal Public Participation The Role of NGO’s

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307 308 309 309 309 310 312 313 314 314 316 317 317 318 318

contents



4.2 5

chapter 16

Public Protest Summary – Negative Effects on Public Participation

319 320

Public Participation in Waste Legislation of the EU Szilvia Szilágyi

1 Foreword 2 The EU’s Thematic Strategy on the Prevention and Recycling of Waste 3 Framework Legislation on Waste and Waste Treatment Operations 3.1 Shipment of Waste 3.2 Waste Incineration 3.3 The Waste Framework Directive 4 Directives on Waste Streams 4.1 Batteries 4.2 Waste of Electrical and Electronic Equipments 4.3 End of Life Vehicles (ELV) 4.4 Mining Waste 4.5 Packaging Waste 5 Case Law or the Court of Justice of the European Union 5.1 Case C-416/10 5.2 Case C-255/05 6 Summary chapter 17

325 326 327 327 328 329 330 330 331 332 332 335 336 336 338 340

Public Participation in European Energy Utilization András Lovas

1 Introduction 2 Public Participation Trends in Energy Issues 2.1 Nuclear Energy 2.2 Renewable Energy 2.3 Carbon Capture and Storage and Unconventional Natural Gas 3 Conclusion

349 352

Bibliography Table of Cases Table of Legislation and Other Regulatory Instruments

354 374 382

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343 343 345 347

Authors

environmental democracy and law

BÁNDI, Gyula: graduated the law school (Eötvös Loránd, Budapest) in 1978 and since that time he has been working in the field of environmental law. Received CSc (equivalent of PhD, but provided by the Academy of Sciences) in 1990, Dr. habil. in 1998. Professor of environmental law, head of chair in Pázmány Péter Catholic University since 1998. Jean Monnet Professor of EU Environmental Law since 2006, director of the Jean Monnet Centre of Excellence since 2010. Dean of the Faculty of Law between 2003 and 2007. Founder and president between 1992-2012 of the public interest Environmental Management and Law Association. Author of more then 200 publications in the field of environmental law. Practicing in the field of environmental law as a private lawyer. BEKE, Zsolt Frigyes: studied history and sociology at ELTE University, Budapest. His primary focus is on social history and sociological research methodology. At university, he took part in a social history research of the Hungarian social elite. For a long period, he was active among the alternative cultural and social political youth groups of Budapest. Presently, he does some social work at the Public Foundation for the Homeless and has most recently been at home with his youngest child. FILOPOVA, Tsvetelina: highly skilled international environmental lawyer with more than 10 years of professional experience on EU environmental law transposition and implementation and 10 years of international project management experience. Head of the Participatory Governance Topic in the Regional Environmental Center, having in its portfolio: environmental civil society support; access to information; public participation in environmental decisionmaking; access to justice; environmental mediation, and PRTR. Specialised in EU environmental law approximation, monitoring progress of transposition and implementation, compliance checking in SEE region, conformity checking of EU Member States legislation transposing EU environmental acquis; in undertaking detailed legal analysis and reviews, legal drafting; compiling handbooks for implementation of EU and international legislation. FÜLÖP, Sándor: has a degree in law (1982) and a degree in psychology (1997). He was the first Parliamentary Commissioner for Future Generations of Hungary (2008-2012). He achieved his PhD degree from the Debrecen University (2010) with a thesis on comparative environmental procedural law. Between 1994 and 2008 Mr. Fülöp acted as the director of Hungary’s principal non-profit environmental law firm: the Environmental Management and Law Association (EMLA) while since 2012 he is the president of EMLA. He participated in the drafting the Aarhus Convention, between 2002 and 2008 he was a member of the Compliance Committee. JÁVOR, Benedek: environmentalist, politician. Born in 1972 in Budapest. Biologist-ecologist, university degree form ELTE University in 1997, PhD in 2007.

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authors

Teaches at Péter Pázmány Catholic University since 1998, also lecturer of several further universities. One of the founders of the environmental NGO Védegylet (Protect the Future!) in order to raise awareness on the environmental threat that the planet is facing. He is the author of several articles and publications on environmental philosophy and ethics, religion and ecology, NGOs and public participation as well as rights of future generations. Founder of the Hungarian green party in 2009, MP in the Hungarian Parliament since 2010. JENDROSKA, Jerzy: Managing Partner at Jendrośka Jerzmański Bar and Partner. Environmental Lawyers (JJB), and Adjunct Professor and Director of European Environmental Law Post-Graduate Studies at Opole University. Involved in a number of international negotiations since 1996, serving as the Vice-Chair of the SEA Protocol negotiations, Aarhus Convention negotiations, as the Secretary to the Aarhus Convention, later the vice-Chair and the Chair of the Aarhus Convention Bureau. Currently serves as an arbitrator at the Permanent Court of Arbitrage in the Hague (since 2002) and member of the Implementation Committee of the Espoo Convention (since 2004) and Aarhus Compliance Committee (since 2005). He was a member of National EIA Commisison in Poland (1994-2008). He drafted Aarhus-related legislation in Poland and was involved in Aarhus -related law-drafting in different countries. Author and editor of 29 books and more than 250 articles on environmental law. Has a Ph.D. degree and received a Diploma in International Law from the Vienna University Summer School. KISS, Csaba (1970, Hungary) is environmental attorney at the Environmental Management and Law Association (EMLA), Budapest (Hungary). His field of work is environmental legal research and litigation. He studied law at the ELTE University of Budapest and wrote his final thesis at the TU Delft (the Netherlands) in international water law. Later he obtained an environmental lawyer (1998), an environmental engineer (2000) and an EU law expert (2009) postgraduate diploma. He is currently director of EMLA. He is a member of the IUCN Commission on Environmental Law, formerly member of the National Environmental Council of Hungary (2009-2013) and formerly the Chair, currently the Coordinator of the Justice and Environment Network of European Environmental Law Organizations. KOVÁCS, Ágnes, Ms. Tahy: graduated the Law School of Pázmány Péter Catholic University in 2000. Working at the Ministry of Environment, Radio and Television Broadcasting Body. Since 2003, has been working at the Pázmány Péter Catholic University, in the field of environmental law, more specifically in GMO issues. Author of several publications, received her PhD degree in 2013. KRUŽÍKOVÁ, Eva: is a lawyer by training. Worked as an environmental lawyer in the Czechoslovak Academy of Sciences, in local and national bodies of public

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administration. She is one of founders of the Czech Ministry of the Environment (1990). As an associate professor of environmental law was teaching at the Charles University and at the College of Law, Florida State University, USA. She established and ran the non-governmental think tank Institute for Environmental policy in Prague for 14 years. She is a member of several international organisations dealing with environmental protection and environmental law. Since May 2007 she works as a Principal Legal Advisor and a Director of a team at the European Commission’s Legal Service. LOVAS, András: LL.M. (Andrássy) is an attorney at Sárhegyi és Társai Lawyer Association in Budapest. He is a Ph.D. student at the Departement of Environmental and Competetion Law at the Faculty of Law and Political Sciences of Pázmány Péter Catholic University since 2009, and a lecturer of different seminars of energy law since 2011. He is author of more then ten international and Hungarian publications at the field of energy law, and he is recently working on his Ph.D. dissertation relating to Hungarian energy law. PÁNOVICS, Attila – PhD, senior lecturer at the Department of Public International and European Law, Faculty of Law, University of Pécs. His main research fields cover sustainable development, EU cohesion policy and environmental rights. SÁRKÖZY, István: born in 1984. He holds a law degree from the University of Debrecen (2009) and a postgraduate degree in environmental law from the Pázmány Péter Catholic University (2011). Mr Sárközy had been working in the Office of the Hungarian Parliamentary Commissioner for Future Generations as a legal advisor from 2009. His main task was comparative EU law research particularly in the field of environmental law. From 2012 he has been working in the Office of the Commissioner for Fundamental Rights as a legal advisor specialised in transportation and environmental law. SCANNELL, Yvonne: LL.M.(Cantab.), Ph.D., LL.D.(h.c.)(W&L),F.T.C.D., Barrister is a professor in the Law School, Trinity College, Dublin, Ireland where she specialises in Legislation and Regulation and European Environmental Law and Policy. She has been consistently rated at one of the top environmental practitioners in Ireland by PLC Which Lawyer? and Legal 500. Dr Scannell has written six books and numerous articles on Environmental law. She is a member of the European Council for Environmental Law, the Avocetta Group and a founder member of the Irish Association of Environmental Lawyers. She was on the Summer Faculty of Vermont Law School, the leading US environmental law school from 2007-12. SZABÓ, Marcel: Chair, European and International Law Department of the Faculty of Law and Political Sciences of Péter Pázmány Catholic University

xviii

authors

(Budapest) since 2003. Deputy-Commissioner for Fundamental Rights, responsible for the protection of the interests of future generations in Hungary from October 2012. Had also been Ministerial Commissioner responsible for the sustainable utilization of natural resources divided by state borders in the Ministry of Public Administration and Justice and Representative of the Hungarian government at the International Court  of Justice of The Hague. Former Visiting Fellow at the Lauterpach Research Centre for International Law (Cambridge) as well as the Centre for European Legal Studies (Cambridge). SZIGETI BONIFERT, Márta: Executive Director, The Regional Environmental Center (REC) Spent 12 years working for the environment in various capacities at organisations such as the Environment Institute and the Environment Ministry in Hungary. Later she spent 10 years in business companies, before joining the REC staff, where she became executive director in 2003. Has an MA of business administration at the Katz Graduate School of Business from the University of Pittsburgh with a focus on strategy and human resources. She has a degree in management from the International Management Center of Central European University and has a bachelor of science in psychology/biology from the University of Kuwait.Scientific advisor of Agroinnova/Torino University Scientific Committee; heads the environmental committee of the Hungarian Business Leaders Forum (HBLF); president of the ROMASTER Foundation; member of EBRD’s Environmental and Social Advisory Council (ESAC) and Member of the Board of Trustees of the CEU Business School Foundation. She is also a trained presenter of Al Gore’s Climate Project 2011/2012 chair of the Europe China Clean Energy Centre (EC2) management board, member of the Global Energy Prize jury since 2009 and chair of the ENVSEC Initiative. Since 2012 she is member of the ENEL Foundation’s International Scientific Committee recently she was invited to the Jury Panel of the Green Mind Award II. SZILÁGYI, Szilvia: attorney at law, working at the Environmental Management and Law Association in Budapest, Hungary. Lecturing at Pázmány Péter Catholic University Faculty of Law and Political Sciences and at Budapest University of Technology and Economics. Her Ph.D. research topic is the European regulation of environmental impact assessment with special regard on the case law of the Court of Justice of the EU. She has authored a number of publications in the field of environmental law. WINTER, Gerd: born 1943, since 1973 Professor of Law at the university of Bremen. 1987-93 Director of the Center for European Law and Policy. Founder and since 1994 Director of the Research Unit for European Environmental Law (FEU). Numerous publications mainly on German, comparative, European and intenational environmental law.

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chapter 1

Introduction into the Concept of ‘Environmental Democracy’ Gyula Bándi

chapter 1

introduction into the concept of ‘environmental democracy’

Increased efforts to set up a proper system of public participation and, together with it, the necessary civil control have appeared as a fundamental obligation in the development of environmental law in the 20th century. The legal instruments of environmental democracy have become part of international agreements and appeared as a basis for reference in the legal system of the European Union; one may mention alone the fact that within secondary legislation, in more and more circumstances, some forms of public participation are a legal obligation. Also the European Court of Justice (now CJEU) has always aimed, on the one hand, to force Member States to obey the rules related to public participation, and, on the other hand, for the purpose of a better implementation record, to define as clearly as possible the legislative goal, as well as most of its elements in order to constitute the effective realization of public participation. As a consequence, it becomes clear that public participation has emerged as a characteristic element of environmental law, much more than in any other field of law. There is no other regulatory field of the contemporary legal system, which could develop the legal conditions of public participation in such an extensive way, as we may witness in environmental protection. This may be taken as the practical side of democracy as such or environmental democracy as it is widely accepted. The reason why environmental protection has such an outstanding position is very simple; the main reason had been clearly articulated in the Preamble of the European Charter of Environment and Health,1 among others as follows: “Recognizing the dependence of human health on a wide range of crucial environmental factors, Mindful that the maintenance and improvement of health and wellbeing require a sustainable system of development, Concerned at the ill-considered use of natural resources and man-made products in ways liable to damage the environment and endanger health, etc.”

Environmental protection is a precondition for human life and well-being, while other fields of law protecting other aspects of the human being – from the regulation of family relationships via social legislation or education, etc. – are equally important, but represent only one or more segments of life, and may not be taken as clear conditions for the survival of mankind as a whole.



1 The Definition of Environmental Democracy and its Constituents

It is not the task of the present book to discuss all the different visions and concepts related to environmental democracy, but instead, we try to focus more on the practice and conditions of it, to look at environmental 1

European Charter on Environment and Health.

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environmental democracy and law

democracy in action. Therefore, we take it somehow as granted that there are some common elements within most of the answers given to the main question: ‘What is environmental democracy?’ At the beginning a very simple, easy and consequently handy answer in a website may be taken as a way of description: “Environmental democracy is about government being transparent, accountable, and involving people in decisions that affect the quality of their lives and their environment.”2 Going along the same way in order to establish the definition itself, again we refer to a simple summary providing the framework of a high-ranking conference, organized by Yale University and UNITAR in 2008.3 This is a handy summary of the problem: “Public participation in environmental decision-making and implementation has become a cornerstone of environmental governance. Cited benefits of public participation include, for example, improving the quality of decision-making, facilitating policy implementation, and enhancing accountability of institutions. Yet, diverging perspectives and experiences exist on how to best implement the concept in practise. At the international level, Agenda 21, the World Summit on Sustainable Development (WSSD) Johannesburg Plan of Implementation (2002), as well as Principle 10 of the Rio Declaration and the 1998 UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) provide important driving forces for participatory environmental governance. Given these developments, many countries have enhanced their efforts to engage the public in national, regional and local environmental governance, taking into account their political, social and cultural circumstances. More recently (and increasingly), public participation is also taking place within the context of corporate environmental governance. Finally, the growing importance of multilateral institutions has catalyzed a debate on how to best engage the public in international environmental governance.”

More or less the same views are reflected in the writings of other authors, with some additional elements. We may also easily agree with the following:4 “‘Environmental democracy’, for example, refers to facts and process that may relate to the environmental and human health and well-being.” And also the main reasons why environmental democracy is much needed are embedded in the failures of economic development trends: “The area of environmental democracy is subjected to the rules of economic efficiency and to the quest of the system of endless growth. ... The system (the society) has its own internal consistency (rationality) and is organise towards the 2 3

Protecting Environmental Democracy.

European Charter on Environment and Health.

4

La Camera, F. (2011), p. 19.

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chapter 1

introduction into the concept of ‘environmental democracy’

goal of maximum growth. The behaviour of different actors and the cognitive and procedural aspects of decision-making processes should therefore be consistent with this end. The difficulties to enlarge the area of environmental democracy and the difficulties encountered by its instruments can definitely be understood if we consider the prevailing priority attributed by society (at least by its governmental institutions) to economic growth. The ecological rationality of environmental democracy is irremediably in contrast with actual system rationality.”5

This is mostly true and this inequality requires a careful balancing of interests in the long run. Environmental democracy and public participation may easily be taken as synonyms, so we do not commit a big mistake if we focus next on public participation exclusively, without looking more into the details of the phenomenon. The individual areas of public participation are summarized in Principle 10 of the Rio Declaration6 which, on the one hand, constitutes a firm basis for reference for citizens in exercising their environment related rights, and on the other hand, contains a direct obligation towards states to develop their regulation in accordance with Principle 10. It states: “Environmental issues are best handled with 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. States shall 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 10 could already describe the well-known distinction related to the three cornerstones of public participation: • access to information (first of all, environmental information); • participation in decision-making; • access to judicial and administrative proceedings or in other words: access to justice. These elements are mostly used by all the authors,7 but we should also mention that this is coupled in many documents and procedures with capacity-building 5

La Camera, F. (2011), p. 28.

6 7

Rio Declaration on Environment and Development.

See, e.g. Jans, J. H. & Vedder H.H.B. (2012), p. 368 ff or Krämer, L. (2007), p. 147-162. A concise summary of the Aarhus results may be found in the paper presented at the Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, 14-16 January 2002, Geneva, Background Paper No. 5 by Jonas Ebbesson. As a more recent paper as useful reading: Information, Participation and Access to Justice: the Model of the Aarhus Convention Citizen’s Rights in European Environmental Law:

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as an additional condition, which has relatively less legal content, but may rather be taken as a set of political or financial conditions. But the above three areas clearly require legislative groundwork and proper implementation. These three plus one elements or – as commonly used – pillars are articulated in the Aarhus Convention,8 among others in its preamble: “Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights.”

The whole history of – or ‘road to’ – the Aarhus Convention is clearly articulated in the Aarhus Implementation Guide,9 so there is no use to reiterate it, similarly as the ‘road from Aarhus’10 is also illustrated. To refer to the Guide is even more appropriate today, as it has been updated recently – April 2013 – thus there is no point recapitulating what has already been done comprehensively by the authors of the document. Also in the case law of the ECJ/CJEU the above mentioned three pillars have been articulated many times in order to come to the necessary conclusion.11 As our book is focusing mostly on the relationship of public participation and the EU, as a preliminary point we must also refer to the fact that public participation within the EU may clearly be connected with the basic democratic requirements of the TEU of the Treaty of Lisbon,12 as mentioned by Jans and Vedder, namely: • Art. 1: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” • Art. 10 (1): “The functioning of the Union shall be founded on representative democracy.” • Art. 10 (3): “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.” But we may also add to their recapitulation the next article: • Art. 11 (1): “The institutions shall, by appropriate means, give citizens and Stock-Taking of Key Challenges and Current Developments in Relation to Public Access to Information, Participation and Access to Justice by J. Jendrośka, Journal for European Environmental Policy and Law – JEEPL 9.1 (2012) 71-90. 8

The Aarhus Convention.

9

Aarhus Convention Implementation Guide (2013), pp. 2-4.

10 11

Aarhus Convention Implementation Guide (2013), p. 9.

A nice example of this summary may be found in the Opinion of Advocate General Sharpston, delivered on 22 June 2011 in connection with Case C‑204/09, from points 3 to 11.

12

Consolidated Version of the Treaty on European Union.

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representative associations the opportunity to make known and publicly exchange their views in all areas of Union action” and consequent paragraphs of Art. 11 as signs of capacity building in terms of developing and functioning civil organizations. This above reference to democracy opens the door to an essential dilemma that is to look for the foundations, also the reasons behind the development of environmental democracy. We may witness the emergence of environmental democracy relatively soon after the beginning of environmental legislation. What is exactly the importance of public participation, which provides a solid basis for any such attempts? Here we do not go into all the components of such reasoning, as Gerd Winter, in the next article, will examine the problems of deliberative democracy and the rule of law; consequently our focus at this point is limited to other areas. The best way is to follow first the indication of Jans/Vedder’s book and look for democracy as a foundation and also go back in this respect to the source, the latest American legal history. One of the first laws in this respect, serving the transparency of government actions, is the so-called ‘Government in the Sunshine Act’ of 1976, a good abstract of which had been articulated in the following judgment: “The Sunshine Act provides, with ten specified exemptions, that ‘every portion of every meeting of an agency shall be open to public observation.’ 5 U.S.C. 552b(b) It imposes procedural requirements to ensure, inter alia [among other things], that advance notice is given to the public before agency meetings take place. It also imposes procedural requirements an agency must follow before determining that one of the ten exemptions from the openness requirement applies. However, neither the openness requirements, nor the related procedural requirements, are triggered unless the governmental entity at issue is an ‘agency,’ and unless the gathering in question is a ‘meeting’ of the agency.”13

No wonder why American authors agree: “Democratic theorists have long contended that public participation is crucial to a functioning democracy … Such participation is dependent on both the effective distribution of information by the government and its equitable reception by citizens.”14 Democracy and the other main source of present political and legal systems, the rule of law, may be divided – as it has already been presented by the TEU – into two major categories: representative democracy, based on elections, and direct or participatory democracy, the best method of which is public participation in general. The same author also tries to summarize the ‘raison d’être’ for public participation as follows: “Public participation in government decision-making has been known to increase the accountability of officials, educate those officials on the 13

 Natural Resources Defense Council, Inc. et al. v. Nuclear Regulatory Commission.

14

Cramer, B.W. (2011), p. 8.

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local impact of their decisions, bring all stakeholders into the discussion and inspire officials to shape ultimate decisions in the public interest”, and later: “Transparency and public participation also lend legitimacy of government decision-making of all types…”15 Below we go into a relatively detailed list of concerns, which supports the idea of environmental democracy or public participation. The list is not very detailed, but only gives a little insight into the problem, in order to prove that there are serious theoretical and practical foundations for this concept. We consider briefly the following questions: • democracy (to be examined later in Chapter 2 by Gerd Winter), • rule of law (to be examined later in Chapter 2 by Gerd Winter), • the collective or ’community’ dimension, • common concern of humanity, • common heritage, • common good, • subsidiarity, • environmental justice and finally • a bunch of practical reasons which all support the benefits of public participation.



2 The Collective or ’Community’ Dimension

Although I do not go into the details of the relationship between environmental democracy and democracy in a broader perspective, one should not forget that these concepts all find their origin around the vision of the community. This is one of the major characteristics of environmental law – later we look at the problems of the right to environment, which also has this community image as a distinctive element versus the traditional concept of human rights, which is much more individualistic – reaching out even to future generations. As the Turkish author16 described it also as a challenge to traditional law: “A crucial common point is that they all impose an environmental ethic since they require a collective or ‘community’ dimension. Consideration of the long term is also another key factor that links them. This inevitably leads to the application of a holistic approach, and consequently it should be possible to override the ‘short term interest conflict’ under the concept the general interest which advances interests beyond our life time.”

The enigma of the concept of future generations is one constituent of this community dimension and I come back to this in association with the right to 15

Cramer, B.W. (2011), pp. 11 and 13.

16

Turgut, N.Y. (2008), p. 125.

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environment, but there are other significant questions we must also examine in this context, broadly used predominantly in international environmental law: the common heritage of mankind and the common concern for humanity. Both refer to the equal distribution of available resources, shared competences and responsibilities and the need for collective decision-making, which may not simply be substituted by political or administrative verdicts. Soon after the 1992 Rio Conference and Declaration, the need to institutionalise sustainable development from the point of view of law became a prerequisite for further dialogues, and an expert group was formulated, in order to identify at least the principles of sustainable development law.17 Among many well-known principles, from the right to development to equity, sovereignty over natural resources and common but differentiated responsibilities, precaution and cooperation, and others, the above mentioned two principles are closely connected with the participatory rights of mankind as such – the common heritage of mankind and common concern for humanity.



3 Common Concern of Humanity

The report of the expert group according to point 81 provides arguments for the principle of the duty to cooperate ‘in the spirit of global partnership’, referring among others to the common concern of humankind as one major constituent,18 while as a next step, in point 103-104 the report focuses on the common heritage of mankind. Seemingly, the latter does not belong to the duty to cooperate, but with a careful look and a better understanding, this should also form a part of cooperation, having the same conceptual roots with a slightly different perspective. Although the focus of the report is international cooperation and international law, if we have a close look at the content, the message becomes clear for environmental democracy on its own: “82. The notion of common concern on the part of the international community, and of States as its principal actors, has traditional roots. It found its original expression in various forms, like common interest and international concern, in fields such as the protection of human rights and self-determination of peoples. The foundation of the concept is the recognition of a legitimate interest of the international community to concern itself with certain issues and values which, by their nature, affect the community as a whole. The scientifically-based reality of 17

Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, prepared by the Division for Sustainable Development for the Commission on Sustainable Development Fourth Session.

18

There are two other arguments listed: common but differentiated responsibilities; and special treatment of developing countries, including small-island developing States and countries with economies in transition.

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ecological interdependence, and the concomitant recognition of the global nature of environmental problems, made it only a logical step to apply the concept of common concern to the environment of the planet, or elements thereof.”

While it is true that the above-mentioned legitimate interests have their basis in the fact that these issues affect the community as a whole, the international community should not be separated from any other layers of the community, from local to regional, national or global levels. Common interest shall mean the need to develop means and methods to reflect these common interests in any kind of decision-making processes. Common concern of humanity therefore must be taken as a major underlying concept of environmental democracy. Consequently, while we agree with the author, that common concern for humanity – such as climate change, biodiversity – primarily refers to the global environmental issues, which require the cooperation of states,19 this should not mean that these problems are not general problems at the same time. “Common concern is related to, but different from the concepts of commons areas and the common heritage of mankind. .... Common concerns are different because they are not spatial, belonging to a specific area, but can occur within or outside sovereign territory. ”20 Here the concept of common concern is predominantly used to provide the reasons for international cooperation, but still it is true for cooperative environmental democracy. Thus the wording of the UN report in point 84 – “‘Common’ connotes solidarity in protecting the global environment, and thus implies the sharing of burdens in achieving the pursued goals in a manner which reflects equity” – is relevant again in any levels of burden sharing. The Max Planck Encyclopedia of Public International Law discusses the problem of community interests,21 covering also the above concept: “A. Notion and Context 1. References to community interests are frequent in public international law and scholarly writings, and sometimes the term is used interchangeably with the terms common interests, collective interests, common concerns or common values. These terms are however seldom defined, and they often carry diverse meanings.”

The author of the entry refers to the United Nations Framework Convention on Climate Change, the preamble of which reads: “Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind,” but the Convention does not provide any further explanation. The same entry also deals with another concept, “19. In the field of international environmental law one can refer to the international legal regimes for the protection of nature and living resources as protecting common values.” Again there is 19

Brunée, J. (2007), pp. 552-553.

20 21

Shelton, D. (2009), pp. 34-35.

Feichtner, I., (2012).

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the preamble of the Convention on Biological Diversity serves as an example – “Affirming that the conservation of biological diversity is a common concern of humankind” – although the author underlines “19. ...Even though the common concern language is the same as in the Climate Change Framework Convention, the object of regulation is a different one.” Here the community interest is the most important quality, less the international character.



4 Common Heritage

If now we have a closer look at the common heritage dilemma, it is first best to use the UN experts’ report again. Point 103 reads: “In addition to the principle of common concern of humankind supra, paras. 82-88) there is the principle of common heritage of humankind. The principle takes root in the concern that the resources of certain areas beyond national sovereignty or jurisdiction should not be exploited solely by those few States whose commercial enterprises are able to do so, but rather constitute the common heritage of humankind, to be utilized for the benefit of all States. The application of the principle to particular areas, and its substantive content, is elaborated in treaty law.”

Authors refer to such resources, such as the living organisms of the deep sea22 or emphasize the need to take the widest sphere of interests into consideration, when making the decisions at the level of sovereign states.23 The same Max Planck Encyclopedia in a different heading24 discusses also the common heritage concept, summarizing it as follows: “26. The common heritage principle comprises the following elements: the common heritage can neither be occupied nor appropriated, it is open for use by all; it entails the obligation to cooperate, this obligation goes beyond the obligation to cooperate under general international law. Under the common heritage principle, there exists the obligation to actively share benefits. Further, the principle embraces the obligation to preserve the area and resources in question for future generations, which includes the concept of sustainable development. There is also the obligation to use the area in question for peaceful purposes only.”

Common heritage and heritage in general (heritage of the people of a country, cultural heritage, etc.) have the same roots, the only difference is the reference to sovereignty, or more specifically, the lack of sovereignty in some cases. Otherwise it is close to such constitutional values as the heritage of a given 22 23

Brunée, J. (2007), p. 552.

Ellis, J. & Wood, S. (2006).

24

Wolfrum, R. (2012).

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nation. This is well reflected in one of the outcomes of the recent development of the Hungarian legal system, the new constitution (25 April, 2011), regarded as ‘Fundamental Law’. It is worth saying that the new constitution covers much more environmental references and much more theoretical foundations for the interest of the environment, than ever before. The National Profession (“Credo”), actually a long preamble of the Fundamental Law also contains environmental elements, embodied into a larger context: “We commit ourselves to promote and safeguard our heritage, our unique language, the Hungarian culture, the languages and cultures of nationalities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants; therefore we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources.”

This paragraph refers to the natural assets – but also outside Hungary, in the whole Carpathian basin, which means for some too nationalistic an approach, and for some a normal reflection of values such as the Pannon biogeographical region.25 The heritage concept is similar to that of the Cultural Heritage Convention,26 first of all as the natural heritage concerns: “Article 2 For the purposes of this Convention, the following shall be considered as “natural heritage”: • natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; • geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; • natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”

The essential element of any of the above concepts of ‘heritage’ is the special value, which goes much beyond the limits of material wealth or beyond the limits of a state, etc. This is true, for example, in the case of Natura 2000 sites,27 the concept of which is articulated in the Preamble: “Whereas, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable;” or elements of cultural heritage 25

Natura 2000: Habitats Directive Sites according to Biogeographical Regions.

26 27

Convention Concerning the Protection of the World Cultural and Natural Heritage.

Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora.

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as stated in the Cultural Heritage Convention, or the concept of the common heritage of mankind. The Cultural Heritage Convention in its Article 6 combines state sovereignty and international relevance in a smooth way: “1. Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”

And this is not far from the common heritage concept, the only difference is the common understanding that this latter focuses on areas outside national jurisdiction. But if we wish to embrace all of these concepts, the questions of common values and also common interests are the core of them. Common interests shall require environmental democracy, otherwise the rigid concept of sovereignty prevails, which does not reflect properly the careful balancing of interests, which should not be the exclusive realm of any state or international organisation. Common interests shall mean that there is a firm basis for wider public involvement, due to the specific state of affairs related to the underlying values and interests. It is not necessarily enough if governments, other officials, organs or bodies are involved in making decisions which usually have a long-lasting impact on the widest sphere of interested parties, of many or even all human beings. There must be rights and procedures to provide the necessary framework and conditions for democratic decision-making.



5 Common Good

Somehow this is reflected in the concept of ’common good’, emphasized many times in the different documents of the Holy Sea, for example the encyclical, issued at the 40th anniversary of the first famous social doctrine encyclical – Rerum Novarum – in 1931:28 “110. ... The public institutions themselves, of peoples, moreover, ought to make all human society conform to the needs of the common good; that is, to the norm of social justice. If this is done, that most important division of social life, namely, economic activity, cannot fail likewise to return to right and sound order.”

This is the Encyclical which introduced the subsidiarity principle (principium subsidiaritatis), our next challenge. 28

Pope Pius XI (1931).

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There are several similar documents of the Catholic Church, but we only mention the Encyclical of John Paul II, issued at the 100th anniversary of the Rerum Novarum in 1991,29 which has a close environmental context in relation to the common good: “40. It is the task of the State to provide for the defence and preservation of common goods such as the natural and human environments, which cannot be safeguarded simply by market forces. Just as in the time of primitive capitalism the State had the duty of defending the basic rights of workers, so now, with the new capitalism, the State and all of society have the duty of defending those collective goods which, among others, constitute the essential framework for the legitimate pursuit of personal goals on the part of each individual.”

These moral considerations concerning the common good are very similar to the concepts of common heritage or also to common concern. The responsibility of public institutions, the state or of all society to defend and safeguard the collective or common goods also corresponds with the concept of justice, which will be examined later with a special focus on environmental justice. So all the primary considerations focus on the same division of responsibilities and common values or interests.



6 Subsidiarity

The most common vision is that subsidiarity is the most important constitutional principle of the EU,30 while if we have a closer look, we should realize that: “Despite its recent interest to academia and the press, the principle of subsidiarity stems from Greek philosophy, Aquinas’ writings, seventeenth century German corporatists, and, most influentially, the Catholic Church’s social doctrine. The principle of subsidiarity refers to notions of multi-level governance and of regulatory competition. The human rights analysis of the principle of subsidiarity focuses on the protection of human dignity and political diversity by defining the principle of subsidiarity as a “structural principle of international human rights law.”

The principle of subsidiarity is double-edged; it can be used to justify both increased centralization and increased decentralization.”31

29 30 31

Pope John Paul II (1991).

Horsley, T. (2011).

Portuese, A. (2011), p. 232.

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It is not our task to go much into the analysis of subsidiarity, but it is without doubt that this principle, as it is referred to nowadays, comes from the Catholic Church; the Quadragesimo Anno Encyclical is the major source of it:32 “79. As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.” and later: “80. ...Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations, in observance of the principle of “subsidiary function,” the stronger social authority and effectiveness will be the happier and more prosperous the condition of the State.”

Thirty years later this has been formulated in an even more direct way in another encyclical:33 “55. But however extensive and far-reaching the influence of the State on the economy may be, it must never be exerted to the extent of depriving the individual citizen of his freedom of action. It must rather augment his freedom while effectively guaranteeing the protection of his essential personal rights....”

There are several authors, who discuss subsidiarity from the philosophical foundations to the practical implementation.34 A very important verdict of Carozza35 is worth quoting: “Subsidiarity is therefore a somewhat paradoxical principle. It limits the state, yet empowers and justifies it. It limits intervention, yet requires it. It expresses both a positive and a negative vision of the role of the state with respect to society and the individual.”

What does it mean for environmental democracy? The need to leave the decision-making rights on their future to the individuals, groups, society and state should not deprive them of their rights and should not make decisions above 32 33

Pope Pius XI (1931).

Pope John XXIII (1961).

34

See Portuese, A. (2011) or Vischer, R. K. (2001), or in connection with environment and EU: de Sadeleer, N. (2012).

35

Carozza, P.G. (2003), p. 44.

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people, only if it is utterly necessary. And, the whole is governed by a kind of efficiency test, as the EU law requires according to TEU Art. 5(3). “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

Even if the subsidiarity may give rise to EU/state/regional/local levels of action instead of Member State/regional/local/group/individual decisions, the whole concept clearly implies democracy, consequently public participation, as it is based upon the general rule of the careful balancing and allocation of powers.



7 Environmental Justice

Environmental justice is seemingly a perception with limited scope, but if one has a closer look at the merits of the problem, it becomes clear how extensive it is actually. The EPA in the most popular outline of the issue36 says: “Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Thus apparently the whole is close to non-discrimination. The first renowned interpretation of the one is provided for by the Delegates to the First National People of Color Environmental Leadership Summit in 1991with a relatively wider and high-toned set of principles,37 the launch of which is a extraction of environmental protection as such: “1) Environmental Justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction.” Later the 17 contain issues of non-discrimination, sustainable and ethical use of resources, intergenerational issues, but also a careful balance of selfdetermination (a kind of sovereign decision-making) and of course a direct need for public participation: “7) Environmental Justice demands the right to participate as equal partners at every level of decision-making, including needs assessment, planning, implementation, enforcement and evaluation.” Education is mentioned in Principle 16, which may refer us to capacity building needs. The final verdict needs to be emphasized as it refers to the common responsibility of everybody, again a supportive element of public participation: “17) Environmental Justice requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth’s resources and to produce as little waste 36 37

Environmental Justice: Basic Information.

The Principles of Environmental Justice.

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as possible; and make the conscious decision to challenge and reprioritize our lifestyles to ensure the health of the natural world for present and future generations.” Accordingly these principles really take a wider look at environmental justice, the non-discrimination being an essential, but not sole component of which. The above quoted EPA summary is based upon the famous Executive Order 1289838 of President Clinton, and leads to the statement, mentioned at the beginning of this point. The EPA paper describes also what is meant under fair treatment and meaningful involvement, worth also being quoted here:39 “Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies Meaningful Involvement means that: • people have an opportunity to participate in decisions about activities that may affect their environment and/or health; • the public’s contribution can influence the regulatory agency’s decision; • their concerns will be considered in the decision making process; and • the decision makers seek out and facilitate the involvement of those potentially affected.”

The above list is very close to the major content of public participation, but access to information and access to justice are not mentioned. Of course, we may have an extended consideration and take that these two other elements of public participation are so closely connected with the participation in decision-making that there is no need to talk about them separately. The plus one element of public participation, the capacity building, is however included. There are several articles and books which go into the details of environmental justice, 40 and of course, many believe – as does the author of the present chapter, too – that all these ethical considerations, intra- and intergenerational justice models, the need to economic transition towards a much more responsible thinking are interrelated, in a way as “The Aarhus Convention, beside its other major accomplishments, has opened the door to an international debate on environmental justice standards.”41

38

Executive Order 12898 on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, President Bill Clinton.

39

Environmental Justice: Basic Information.

40

Ebbesson, J. & Okowa, P. (2009), or Kang, H.H. (2008), also Steady, F.C. (2009). Access to information is also discussed as a part of environmental justice, although it has not been directly listed by EPA, see, for example Case, D. W. (2011-2012). Also the European dimensions are discussed in Bernard Vanheusden’s article “The Relevance of Environmental Justice for the Legal Framework in the European Union”.

41

Stec, S. (2011), p. 54.

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8 Different Practical Rationales of Public Participation

If we wish to make an inventory of all the grounds for the significance of public participation, we should not forgot that most of the authors, dealing with public participation or environmental democracy are eager to find several practical supportive reasons, as the benefits of our subject matter. These advantages, uses of public participation may best be found in American legal literature. Our next author even collects several other references to sources attached to each and every item: “Despite widespread acceptance of the need for participatory processes, public participation has received mixed reviews from practitioners and evaluators. On the positive side, it has been credited with the ability to facilitate: • trust, legitimacy, and mutual learning by incorporating public values into decisions (Pateman 1970; Fischer 1993; Beierle and Konisky 1999; Wondolleck and Yaffee 2000; Daniels and Walker 2001; Beierle and Cayford 2002; Mascarenhas and Scarce 2004); • leveraging public resources (Selin et al. 2007); • conflict resolution among divergent interests (Gericke, Sullivan, and Wellman 1992; Beierle and Cayford 2002); • better substantive decision quality based on a broader range of interests, debate, and innovation (Gray 1989; Sample 1993; DeLeon 1995); • increased decision commitment and acceptance (Pateman 1970; Gray 1989; Sample 1993); • positive cumulative partnerships to enhance future policy endeavors and create goodwill (Gray 1989; Gericke, Sullivan, and Wellman 1992; Beierle 2002); and • stronger democracy built on a genuine attempt at inclusiveness (DeLeon 1995).”42

This précis is very detailed, but there are also other sources, worth mentioning here, as our deliberate idea is to provide a careful selection as a basis for further discussion. The second example is also the paper of an American lawyer, 43 giving us again an impressive list of considerations from a more practical point of view than the previous one: “Assembled here is an aggregation of benefits for a participatory model derived from these varying theories of democracy. Public participation produces benefits to society because it: • Improves decisions by providing decision-makers with relevant and accurate information; • Helps decision-makers gauge the nature and depth of public opinion; 42 43

Balint, P.J. et al. (2011), p. 108.

Mihaly, M.B. (2009-2010), p. 164-165.

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• Introduces new concepts that staff or frequent participants may not advance; • Informs decision-makers of the substance, weight, significance and politics of stakeholder concerns in ways that staff cannot; • Provides an organizing device and political entrance vehicle for new stakeholders who, in turn, can reorder public priorities and advocate for new governing processes; • Provides a vehicle for public policy advocacy on the substantive issues which, in turn, may change the politics in question; • Fosters democratic and civic values; • Creates new group identities; • Confers legitimacy on the governmental process; • Enhances the depth and detail of news reporting on the subject, thus educating the general public; and • Counters corruption, collusion, and graft. • Although perhaps tautological, public participation is also an end in itself, viewed as a significant element of a democratic society.”

Finally, there are several European authors also who look at the practical benefits of public participation in environmental protection:44 “In this instrumental perspective public participation potentially: • Raises the substantive quality of the decision itself, by adding relevant knowledge to the decision-making process (like good ideas and (lay) expertise by participants) • Adds to the quality of the analysis, by engaging participants in the assessment and monitoring of alternatives • Will broaden public support for environmental related decisions which will lead to time gain (shorter decision-making processes in the long term) and co-implementation • Will reduce the level of conflict and facilitate action and implementation.”

As all these – and of course, several other – authors address the practical side of environmental democracy thoroughly, listing all aspects as much as possible, there is no reason to look for other arguments, but we accept all above mentioned aspects. Of course, active environmental democracy helps citizens and citizen groups to strengthen their identity. Certainly, this helps to develop partnerships. Of course, public knowledge related to local circumstances or even to scientific background – one may think of scientific NGOs, too – may and shall be channelled into decision-making. Certainly, transparency is a useful tool when we wish to avoid corruption. Naturally, extensive public participation reduces the risk of further disputes, etc. Consequently, there are several reasons which all prove why public participation is not only a must from the point of view of those doctrinal requirements 44

Coenen, F.H.J.M. (2009), p. 184.

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mentioned above, from subsidiarity to common concern or democracy, but also there shall be many important elements which contribute to the betterment of environmental administration. This bipolar function is clearly demonstrated in another book, again from our European perspective: “The setting of environmental standards requires a balance to be struck between environmental protection and other social and economic objectives. It also requires the prioritization of competing environmental interests.... Justifications for public participation may be both instrumental and non-instrumental. Noninstrumental emphasise that public participation is inherently beneficial, whereas instrumental rationales by contrast emphasize the link between public participation and improved substantive outcomes.”45

Public participation according to some authors may even characterize a whole new development era of environmental legislation, thus needs to be improved. “For the next generation of environmental law to succeed, this challenge of democratic participation must be addressed.”46 According to the authors of the quoted article, we are working for the development of the fourth generation of environmental laws. Public participation in the first generation was limited and relatively passive, 47 and also was not really addressed by the second generation of environmental law which took market mechanisms into the foreground, became more active in the third phase and must be emphasized in the coming new stage of development.

45

Moules, R. (2011), p. 18.

46 47

Overdevest, C. & Mayer, B. (2010), p. 111.

Overdevest, C. & Mayer, B. (2010), pp. 110-113.

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chapter 2

Theoretical Foundations of Public Participation in Administrative Decision-Making Gerd Winter

chapter 2

theoretical foundations of public participation in administrative decision-making

If speaking about public participation in administrative decision-making, some notion of administration should be clear because participation in law making or the judiciary would be a very different issue. Administration (Verwaltung) can be defined as the working level of government. The term stems from the Latin word ad-ministrare, which can be traced back to manus (hand).1 This refers to the practical ‘hand-ling’ of matters, as in manu agere (to act by hand) or management. In modern political and legal discourse, the term has often been used to emphasise the difference between matters of (high) politics, which belongs to the government (Regierung), and the setting of general rules by legislation, on the one hand, and technical or pragmatic issues, on the other. However, the qualification of administration as technical and pragmatic does not mean that there are no policy questions involved in administrative decision-making. For instance, when standards of best available technology are to be determined the necessary technological knowledge, which is certainly technical and pragmatic, is often weighed against environmental risks and economic costs. The same is true for environmental quality objectives. Here, cognitive elements like dose-response relationships between noxious impacts and adverse outcomes are weighed against the importance of risks and the cost implications. Even in decision-making on individual cases, policy questions play a role. For instance, the risk assessment for a highly complex technical installation may well depend on different risk “philosophies” such as deterministic or probabilistic methods, “conservatism” in assuming the likelihood of accidents, etc. In more general terms of administrative sciences, bureaucracy is not only an instrument of but also a source of politics and policies. This is the very reason for why administrative decision-making cannot be left to the experts but needs to be subjected to procedures that provide reasonable choices of policies. Participation of the public is often considered to be the appropriate solution. Public participation in administration raises many specific problems of design and practice. This paper aims at providing some theoretical underpinning that allows a better understanding of the problems and the development of solutions. Accordingly, first the problems will be sketched out; second, a number of theoretical concepts of public participation will be presented; third, solutions shall be suggested on that basis.



1 Problems of Public Participation

A superficial review of different legal frameworks and practical experiences suggests that some of the core questions of design and practice of public participation are the following: • The role of participants in procedures: Is it to provide information in order to enhance the quality of the decision, is it making affected persons accept it, is it exerting the right of persons aggrieved by the decision to be heard, or 1

Weinhart, L. (1821), p. 442.

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is it inviting the public to a discourse about facts, assessments and evaluation? • The delimitation of participants: Are only witnesses and experts admitted, or also those whose rights or individual stakes are affected, or associations bundling interests of concerned persons, or even the public at large? • The steps of participation: Shall there be an early opportunity to comment when the options are still open, followed by a second one where details are clarified, or does one opportunity suffice? • The range of information on display: Shall the information only comprise potential effects of the project on neighbours, or shall it include effects on the environment at large, shall it also encompass the technology that causes the effects, the need for the projects and possible alternatives? How are the interests in trade secrets and state secrets to be weighed against the interest in disclosure? • The shape of the public hearing: Shall the responsible administrative body have discretion whether or not to hold a public hearing? Shall the hearing be conducted in a court-like contradictory procedure, or in an informal way that serves to collect facts and views, or as a discourse where the pros and cons of the project are debated, or as a forum for mediation and compromise? • Involvement of societal organisations: Shall individuals be involved only as part of corporations representing a collective interest, or shall civil society organisations have standing besides individuals? Shall NGOs be given a privileged position, and if so, shall they in some way be subject to authorisation? • Time management: Shall maximum time periods be fixed, and if so, shorter or longer ones? • Preclusion of issues: Is the participation aimed at precluding concerns from later litigation, or is it a way to enhance the quality of the discourse? • Effects of procedural failure: Do procedural failures lead to the quashing of the resulting decision, or does a relevance test apply, and if so, what criteria are used? Can “relevant” procedural failure be rectified during court proceedings? Can a project which has been realized in breach of procedural law even be “legalized” by subsequent procedure and decision? • Court review of procedural failure: Should only persons ‘concerned’ have locus standi to challenge decisions for procedural failure, or also persons entitled to participate even if not individually concerned? • Administrative rule making: Shall public participation be confined to procedures handling individual cases, or shall it also apply to general rule making?

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2 Theoretical Backgrounds for Public Participation

There are different methods as to how to respond to those questions. One method would be to develop a list of criteria against which the response options are measured. For instance, costs and benefits of procedures could be identified as is suggested by institutional economics, costs being measured for instance in terms of forgone investment and transaction costs caused by public participation, and benefits in terms of acceptance of decisions, costs to public health and the environment avoided, etc. Alternatively, a legal approach could be chosen that would suggest identifying constitutional principles that allow an evaluation of the options. For instance, a given constitution may posit the rule of law principle for administrative action. This could be interpreted to require that affected parties must be heard, but that no further involvement of the public is required. We will follow neither of these approaches. Rather than striving for an evaluation we will attempt to explain why certain options are chosen, and suggest for this a number of theories of state-citizen relationships as they have been proposed and tried in European history. These theories provide a framework that allows an understanding of how public participation has been shaped in different settings. The theories are rationalised abstractions, both from reality and normative visions. As such, they can be described as ideal types in the sense proposed by Max Weber.2 I suggest distinguishing between the following ideal types of state theories that may help understand different designs of public participation: • Enlightened autocracy; • Socialist popular democracy; • Rule of law; • Deliberative democracy; • Post-modern relational rationality; • Self-administration. ‘Enlightened autocracy’ trusts that administrative bodies are the best guardians of the public interest. Therefore, the participation of citizens is not essential or even disturbing, but may nevertheless add to the quality of the decision, because the investigation of the case can be enriched by contributions from society. In addition, the supervision by superior bodies of the action of an inferior body can be facilitated if the public is given a right of complaint. Participation in this concept is also a means to create trust in government. Thus, the citizens are mobilised in order to enhance the public good rather than given an opportunity to defend their own individual interest. One influential theory grounding this type is the Hegelian idealistic vision of the state. The state represents the general interest (of the propertied classes, 2

Weber, M. (1964), p. 14.

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to be precise3) and is as such detached from the many interests within society (Gesellschaft). This representation is not just pure power but the “realisation of the ethical ideal” (“Wirklichkeit der sittlichen Idee”). The various individual interests within society are organised in corporations such as guilds and local communities (to which we would today add associations and networks). These generate a corporation spirit (Korporationsgeist) which turns (schlägt um) into the spirit of the state. The final determination of the objective general interest however remains in the hands of the state executive officials. 4 The “orléanist” vision of the state can be regarded as the French counterpart of the Hegelian version. It conceives of the state as an elected (republican) body, which is liberal in the sense of letting private property flourish but reserves for itself strong executive powers “above” the parties in order to identify and implement the general interest of the propertied classes.5 The concept spans from the “roi bourgeois” Louis Philippe of Orléans to Charles de Gaulle.6 Asking whether autocratic approaches are reflected in sociological theory, systems theory appears to be pertinent. The version of Niklas Luhmann perceives citizens’ protests as one-sided idiosyncracy,7 and participation as a means of absorbing protests and creating acceptance of administrative decisions.8 Real world versions include the French conception of professional administration based on staff educated in the Ecole Nationale d’Administration (ENA). Even the European Union has adopted a touch of the autocratic vision insofar as it conceives the citizen as a factor, which can “mobilise” procedures of administrative and judicial supervision in the interest of better implementation by Member States of EU law.9 ‘Socialist popular democracy’ also entrusts the administration with the guardianship for the public interest. However, the modus of legitimation is fundamentally different: While in ‘enlightened autocracy’ legitimation is the endowment with power of a sovereign, in the socialist state the people are the only source of legitimation. There have been and still are very different variants of democratic socialism. One centralistic version became characteristic for the German Democratic Republic. It construes the state as being identical with the people so that an ‘additional’ participation of the citizens that would reflect the differences 3

See Hegel, G.W.F. (1821), Hegel, G.W.F (1801) 2: § 13: “A collective of humans can call itself a state only if it is bound to communally defend the entirety of its property”. (My translation, G.W.).

4 5

Hegel, G.W.F. (1821), §§257, 289.

de Broglie, G. (2003). On orléanist imprints in the French republics see Duverger, M. (1974), pp. 15-80.

6

De Gaulle (1959), p. 287: “In my opinion, it is necessary that the state has a head, in other words a chef, in whom the nation can see, above the fluctuations, the man in charge of the essential and the guarantor of its destination.” (My translation, G.W.).

7

Luhmann, N. (1986), p. 235.

8

Luhmann, N. (1997).

9

Case 26/62 van Gend & Loos. See also: Masing, J. (1997) and Weiler, J.H.H. (1999).

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of factual interests is not essential.10 Participation is anyway more a duty than a right of the citizen, and the contribution made by the citizen shall enrich the public interest rather than representing individual stakes. Societal organisations are invited and urged to participate, but they are also regarded as contributors to the public interest, not as representatives of individuals.11 Later on, in the seventies, individual positions were strengthened by the right to file a complaint against an administrative decision.12 Other, more decentralised versions were to be found in Poland and Hungary. Here, a certain plurality of societal interests was recognized and reflected in rules encouraging the participation of dissenting associations.13 In the conception of the ‘rule of law’ the executive is, like in the autocratic tradition, construed to be the guardian of the public interest. But its powers are much more constricted by parliamentary laws. In addition administrative bodies must grant those persons whose individual interests may be adversely affected a right to be heard (rechtliches Gehör; natural justice). This right has gradually been extended from the addressee of an administrative act to third parties thus constituting a variant of what was later called public participation. It is however a narrow variant because the participant must be individually affected and is only heard with arguments concerning this individual interest.14 The state theoretical background of this concept is the theory of representative democracy. The executive is solely legitimated by parliament – organisationally through the election of the ministers as heads of administrative bodies, and substantially by legal commands of and powers delegated by parliamentary law. No additional legitimation is considered to be necessary through public participation in administrative procedures. On the contrary, this would mean that partial interests undermine the general interest expressed by the legislative and executive powers.15 The concept of ‘deliberative democracy’ which has its foundations in discourse theories such as that of Jürgen Habermas16 does not reduce the democratic process to the election of parliament but sees it at work in many political arenas, including that of administrative decision-making. In this concept administration is not just an agency executing the parliamentary law but a constructive power disposing of discretionary margins. Even in countries like Germany, 10 11

See Polak, K. (1959), p. 185) and critical: Heuer, U.J. (1989), p. 360.

Autorenkollektiv (1975), p. 255 et seq.

12 13

Bernet, W. (1990).

Boc, J., Jendroska, J. , Nowacki, K. (1989), p. 434 et seq.

14

In practice, administrative agencies also acknowledge comments transcending the individual interests of stakeholders; they may also discuss them at hearings, but they are not legally required to consider them in the final decision.

15

Böckenförde (1991), pp. 379 & 406.

16

Habermas, J. (1992).

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which have a high density of legal programming, such margins of discretion remain, especially if the issue is highly complex, such as when large infrastructure projects or high tech installations shall be authorized. In such a situation, it is of high importance who participates in the proceeding. Procedure matters. The procedure is in such cases construed as a discourse between developer, administrative body, and the public. As the dissenting opinion in the above-cited Mülheim-Kärlich decision of the BVerfG states, in the absence of precise material standards ‘it is rather the administrative procedure which is called to producing ‘‘reasonable’’safety-relevant decisions in the concrete case’. The judges specify this saying, that because of the high amount of uncertainty “safety philosophies” must be developed, and that these depend on value judgments, which can hardly be freed from fundamental preoccupations and subjective interests. This means: “It is all the more essential that the positions, interests and anxieties of all participants are timely introduced into the authorisation procedure and the consideration of all relevant concerns is ensured through a process of communication between plant operators, endangered citizens and competent administrative bodies.”17 Interestingly, the use of the word “communication” resounds in Habermasian discourse theory. In this concept, the participating public does not only include those who are individually affected (the bourgeois, so to speak) but also those who are concerned about the public interest (the Bürger or citoyen).18 The knowledge that the public can be expected to bring into the procedure is not only that of everyday-life but extends to expert knowledge that is welcome as counter-expertise against the possibly one-sided expertise of the developer and the administration. ‘Post-modern relational rationality’ has as its background the theory of the postmodern state. According to this understanding, the state is confronted with an increasing uncertainty of risks, a vast range of possible measures, and a highly diverse pattern of social perceptions and claims. This complexity will prevent the state from aspiring to command. The line between state and society is blurred. State and society are reconstructed as a field of compatibilisation of stakes. The state will rather act as a facilitator of self-regulation by fragmented parts of society and a moderator between them.19 A plurality of individual interests and networks of interests interact flexibly, finding fragmented solutions and forming incremental decisions. In this way, unilateral decision-making by administrative bodies may become less imperative and rather take the form of ratification of the parties’ agreement. One somewhat more active tool of encouraging compromises is mediation.20 In some countries, involving mediators in administrative conflict resolution has been suggested by legislation. For instance, in the German Construction Code mediation is proposed by a clause 17

BVerfGE 53, 30, at 76 and 77. (Author’s translation).

18

Smend, R. (1955), p. 309 and Fisahn, A. (2002), p. 216.

19

Ladeur, K.-H. (1992), p. 176 et seq.

20

Gaßner, H., Holznagel, B., Lahl, U. (1992).

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entitling a local community to delegate the preparation and implementation of steps of the land-use planning procedure to third persons.21 Empirical studies of mediation procedures suggest that four conditions must be given if mediation is to be successful: the nature of the conflict must be such that a compromise is possible, the mediator must be neutral, the participants must expect results which are positive for them, and the participants must be able and willing to bind themselves to the agreed compromise.22 ‘Self-administration’ means that the administrative decision is taken by the people themselves rather than by an administrative body. The people are thus administrators, not only participants in administrative decision-making. The theoretical background of self-administration is direct democracy which goes back to Athenian origins.23 More realistic versions like Rousseau’s however reserve direct democracy to the formation of the political will while the execution of the same by government is considered to be conducted without much participation of the public.24 Self-administration has its genuine place on the local level rather than on the level of the state. One of its origins is the English local self-government.25 Switzerland is the European country where such direct democracy plays the most important role. It is not only related to the making of the constitution and of laws but also to administrative decision making. While in principle administration is entrusted to administrative bodies, the people can take over by two means, the administrative referendum (Verwaltungsreferendum) that leads to the annulment of a decision of an administrative body, and the administrative initiative (Verwaltungsiniative) which triggers the taking of an administrative decision. The participants of the referendum or initiative are not just the directly concerned persons such as those who live in the vicinity of the project but the entire constituency of the competent administrative body, be it a commune, a canton or the federation. This ensures that the decision is based on a generalised voting rather than a partial interest. The state theoretical background of this concept is the French revolution and the French commune which go back to Rousseau’s contrat social (not, as sometimes postulated, the mythical Ruetli vow).26 Partial self-administration of this kind must be distinguished from local and functional self-governance. The latter is related to local and functional areas of administrative tasks and based on corporate membership, while the former concerns functions of the state and construes participants as citizens. 21

Art. 4b Baugesetzbuch.

22 23

Kopp, F., Ramsauer, U. (2012), p. 48.

Canfora, L. (2006), p. 34 et seq.

24 25

Rousseau, J.-J. (1762), Vol. III, Chapter 4.

See for a classical comparative analysis of the English, French and German approaches to local selfgovernment. Gneist, R. (1869), p. 95.

26

Ehrenzeller, B., Mastronardi, Ph., Schweizer, R.J., Vallender, K.A. (2008), p. 7 et seq.

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3 Choosing a Theory and Deriving Solutions for Public Participation

As the difference of theoretical approaches shows, the choice between options for the design of public participation much depends on what theoretical concept is taken as a basis. ‘Socialist democracy’ as an ideal and even more so as a reality is so fundamentally different from Western European democratic capitalism that it cannot serve as a model. ‘Enlightened autocracy’ is exposed to the paradox that it probably truly describes the reality in many states but can hardly be conceived as a normative and even constitutional concept. ‘Post-modern relational rationality’ may be a way to approach opposite positions in many cases but it has failed whenever the conflict touched upon very fundamental issues, such as nuclear power, GMOs, large infrastructure projects, etc. ‘Self-administration’ has only recently become a topic of general public discussion in Europe when highly controversial issues were at stake. For instance, the fierce protest against the mega project of the Stuttgart railway-station has stirred new debates and legislation on citizens’ referenda in Germany.27 It is widely disregarded by EU law but would deserve more consideration. It may be a way to remove locally important issues from autocratic decisions and entrust them to a popular vote. This leaves us with the concepts of ‘rule of law’ and ‘deliberative democracy’. The choice between the two is influenced by the given constitution of a state. Without going into details in that regard it can be said for Germany that both the concept of the rule of law and of deliberative democracy would be compatible with its constitution. It is true that some constitutionalists reject the democratic concept as a basis of participation in administrative decision-making arguing that the Federal Constitutional Court has founded participation rights on the material basic rights rather than on the principle of democracy. The court has however not ruled on the question whether participation rights can also be founded on the democracy principle if the legislation so determines. It is hardly imaginable that the court would find unconstitutional those already existing legal provisions, which invite participation not only of the concerned public but also of the public at large. This solution is also suggested if the influence of EU procedural law is taken into consideration. Although most EU legal acts confine public participation to the public ‘concerned’ or public ‘affected’ thus following the wider version of the rule of law concept, some do also prescribe involvement of the broader public, such as the EIA directives28 and of course the directive on access to information. 27

On this case and the related political debate, see Ewer, W. (2011). On the present state of legislation and practice of citizens’ decisions and referenda on the communal level in Germany, see Ritgen, K. (2000).

28

Directive 2011/92/EU, p. 1. According to Art. 6 the general public must be informed about the project development application (Art. 6 para 2), and the concerned public must be informed about details such as the EIA and given the opportunity to submit comments (Art. 6 para 3 and 4).

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Likewise, it would not breach any principle of primary EU law if such involvement of the public at large were deemed to be granting a democratic right. I therefore submit that the concepts of the rule of law and deliberative democracy should be merged. The first might be taken as the minimum and the second as a necessary complement wherever activities are at stake that have a lasting and significant impact on society in general and nature at large. If public participation in administrative decision-making is based on this combination of ‘rule of law’ and ‘deliberative democracy’, the following answers to the initial questions could be considered: • On the role of participants in procedures: Participation not only serves to provide information in order to enhance the quality of the decision or to exert its right to be heard but also invites participants to a discourse about facts, assessments and evaluation. • On the delimitation of participants: Not only those whose rights or individual stakes are affected should be admitted but also the public at large as well as associations which bundle individual interests and relate them to general interests. • On the steps of participation: Public participation is so important as a device both of the rule of law and democracy that there should be an early opportunity to comment when the options are still open, followed by a second one where details are clarified. • On the range of information on display: The information should not only comprise potential effects of the project on neighbours but include effects on the environment at large. It should also encompass the technology that causes the effects, the need for the projects and possible alternatives. When weighing the interest in trade and state secret with the interest in disclosure the interest in transparency must be given proper weight. • On the shape of the public hearing: The responsible administrative body should have discretion whether or not to hold a public hearing, but should be obliged to do this in highly controversial cases. Depending on the comments raised the hearing should basically be structured in a court-like contradictory procedure but allow for discourses where policy issues of pros and cons of the project are debated. • On the involvement of non-governmental organisations: Individuals should be involved not only as part of corporations representing a collective interest but have their own rights of participation. NGOs should however be given a privileged position, if they meet certain standards of reliability and inner democracy. • On time management: The time allowed for public participation should not be standardised in order to allow for differentiation according to the complexity of the issue. • On the preclusion of issues: The preclusion of refutations should be used as a tool in order to enhance the quality of the administrative proceeding; it should however not confine the scope of the court’s review of the administrative decision. 31

environmental democracy and law

• On effects of procedural failure: Procedural failures should in principle lead to the quashing of the resulting decision. Only if it is evident that without the failure the same result would have come out can the original decision persist. • Court review of procedural failure: Not only individually concerned parties should have locus standi to challenge procedural failure, but also the members of the public if the law provides them with the right to participate. • On administrative rule-making: Public participation should also be a requirement of general administrative rule-making.



4 Denationalisation of Administrative Decision-Making and Public Participation

Given the fact that more and more administrative decisions are taken or are predetermined by administrative proceedings within supranational entities (notably the EU), by international organisations as well as by ‘transnational’ networks of national administrative bodies, the question arises if the theoretical approaches and solutions concerning national procedures should be the same also in relation to public participation in those de-nationalised areas. The answer is largely negative. How the state may be construed – as authoritarian, socialist, ruled by law, democratic, post-modern or self-administrative – its constitution and cultural tradition still create a common framework that provides the administration with – albeit different kinds of – legitimation. Such national cultural and constitutional framework is missing in the de-nationalised sphere. Alternatives must be found that better reflect the genuine characteristics of those spheres. They must take into account the different national approaches which will include the more variants the farther away denationalised levels move from the Western European tradition. I will start with reconstructing participation in EU administrative procedures and then proceed to international and transnational spheres.



4.1 Participation in EU Administrative Procedures

In the supranational realm of the EU, the legitimation of EU administrative decision-making is organised through two chains. The first chain links national representatives acting within the EU administration to national parliaments, namely both the MS ministers sitting in the European Council and the MS administrative personnel acting in EU regulatory and management committees (the so-called ‘comitology’). Ministers are elected by and must respond to their national parliaments, and they are responsible for the activities of their administrative personnel. The second chain links EU administrative personnel acting within the Commission and within regulatory agencies to the European Parliament. The Commission is co-elected by the European

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Parliament and must respond to its questions both for its administrative personnel as well as for its regulatory agencies. However, the two chains are long and provide only a weak legitimation: the European Council is primarily a political organ only exceptionally endowed with administrative functions, and if so, rather functions as a rule-making body than a decision-making one in individual cases. As for comitology, as the committees are filled with national administrative personnel, national parliaments hardly get to know what issues are treated in the committees. On the other side, the EP is not the constituent of the Commission, nor can it influence the work of committees other than by claiming that they transcend the powers they are given by the relevant legal act. This means that there is a legitimation deficit concerning administrative functions of the Commission. In a few policy sectors legal acts do establish committees involving representatives of stakeholders, but these are rare. As a general legal norm, EU law does know the right of adversely affected parties to be heard.29 But no right to public participation has been established.30 There is nevertheless a practice of the EU Commission to invite public comments to its proposals for decisions. This practice will need to be framed by law. However, a theoretical background must be developed for this. It could be said that public participation can be a third and direct chain of legitimation besides the very long chains leading to the EP and the national parliaments. Content wise, it could once again be based on the combination of rule of law and deliberative democracy because these concepts are shared by most of the EU member states.



4.2 International and Transnational Spheres

Administrative rule making and adjudication in individual cases have become more and more frequent as activities of international organizations. To name just two examples: The adoption of emission standards for aircraft by the Council of the International Civil Aviation Organisation (ICAO),31 and the decision-making of the Board of Governors of the World Bank on a loan for a large infrastructure project of a member state.32 Apart from formal powers of international organizations to set standards and take individual decisions a wealth of rule-making and decision-making activities are going on in the transnational sphere, transnational meaning the direct cooperation of national sectoral administrative agencies across borders. A highly organized example is the Codex Alimentarius Commission (CAC) with its wide-ranging activities in elaborating food safety standards. The CAC is not based on an international treaty but results from Memoranda of Understand29 30

Article 41 (2) (a) ChFR.

The right of public participation in Article 11 (1) TEU is very generally framed. The hurdles and possible effects of citizens’ initiatives are quite discouraging, see Art. 11 (2) TEU and Art 24 (1) TFEU.

31

Art. 54 lit. l Convention on International Civil Aviation.

32

Art. IV Sec. 2 International Bank for Reconstruction and Development Agreement.

33

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ing between competent international organizations, in particular the World Health Organisation (WHO) and the Food and Agriculture Organisation (FAO), as well as informal commitments of many states. The CAC system consists of a very differentiated and well-structured ensemble of committees and working groups, which determine the scientific basis as well as the costs and benefits of food standards. The members of the committees and working groups are food experts from states’ sectoral agencies. Industry is invited to participate. The general public has an opportunity to comment on draft standards. The final version is adopted by the guiding body, the Commission.33 Much more numerous than this well organized system are more informal and ad hoc networks whose tasks and products can nevertheless be of high importance for the global welfare. One example is the global network which elaborated the Global Harmonised System for the Classification and Labelling of Chemicals (GHS).34 Another example is an equally globalised network, which has produced Guidelines on Best Laboratory Practice for the Testing of Chemicals.35 The practices of public participation in the international and transnational networks and systems of standardisation and individual decision-making are very diverse. Normally the addressees of regulations and decisions see to it that they are consulted, or they even act as initiators. For instance, the chemical industry is of course actively involved in the standardization activities concerning the classification of chemicals. By contrast, third persons which may be affected by the standards (such as consumers of food contaminated by chemical substances) and the public at large which may be concerned about environmental effects are involved in very different ways, or not involved at all. Some standardization formations practice pure autocracy excluding any public involvement. Others address the public only as an object of strategic information and propaganda. Often public participation is just not thought about by the network and may nevertheless happen spontaneously if the public actively inquires and insists. Rarely, such as in the example of the CAC, well-organized notice and comment opportunities are provided. It has been proposed that international and transnational standard setting should be conducted according to principles of national administrative law such as the right to be heard, access to information, and notice and comment procedures. An entire legal-sociological discourse has emerged to that effect, called Global Administrative Law (GAL).36 Not surprisingly, the proponents often have in mind to transfer those principles of participation that are common to their own national law. As they usually stem from Western countries, the model most often proposed is of the type ‘rule of law’ and ‘deliberative democracy’, with the US Administrative Procedure Act (APA) as a particularly high developed version.37 33

See for an analysis of the CAC Arnold, D. (2011).

34 35

See for an analysis of this network Warning, M. (2009) and Winter, G. (2011).

For an analysis of this network see Herberg, M. (2011).

36 37

Kingsbury, B., Krisch, N., Stewart, R.B. (2005).

Stewart, R.B. (2005).

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However, considering the global scope of inter- and transnational structures, there are many more national traditions to be taken into account than just the Western. Notably, ‘rule of law’ and ‘deliberative democracy’ may not appeal to those participants who are at home used to working in secrecy, because their state practices a sort of ‘enlightened authoritarianism’ or ‘socialist democracy’. Inversely, participants may be used to unstructured openness/secrecy like in states practicing ‘post-modern relational rationality’, or they may advocate ‘selfadministration’ of the sectoral private actors, and notably the relevant industry as a model. As an alternative to levelling national approaches up to the inter- and transnational levels, it has been suggested that this level is a striking example for the post-modern plurality of stakes and cultures: “We should venture to design a new network-related model which links different public and private actors beyond and within the state in a productive way”.38 While this approach is commendable insofar it draws the attention to the inter- and transnational spheres as such it stops short of an in-depth analysis of the Eigenlogik which characterizes these spheres. I believe before coming up with normative models it is indispensable to first look more closely to the genuine problems, dynamics and practices of existing inter- and transnational proceedings. Such empirical analysis will reveal that the multitude of formations is not arbitrary but does follow certain patterns. These patterns can be described and brought into a typology from which reform suggestions may be derived. The problem characteristics of a given standardization formation is a first structuring factor. There are problems of a more or less purely scientific character and others, which involve both cognitive and policy elements. Examples were already cited: for the first, the standardization of laboratory tests of chemicals, and for the second the standardization of the classification and labelling of chemicals. What kind of food and how long and under what living conditions must it be administered to a sample of test rats is much more a cognitive question than whether the result of the rat test indicates that the chemical substance is highly toxic for human beings. Participation in the standard setting for cognitive problems can be concentrated on scientific experts while in the case of cognitive/evaluative problems the public must be involved. As the standards are abstracted from applications, there will hardly be identifiable “concerned” persons. The participation must therefore be open to the public at large. It is advisable that in the proceedings cognitive and policy questions are separated and possibly referred to different working groups (as it is done in the CAC proceedings). North-South differences are a further important factor. Most of the interand transnational standardization formations are dominated by “Northern” experts and public interest groups.39 Although in many formations compensatory mechanisms have been introduced in order to provide “Southern” person38

Ladeur, K.-H. (2004), p. 16.

39

Gupta, J. (2011).

35

nel with means to participate in the meetings, this does not make good the structural differences of scientific capacities between highly industrialized and developing countries. Other rules and practices must be introduced to cope with this drawback. In this and other ways, rules may be developed out of the needs and practices of the ongoing inter- and transnational standard setting and adjudication. I believe there is not yet sufficient empirical knowledge about the field to allow the development of a theory, which may serve as a basis for best practices. But the need for such theory is there.

chapter 3

The Three Pillars of Environmental Democracy in a European Perspective Gyula Bándi

chapter 3



the three pillars of environmental democracy in a european perspective

1 European Environmental Policy and Environmental Democracy

The best groundwork for learning about the details and improvement of the situation of environmental democracy is to look first at the environmental policy in a nutshell. The development of European (EC, EU) environmental policy may primarily be characterized by the Action Programmes, forming the framework of action in a wider context. That is the reason why – with some minor, but important exceptions – we focus mostly on the action programmes in connection with their vision on environmental democracy or anything which may have an impact on public participation. The First Action Programme1 is famous for its Title II of Part I, containing the eleven principles of Community environment policy (paragraphs 6 to 17), within which there is a slight reference on some issues, which may come close to environmental democracy. In the principle No. 9 we find the followings: “The protection of the environment is a matter for all in the Community, who should therefore be made aware of its importance. The success of an environment policy presupposes that all categories of the population and all the social forces of the Community help to protect and improve the environment. This means that at all levels continuous and detailed educational activity should take place in order that the entire Community may become aware of the problem and assume its responsibilities in full towards the generations to come.”

This educational aspect remains the distinctive feature of environmental policy in terms of environmental democracy for a longer period of time. The Second Action Programme2 in Title IV summarizes those general actions that should protect and improve the environment. These are specific measures listed, like environmental impact assessment, but also dissemination of information relating to environmental protection, or the promotion of awareness of environmental problems and education, and “cooperating with national and European nongovernmental organizations, such as the European Environmental Bureau.” The participation of the general public has been underlined, for example via information: “240. If the general public is to be made aware of environmental problems, a complete and objective body of information is absolutely essential.” Information as a key for growing public involvement is in the centre, but this programme goes a bit beyond education and information. The Third Action programme3 does nothing more then reinforce the previous element. Under Chapter II, Developing an Overall Strategy, point 14 1

Declaration on the Programme of Action of the European Communities on the Environment (1973).

2

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1977).

3

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1983).

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mentions ‘Improvement and reinforcement of education in and public awareness of the environment’, within which education, awareness raising, proper information are mentioned, all in the interest of creating a supportive public opinion. The Fourth Action Programme4 represents an important stage of development of the Community environmental policy, considering environmental protection interests as basic conditions for economic decision-making. From our point of view the most important part of the programme is the one on the development of appropriate instruments. Improved access to information and promotion of environmental education and training are mentioned even in the preamble. Also the Fourth Action Programme in point 2.2.7 refers to the need for effective implementation of environmental legislation, covering actions as better publicity for the Community’s environment policy and its impacts at local, regional and national levels, in order to increase public awareness of the need to protect the environment effectively or encourage private persons, non-governmental organizations or local authorities to bring instances of non-compliance or of inadequate compliance to the attentions of the Communities, in order to have remedial action started. The Community takes public participation (this term has not been raised yet) as a device to help better implementation of environmental legislation or as an ally in promoting compliance. In point 2.6 (Information and education) public participation aspects are already present, as follows: • 2.6.1. “...it is important to improve the opportunities given by national regulations to individuals and groups to defend their rights or interests in administrative procedures. ... access to information is an element for the better protection of man or the environment, ...”. • 2.6.2. refers to access to information and information sources in general, while 2.6.8. speaks about environmental education.... • 2.6.9. underlines that the “function of non-governmental organizations in the development of environmental policy and thinking is a fundamental one”, as these organisation “may be considered to represent general environmental interests”. Accordingly, the importance of environmental democracy is more and more emphasized in the environmental policy documents. In the period of the Fourth Action Programme several new or renewed dimensions of environmental policy appeared, such as the Resolution on environmental education in 1988.5 This defines public participation as an objective:

4

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1987), pp. 1-44.

5

Resolution on Environmental Education (1988), pp. 8-10.

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“The objective of environmental education is to increase the public awareness of the problems in this field, as well as possible solutions, and to lay the foundations for a fully informed and active participation of the individual in the protection of the environment and the prudent and rational use of natural resources.”

Also there are several elements in the Resolution which have been addressed in Chapter I, taken as guiding principles, such as to treat the environment as the common heritage of mankind, or the recognition that there is “a common duty of maintaining, protecting and improving the quality of the environment, as a contribution to the protection of human health and the safeguarding of the ecological balance”, or “the need for a prudent and rational utilization of natural resources”, etc. One more important document under the term of the Fourth Action Programme shall be mentioned, that is the Declaration on the Environment of the European Council – The Environmental Imperative, Dublin 25-26 June, 1990.6 After agreeing on the main target of environmental process – “a more enlightened and more systematic approach to environmental management is urgently required” – the Declaration specifies guidelines for future action. The third main line of the Declaration is on personal attitudes and shared responsibilities. The following conditions for public participation are covered: • increased public awareness and concern, • freedom of access to information should be provided for, • the information dissemination as a related element, • the right to a clean and healthy environment should be guaranteed, • environmental objectives may be achieved through a shared responsibility of government, public authorities, private industry, individuals and groups. The part on shared responsibility has a remarkable closing paragraph: “Mankind is the trustee of the natural environment and has the duty to ensure its enlightened stewardship for the benefit of this and future generations.”

The Fifth Action Programme7 – Towards Sustainability – is the next step, adopted parallel to the Rio Declaration, Here, Chapter 7 is of the most interest for us on the development of a broad mix of instruments, from improvement of environmental data, scientific research and technological development, via getting the prices right to public information and education. The Fifth Action Programme wants to promote practical reforms in a number of areas, such as improvement of legislation, proper implementation, and integration of policies or involvement of the public. This public involvement has three pillars in the Programme: 6 7

Presidency Conclusions (1990).

Resolution on a Community Programme of Policy and Action in Relation to the Environment and Sustainable Development (1993).

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• the directive on the access to environmental information, • an accessible and efficient complaint procedure at all levels, • access to court. Public participation is a priority topic of the Sixth Action Programme.8 Again the Programme takes public participation as an ally for better implementation. This is clearly reflected in the Preamble: “(15) Provision for access to environmental information and to justice and for public participation in policy-making will be important to the success of the Programme.”

Article 2 covers principles and overall aims in order to ensure that environmental objectives shall be achieved. Para. 3 among others put an emphasis on developing European initiatives to raise the awareness of citizens and local authorities and on an extensive dialogue with stakeholders, raising environmental awareness and also public participation. Article 3 defines strategic approaches to meet the environmental objectives: “9. To improve collaboration and partnership with consumer groups and NGOs and promote better understanding of and participation in environmental issues amongst European citizens requires: • ensuring access to information, participation and justice through early ratification of the Aarhus Convention(7) by the Community and by Member States; • supporting the provision of accessible information to citizens on the state and trends of the environment in relation to social, economic and health trends; • general raising of environmental awareness; • developing general rules and principles for good environmental governance in dialogue processes;”

In the mid-term review of the Sixth Action Programme9 under point 5.2. – “Better Regulation” principles in environmental policy-making – Working Closely with Stakeholders – the Commission reaffirms the importance of working closely with civil society. The focus area within civil society is the work of NGOs – the importance of which are underlined by the ECJ, according to the judgments, going to be discussed next – because: “Non Governmental Organisations (NGOs) are the institutions most trusted by the public when it comes to environmental issues, NGOs often have technical expertise that is essential when designing effective policies. They can also provide an invaluable link between policy makers and Europe’s citizens.” 8

Decision No 1600/2002/EC.

9

Communication on the Mid-term review of the Sixth Community Environment Action Programme (2007).

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The review also discusses the need for simplified and improved environmental information, as the basis for the development and implementation of environment policy.10 The proposal of the Seventh Action Programme11 has 9 priority objectives, within which environmental democracy is a major constituent in the fourth objective, which is according to Art. 2(1) d) “to maximise the benefits of the Union’s environment legislation”. The concept is presented by the preamble: “(20) Engagement with non-government actors is important in ensuring the success of the programme and the achievement of its priority objectives.” What is really important about objective number four is presented in the Annex, as a programme for action. Before we enter into a discussion of public participation elements of the proposal, it is necessary to summarize the major constituents of the new concept of environmental policy, using the most recent tendencies, among others based on the Rio+20 process.12 An easy summary is in the Preamble of the Annex, as follows: “9. To live well in the future, urgent, concerted action should be taken now to improve ecological resilience and maximise the benefits environment policy can deliver for the economy and society, while respecting the planet’s ecological limits. This programme reflects the EU’s commitment to transforming itself into an inclusive green economy that secures growth and development, safeguards human health and well-being, provides decent jobs, reduces inequalities and invests in and preserves natural capital.”

In terms of public participation, point 15 of the Preamble refers to the principle of subsidiarity and to shared competence as starting points. If one reads the proposal, there is nothing really exciting, till we come to priority objective no. 4: to maximise the benefits of EU environment legislation, the major aim of which is characterized as follows: “55. Improving the implementation of the EU environment acquis at Member State level will therefore be given top priority in the coming years.” When, in order to come close to the objective, we get nearer to the practical challenge of how to implement it, then most surprisingly, three items of the listed five belong to the realm of environmental democracy. “63. In order to maximise the benefits of EU environment legislation, the programme shall ensure that by 2020: (a) EU citizens have access to clear information showing how EU environment law is being implemented. 10

For other details see: Accompanying Document to the review of the Sixth Community Environment Action Programme Impact Assessment (2007).

11

Decision Proposal on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet”.

12

RIO+20: United Nations Conference on Sustainable Development.

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(b) The implementation of specific environment legislation is improved. (c) Respect for EU environmental law at all administrative levels is reinforced and a level playing field in the internal market is guaranteed. (d) Citizens’ trust and confidence in EU environment law is enhanced. (e) The principle of effective legal protection for citizens and their organisations is facilitated.”

The proposal refers among many other things to the case law of the Court of Justice of the European Union, as an imperative source of legal development. Environmental democracy some way or another has always formed a more and more important constituent of European environmental policy from the early beginning. As we can observe above, since the First Action Programme there has been a function of public involvement, but the substance of this function has changed considerably, from a simple awareness raising and educational role towards active and decisive participation. The first years was characterized by the establishment of an information and knowledge basis, but as an additional element, the role of NGOs had been already stressed even at the end of the 70s, but without a clear vision about the real meaning of it. One of the most important tasks of this awareness raising could be to establish a supportive attitude of the public that is to get the environmental message across to the public as a whole. In line with the development of global environmental policy, it was the Fourth Action Programme that gave the real meaning of environmental democracy, beside the relatively passive role of information, educational basis, awareness raising, and the active side of public responsibility came into the foreground, the necessity to defend the rights and also to participate in the development of environmental policy. There had also been signs of looking at the public as a partner in promoting compliance with environmental legislation. The special role of NGOs as ‘representing general environmental interests’ could also emerge. Towards the end of the programme period the Dublin Declaration clearly extended shared responsibility to the involvement of the public, approaching from a right to environment idea. The Fifth Action Programme clearly defines the three pillars and the need to provide the correct legal basis for them, but it was the Sixth Action Programme which classified public participation as a strategic priority in line with good environmental governance. The extraordinary role which NGOs can play has also been emphasized again. The whole system is marked by partnership in order to improve implementation and compliance. The proposal of the Seventh Action Programme13 within the aim of maximising the benefits of the Union’s environment legislation clearly takes public 13

Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet” (Text with EEA relevance) {SWD(2012) 397 final} {SWD(2012) 398 final}, Brussels, 29.11.2012 COM(2012) 710 final 2012/0337 (COD).

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participation and in close connection with it, the role of NGOs as keys to ensure the success of such legislation. The Commission clearly realizes14 “the inadequate implementation of the environment policy acquis”,15 among other looking at the fact that “The high number of infringements, complaints and petitions attests to the need for a workable system to identify and resolve implementation problems, along with measures to prevent them from arising in the first place.”16 The direct use of public participation in better implementation is summarized is a short paragraph: “Environmental policy across the world emphasises the importance of citizen involvement. The Aarhus Convention (1998) seeks to bolster such involvement through provisions on access to information, public participation and access to justice. The aim is to have a well-informed public that actively contributes to environmental protection, including through court action where citizens or NGOs feel that rules have been broken.”17

It is the Commission that has trust in cooperative efforts and considers the public as a partner in improving proper implementation of environmental law. “Improved knowledge will contribute to better delivery but it is not enough on its own. A key responsibility is implementation monitoring provided through bodies and persons who have duties and/or powers and rights to enquire into, oversee, verify, advise or ensure accountability in respect of compliance obligations. These include national inspectors, ombudsmen, prosecutors, courts, auditors and NGOs and citizens exercising participatory rights and submitting representations. At EU level, the Commission, Parliament, Court of Justice, European Ombudsman and EEA all exercise relevant roles.”18

As a consequence, public participation becomes a more and more essential component of the implementation of European environmental policy and law.



2 European Legislation and Jurisdiction – A Demonstration

In Chapter 1 we already referred to the three pillars of public participation and their appearance in the legislation and jurisprudence of European integration law. We could agree that the present book is not simply the discussion of all the details of EU law (we shall use this easy language next), although all the chapters are designed to create a friendlier atmosphere for 14 15

Commission Staff Working Document Impact Assessment (2012).

Ibid, p. 16.

16 17

Ibid, p. 49.

Annex 6 to the Commission Staff Working Document Impact Assessment (2012), p. 116.

18

European Commission Communication (2012).

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environmental democracy, which also means that direct regulatory elements are from time to time revisited. Here we provide a short review of EU law related to public participation, together with the essential interpretation given by the ECJ/CJEU in the past decades, looking at each item of the three pillars: access to information, participation in decision-making and access to justice. Consequently, when we write about public participation, the above convention can be the starting point. By further breaking down the convention, we can list the elements of public participation that, in many respects, presume each other, and still require the fulfilment of differing conditions: • access to information; • participation in the legislative process; • participation in the administrative decision-making, also with respect to individual cases, as well as participation, as its continuation, in the environmental control and in the law enforcement processes; • the right to legal remedy in its wider sense, including identifying solutions for situations of violations, as well as, in the more narrow sense, the right to lodge complaints; • the rights of environmental associations in the provision of services in this area, and, in relation to this, capacity building. The focus of the Sixth Community Environmental Action Programme (20022012)19 is the real implementation of sustainable development, which includes social and economic considerations. Among the measures needed for the realisation of environmental objectives, encouraging the involvement of citizens in environmental processes as well as empowering them with appropriate rights is defined as a separate area as follows: “(15) Provision for access to environmental information and to justice and for public participation in policy-making will be important to the success of the Programme. … (33) Information to policy makers, stakeholders and the general public has to be relevant, transparent, up to date and easily understandable. … Art. 3 par.9 ensuring access to information, participation and justice through early ratification of the Aarhus Convention(7) by the Community and by Member States; supporting the provision of accessible information to citizens on the state and trends of the environment in relation to social, economic and health trends; general raising of environmental awareness; developing general rules and principles for good environmental governance in dialogue processes;” 19

Decision No 1600/2002/EC.

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Access to information We should emphasize here that the EEC could already begin laying down the basis of what is called today public participation with the access to information directive,20 which at this time of course did not refer to environmental democracy as such, but still should be taken as an imperative element of further development. The operative Directive 2003/4 EC21 on public access to environmental information contains detailed requirements for Member States also concerning an active and a passive version of access to information. A third constituent of the access to information block is related to Community institutions.22 The general importance of the access to information legislation is summarized in the preamble of the Directive 2003/4 as follows: “(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.”

One of the rationales above the previous reference, as provided for by the preamble of the Regulation, is relevant to all the above mentioned legislation: “(2) The Sixth Community Environment Action Programme [3] stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken.”-

Anyhow, the effectiveness of environmental measures, and especially of public participation, to a large extent depends on the environmental related information, since developing environmental strategies and taking necessary measures – preventive or those eliminating the results – is possible only if in possession of reliable information that covers all aspects. This information in the area of precise creation of the regulation provides important guidance not only for the competent authorities, but also provides assistance for interest groups and environmental non-governmental organisations in the course of realizing public control. In addition to the provision of data with respect to the state of the environment, one should not forget that the judgement on the effectiveness of the measures relies on adequate information as well. Although we do not wish to go into the details of the EU legislation, it is necessary to clarify the definition and content of environmental information. According to Directive 2003/4 (but the Regulation uses the same definitions): 20 21

Council Directive 90/313/EEC, pp. 56-58.

Directive 2003/4 EC, pp. 26-32.

22

Regulation (EC) No 1367/2006, pp. 13-19.

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“Article 2 Definitions For the purposes of this Directive: 1. “Environmental information” shall mean any information in written, visual, aural, electronic or any other material form on: (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, 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 referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).”

One more fundamental element of the system is the definition of the public authority. According to the Directive in force, Art. 2: “2. “Public authority” shall mean: (a) government or other public administration, including public advisory bodies, at national, regional or local level; (b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and (c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).”

Finally, as a general rule we may refer to the objective of Directive 2003/4 EC in Art. 1: “(b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information.”

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Based upon EU law and the Aarhus Convention – which of course forms a part of EU law, too – we may distinguish active and passive methods of access. Active provision of information constitutes an obligation for holders of information (public authorities or Community institutions) to regularly publish information related to the state of the environment. In the framework of a passive provision of information, the authorities have an obligation to provide information related to the environment to everybody seeking such information. The Aarhus Convention also makes this distinction, as Art. 4 of the Convention covers the general right of the public to gain access to existing information upon request, while Article 5 sets out the duties of the Government to collect and disseminate information on its own initiative. As the classification of the access to information methodology is based upon the quality of the role of the holder of information, in the case of active information flow, the holder is obliged to do something, namely to collect and disseminate information. This may be regulated in detail, but due to the mere fact that there are so many sources and ways of information gathering and disclosure, the legal certainty is lower and it is much more difficult to create a clear-cut framework of legal requirements. Of course, there are many provisions, listed in the different legal rules, for example, related to the means and methods of collecting information, or to the means and methods of dissemination – such as Art. 5(3) of the Aarhus Convention “Environmental information to progressively become available electronically” – but still many conditions depend upon the technical availability, budgetary problems, skills, etc. Consequently too specific and too direct obligations are avoided. If we take again the Aarhus Convention, Art. 5(9), the language of the given paragraph makes it visible that the requirements are weaker from the point of view of legal clarity – “Progressively establish a publicly accessible nationwide system of pollution inventories or registers.” So, while there are many registers in one country, the actual situation may not be so beneficial in other. Also the lack of a convenient method of using electronic databases may serve as a serious obstacle, but may not be taken as an infringement of international obligations. There are additional elements, attached to the active information dissemination, such as the Aarhus Convention Protocol on PRTR (Pollutant Release and Transfer Registers)23 or the European Pollutant Emission Register (EPER), which was originally established by a Commission Decision of 17 July 2000,24 but later extended in a regulation.25 As defined by the Regulation: 23

On the occasion of the Fifth EfE Ministerial Conference (Kyiv, May 2003), the Meeting of the Parties to the Aarhus Convention held an extraordinary session to adopt and sign the Protocol on PRTRs. Thirtysix states and the EU signed the Protocol in Kyiv. The Protocol came into force on 8 October 2009. According to the Aarhus 2013 implementation Guide (see Communication on the Mid-term review of the Sixth Community Environment Action Programme (2007)), at April 2013 it had 32 Parties.

24 25

Commission Decision 2000/479/EC, p. 36.

Regulation (EC) No 166/2006, pp. 1-17.

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“Article 1 Subject matter This Regulation establishes an integrated pollutant release and transfer register at Community level (hereinafter “the European PRTR”) in the form of a publicly accessible electronic database and lays down rules for its functioning, in order to implement the UNECE Protocol on Pollutant Release and Transfer Registers (hereinafter “the Protocol”) and facilitate public participation in environmental decision-making, as well as contributing to the prevention and reduction of pollution of the environment.”

While the active information flow is somewhat flexible from the point of view of legal clarity, ‘passive’ access to information requires a much more specific and direct legislation with clear and enforceable rights and obligations. These include: • the definition of environmental information, • the definition of public authority, • who is entitled by the right of access – Art.2(5) of Directive 2003/4 EC and all other similar sources provide the widest possible field: “‘Applicant’ shall mean any natural or legal person requesting environmental information.”, • the legal basis, with a special negative approach: “without his having to state an interest” (Art. 3(1) of the Directive), • the specific grounds for the refusal of the request for information, together with the obligation to make the information available in part where it is possible to separate out any information, • the general requirements on how to meet the objectives, like timeliness, the requirements how to formulate the request, the format of the information, • charges, which may not exceed a reasonable amount, • access to justice against decisions or omissions – in case if the “request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions...” (Art. 6(1) of the Directive). All these aspects of the access to information system need careful implementation, which also means that all of them should be clarified as much as possible. Among the ECJ/CJEU decisions there are many cases which dealt with the compliance or failure to comply with the obligation to provide information. Here again, we do not enter into a detailed examination of case law, most of which has been examined by Jans/Vedder or Krämer26 and are an always growing jurisprudence, but below some characteristic examples shall only be given, instead of the full review. First of all, it is the key problem of any environmental information disclosure – being active or passive – that the public authorities shall receive first the necessary information in order to set up their inventories. So, the whole begins with 26

See more, for example, in Krämer, L. (2002).

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the obligations of the different users of environmental resources; the successful running of the system is determined by the available information:27 “36 ... one of the objectives of Regulation No 259/93 is to ensure prior notification is given to the competent authorities of shipments of waste enabling them to be duly informed, so that they may take all necessary measures for the protection of human health and the environment. 37 Only a complete notification, giving detailed information regarding the source, composition and quantity of the waste for recovery and, in the case of waste from various sources, a detailed inventory of the waste, can ensure that that objective is achieved.”

In terms of access to information, one of the most well-known cases is probably the Mecklenburg case.28 According to the Court, the concept of environmental information has to be interpreted broadly, including here also the preliminary opinion of the specialized authority. “19 It must be noted in the first place that Article 2(a) of the directive includes under ‘information relating to the environment’ any information on the state of the various aspects of the environment mentioned therein as well as on activities or measures which may adversely affect or protect those aspects, ‘including administrative measures and environmental management programmes’. The wording of the provision makes it clear that the Community legislature intended to make that concept a broad one, embracing both information and activities relating to the state of those aspects.”

As a consequence of this wide interpretation, the grounds for refusal of a request for environmental information must be understood again in the narrowest sense. The operative part of the judgment reads, among others: “2. The term ‘preliminary investigation proceedings’ in the third indent of Article 3(2) of the directive is to be interpreted as including an administrative procedure such as that referred to in Paragraph 7(1)(2) of the Umweltinformationsgesetz, which merely prepares the way for an administrative measure, only if it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure.”

In light of the judicial practice, the listing of reasons for refusal, being a guarantee of the protection of rights, constitutes a final – taxative – catalogue, and its expansion with new elements may be taken as an infringement of European

27

Case C-215/04 Marius Pedersen A/S v Miljøstyrelsen.

28

Case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg.

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law. It is exactly for this reason that, in a court decision,29 the ECJ held that France was “guilty” in several respects, thus also in the area of interpreting the reasons for refusal in a legislative practice that deviated from the spirit of the EU rules. Namely, the French law provided an opportunity for refusal when a secret protected by a legal regulation was at issue. According to the ECJ, this is not possible, partially because the list containing the reasons for refusal is exhausting so Member States may not make amendments to it, and partly because the general reference to ‘a legislation’ makes clear interpretation impossible. “57 It follows that, as exceptions to the principle of supplying information relating to the environment, which forms the purpose of Directive 90/313, those grounds for refusal must be interpreted strictly, so that it is appropriate to consider that the derogations set out in Article 3(2) and (3) are the subject of an exhaustive list and refer to certain specific and clearly defined cases in which it may be justified to refuse a request for information relating to the environment (see the seventh recital in the preamble to Directive 90/313).”

The same arguments, even with some additional explanations have been reproduced in other judgments, like the one from 201230 related to greenhouse gas emission allocation decisions, due to the refusal of the request for information, referring that this belongs to a legislative process. The general preliminary standing has been reinforced on the one hand and the limited adaptability of the grounds for refusal on the other: “31 In adopting Directive 2003/4, the European Union intended to ensure the compatibility of European Union law with that convention (the Aarhus Convention – the author’s note) in view of its conclusion by the Community by providing for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of the public authorities, without that person having to show an interest (see, to that effect, Ville de Lyon, paragraph 36). ... 58 ... the option given to Member States by that provision of not regarding bodies or institutions acting in a legislative capacity as public authorities can no longer be exercised where the legislative process in question has ended.”

The grounds for refusal of the request for information need to be analysed carefully and some further conclusion may be drawn if one looks at the judicial practice. In a case31 related to the aggregate arguments for refusal, Advocate General Kokott describes in a broader context:32 29 30 31

Case C-233/00 Commission v Republic of France.

Case C‑204/09 Flachglas Torgau GmbH v Federal Republic of Germany.

Case C-71/10 Office of Communications v Information Commissioner.

32

Opinion of Advocate General Kokott (Case C‑71/10).

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“22. Nevertheless, the right to environmental information is not an absolute right. ... However, the interest served by the refusal must be weighed against the public interest served by disclosure.... 26. Consideration of the public interest under the second sentence of Article 4(2) of the Environmental Information Directive does indeed require an initial balancing exercise. ... 46. Under the first sentence of recital 16 of the Environmental Information Directive the disclosure of environmental information may be refused only in specific and clearly defined cases. ... 53. Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure.”

The different readings of the Advocates General usually need careful attention as in many times there are comments, having a wider context, going much beyond the direct relations of the given case, as the above example clearly manifests. Again, in connection with a previous case Advocate General Sharpston33 went into the abstract interpretation of the use and limits of access to information, ending up in a favourable consequence, supporting the access rights: “30. The Convention and the Directive reflect a determination to ensure increased transparency. The preparatory work and the preambles to both instruments emphasise transparency and access to information, in particular with respect to the ability of citizens to hold public authorities to account. Indeed, it is hardly controversial to say that in general, transparency is beneficial. In particular, public availability of information may encourage better practice on the part of those taking decisions on the basis of that information. 31. Admittedly, unlimited transparency is not envisaged. ... 32. In the event of ambiguity, therefore, the Directive should be interpreted so as to favour transparency and access to information.”

A similarly important question is at what time the request for information has to be complied with, and what the deadline for reply indicated in the directive exactly means.34 “36 ... the failure of a public authority to respond within a period of two months is deemed to give rise to an implied refusal which may be the subject of a judicial or administrative review in accordance with the national legal system. However, by virtue of Article 3(4) it is unlawful for such a decision not to be accompanied by reasons when the two-month time-limit expires. In those circumstances, the implied refusal must be regarded as unlawful.” 33

Opinion of Advocate General Sharpston (Case C‑204/09).

34

Case C-186/04 Pierre Housieaux v the Délégués du Conseil de la Région de Bruxelles-Capitale.

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As Advocate General Kokott interpreted the legal dispute:35 “23. ... Consequently, the two-month period represents the outside limit of the processing time (‘at the latest’) and is coupled with a requirement to expedite matters which, in line with the principle of good administration, states that a response is to be given ‘as soon as possible’, that is to say, if possible, in less than two months. Scope for flexibility therefore exists at most within the two-month time-limit – and even then subject to the objective of expediting matters – but not beyond that time-limit. 24. That conclusion is also consistent with the spirit and purpose of the provision. After all, the aim of Directive 90/313 is to grant individuals a subjective right of access to information on the environment. However, that right could be devalued if a public authority were able to take as long as it pleased to decide on a request for such access. The value of information on the environment is dependent not least on the individual’s being able to obtain it as quickly as possible. Thus, timely access to current information on the environment makes it in particular easier for the person requesting the information to use it, for example in ongoing construction or planning proceedings in which he may be involved as a neighbour and in which he would like to protect his interests. 25. ... Moreover, if it is assumed that the time-limit is merely indicative, the legal protection available to the individual under Article 4 of the directive would be illusory.”

Also later the explanation of Kokott covers a much wider and more theoretical approach: 32. The right to good administration creates for the administration an obligation to give reasons for its decisions. ... There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal protection.”

Finally, in the issue of access to information, it is not only the interpretation of definitions that constitutes an important criterion, but also individual procedural issues which, however, can significantly influence the effective realization of the freedom of information. One such issue may be that, in the course of provision of information, when determining the amount of the possibly occurring procedural fees, the principle of proportionality has to prevail.36 Access to information does not necessarily only mean the access to information directives, but it is extended to any other fields of environmental legislation, within which the timely and proper information may have some relevance – this is definitely true in case of permitting procedures. The environmental impact assessment and the IPPC directives are at stake in a very recent case, a precondition of which is the availability or secrecy of environmental information.37 35

Opinion of Advocate General Kokott (Case C-186/04).

36 37

Case C-216/05 Commission v Ireland.

Case C‑416/10 Jozef Križan, and others v Slovenská inšpekcia životného prostredia.

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Again, the general rule applies, that is to provide the best possible access rights in order to guarantee further participatory rights. “78 Therefore, the public concerned by the authorisation procedure under Directive 96/61 must, in principle, have access to all information relevant to that procedure. ... 83 Even if it were not excluded that, exceptionally, certain elements included in the grounds for an urban planning decision may contain confidential commercial or industrial information, it is not in dispute in the present case that the protection of the confidentiality of such information was used, in breach of Article 4(4) of Directive 2003/4, to refuse the public concerned any access, even partial, to the urban planning decision concerning the location of the installation at issue in the main proceedings. ... 88 In that regard, it is important to note that Article 15 of Directive 96/61 requires the Member States to ensure that the public concerned are given early and effective opportunities to participate in the procedure for issuing a permit. That provision must be interpreted in the light of recital 23 in the preamble to that directive, according to which the public must have access, before any decision is taken, to information relating to applications for permits for new installations, and of Article 6 of the Aarhus Convention, which provides, first, for early public participation, that is to say, when all options are open and effective public participation can take place, and, second, for access to relevant information to be provided as soon as it becomes available. It follows that the public concerned must have all of the relevant information from the stage of the administrative procedure at first instance, before a first decision has been adopted, to the extent that that information is available on the date of that stage of the procedure.”



3 Participation in Decision-Making

The previous judgment is also relevant in connection with participation in decision-making, as information is the basis of any involvement. In the course of public participation, provision of information and supply of data need to be made appropriately accessible also for the public. This is one of the fundamental conditions of the effective realization of environmental democracy.38 “58 It is apparent from Article 12(1) of Directive 2000/76 that applications for new permits have to be made available at locations accessible to the public for an appropriate period to enable it to comment on them before the competent authority reaches a decision. That decision, including at least a copy of the permit, and the subsequent updates also have to be made available to the public. 38

Case C-255/05 Commission v Republic of Italy.

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59 The purpose of that provision, as is apparent in particular from the 31st recital in the preamble to Directive 2000/76, is to ensure the transparency of the process by allowing the public to be involved in decisions to be taken following applications for the grant of authorisations.”

The significance and fundamental obligation of the information related to time provided to the public is determined by the ECJ in an infringement case against Spain:39 “57 ... First, according to the defendant Government, the information intended for the public was published only after work on the project had begun. Such a method of proceeding is clearly contrary to the requirements of Article 6(2) of Directive 85/337, which states that the public concerned is to be given the opportunity to express an opinion before the project is initiated. ... Secondly, that procedure related to only one part of the section in question, which is 13.2 km in length, namely ‘modification No 3’, relating essentially to the construction of a viaduct of some 750 m in length.”

The regulatory environment of public participation in the field of decisionmaking is less straightforward than in the case of access to information, which has a relatively all-purpose character, probably with some special requirements related to some procedures, but generally speaking the framework is available and mostly uniform. Participation in decision-making is different, as it has several conditions, several forms and methods, closely connected with national procedural regulation, which – due to the principle of subsidiarity – mostly remain in the realm of domestic law, and also many alterations according to the different decision-making procedures. This is circumscribed in the Aarhus Implementation Guide40 as follows: “There is no set formula for public participation, but at a minimum it requires effective notice, adequate information, proper procedures and appropriately taking account of the outcome of the public participation. The level of involvement of the public in a particular process depends on a number of factors, including the expected outcome, its scope, who and how many will be affected, whether the result settles matters on a national, region or local level, and so on. In addition, different persons may have different status in connection with participation on a particular matter.”

This relative uncertainty is reflected in the relevant EU legislation. There is no general, uniform regulation, as we could witness in connection with access to information above, but a relatively diverse set of conditions, articulated in the form of different procedural rights. No wonder why Krämer underlines: 39

Case C-227/01 Commission v Kingdom of Spain.

40

Aarhus Convention Implementation Guide (2013).

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“However, it is clear that these different point measures do not give a general right to individuals to participate in environmental decision-making.” Later: “EC law does not provide for a general right of participation, but limits it to certain projects, plans and programmes.”41 The first of these provisions has been the EIA directive, 42 amended three times and finally issued in a codified version in 2011. 43 It is worth mentioning that the EIA directive is under revision, the proposal for the new directive has been issued at the end of 2012. 44 Next in this line was the IPPC Directive in 1996, 45 amended and codified in 200846 and finally replaced by the current directive, bringing together six other directives by the last codification, 47 entering into force gradually. There are separate regulations related to plans and programs – SEA legislation, 48 but also we may find several public participation provisions in other field of environmental legislation, such as in connection with waste management or GMO regulations, which are dealt with in separate chapters of this book. If we now look briefly to the Aarhus Convention, the following – somewhat reversed – sequence of procedures may be presented: • Article 6 covers the specific requirements related permitting of activities, having a potential significant environmental impact; • Article 7 covers plans, programs and policies relating to the environment and finally • Article 8 is the one on regulatory participation. It is reversed in a way that from the specific we are moving towards the more general – from individual decisions to the legislation – which is obvious if we look at the content of each of these articles. The relatively direct requirements with specific conditions come first and those, which are less articulated, more general, few if any direct obligations, are coming next. Instead of going into the details of the Convention, it’s best to use the handy summaries of the Implementation Guide49 as a valuable resource, as we do not want to examine the Convention in details, but only provide an abstract, in order to obtain a common core of understanding. Thus, according to the Guide, there are the following requirements:

41

Krämer, L. (2007), p. 155.

42 43

Council Directive 85/337/EEC.

Directive 2011/92/EU.

44 45

Proposal for a Directive amending Directive 2011/92/EU.

Council Directive 96/61/EC.

46 47

Directive 2008/1/EC.

Directive 2010/75/EU.

48

Directive 2003/35/EC, pp. 17-25.

49

Aarhus Convention Implementation Guide (2013), pp. 120-122.

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Article 6 • Conduct public participation early in decisions on activities with a possible significant; • environmental impact; • Give notice to the public concerned; • Establish reasonable time frames for phases of public participation; • Provide all relevant information to the public concerned; • Provide opportunities for the public to make comments; • Take due account of the outcome; • Inform the public of the final decision with reasons. Article 7 • Establish a transparent and fair framework for public participation in plans and programmes relating to the environment; • Identify participating public; • Conduct public participation early in development of plans and programmes relating to the environment; • Give necessary information to the public; • Establish reasonable time frames for public participation; • Take due account of the outcome. Article 8 • Strive to promote effective public participation in the preparation of laws and rules which may have a significant effect on the environment; • Establish sufficient time frames for effective participation; • Publish or publicize drafts; • Provide opportunities for the public to comment; • Take account of the result as far as possible. As in the case of access to information, we look at the case law of the ECJ/CJEU in order to learn more about the practical difficulties of public participation in decision-making. We have already pointed to the importance of proper information as a substantial condition for public participation, but there are also many other examples. From the above set of the three different fields, regulated by the Aarhus Convention, the regulatory participation is the only one, where one may not find any cases, as there is no direct regulatory postulate either. Also there are fewer direct references to participation in decision-making than in the case of access to information, due to the fact that the underlying regulatory framework is much less unambiguous, much more diverse, having less direct obligations. One of the most common problems of such participation, beside the necessary information requisite is that any such participation must take place in a timely manner, giving room for real application. One of the core elements of public involvement is to provide assistance for decision-makers, so the procedure should leave room for the utilization. In relation to the commercial system of

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greenhouse gas emission units, with respect to the National Allocation Plans (NAP), the Court of First Instance underlined as a general rule that the involvement of the public and providing access to environment related information, as a minimum condition, needs to be ensured in a timely manner:50 “17 94 … The [NAP] should be made available in a manner which enables the public to comment on it effectively and at an early stage...”

The timely manner is indispensable if the decision-makers wish to use the comments, that is to take ‘due account’ of comments: “17 95 A Member State should provide for a reasonable time frame for submitting comments, and coordinate the deadline for comments to be submitted by the public with the national decision-making procedure, so that due account can be taken of comments before the decision on the [NAP]. “Due account” is to be understood as meaning that comments are to be taken into account if appropriate with reference to the criteria in Annex III or to any other objective and transparent criteria applied by the Member State in the [NAP].”

And there is a simple practical condition, too: “17 96 ... For the overall public participation (consultation and taking account of comments) to be effective, the first round of public consultation is of particular importance.” The public participation in decision-making in a great number of cases means the participation of environmental associations, NGOs, who are the initiators of several environmental disputes.51 A clear explanation of such a significant position has been given by the Advocate General,52 saying: “42. Unlike natural or legal persons, non-governmental organisations promoting environmental protection always have the status of ‘the public concerned’ provided that, in accordance with Article 1(2), they comply with ‘any requirements under national law’. Article 10a expressly states that any environmental organisation which fulfils that definition will be deemed to have ‘rights capable of being impaired’ or an ‘interest’ that is deemed ‘sufficient’.”

This means that NGOs have automatic rights. It is worthwhile to note why NGOs have such a special position according to Sharpston: “61. First, non-governmental organisations promoting environmental protection give expression to the collective interest. Because they represent a number of different parties and interests, they protect general objectives. This gives them the requisite ‘collective dimension’. They also contribute specialised knowledge which 50 51

Case T-374/04 Commission v Federal Republic of Germany.

Case C‑567/10 Inter-Environnement Bruxelles and others v Région de Bruxelles‑Capitale.

52

Opinion of Advocate General Sharpston (Case C‑263/08).

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helps to distinguish important cases from cases of lesser significance. They speak with one voice on behalf of many, with a level of technical specialisation which is often not available to the individual. By so doing, they can rationalise the way in which the various conflicting interests are voiced and placed before the authorities.”

In the given case53 the major issue has been the restriction of the access by environmental NGOs to participation in decision-making procedures, on the basis of their size, excluding small, locally established NGOs from some parts of the procedure: “41 It is clear from the order for reference, the file submitted to the Court, and the arguments put forward at the hearing, that the reason for that question is the existence in the relevant national legislation of the rule that only an association with at least 2 000 members may bring an appeal against a decision adopted on an environmental matter.”

According to the judgment, restrictions as a rule may be possible, but only with some serious limitations: “47 ... However, the number of members required cannot be fixed by national law at such a level that it runs counter to the objectives of Directive 85/337 and in particular the objective of facilitating judicial review of projects which fall within its scope.”

Finally, one more element could be the payment of procedural costs, which may cause some limitations to the exercise of participatory rights. One of the best examples is the environmental impact assessment procedures, where the fulfilment of the obligation of public participation is of outstanding significance. In this area, the ECJ has formulated several leading arguments in which we can also find the clear summary of the Community legislative intent:54 “32 That wording indicates that the Community legislature wished not to limit the powers of the Member States in the determination of the detailed arrangements for public consultation but, on the contrary, to give them wide discretion in defining those arrangements.”

The main issue at stake is the possibility of imposing a participation fee for public participation in EIA decisions. The Advocate General55 took the view at the beginning that: 53

Case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening.

54 55

Case C-216/05 Commission v Ireland.

Opinion of Advocate General Stix-Hackl (Case C- 216/05).

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“28. ... It is more correct, however, to proceed as a matter of principle on the basis that anything not prohibited by Community law remains, generally speaking, open to a Member State, or that Member States have legislative power or freedom to act in so far as Member State action does not conflict with the requirements of Community law.”

While we may agree that public participation is vital, this should not mean that there may not be any restriction, as is articulated by Advocate General StixHackl: “39. In my view, that cannot be taken to mean that there is an unrestricted right for everybody to be consulted.” Also the EIA directive itself provided the chance to Member States to adopt implementing regulations. “40. The Member States can, in accordance with the non-exhaustive list of possibilities in Article 6(3), determine both the public concerned and how the consultation is carried out; the consultation may, for example, even be in the form of public enquiry. In addition, the consultation stage can be limited in time.”

Finally, both the Advocate General and the Court agreed that in the given case the actual amount of the administrative fees did not render realisation of the public consultation “virtually impossible or excessively difficult.” According to the judgment: “42 It follows from all the foregoing that the levying of an administrative fee is not in itself incompatible with the purpose of Directive 85/337.”



4 Access to Justice

Similar to the previous pillars of environmental democracy/ public participation, we are not going into the details of the regulatory background, but only focus on the major outline instead and later examine the judicial practice of the ECJ/CJEU. There are several sources, where one may obtain detailed and correct information, among others there is a complete website of the Commission.56 Access to justice is a challenging issue for comparative studies and there are many useful and high quality products of different research processes, such as: • Summary Report on the inventory of EU Member States’ measures on access to justice in environmental matters by Milieu Ltd. in 2007;57 • Access to Justice in Environmental Matters under the Aarhus Convention Justice & Environment Position Paper, May 2010 and its background document: Report on Access to Justice in Environmental Matters, Justice and Environment;58 56 57

The Aarhus Convention: What is the Aarhus Convention?.

The Aarhus Convention: Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters.

58

Report on Access to Justice in Environmental Matters.

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• Access to justice in Europe: an overview of challenges and opportunities, FRA – European Union Agency for Fundamental Rights, 2011;59 • Studies on the question of environmental justice and the synthesis report by Jan Darpö: Effective Justice? (Synthesis report of the study on the Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States of the European Union, 2012 November);60 and • a study on the socio-economic implications of access to justice by Maastricht University, Faculty of Law, METRO in 2013;61 and of course we should not forget the Aarhus Implementation Guide. Also, several authors deal with the legal interpretation of access to justice in detail, looking at the national situation and the framework of European integration.62 If we have a closer look at Europe and the most important legal basis for access to justice, then all the reports and papers agree that the following provisions are noteworthy: 1. The most general one is the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 1950,63 two articles of what shall be considered here: • Article 6(1) — Right to a fair trial (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”) and • Article 13 — Right to an effective remedy (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”) 2. The EU specific reference may be found in the Lisbon Treaty, in two articles: • Article 19 TEU, within Par. 1 (“...Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”) and • The Charter of Fundamental Rights, Title VI, Justice, Article 47, Right to an effective remedy and to a fair trial (“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. • Everyone is entitled to a fair and public hearing within a reasonable time by 59

Report on Access to Justice in Europe: an Overview of Challenges and Opportunities.

60 61

Darpö, J. (2012).

Maastricht University (2013).

62

See, for example, Jans, J.H. & Vedder H.H.B. (2012), p. 228-250, or several elements of the access to justice subject have been discussed in many articles, like: de Sadeleer, N. and Poncelet, C. (2012).

63

CPHRFF: What do you want to know about this treaty?.

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an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. • Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”) The above four items are only a very broad framework for access to justice; it would be difficult to use them immediately without any further implementing regulations. The right to a fair trial does not really provide a right to access to courts or similar bodies, the right to effective remedy requires some violation – and for example, an omission to act may not be taken as a violation –, the remedies for legal protection do not mean access rights either, and the Charter is mostly similar to the wording of the Convention. Consequently, there is a real need to develop some more specific, more articulated legal setting, such as the one in the Aarhus Convention. The Implementation Guide summarizes in an easy way the requirements as follows:64 • Article 9, paragraph 1: Requires access to review procedures relating to information requests under Article 4. • Article 9 paragraph 2: Requires access to review procedures relating to decisions, acts or omissions subject to Article 6 and other relevant provisions of the Convention. • Article 9, paragraph 3: Requires access to review procedures for public review of acts and omissions of private persons and public authorities concerning national law relating to the environment. • Article 9, paragraph 4: Sets general minimum standards that apply to all relevant review procedures, decisions and remedies. • Article 9, paragraph 5: Requires Parties to facilitate effective access to justice. In the same Guide there are further explanations provided, the essence of which is highlighted next:65 “Access to justice under the Convention means access for the public to procedures where legal review of alleged violations of the Convention and national laws relating to the environment can be requested. ... The provisions on access to justice essentially apply to all matters of environmental law, but a distinction is made in the Convention between three categories of decisions, acts and omissions: Refusals and inadequate handling by public authorities of requests for environmental information. Decisions, acts and omissions by public authorities concerning permits, permit procedures and decision-making for specific activities. 64 65

Aarhus Convention Implementation Guide (2013), pp. 197-198.

Aarhus Convention Implementation Guide (2013), pp. 193-194.

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All other kinds of acts and omissions by private persons and public authorities that may have contravened national law relating to the environment. ... Whereas for the first two of the three categories listed above, the Parties must provide review procedures before a court or court-like body established by law, for the third category the Parties may ensure access to justice either by administrative or judicial procedures. ... While making the distinction between judicial and administrative procedures, certain general requirements are imposed on all reviewing instances and procedures within the scope of the Convention. First, they must be fair, equitable, timely and not prohibitively expensive. Second, they must provide adequate and effective remedies. Third, information on administrative and judicial review procedures must be disseminated to the public, and the Parties are encouraged to establish appropriate assistance mechanisms to remove or reduce financial and other barriers. As far as court or court-like bodies are concerned, Parties have flexibility in deciding how to structure their appeal systems. ...”

The EU signed and ratified the Aarhus Convention, and thereafter a proposal for a Directive on access to justice in environmental matters was presented by the Commission in October 2003.66 The best way to introduce the proposal is to use its own language. The proposal summarizes the major needs and elements as follows: “....the lack of enforcement of environmental law is too frequently due to the fact that legal standing is limited to persons directly affected by the infringement. A way of improving enforcement is hence to ensure that representative associations seeking to protect the environment have access to administrative or judicial procedures in environmental matters. Practical experience gained from granting legal standing to environmental non-governmental organisations indicates that this can enhance the implementation of environmental law. ... The common framework proposed is based on the need both to implement the Århus Convention’s provisions on access to justice, and to respect the administrative and judicial structures in the Member States. To do so, the proposal defines the following issues: * In relation to access to justice regarding acts and omissions by private persons contravening environmental law, the proposal calls upon Member States to establish the appropriate criteria to meet the obligations under Article 9(3) of the Convention. * In relation to acts and omissions by public authorities and in accordance with the Århus Convention, the proposal aims at the enforcement of Community environmental law by granting review proceedings. Such proceedings shall meet the following characteristics: 66

Proposal for a Directive on Access to Justice in Environmental Matters (2003).

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* Acts and omissions by a public authority shall be subject to a procedural and substantive review. These acts shall be submitted to review where they have legally binding and external effect, excluding acts which have been adopted as a legislative instrument. * The review of acts and omissions shall be based on a two tiered approach. Prior to starting environmental proceedings, entities and members of the public having legal standing shall first have to give notice to the public authority designated in accordance with national law, to allow for the administrative act or omission being reconsidered. . * Members of the public and qualified entities shall have access to administrative or judicial review proceedings to challenge acts and omissions which contravene provisions of environmental law. The proposed directive sets out a framework of minimum standards on legal standing that allows maintaining national systems providing for a broader legal standing.”

The Position Paper of Justice and Environment67 emphasized that EU institutions should use their powers to enforce correct application of the Convention, as a part of the EU law, by the Member states, also the proposed directive should be adopted, and beside the regulatory steps the interpretation of the ECJ may help to accomplish the requirements. Jan Darpö in the Synthesis report68 mentions four options: • the first is to retain the proposal for an access to justice directive along the lines of COM(2003)624 with possible minor modifications; • next would be to make a new legislative proposal; • the third option a soft-law approach, such as commentaries or guidelines; • and the final option would be to use infringement proceedings in accordance with Article 258 TFEU along the line of the current ECJ case law. Darpö and most of the participants in the given research project wish to have a clear legislative alternative. This does not necessarily mean the adoption of the proposal, which was considered as ’obsolete’ by Krämer69 some years ago. The current, unsettled regulatory situation proves that the access to justice requirements are elusive, as the EU itself does not infringe the Convention provisions even with the 10 years hesitation. Still, there are some minimum standards available for the access right, which may be construed from the Conventions, the Charter, the TEU and also from general European legal standards, all serving the interests of effective environmental protection. After some years of a relatively tranquil situation, with some minor steps taken, the ECJ/CJEU in the last 3-4 years became more and more active in interpreting EU legislation – covering also the Convention as part of European law – in a clear direction, that is to give life to the access to justice standards. Next, the most 67

Report on Access to Justice in Environmental Matters.

68

Darpö, J. (2012), pp. 22-23.

69

Krämer, L. (2007), p. 160.

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important cornerstones of this development of jurisprudence shall be discussed in brief. Several studies and authors mention the Janecek judgment 70 as one of the first signs of the more active involvement of the ECJ in giving life to access to justice requirements within the European legal environment. Jans/Vedder argued:71 “the decision of the Court of Justice certainly seems to imply that the German administrative court has to give a substantive ruling on Janecek’ contentions. The Court of Justice seems to require the German Court to apply a wider interpretation of the concept ‘interested party’ than is usual in German law.” The given case agreed that the private person has the right to require the authorities to undertake their obligations: “39 ... the natural or legal persons directly concerned by a risk that the limit values or alert thresholds may be exceeded must be in a position to require the competent authorities to draw up an action plan where such a risk exists, if necessary by bringing an action before the competent courts.”

This judgment is a bit different than the coming ones, as the direct interest of the individual is a core element of the dispute, although this direct interest is relatively remote, as the given omission is affecting a wider public and not only a particular person. The Janecek case and the others are usually connected with a specific environmental legislation – most of them to the EIA and IPPC legislation, as they contain specific provisions of public participation. The Commission itself agrees with the above evaluations in the preparatory assessment of the proposal for the 7th EAP:72 “CJEU case-law has moved in a direction of confirming an entitlement to access – see in particular Case C-237/07, Janecek, where the Court recognised a citizen’s entitlement to challenge the absence of an air quality management plan (despite German law considering that the citizen had no standing to bring such a case) and Case C-240/09, Slovak Bears, where the Court found that Article 9(3) of Aarhus had no direct effect but that Member States courts must nevertheless facilitate access by NGOs.”

The best way to examine the progress of judicial interpretation is to look at the case-law in a chronological order. The next case, focusing mostly on the access to a review procedure and its conditions is the Djurgården case,73 has already been mentioned above in connection with participation in decision-making. 70 71

Case C-237/07 Dieter Janecek.

Jans, J.H. & Vedder H.H.B. (2012), p. 231.

72

Decision Proposal on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet”, p. 120.

73

Case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening.

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The major issue at stake therein is the right of the public to access to justice, supported by EU legislation: “33 Article 10a of Directive 85/337, taking account of the amendments introduced by Directive 2003/35 which is intended to implement the Aarhus Convention, provides for members of the public concerned who fulfil certain conditions to have access to a review procedure before a court of law or another independent body in order to challenge the substantive or procedural legality of decisions, acts or omissions which fall within its scope.”

As an additional point, the judgment made it clear that the second pillar of the public participation building – participation in decision-making – and the third, access to justice, are not necessarily connected in a strict sense: “38 ... participation in the decision-making procedure has no effect on the conditions for access to the review procedure.” Consequently the right to access to justice must be given: “39 ... regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views.” Probably the most challenging part of the legal dispute has been the explanation of the role of the environmental associations, NGOs. This has been partly dealt with above, in connection with the second pillar, as to the number of members and size of the NGO concerns. The serious limitations related to the membership may not be justified by European law, these are taken as: “49 ... very restrictive conditions.” This directly leads to the final verdict: “52 Accordingly, the answer to the third question is that Article 10a of Directive 85/337 precludes a provision of national law which reserves the right to bring an appeal against a decision on projects which fall within the scope of that directive solely to environmental protection associations which have at least 2 000 members.”

The opinion of the Advocate General Sharpston74 related to the importance and specific status of NGOs has also been quoted above, but we have to add those parts of his argument which, beside their general characteristics, are closely associated with the access to justice. Above we could learn, that NGOs “promoting environmental protection give expression to the collective interest”, but in theory this may end up in many unnecessary litigations or other review procedures. Sharpston’ opinion is a clear denial of this belief, saying: “62. ... By encouraging people to channel environmental disputes through nongovernmental organisations promoting environmental protection, the Aarhus Convention and Directive 85/337, as amended, recognise that these organisations do not overload or paralyse the courts. Rather, they bring together the claims of many individuals in a single action. Although it is true that nothing prevents 74

Opinion of Advocate General Sharpston (Case C‑263/08).

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members of a non-governmental organisation from also taking part in proceedings on an individual basis, the overall result of this policy is to create a filter which, in the long run, assists the work of the courts. In addition, as I have just indicated, these associations often have technical knowledge that individuals generally lack. Bringing this technical information into the process is advantageous, because it puts the court in a better position to decide the case.”

The third element of the Advocate General’s opinion, also worthy, provides a summary of the underlying legal concepts, which characterize the present situation, mostly based upon the Aarhus Convention. She says: “63. Thirdly, it is important to emphasise that the Aarhus Convention and Directive 85/337, as amended, rejected introducing an actio popularis for environmental matters. Although Member States can opt to make such a procedure available in their domestic legal orders, neither international nor Community law has chosen in this instance to do so. However, it seems to me that, precisely because that course was rejected, the authors of the Aarhus Convention decided to strengthen the role of non-governmental organisations promoting environmental protection. That formula was adopted in an attempt to steer a middle course between the maximalist approach of the actio popularis and the minimalist idea of a right of individual action available only to parties having a direct interest at stake. Giving special standing to non-governmental organisations reconciles these two positions. It seems to me to be a very sensible compromise.”

Thus the specific role of environmental associations shall be taken as a kind of assistance in representing community interests and also as means and methods to channel public opinion and public knowledge, even in the judicial procedures. This is certainly a positive role, serving environmental interest, consequently meeting the requirements of the objectives and principles, enacted in Art. 191 TFEU. NGOs in that way help the EU to realize its goals. A controversial but far reaching interpretation of access to justice rights may be found in the Slovak Bear case,75 where an additional element has also been raised – that is the likely direct effect of the Aarhus Convention access to justice provisions. This time the Habitat Directive together with the Convention proved to be the core problem, and what is even more interesting is that beside the environmental matters, the real meaning of international commitments of the EU and consequently its Member States have also been addressed. The Court as the legal basis of its supervisory function in the given topic underlined, that: “30 The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the legal order of the 75

Case C‑240/09 Lesoochranárske zoskupenie VLK.

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European Union ... Within the framework of that legal order the Court therefore has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement...”.

The Court also reminds us that a declaration of competence had been made in accordance with Article 19(5) of the Aarhus Convention and annexed to Decision 2005/370, admitting that (39) “the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention”. The consequence of this statement is that “its Member States are responsible for the performance of these obligations”, until the Community law does not cover the implementation of the obligations. Thus, while Member States have relative freedom in implementing the international obligations of this kind, they are also obliged to put these provisions into operation. It is even more so the case, because the Member States are all signatories to the Convention, and with the exception of Ireland, all ratified it.76 The obligation of Member States towards proper implementation thus has a double legal basis: on their own ratification and also being part of the EU. The second part of this double footing also means, as the Court clearly emphasized the specific attention on behalf of EU institutions: “42 Where a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of EU law, it is clearly in the interest of the latter that, in order to forestall future differences of interpretation, that provision should be interpreted uniformly, whatever the circumstances in which it is to apply...”.

It is no wonder why the next question is whether the different provisions of the Convention may or may not have a direct effect, in case of which it is even easier to come to a stage of uniform interpretation. The Court repeatedly discussed the conditions of direct effect, as well as in this given case. The outcome is always the same: “44 In that connection, a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure ...”.

The Court stated without doubt that it is not the case, at least in connection with the given paragraph of the Convention, and that the legal arguments are clear and easy:

76

Presented in a map, see: http://www.unece.org/fileadmin/DAM/env/pp/AarhusMap.html.

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“45 It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.”

And here comes the twist of the judgment, which may not be a big surprise, knowing the outcome of previous and parallel cases and also reading the previous paragraphs of the judgment itself. The main argument to support the Court’s position is environmental interest: “46 However, it must be observed that those provisions, although drafted in broad terms, are intended to ensure effective environmental protection.”

There are also additional arguments of a general rule of law nature: “48 On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness)...”.

The final outcome is a sympathetic legal assertion: one may not say that direct effect applies, due to the lack of necessary conditions, but it would not be possible either to let the Member States do what they want, as it is against the purpose of the whole game. The EU legislator could not take up the challenge to regulate the conditions of access to justice up until now, so there were two options: to leave everything as it is, diverse, or to try to push the unified implementation. The Court decided towards the interest of environmental democracy: “52 ... Article 9(3) of the Aarhus Convention does not have direct effect in EU law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.”

The Advocate General77 in her opinion also recommended that the Court should not use the direct effect doctrine, as it would go beyond the powers of judicial interpretation and most likely also the intent of the Convention: 77

Opinion of Advocate General Sharpston (Case C‑240/09).

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“89. In the absence of these express limitations, the potential scope of Article 9(3) would be very wide. Attributing direct effect to Article 9(3), thus bypassing the possibility for Member States to lay down the criteria triggering its application, would be tantamount to establishing an actio popularis by judicial fiat rather than legislative action. The fact that the proposal for a directive remains unadopted indicates that, in this particular context, such a step would indeed be inappropriate.”

Anyhow, the outcome is of great consequence: “If this analysis is correct, this can only mean that through the use of consistent interpretation Article 9(3) of the Aarhus Convention is applicable across the full breadth of European environmental law.”78 The background again is to serve the environmental interests – in the given case in connection with EIA legislation: “Indeed, the Court appears to be keen on providing EU citizens with effective remedies before national courts...”79

Parallel to the Slovak Bear case, the Court also decided in a similar access to justice dispute, this time in Germany with the Trianel case,80 in connection with an environmental impact assessment. The German law seems to be restrictive in respect of access to justice; at least, according to the referring court (29) “an action challenging an administrative measure will be admissible only if the administrative measure affects the claimant’s rights, that is to say, his individual public law rights.” This condition actually does not add anything to the effective use of environmental democracy and does not go beyond the general legal conditions. As we could already see above in Djurgården, the interpretation of the ECJ is somewhat broad, and this is reiterated in the present judgment: “42 It follows that, whichever option a Member State chooses for the admissibility of an action, environmental protection organisations are entitled, pursuant to Article 10a of Directive 85/337, to have access to a review procedure before a court of law or another independent and impartial body established by law, to challenge the substantive or procedural legality of decisions, acts or omissions covered by that article.”

Also the Court repeated the general rule of law principles, the principle of equivalence and the principle of effectiveness. The major conclusion in this respect is that:

78

Jans, J.H. & Vedder H.H.B. (2012), p. 237.

79

De Sadeleer, N. and Poncelet, C. (2012), p. 208.

80

Case C‑115/09 Trianel Kohlekraftwerk.

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“44 Thus, although it is for the Member States to determine, when their legal system so requires and within the limits laid down in Article 10a of Directive 85/337, what rights can give rise, when infringed, to an action concerning the environment, they cannot, when making that determination, deprive environmental protection organisations which fulfil the conditions laid down in Article 1(2) of that directive of the opportunity of playing the role granted to them both by Directive 85/337 and by the Aarhus Convention.”

This statement is a serious criticism of domestic legislation, which did not allow this access right in Germany. Again the rights of environmental association must be interpreted broadly; it should not be attached only to the general domestic requirement of ‘impairment of a right’, and a verdict the Court underlines again: “59 ... non-governmental organisations promoting environmental protection, as referred to in Article 1(2) of that directive, can derive from the last sentence of the third paragraph of Article 10a of Directive 85/337 a right to rely before the courts, in an action contesting a decision authorising projects ‘likely to have significant effects on the environment’ for the purposes of Article 1(1) of Directive 85/337, on the infringement of the rules of national law flowing from Article 6 of the Habitats Directive, even where, on the ground that the rules relied on protect only the interests of the general public and not the interests of individuals, national procedural law does not permit this.”

Advocate General Sharpston81 repeated her arguments, presented in Djurgården case, in connection with the specific role NGOs play in promoting environmental protection interests. For instance, in point 51 “An environmental NGO gives expression to the collective interest and may possess a level of technical expertise that an individual may not enjoy.” But also, Sharpston extended the argument to incorporate the general domestic legal grounds, as being also met with the inclusion of NGOs into the protection of environmental rights: “67. In my view the correct interpretation is therefore that, in a Member State which applies criterion (b) in the first paragraph of Article 10a, the third paragraph of that article means that the Member State must ensure that environmental NGOs can ‘maintain the impairment of a right’, and thus that the national system must recognise that they have ‘a right’ capable of being impaired, even if that right is fictitious in a national legal system that would otherwise only recognise the impairment of substantive individual rights.”

This is a valuable additional element to the logic of access rights. It is also worthwhile to look at those arguments which are of an environmentalist nature: 81

Opinion of Advocate General Sharpston (Case C-115/09).

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“77. ... As I understand it, in circumstances in which no substantive individual right is at risk of impairment, neither an individual nor an environmental NGO has locus standi to bring an action. No one can act on behalf of the environment itself. There are nevertheless circumstances – for example, where a project listed in Annex I to the EIA Directive (and therefore subject to a compulsory environmental impact assessment under Article 4(1) thereof) is located on a virgin site well away from human habitation – where effective participation in environmental decisionmaking and effective monitoring of the implementation of the EIA Directive make it essential that an environmental NGO should have locus standi to bring an action for judicial review.”

And as a final consequence, both the Advocate General in her opinion – point 95(2) – and the ECJ itself – point 48 – clearly emphasize that the given Article 10a of Directive 85/337 has a direct effect, which is not necessarily the case in connection with all the access to justice provisions, as we could demonstrate for example, in the Slovak Bear case. Accordingly, when there is a specific provision in a specific legislation, it is easier to reach the level of direct effect test, than in a more general framework. Some months later the access of justice provisions of the same EIA directive served again the core legal basis is a similar (actually four joined) case – the Boxus case.82 Since we are discussing access to justice problems here, we do not enter into that question, connected with the EIA procedure itself, such as the real meaning of the legislative act in making EIA decisions, although it has a consequence on access to justice. It is imperative only, as if it were a legislative act which adopted the project and not a decision of public administration, the access to justice rights would be different. Here the extent of the judicial review would be limited to the problematique (57) whether that legislative act satisfies the conditions laid down in Article 1(5) of the EIA directive. The public participation is a must under the EIA directive, as clearly stated by the Advocate General,83 when she underlines: “55. ... In other words, the EIA Directive promotes direct public participation in administrative decision-making processes concerning the environment within a Member State.”

Here the main difference between the decision of the public administration and the legislative act is obvious: “56. Where a decision is reached by a legislative process, however, such public participation already exists. The legislature itself is composed of democraticallyelected representatives of the public. When the decision-making process takes 82 83

Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and others v Région Wallonne.

Opinion of Advocate General Sharpston (Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09).

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place within such a body, it benefits from indirect, but nevertheless representative, public participation.”

That is the reason why it is essential to have a clear and correct picture in respect of the essence of legislative act. If the legislative act (88) “merely provides the formal rubber-stamp for an earlier administrative process which has effectively already taken the relevant decisions will not provide the same safeguards as those required by the EIA Directive.” The same article of the EIA directive was the central element of a recent judgment,84 following the line of the above described judicial practice, but in that case the Member State involved is the UK. The exact subject proved to be different from the previous cases, as not the standing or access to court as such was in the centre of the legal dispute, but the cost of litigation, whether a given procedural cost should not be prohibitively expensive, deterring the applicant. As usual, the procedure gave rise to several general comments referring to environmental democracy by the Court and also by the Advocate General. The most important observations must be presented here. The Advocate General85 was eager to point to the fundamental values of public participation as follows – the second remark may even be taken as a motto of access to justice: “40. Legal protection in environmental matters, on the other hand, generally serves not only the individual interests of claimants, but also, or even exclusively, the public. This public interest has great importance in the European Union, since a high level of protection of the environment is one of the European Union’s aims under Article 191(2) TFEU and Article 37 of the Charter of Fundamental Rights. ... 42. However, the environment cannot defend itself before a court, but needs to be represented, for example by active citizens or non-governmental organisations.... 48. As regards the level of permissible costs, it is lastly significant that provisions of the Convention on judicial proceedings are to be interpreted with the aim of ensuring ‘wide access to justice’. ...”

The Court emphasized : “31 As is expressly stated in the third paragraph of Article 10a of Directive 85/337 and the third paragraph of Article 15a of Directive 96/61, the objective of the European Union legislature is to give the public concerned ‘wide access to justice’. 32 That objective pertains, more broadly, to the desire of the European Union legislature to preserve, protect and improve the quality of the environment and to ensure that, to that end, the public plays an active role.”

84 85

Case C‑260/11 The Queen v Environment Agency and others.

Opinion of Advocate General Kokott (Case C‑260/11).

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As the direct subject-matter concerns, it is clear that we must set the cost of legal procedure against its outcome on effective public participation. As Kokott summarizes: “29. Consequently, it is not only a question of preventing costs which are excessive, that is to say disproportionate to the proceedings, but above all the proceedings may not be so expensive that the costs threaten to prevent them from being conducted. Reasonable but prohibitive costs are a possibility in particular in environmental proceedings relating to large-scale projects, since these may be very burdensome in every respect, for example with regard to the legal, scientific and technical questions raised and the number of parties.”

The Court lists all the perspectives of decision-making on the problem of excessive costs: “33 Moreover, the requirement that the cost should be ‘not prohibitively expensive’ pertains, in environmental matters, to the observance of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, and to the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual’s rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law (see, inter alia, Case C‑240/09 Lesoochranárske zoskupenie VLK [2011] ECR I‑1255, paragraph 48).”

The ECJ/CJEU thus clearly demonstrated the need to use the options of access to justice, although it is true that “In light of recent developments in the case-law of the CJEU, legal certainty would be improved by adopting an access to justice instrument in the environmental field at EU level.”86

Anyhow, the quasi direct effect of the Aarhus requirements has been approved by the Court, but still, there are several fundamental conditions which need further elaboration.

86

Proposal for a Decision on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet”, p. 123.

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Right to Environment – Procedural Guarantees Gyula Bándi

chapter 4



right to environment – procedural guarantees

1 Right to Environment – Procedural Guarantees

The right to environment is taken by many as a prerequisite to the contemporary and future living of humankind. Also there are many who focus on the procedural guarantees of this right or, more directly, identify the elements of environmental democracy with the implementation of the right to the environment. This is reflected in the opinion of Advocate General Sharpson1 as follows: “3. The preamble to the Aarhus Convention recognises that every person has the right to live in an environment adequate to his or her health and well-being and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations. To be able to assert that right and observe that duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters.”

Seemingly, this opinions refers to a general agreement that the right to environment exists and environmental democracy is an essential element or clear prerequisite to such a right. The legal conditions for the right to environment at least at the international level are still pending, while there are many examples in national legislations, which have adopted some kind of right to environment. Nonetheless, there are ongoing discussions and changes at all regulatory levels and even more in the implementation arena; thus it is worthwhile to enter a bit into the discussion of the right to environment. The entire concept of human rights, from the early beginning was made to address those problems, difficulties and worries, which man, as an individual, as a society or as mankind, is concerned the most, and as a consequence, the individual state or the community of states should guarantee conditions capable of offering some solutions for such problems. Thus, the actual situation of the human rights catalogue may be different according to the concrete historical and social circumstances. This is clearly reflected in the popular model of the three human rights’ generations, presented in 1979 by Vasak. According to Vasak, the first generation of rights entails civil and political rights; the second generation of rights consists of economic, social and cultural rights; and the third generation of rights is a set of rights designed to protect human values that are likely to be severely violated as a result of rapidly evolving issues on the international stage (e.g., development, environmental pollution, nuclear proliferation and the North-South divide). This list of rights proposed by Vasak includes the right to development, the right to peace, the right to environment, the right to property over the common heritage of humankind, and the right to communicate. Vasak drew upon the third pillar of brotherhood/sisterhood ( fraternité) to label third-generation rights ‘solidarity rights’.2 1

Opinion of Advocate General Sharpston (Case C‑240/09).

2

Hajjar Leib, L. (2011), p. 53-54.

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The three generations require different attitudes of the state for the safeguard of such rights. While the first generation mostly requires that the state should not interfere and should not limit the exercise of such right, the second and even more the third generation calls for the activity of the state in order to guarantee the proper implementation, and the third generation even presupposes the cooperation of different states. Also the third generation presumes that the previous two are already in place, but also adds new dimensions to the first (political and civil rights) and second (economic, social and cultural rights) groups. Later we shall even see that there is a great divergence between the first two groups and the third one. We may also learn that it is not necessarily self-evident that a human right is legally embedded: “Human rights are rooted both in natural law and moral values and in positive law. The fact that not all moral rights can be transformed into legal rights indicates that society has already decided which rights are worthy of joining the legal realm in order to guarantee an appropriate level of protection and autonomy to the rights-bearers and the chosen tights are perceived as urgent and important.”3

The ethical foundation of the right to environment becomes a more and more important parallel with the drawbacks of regulation, balancing the ascendancy of the urgent needs of current material interests. It’s no wonder why we need to have ethical support such as the opinion of the Catholic Church as presented clearly in the social doctrine4 in “Chapter X. Safeguarding the Environment: “467. Responsibility for the environment, the common heritage of mankind, extends not only to present needs but also to those of the future. ... 468. ... The juridical content of “the right to a safe and healthy natural environment” [987] is gradually taking form, stimulated by the concern shown by public opinion to disciplining the use of created goods according to the demands of the common good and a common desire to punish those who pollute. But juridical measures by themselves are not sufficient.[988] They must be accompanied by a growing sense of responsibility as well as an effective change of mentality and lifestyle.”

The obligations towards future generations may also be taken as an essential component of the concept of the right to environment. If the present generations have environmental rights, then why should the future generations miss them? Although it is hard to push the right to environment through the human rights’

3

Hajjar Leib, L. (2011), p. 43.

4

Pontifical Council for Justice and Peace (2004).

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codification, several reports come close to this perception. In one commission opinion within the Council of Europe it looks self-evident:5 “A. Draft recommendation ... 9. Bearing in mind that society as a whole and each individual in particular must pass on a healthy and viable environment to future generations, in accordance with the principle of solidarity between generations, the Assembly invites the governments of member states to:..”.

The initiator of concern for the future generations, Edith Brown Weiss writes:6 “The basic concept is that all generations are partners caring for and using the Earth. Every generation needs to pass the Earth and our natural and cultural resources on in at least as good condition as we received them. This leads to three principles of intergenerational equity: options, quality, and access.”

The fate and difficulties of the right to environment is a model of the similar difficulties of the future generations’ rights. If there is no right to environment as a human right, it is very unlikely to have the right of future generations widely accepted. Beside the rights of future generations we should not forget the other pillar of equity – intergenerational and intra-generational equity. This latter is somehow close to the concept of ’common but differentiated responsibilities’ of international environmental law. The intra-generational equity is closely connected with environmental justice and environmental democracy, beside its definite relationship with the right to development. Anyhow, all these elements require a minimum environmental standard as the precondition. If now we have an ethical background, if we agree that both kinds of equity need protection of the environment, then it is without doubt that environmental rights should form a part of everyday life. This is the short link between human rights and environmental interests. “Human rights depend upon environmental protection, and environmental protection depends upon the exercise of existing human rights such as the right to information and the right to political participation. Despite this common core, the two topics remain distinct. Environmental protection probably cannot be wholly incorporated into the human rights agenda without deforming the concept of human rights and distorting its program.”7

Still, it is very difficult to give life to the concept of environmental rights, at least at the international level. 5

Mendes Bota, J. (2009) and Marquet, B. (2008), Draft recommendation adopted unanimously by the committee on 4 September 2009.

6 7

Brown Weiss, E. (2008), p. 616.

Shelton, D. (2006), p. 169.

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“Human rights can be said to exist on two different levels: firstly, human rights in their institutionalized form, affirmed by states and identifiable in treaties and positive law (What may be called the contemporary international human rights ‘regime’), and secondly, human rights as moral rights, justified by reference to norms that are said to be universal, rather than positive law. The content of these two levels does not necessarily correspond... there can be an ambivalent relationship between human rights and social change.”8

Again it is Dinah Shelton, who underlines: “Clearly, not every social problem must result in a claim becoming expressed as a human right and there remains disagreement even about some of the human rights already enunciated. ... Nonetheless, the recognition that human survival depends upon a safe and healthy environment places the claim of a right to environment fully on the human rights agenda. Moreover, recognizing a right to environment could encompass elements of nature protection and ecological balance, substantive areas not generally protected under human rights law because of its anthropocentric focus..”.9

We are not going much into the details of all human rights or right to environment scholarly debates, although they are extremely interesting, but instead it is worth underlining that it is much easier and has a much stronger record to introduce the right to environment as a consitutional right in nation states. A good example is the ongoing discussion even in the British Parliament to accept it in the Bill of Rights:10 “210. In our view there is a strong case to be made for including the right to a healthy and sustainable environment in a UK Bill of Rights. The briefest consideration of the status of the right in international instruments and national constitutions shows that the right has evolved into one which is clearly capable of legal expression. We believe that a UK Bill of Rights should treat it as one of the social rights for which a particular legal regime can be devised.”

The right to environment as a potential human right has also been mentioned by judges of the ICJ, like Weeremantry in separate opinion attached to the Gabčikovo-Nagymaros judgment:11 “b) Environrnental Protection as a Principle of’ International Law The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such 8

Woods, K. (2010), p. 7.

9

Shelton, D. (2006), p. 163.

10 11

Joint Committee on Human Rights, 29th Report (2008).

Separate Opinion of Judge Weeremantry, C.G (Gabcíkovo-Nagymaros Project).

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as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”

As a consequence, the right to environment may be taken as a precondition of the implementation of human rights in general, but also, human rights shall be taken as conditions for the safeguarding of environmental interests. The New Delhi Declaration of the ILA12 underlines: “IS OF THE OPINION that the realization of the international bill of human rights, comprising economic, social and cultural rights, civil and political rights and peoples’ rights, is central to the pursuance of sustainable development,...”.

The same Declaration also emphasizes the close linkage of human rights, sustainable development and public participation: “5. The principle of public participation and access to information and justice 5.1. Public participation is essential to sustainable development and good governance in that it is a condition for responsive, transparent and accountable governments as well a condition for the active engagement of equally responsive, transparent and accountable civil society organizations, including industrial concerns and trade unions. ... 5.2. Public participation in the context of sustainable development requires effective protection of the human right to hold and express opinions and to seek, receive and impart ideas. It also requires a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with due consideration for privacy and adequate protection of business confidentiality.”

One year later the same interlinkage had been also underlined by the UN Commission of Human Rights: “Considering that protection of the environment and sustainable development can also contribute to human well-being and potentially to the enjoyment of human rights,” Accordingly, the three generations of human rights may be taken as a condition of well-being and sustainable development. There are many discrepancies between the general realm of human rights and the right to environment, which makes the international adoption of this right difficult, requiring the present concepts of governance to be changed, to create a new ethos of governance with a different vision of the world. This may lead to conflicts between the traditional rights and environmental rights, due 12

New Delhi Declaration of Principles of International Law Relating to Sustainable Development.

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to the fact that the initial points and objectives are both different. Alexandre Kiss and Dinah Shelton described these differences: the traditional rights are protecting the groups or individuals, the environmental rights are protecting the survival of life, also the interests of present and future generations.13 Others14 mention the difference between the access to information versus the traditional data protection, the conflicts between individual rights as property rights and collective rights as the environment. One may also not forget that the implementation of traditional human rights might have an adverse environmental effect, etc.15 If we wish to examine the state of affairs in international law, related to the right to environment, the best would be to have the following groups of relevant international documents: • most of the ’official’ human right conventions (with the exception of the Charter of Fundamental Rights of the EU) – UN, Council of Europe – do not mention directly the right to environment, but they concentrate on traditional rights only; • there are non-binding international documents of a universal character, which refer to the right, such as the Principle 1 of the Rio Declaration:16 “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”; • and also there are international conventions and regional ones mostly focusing on a specific area, which accept this right, such as the Aarhus Convention. We do not wish to enter into the discussion of how close the Universal Declaration of Human Rights (1948)17 in its Article 2518 – right to health and well-being – might be to the environmental rights, as the conditions for this right are not fixed, the list provided for in the Convention is not final – that is the reason why the capitulation of the given conditions begins with the phrase ’including’. Also one may mention several other possible constituents, like a recent one, on the indigenous peoples’ rights, in Art. 29.19 Anyhow, the UN official ’catalogue’ is still missing the right to environment. 13

Kiss, A. and Shelton, D. (1999), pp. 141-144.

14 15

Merrills, J.G. (2007), p. 676.

Thornton, J. and Beckwith, S. (2004).

16 17

Report of the United Nations Conference on Environment and Development (1992).

Universal Declaration of Human Rights.

18

Universal Declaration of Human Rights, Article 25: “(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

19

UN Declaration on the Rights of Indigenous People, Article 29: “1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territo-

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Of course, there is an ongoing debate on how to manage the problem of additional, new rights and the declarations are always promising. In 2002 an expert group20 stated: “12. The experts recognized that respect for human rights is broadly accepted as a precondition for sustainable development, that environmental protection constitutes a precondition for the effective enjoyment of human rights protection, and that human rights and the environment are interdependent and interrelated. These features are now broadly reflected in national and international practices and developments.... 14. ... A notable example of such progress was the entry into force of the 1998 Aarhus Convention. The experts recognized the need for further developments in this regard, including through the adoption of new international legal instruments (at the regional level or, some suggest, the global level) to provide effectively for rights of access to information, public participation in decision-making and access to justice.”

But there is nothing else concrete, than the set of different resolutions – such as the one which reads: “Considering that protection of the environment and sustainable development can also contribute to human well-being and potentially to the enjoyment of human rights.”21 The same has been reinforced later,22 but this could not add too much to the outcome of the process.23 Leaving the global arena and turning to Europe, our most important example is the European Convention on Human Rights,24 which did not even address environmental problems more then 60 years ago. There is a major difference between the global human rights conventions and the European one, that is the presence and active role of the European Court of Human Rights, making legal interpretation work. The ECHR simply could not disregard the need to have some kind of right to environment or at least something similar to this right and began to extend the interpretation of some parts of the Convention in a way to incorporate environmental rights. Even at the time of the activity of the European Commission of Human Rights there had been a famous case, Arrondale,25 but later, the ECHR started to extend first of all Articles 2, 8 and Art. 1 of the Protocol of 1952 on the right to property to encompass environmental interests. In connection with Art. 8 – Right to respect for private and family life – the first famous case proved to be ries and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.” 20 21

Meeting of Experts on Human Rights and the Environment (2002).

Commission on Human Rights Resolution 2003/71.

22 23

Commission on Human Rights Resolution 2005/60.

This has been criticised by Boyle, A. (2012), p. 621.

24 25

European Convention on Human Rights.

Arrondale v United Kingdom.

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López Ostra v Spain,26 followed by others, such as Guerra,27 Fadeyeva,28 Moreno Gomez,29 Dubestka.30 All these cases made the application of Art. 8 possible, with some conditions – in Fadeyeva: “70. Thus, in order to fall within the scope of Article 8, complaints relating to environmental nuisances have to show, firstly, that there was an actual interference with the applicant’s private sphere, and, secondly, that a level of severity was attained.” One of the best examples for the use of Art. 2 – Right to life – and the Art. 1 of the Protocol is the Öneryildiz case.31 Thus the Court could extend the field of duties of the states in the direction of the protection of the environment and towards the active role of the state. The ECHR could do a lot in giving life to the concept of the right to environment, while the situation of codification has not been better in Europe than in the universal arena. While “2. The Assembly notes and regrets, however, that in spite of the political and legal initiatives taken both nationally and internationally, environmental protection is still very inadequately guaranteed.” and “10. The Assembly recommends to the Committee of Ministers to: 10.1. draw up an additional protocol to the European Convention on Human Rights, recognising the right to a healthy and viable environment;”,32 the proposal could not get the necessary support at the Committee of Ministers.33 The whole situation may well be characterized by the following summary:34 “The Strasbourg organs have accepted nature protection as a legitimate public interest goal, which may warrant an interference between rights to property, private life and home. ... In general, the European human rights organs have been reluctant to pronounce on the conflict between conservation measures and the interests of the individuals or minorities, given the complexity and sensitivity of the issues at stake. A wide margin of appreciation has been left to the national states.”

The most recent improvement of the human rights concept in Europe is the EU Charter of Fundamental Rights, entering into force on 1 December 2009, as a part of the Lisbon Treaty.35 The reference to environmental protection is visible even in the Preamble, for example, sustainable development and the interests of future generations. Environmental protection becomes a part of Title IV on solidarity, which title covers the set of third generation rights. Unfortunately, 26 27

28

Fadeyeva v Russia.

29 30 31

 L ópez Ostra v Spain.

Guerra and Others v Italy.  Moreno Gomez v Spain.

 Dubestka v Ukraine.

 Ö neryildiz v Turkey.

32 33

Recommendation 1885 (2009).

The Committee refused the proposal at 16 June, 2010.

34 35

Desmet, E. (2010), p. 323.

Decision on the Adoption of the Charter of Fundamental Rights of the EU.

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the exact article does not mention ’right’ in its heading, which may end up in a negative connotation, if we do not trust the environmental consciousness of the EU institutions. The article itself is rather a summary of the objectives and principles of environmental protection of the Treaty and does not really resemble a formulation of a right: “Article 37 – Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

Although legal certainty and clarity, also the unambiguity of the concept would serve the interest of environmental protection better,36 but most probably these principle-like formulations may also provide the chance to individuals to argue with these provisions.37 Others are more sceptical, claiming that these provisions are rather misleading, as they do not create a clear legal situation.38 The direct reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the indirect reference of the TEU to the practice of the ECHR in Art. 6(3) – which practice is definitely a “result from the constitutional traditions common to the Member States”, together with the visible environmental concern of the CJEU, proven among others by the many judgments on public participation, may lead to a more optimistic interpretation option in the future. If now we turn towards our second group of international documents, that is the set of universal, non-binding documents, the first in the row is the Stockholm Declaration39 and its Principle 1: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.”

And 20 years later comes the Rio Declaration, the one we already mentioned above and which is more ambigious. Since that time, neither the Johannesburg summit, nor the Rio+20 process could add anything substantial to these words, thus it is still the Stockholm-principle which is the best formulated and most comprehensive. 36 37

See, for example: Ermacora, F. (2003).

See, Craig, P. (2006), pp. 511-512.

38

See Krämer, L. (2012), p. 150.

39

Declaration of the UN Conference on the Human Environment.

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A promising example of the non-binding documents is the European Charter on Environment and Health (1989), 40 which first of all classifies the entitlements and responsibilities, starting from individuals to governments, covering NGOs, media, etc. The third group of international documents is represented the best here by the Aarhus Convention, the preamble of which is a clear demonstration of environmental rights, taking the procedural guarantees for the right to environment as a central element. We may read in the preamble: “Recognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself, Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations, Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,...”.

Accordingly, there are several options for the development of environmental human rights in comtemporary law. Alexandre Kiss and Dinah Shelton mention four variations of the relationship of human rights and environmental protection:41 “The first is to utilize or emphasize relevant human rights guarantees in international environmental instruments”...; “The second approach recasts of applies existing human rights guarantees and institutions where environmental harm occurs...”; “The third possibility is to formulate a new human right to an environment that is not defined in purely anthropocentric terms...”; “Finally, a fourth approach questions utilization of human rights language, preferring to address environmental protection as a matter of human responsibilities rather than rights.”

This list of options is still applicable after 14 years, but it is worthwhile to complete it with the concept of environmental democracy in a way to insert the procedural – public participation – approach in between the second and the third type. A good example is our Aarhus Convention, which “represents an 40

European Charter on Environment and Health, adopted by the meeting of Ministers of the Environment and of Health of the Member States of the European Region of WHO.

41

Kiss, A. and Shelton, D. (1999), p. 142-144.

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important extension of environmental rights and of the corpus of human rights law.”42 One thing is certain: to find the proper link with human rights may be beneficial for the overall protection of environment. It is also clear on the other hand that the potential right to environment is only a part of the system of environmental protection, while unfortunately, the whole system is weak: “The human rights framework, however, has only limited utility from an environmental perspective because of the intergenerational nature of environmental problems, and, concomitantly, environmental obligations, which the right-based approach cannot accommodate. ... Most important is the challenge to highlight the limitations of a dominant ethical and political language that fails to encompass the important moral and political issues of the environmental welfare of future generations.”43

Thus the right to environment is an essential constituent of the system of environmental protection, sustainable development or else, an emblematic constituent, but not absolutely vital. Of course, the best would be to insert the intergenerational and intragenerational interests as parts of the regulatory order, not only as soft law elements of a wider concept, like sustainable development. 44 The right to environment is an integral part of the system, but the system must be developed first. When someone makes efforts to come closer to the definition of the right to environment, the first difficulty is to find a proper label. “Definitional ambiguity and vagueness are the first objections raised against the adoption of the right to environment. ‘Healthy’, ‘decent’, ‘clean’, ecologically balanced’, ‘safe’ and ‘sound’ are examples of the multitude of adjectives commonly used to describe the desired quality of the environment.”45 If we look at the approach of the EU Charter of Fundamental Rights, this uncertainty is clearly reflected in the method of how the Charter tries to come closer to a right, via listing principles and objectives. Of course, it would always be better to set up a scheme of more direct requirements, but than comes the question: what is the standard, what is the threshold, what shall be expected? If we claim that the environment should be clean, than we have to define what clean means. If the healthy environment is the requirement, shall we also cover the health of the environment, referring to the simple fact that only the well-being of the environment may provide well-being for mankind? And how healthy should this be? What is the acceptable level of cleanliness? Certainly, these questions are mostly speculative, but may symbolize the difficulties we meet. These difficulties are not in vain: 42 43

Boyle, A. (2012), p. 624.

Woods, K. (2010), p. 150.

44 45

See, for example: Turner, S.J. (2009a), pp. 78-79.

Hajjar Leib, L. (2011), p. 91.

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“A declaration or protocol on human rights and the environment thus makes sense provided it brings together existing civil, political, economic, and social rights in one coherent whole, while at the same time reconceptualizing in the language of economic and social rights the idea of the environment as a common good. It would, in other words recognize the global environment as a public interest that states have a responsibility to protect...”. 46

The need to have a universal, international codification of some kind of environmental rights is absolutely visible today, and there are several examples of such a codification in different levels, 47 together with the clear need to use this reference in human rights cases, such as in the jurisprudence of the ECHR. There are several viable options for the means and methods of doing so and several considerations one has to take notice of. The most fundamental of all the queries is to go for the substantive or procedural content: “Therefore, with the human right to the environment, whilst the procedural element is clear and extremely important (information, participation and access), it is difficult to define its ‘substantive’ content (such as the ‘acceptable’ quality of the air and water and food). The ‘minimum’ substantive content does not exclude in principle the possibility of reconciliation with other public interests, without prejudice to the procedural elements.”48

The same is articulated by other authors49 in a relatively simple and easy way: “... two strong trends are emerging in relation to environmental rights in Europe. First, the strong focus on procedural environmental rights to access to information, public participation and access to review procedures at the regional level, as embodied in the jurisprudence from the European Court of Human Rights, the Aarhus Convention, and environmental policy and law from the EC, has led to these rights today enjoying the status of regional customary law. Second... the recognition of a substantive human right to the environment on a regional level in Europe is taking place in a cautious and step-by-step process, ...”

And as a final example of the many related studies, a more detailed approach, combining the classification of human rights in connection with their environmental implications, plus a summary of the specific environmental rights:50

46 47

Boyle, A. (2012), p. 642.

See the EU Charter, but also the Banjul Charter (entered into force Oct. 21, 1986), or the Protocol of San Salvador, not mentioning the several national constitutions.

48

Postiglione, A. (2010), p. 527.

49 50

Pedersen, O.W. (2008), p. 111.

Anderson, M.R. (1996), közreadta: Anton, D.K. and Shelton, D.L. (2011), pp. 134-137.

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“There appear three main approaches: fist, mobilizing existing rights to achieve environmental ends; secondly, reinterpreting existing rights to include environmental concerns; and thirdly, creating new rights of an explicitly environmental character.... (a) Mobilizing Existing Rights (i) Civil and Political Rights ... (ii) Economic, Social and Cultural Rights ... (iii) Right to Self-Determination ... (b) Reinterpretation of existing rights (as rights to life, health, equality, property...) (c) New Human Rights for Environmental Protection (i) Procedural rights ... A procedural or practical approach promises environmental protection essentially by way of democracy and informed debate.... it is very difficult to arrive at a single precise formulation of a substantive right to a decent environment. Therefore, the more flexible, honest, and context-sensitive approach is to endow people with robust procedural rights which will foster open and thoroughgoing debate on the matter.... (ii) Substantive rights...”.

Any kind of classifications we may use, the independent environmental rights are still on the way to come, while there are really promising examples – the jurisprudence of the ECHR refers to the possibility to extend the interpretation of existing first and second generation human rights in the direction of an environmental connotation, and also there is an emerging set of procedural guarantees, although they mostly appear in the European region – Aarhus or EU – and less of a universal character. It is very likely, that the procedural rights’ version may better go through, while still there are serious constraints at the global level – the dubious outcome of the Rio+20 process is a disagreeable message from this respect. There is not too much chance for the substantive environmental rights to be codified in the near future, not even in the level of Council of Europe. Thus the progress of shaping an independent environmental human right – or a set of such rights – is still in the pipeline. There are several promising examples, but the approach of the EU Charter, that is to miss the direct reference to a right, prove how difficult it could be to commit the international community to provide a solid foundation for the environmental interests. The reality to come closer to the human right vision is rather an issue of interpretation – see the ECHR judgments – and less a problem of phrasing. Finally, one more aspect should be articulated, returning to the classification of different options, and that is the human responsibility, coupled with human rights. The duties, obligations are crucial in implementing the rights. In particular, if the inter-and intra-generational equity should also be addressed, the duties are even more imperative. The importance of obligations is clearly

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evident, if one looks at the ECHR case law. The Court articulated the environmental rights in a way to emphasize the role of the governments, public authorities for the safeguarding of environmental interests. The obligations and responsibilities shall be interpreted broadly, as stressed by the preamble of the European Landscape Convention:51 “Believing that the landscape is a key element of individual and social well-being and that its protection, management and planning entail rights and responsibilities for everyone;” As we could already mention, the European Charter on Environment and Health is keen to balance rights and obligations, beginning with the individuals: “2. Every individual has a responsibility to contribute to the protection of the environment, in the interests of his or her own health and the health of others.”

As clearly described by Postiglione:52 “In fact, the question of environmental protection cannot be put in terms of ‘exclusivity’, but in terms of the rational use of resources. The criterion of reference to take into consideration is always an objective right that insures the equal opportunities and duties of every person. ... In the right to the environment of every person, the element of ‘duty’ is not only a natural part of the right but is to be considered prevalent. Procedural aspects (information, participation and access) are, above all, common duties that are not to be considered prevalent in terms of the protection of the individual over the benefit of all.”

There are many efforts to turn more towards obligations and duties as the best means to protect the rights. We may even find documents, such as the Universal Declaration of Human Responsibilities,53 but from a legislative point of view probably the best example is the – unfortunatly failed – attempt within the Council of Europe to draft an environmental right. Here, a fourth generation of human rights is mentioned in connection with the environmental rights,54 put into words by the explanatory memorandum by Mr José Mendes Bota, rapporteur: “12. At present, we are witnessing what could be called a fourth generation of fundamental rights, or a generation of rights and duties for the society of the future. Society as a whole and each individual in particular must pass on a healthy 51

European Landscape Convention.

52 53

Postiglione, A. (2010), pp. 529-530.

A Universal Declaration of Human Responsibilities (Proposal). (We find within the Council personalities, such as Helmut Schmidt, Jimmy Carter, Mihail Gorbacsov, Simon Peres, etc.).

54

Mendes Bota, J., Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment, Draft recommendation adopted unanimously by the committee on 4 September 2009.

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and viable environment to future generations. That is quite simply the principle of solidarity between generations.”

This document is clear in combining the two dimensions of environmental rights: “19. ... It is now generally accepted that the right to a healthy environment includes two complementary dimensions: a procedural and a material or substantive dimension.”

And the constituents of environmental democracy (public participation) are listed as direct elements of such a procedural right: “20. The former is divided into three procedural rights: the right to information, the right to participate in decision making and the right of access to justice in environmental matters. ...”

On the other hand we should be aware again, that “21. The second dimension, that of the material right to a healthy environment, is harder to define. ... In this connection, a number of key principles shared by most member states in the field of environmental protection can already be indicated: the precautionary principle, the principles of prevention and compensation (often in the form of the polluter-pays principle) and the principle of sustainability and respect for the rights of future generations.”

Thus the proposal practically accepts the method of the EU Charter, not necessarily defining the substance, due to the serious ambiguity.



2 Summary

Environmental interests must be reflected somehow as human rights, within the third generation or solidarity rights according to the most popular version of human rights classification. It means that the public authorities or the state as a whole must play an active role in safeguarding the rights in connection with a right to environment, and this activity shall also be backed by the need for an international cooperation. The judgments of the ECHR are clear in this respect, blaming the state for failing to find a fair balance between different interests, and as a consequence, private rights have been infringed. In Dubetska the Court articulates:55

55

Dubestka and Others v Ukraine.

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“141. In cases involving environmental issues, the State must be allowed a wide margin of appreciation and be left a choice between different ways and means of meeting its obligations. The ultimate question before the Court is, however, whether a State has succeeded in striking a fair balance between the competing interests of the individuals affected and the community as a whole (see Hatton and Others, cited above, §§ 100, 119 and 123).”

Of course, the relative indirect protection of environmental rights through the more general provisions of the European human rights convention are very important, but far from providing satisfactory guarantees, and the scope is also limited – the connection between right to life or right to private and family life must be proven, and a rather serious infringement must be demonstrated. The indirect protection of environmental rights must therefore be substituted by some kind of direct protection. This explicit right may help the environmental interests to overcome the major difficulty, as mentioned by the same Dubetska judgment. “105. The Court refers to its well-established case-law that neither Article 8 nor any other provision of the Convention guarantees the right to preservation of the natural environment as such...”.

Nevertheless, the right to environment should not be limited only to the protection of present generations, but should cover the inter- and intra-generational equity issues and should somehow reflect the essence of common good or wellbeing in a larger context. The wide margin of interests, even the interests of ’natural environment as such’, would also mean that it is extremely difficult to provide an easy answer for the substance, to create a substantive right to environment. Even the expression of such a right may be a difficult problem. It should not necessarily mean that we must give up our hopes of finding a common denominator for the environmental rights, but probably we should focus on a less confronting method. One option is to develop procedural guarantees in an appearance of procedural rights. Another option is to focus on the duties, obligations, either in the outline, of a fourth generation of rights. While it is demanding to define, what a ’healthy’ environment should mean, it is much less complicated to prescribe, at least general, duties. Nowadays, the first version has a greater support in law, thus we may even claim that procedural environmental rights exist, that they even have a regional convention and a set of pillars recognized worldwide.

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Public Participation – Human Right or an Instrument of International Administrative Law Marcel Szabó

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public participation – human right or an instrument of international administrative law

According to the majority view, the principle of public participation is the most important cornerstone of democratic international environmental protection.1 At the same time, the rules of public participation under international environmental protection law increasingly refer to the participation of NGOs, while the rights of private persons in shaping the environment is gradually pushed into the background. However, one should not forget that the original concept of public participation is that it is a human right, and human rights can only be related to natural persons and not to civil societies. It would be therefore very fortunate, that while participation rights of NGOs should be even further strengthened, individuals rights should not be forgotten either. In the present article, we attempt to ascertain against the backdrop of the new trends in international environment protection law whether this development entails further advantages for the preservation of our natural heritage or if we are actually striking a path which is doomed to fail.



1 Historical and International Law Origins of Public Participation

Public participation is the basis of democratic governance;2 indeed, it has been the conditio sine qua non of the concept of democracy for thousands of years. It is interesting to note, however, that environmental democracy itself also dates back to relatively ancient times. For example, from the years 1100 and on, the Rüstinger rules applied in the northern states of Europe (i.e. in Danish and certain German areas) already contained rules related to public consultation with regard to human interferences in sea channels and seas. Such rules served both the preservation of the environment as well as the social interest in accordance with the contemporary standard.3 The issue of public participation on the international legal level already emerged with the Universal Declaration of Human Rights. Pursuant to the Declaration, “Everyone has the right to take part in the government of his country”. 4 Both the principle of indirect and direct public participation is set out in the International Covenant on Civil and Political Rights: “Every citizen shall have the right and the opportunity, without any […] distinctions […] and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives”.5 1

Jacobson, H.K and Brown Weiss, E. (1998), p. 3.

2 3

Shelton, D., p. 226.

Rüstinger Rules of Law (1100 A.D.).

4 5

Article 21 of the Universal Declaration of Human Rights.

Article 25 of the International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force: 23 March 1976, in accordance with Article 49.

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With its Article on education, the International Covenant on Economic, Social and Cultural Rights enriches the notion of public participation with a new aspect requiring that education contribute to the effective public participation of well-informed citizens: “education shall enable all persons to participate effectively in a free society”.6 Thus, the provision of the Covenant cited above draws attention to a decisive aspect of public participation, according to which information is an essential condition for the social activity of citizens. Accordingly, the very foundation of public participation is the freedom of receiving information.



2 The Direct Antecedents of the International Rules on Public Participation

The Declaration formulated at the UN Environment and Development Conference constitutes the starting point for almost all international legal principles related to the environment. The first Article of the Declaration already refers to the responsibility of citizens and communities for the protection and development of their natural environment for the benefit of present and future generations. Although the text of the Declaration does not regulate this issue in detail, the sheer reference to citizens gives rise to the assumption that the drafters foresaw the effective action of the individuals in the relevant national dimensions. The next cornerstone of the development of international environmental law, the World Charter for Nature adopted in 1982, further clarifies this point.7 Pursuant to its text, all persons, in accordance with their respective national legislation, shall have the opportunity to participate in the formulation of decisions of direct concern to their environment. The environmental policy of a state and the consequences ensuing therefrom may directly concern not only citizens but also all inhabitants living in the given state. As a result, the World Charter entails the participation of all private persons living in the member states of the UN in rendering decisions significantly affecting their environment in compliance with the relevant national laws. As regards public participation, the real international breakthrough took place in the first half of the 90s. The 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context foresees public participation for the decision on investments entailing significant transboundary environmental impacts.8 6

Article 13 of the International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force: 3 January 1976, in accordance with Article 27.

7

World Charter for Nature Principle 23.

8

Espoo Convention, entry into force: 10 September 1997, in accordance with Article 18 (1).

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Principle 10 of the Rio Declaration of 1992 provides a well-founded definition of public participation: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.” Notwithstanding the fact that the Rio Declaration speaks of the public participation of the citizens, according to certain opinions in scholarly literature, the first clause of the principle, according to which environmental issues are best handled with the participation of all concerned citizens at the relevant level, may possibly include the supranational level as well, in cases where the solution of a complex environmental problem deems it necessary.9 According to scholarly views, Principle 10 of the Rio Declaration sets forth a distilled principle of public participation with rather “hard” normative content.10 Principle 20 and Principle 22 of the Rio Declaration specifically emphasize women’s and indigenous people’s as well as their communities’ right to public participation. The Convention on Biological Diversity11 was also adopted in 1992 at the Rio Earth Summit, which by now has been signed by 193 states. This Convention is considered to be the most widely recognized international agreement, among others containing also the principle of public participation. Pursuant to the provisions of the Convention, the contracting parties shall conduct impact assessments for investments having significant adverse effects on biological diversity, in the course of which citizens’ public participation shall be insured.12 The Convention also highlights the role of women in public participation and their invaluable contribution to conserving biological diversity.13 The document entitled as “Draft Principles on Human Rights and the Environment” was adopted in the Sub-Commission on Prevention of discrimination and Protection of Minorities, in the framework of the UN Commission on Human Rights.14 Pursuant to the draft principles, all persons have the right to timely, clear and accessible information, available without undue financial burden to the applicant.15 All persons have the right to active, free and meaningful participation in planning and decision-making activities and processes that may have an impact on the environment and development.16 All persons have the right to effective remedies and redress in both administrative and judicial proceedings for environmental harm or the threat of such harm.17 It is important to emphasize that there is no restriction in the draft of 1994 on which 9

See in detail Anton, D.K. (1993).

10 11

Mushkat, R. (2002), p. 187.

UN Convention on Biological Diversity (entered into force on 29 December 1993).

12 13

UN Convention on Biological Diversity, Clause (a) of Paragraph 1 of Article 14.

The CBD recognised the “vital role of women in the conservation and sustainable use of biological diversity” and affirmed “the need for the full participation of women at all levels of policy-making and implementation for biological diversity conservation” (Preamble, paragraph 13).

14 15

1994 Draft Principles on Human Rights and the Environment.

Ibid. Principle 15.

16 17

Ibid. Article 18.

Ibid. Principle 20.

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level the persons concerned intend to exercise their right of participation, that is, whether they wish to participate in a decision made at the level of their own state, another state or the international level. The IUCN Draft Covenant 18 on Environment and Development adopted in 1995, states that everybody shall have the right to seek, receive and disseminate information with respect to issues concerning the condition of the environment. A number of environmental principles enshrined in the Rio Declaration prompted the adoption of general environmental international covenants. Thus, it is surprising that no such global legal agreement was concluded with respect to such an essential principle as that contained in Principle 10.19 Yet in 1998 in the Danish city of Aarhus, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted under the framework of the UN Economic Commission for Europe; the Convention entered into force in 2001.20 There are 46 contracting parties to the Convention. Unfortunately, its territorial scope is currently restricted to European states and the successor states of the Soviet Union. All member states of the European Union are contracting parties to the Convention. Kofi Annan was right to call it “the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.”21 The parties to the Convention undertake to ensure public participation with regard to access to information as well as the right to public participation in decision-making, administrative and court review proceedings. The Aarhus Convention is a unique instrument recognizing the existence of the human right to a clean environment.22 According to the provisions of the Convention, the scope of those involved in the decision-making procedure are established by the contracting states themselves resulting in slight differences with regard to certain partial entitlements related to public participation. While access to environmental information shall be ensured generally and without the need to prove personal concern,23 and information related to the condition of the environment may only be refused with strict limitations and only in justified cases, public participation related to projects may be restricted to the scope of participants affected by such projects.24 At the same time, it is set out in the Convention that non-governmental organisations promoting environmental protection shall 18

Article 12 (3) of the IUCN Draft International Covenant on Environment and Development: “All persons, without being required to prove an interest, have the right to seek, receive, and disseminate information on activities or measures adversely affecting or likely to affect the environment and the right to participate in relevant decision-making processes”.

19

Banisar, D. et al. (2012), 12.

20 21

The Aarhus Convention, entered into force on 30 October 2001.

Introduction by Kofi. A. Annan, Former Secretary-General of the United Nations, to the Aarhus Convention.

22 23

See Article 1 of the Convention. Fitzmaurice, M. (2002), p. 17.

Article 5 (1) (c) of the Aarhus Convention.

24

Article 6 of the Aarhus Convention.

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always be deemed to have an interest.25 The principle of non-discrimination is also set out in the Convention. On this basis, a lawyer took recourse to the Compliance Committee when learning that in the contracting state of Tajikistan, a 2003 provision excluded the right of local foreign residents and NGOs to participate in environmental decision-making. In 1998 the European Union also joined the Aarhus Convention and ensured the implementation of the Aarhus norms by the 1367/2006/EC regulation26 with respect to EU institutions and Directives 2003/4/EC of 28 January 200327 and 2003/35/EC of 26 May 200328 addressed to the member states.29 According to the majority view in scholarly literature, the principal aim of the Aarhus Convention was to ensure the entitlements of public participation to environmental NGOs, at the same time, the provisions of the Convention apply to private persons in the very same way.30



3 Theoretical Issues Related to the International Rules of Public Participation

International environmental law scholarship elaborated that the principle of public participation includes three partial entitlements: the right of access to information, the right to participate in decision-making and access to justice. The right pertaining to participation in decision-making, as Dinah Shelton correctly underlined,31 can be divided into two parts: the right to be heard and the right to affect the decisions.32 It may seem surprising that public participation has gained such a paramount role in international environmental law, since the right to a healthy environment as a substantive environmental 25

Articles 2 (5), 9 (2) of the Aarhus Convention.

26 27

Regulation (EC) No 1367/2006, pp. 13-19.

Directive 2003/4/EC, p. 56.

28

Directive 2003/35/EC, pp. 17-25.

29 30

In regard to the access to remedy, the relevant EU directive has not been adopted yet.

“It is notable that the Aarhus Convention makes no comparable attempt to broaden participation. The real emphasis in the Aarhus Convention is on the involvement of NGOs. However, we should always be aware of the dangers of claiming that NGOs ’represent’ anybody, and of the possibility that a small (even if larger than before) number of participants will wrap up important decisions.” See Lee, M. and Abbot, C. (2003), pp. 107-108.

31

Shelton, D., p. 222.

32

Nevertheless, three main elements of public participation are distinguished by the International Law Association. According to the ILA, the three aspects of public participation are: a human right of expression, the ability of participants to hold informed expression and access to justice. See International Law Association (ILA) Resolution 3/2002: ’New Delhi Declaration of Principles of International Law Relating To Sustainable Development’. In: ILA, Report of the Seventieth Conference, New Delhi (London: ILA, 2002)[New Delhi Declaration].

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right has become widely recognized.33 In most states, the framework of the right to a healthy environment is set out in the constitution or other fundamental legal rules. However, there is no consensus either among the states or among the scholars on the origin of the right to a healthy environment and generally of human rights; in addition, the normative content of the same is uncertain, at least on the international level.34 Since the right to a healthy environment is considered to be a third generation right by the majority of constitutional lawyers, scholars generally presume that states shall apply all instruments at their disposal in order to attain this objective. However, since in the case of third generation rights, it is the state which decides on the extent of its room for manoeuvre in achieving such rights, it is impossible to contrast the content of the right to a healthy environment as elaborated under international environmental law with the state’s intentions or views. The common heritage of humanity is an even more uncertain concept – a concept giving rise to collective rights, the content of which is even less evident. As a result of the above, the procedural right of public participation seems to yield more benefits in the ambit of international law than the application of concepts such as the right to a healthy environment or even the common heritage of mankind.



3.1 Public Participation is One of the Cornerstones of International Human Rights

Concurring with the view put forward by Dinah Shelton,35 the author of the present article finds that public participation in environmental issues is recognized under international customary law, notwithstanding the fact that this is disputed by some authors.36 Furthermore, the author agrees also with Nicola Tilche, who claims that public participation may contribute to changing the traditional political logic and practice of “decide, announce, defend”.37 Many think that public participation in itself may bring about more environmental-friendly and well-founded decisions in issues related to the protection of the environment.38 Unfortunately, this claim is difficult to substantiate with facts.39 Still, public participation helps eliminate the social model denominated rational elitism by Dryzek, which, trusting the omnipotence of science, holds that we must always rely on professional expertise in all social decisions. 40 Yet, the methodology of science applied in environmental issues is constantly chang33

See e.g. Sands, P. (1995), pp. 224-230.; Turner, S.J. (2009b), pp. 221-222.

34 35

Fitzmaurice, M. (2002), pp. 2-4.

Shelton, D., p. 226.

36 37

See Fitzmaurice, M. (2002), p. 11.

Tilche, N. (2011), p. 15.

38

See e.g. Brulle, R.J. (2000), pp. 59-64.

39

Coggins, G.C. (1999), p. 602.

40

Dryzek, S.J., p. 89.

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ing, while eco-friendly economics is in its infancy. Public participation is vital for the enhancement of the acceptability of decisions as well as the transparency of governmental or municipal activity. In a world stricken by increasing economic burdens and intensifying human activity, we must find methods for further developing international environmental law and widening the scope of public participation at the international level. In the following, the author seeks to sketch the possibilities for achieving these aims.



4 The Current Best Practices of Public Participation and their Critique



4.1 The Union Implementation of the Aarhus Convention – Strengths and Weaknesses

Before venturing any criticism of the European Union, the EU must be lauded for joining the Aarhus Convention as a contracting party and requiring its member states to implement the Convention. While the majority of the East-Central European countries ratified the Convention in the course of their democratic transformation, this process moved at a slower pace in Western Europe and was only accelerated by the European Union. The implementation of the Aarhus Convention by the EU was, at the same time, somewhat ambiguous. The Aarhus Directive left it to the member states to determine the scope of those who may enforce their right of public participation. 41 The biggest risk inherent in this is that according to the traditional concept of sovereignty, states do not usually provide possibilities for foreign citizens – or sometimes even union citizens – to get involved in decision making, in spite of the fact that this is contrary to Article 3 para 9 of the Aarhus Convention. 42 However, since European integration resulted in a supranational structure transgressing the framework of the nation states and creating a European demos comprising union citizens endowed with equal rights, a uniform EU regulation on the personal scope of public participation should also have been established under the Aarhus Directive. The Aarhus EU Regulation, creating the framework for public participation in the operation of EU institutions, seems even more problematic. Unfortunately, the Regulation set out a rather limited framework, since the right of participation is ensured only for stakeholders and environmental NGOs. 43 This

41

See Article 2 (3) of Directive 2003/35/EC.

42

According to the commmon practice, states usually do not grant decision-making rights to foreign citizens, whereas the Aarhus Convention recognises public participation rights regardless of nationality (Article 3 (9)). See Mason, M. (2010), p. 22.

43

See Article 10 (1) of the Resolution.

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provision excludes the participation of other advocates of environmental justice, who carry out useful work – among others – at the European level. 44 It is at the discretion of the institutions of the European Union to determine the scope of those entitled to public participation. 45 As regards decision-making in environmental issues, the personal scope is narrowed down to environmental NGOs. In the course of exercising their rights concerning public participation, such environmental organisations may only take recourse to the European Court of Justice in case they had previously requested the institutions of the Union to conduct an internal review procedure. Furthermore, private persons are excluded from initiating internal review procedures regarding administrative acts or omissions of the bodies or institutions of the European Union; this rule is contrary to Article 9 para 3 of the Aarhus Convention. 46 Although the possibility of judicial remedy is ensured for NGOs, the European Court of Justice has not completely abandoned its Greenpeace47 jurisprudence. 48 The main case concerned a court proceeding for the revocation of EU funds provided for the planned construction of two coal-fired power plants on the Canary Islands. The claimant pleaded that the failure to conduct an environmental impact assessment gives rise to the revocation of the funds. However, the European Court of Justice dismissed the action on the grounds that Greenpeace and the environmental organisations joining Greenpeace failed to certify properly that they were individually and directly concerned. 49 Based on the above, the transposition of the Aarhus Convention into the European law may be criticized on two points. On the one hand, for the cases of trans-boundary investments the Union has not secured the possibility for all citizens concerned to participate in the decision-making procedure, regardless of the member state in which they reside or of which they are a citizen. Had the European Union extended participation rights in such a wide personal scope, the transposition of the Convention would have indeed been in line with the Aarhus requirements. Unfortunately however, even in issues of EU-wide relevance the European Union refrains from elaborating a Union practice in case these involve the aspects of national sovereignty, notwithstanding the fact that Union measures could better coordinate or facilitate the resolution of national interests, leading to better solutions.50 44 45

Nadal, C. (2008), p. 30.

Article 9 (2) of the Resolution.

46 47

Article 12 (1) of the Resolution.

CFI Order of 9 August 1995, Case T-585/93 Stichting Greenpeace Council and others v Commission; Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and others v Commission.

48

Pallemaerts, M. (2009), p. 33.

49

CFI Order of 9 August 1995, Case T-585/93 Stichting Greenpeace Council and others v Commission, para 49.

50

This approach is by the way also true for the Water Framework Directive, being in other areas particularly forward-looking, which principally concentrates on the water quality and not on the conservation

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4.2 The North-American Agreement on Environmental Cooperation (NAAEC)

The North-American Agreement on Environmental Cooperation (NAAEC) was concluded in 1993.51 The contracting parties to the Environmental Agreement (created as a partner convention to the NAFTA) are Canada, the United States and Mexico. Pursuant to the rules of the Convention, the contracting parties may hold each other accountable for the compliance with voluntarily undertaken environmental rules. Even more significant is the petition procedure open to all citizens of the contracting states, wherein the applicant may submit that a contracting state violated the voluntary undertaken environmental norms.52 The petitions are examined by a joint body consisting of the three Ministers of Environment Protection and – in case the applicant was entitled to submit the petition in question – the body proceeds to examine the facts. Following the assessment of the facts, a factual record is drafted containing the petition of the applicant citizen or environmental organisation, the grounds put forward by the government in violation of the Convention, as well as the most crucial facts of the case.53 It must be pointed out however, that the body is not entitled to decide in favour of either of the parties.54 The objective of the Convention is to create awareness for important environmental issues, inducing the contracting states to comply with their own norms on environmental protection.55 Thus, the Convention does establish a framework for adjudicating the activities of contracting states but it is much rather intended to pressure states into complying with their commitments in the field of environmental protection by the means of social and international publicity.56 The Convention provides the possibilities for both private persons and environmental organisations to submit petitions. However, it is typically the environmental organisations that make use of this possibility. The Convention is a remarkable tool for creating public awareness for transboundary environmental problems with the help of citizens and environmental organizations of the contracting parties. For example, in cases exhibiting facts similar to the famous Canadian-American Trail Smelter case,57 the Convention could facilitate the speedy and practical solution of the same. The Convention also ensures the possibility for private persons and civil organisations to contribof the underground, divided water resources, as those may result in sovereignty problems among the member states. 51

North American Agreement on Environmental Cooperation (entered into force on 1 January 1994). (NAAEC).

52 53

Articles 14, 15 of NAAEC.

Article 15 of NAAEC, at 1489.

54 55

Bugeda, B. (1999), p. 1611.

Chayes , A. et al. (1998), p. 44.

56 57

Goldschmidt, M.R. (2002), pp. 349-350.

 Trail Smelter Case.

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ute to the solution of environmental problems arising in contracting states different from their own nationality or place of establishment. However, it is worth mentioning some weaknesses of the Convention as well. Unfortunately, the material scope of the Convention does not extend to other international commitments of the contracting states, such as the Biodiversity Convention. The Convention only applies to the laws and regulations of the signatory states.58 Second, one of the most important objectives of public participation is to prevent bad environmental decisions. Unfortunately, however, there is no violation under the Convention on the side of the contacting state as long as no decision is taken or no measure is implemented. Until such time, the Commission for Environmental Cooperation (CEC) may not render a decision. It is also unfortunate that although the international body established by the Convention undertakes fact-finding, it may not examine the question of what damage an environmental investment will result in. Instead, the joint body may only deal with the question whether the implementation of the investment is in compliance with the legal order of the given contracting state. Consequently, the contracting state may escape examination by sheer “lawyering.” A good illustration of this is the Mexican port investment where the investment was divided into three separate projects in order to ensure that it did not exceed a certain scale and that stricter environmental procedural rules would not apply.59



4.3 The Rules of Public Participation in Other Parts of the World

The Aarhus Convention and the NAAEC Agreement have afforded important rights to the citizens and civil society organisations of numerous North American and Eurasian states. Unfortunately, the right to public participation in other parts of the world is less rooted in the national and international legal order. Australia and New Zealand have important national rules guaranteeing public participation and, albeit to a lesser extent, the same can be said about many Asian countries as well.60 Nevertheless, there are no relevant international legal documents covering this region, except for some soft law documents. The situation is even less favourable in the countries of the African, Caribbean and Pacific regions where the elaborate rules of public participation are absent on both the level of international and national norms.61 In order for the legal framework of public participation to gain further reinforcement in other parts of the world, it is vital to change the traditional Euro58

See Determination Pursuant to Article 14(1) of the NAAEC (1998).

59

Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo, p. 1.

60

At the same time, it can be considered to be an important achievement that since the 1992 Rio Earth Summit over ninety countries have adopted regulations and framework laws for access to information, including China, Indonesia, Nigeria and Mongolia in the past few years. Besides this, more than eighty countries have the right to information enshrined in their constitutions. See Banisar, D. (2006).

61

Banisar, D. et al. (2012), p. 11.

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pean and North American perspective regarding this right in two important points. The first concept – mistaken from the aspect of the global world order – is the concept of strong environmental civil society organisations, which force the state to comply with environmental norms. Even in Central and Eastern Europe, the activity of the civil sphere in is essentially lagging behind the Western European or the American model, yet in other parts of the world, at the level of the civil society organisations, we can expect even less activity. At the same time, brave private persons may be found everywhere in the world; the right to public participation should therefore be constructed on the basis of the courageous action of the individual in the developing world. This situation could be compared to the jurisprudence of the European Court of Human Rights which yielded outstanding results. Due to the jurisdiction of the European Court of Human Rights, it was never the communities, but much rather the actions brought forward by the private persons who had suffered human rights violations that amounted to a dramatic development of fundamental rights protection in the contracting states of the Convention. Therefore, it may be worth encouraging private persons personally affected by adverse investments or committed to environmental protection and ready to represent their respective environmental interests or views against the state to contribute through their actions to international dimensions of the legal development. The concept of “wise citizen” and the “vicious or unreliable power” also stems from Western European and American thinking. Public participation is not a unilateral process in which the citizen induces the state to take decisions that he or she prefers; this should be much rather interpreted as a synergy, where both the state and the individual learn from the process of cooperation. This is well illustrated by the establishment of the Secretariat of the UN Framework Convention on Climate Change,62 which describes the participation of international environmental organisations as a process contributing to the deepening of the citizens’ knowledge base.63 The UN Convention to Combat Desertification64 may also be considered to be an integrated commitment65 resulting from the cooperation of governmental and non-governmental actors as well as individuals.66 The Convention links the individuals’ access to information to the objective of facilitating the acquisition of knowledge related to the innovative technologies. Consequently, the multi-directional process of the public reveals the common responsibility of both the individual and the state. 62 63

Climate Change Convention.

UNFCCC Subsidiary Body for Implementation (2004).

64 65

Desertification Convention.

Shelton, D., p. 223.

66

The Convention provides for “effective participation at the local, national and regional levels of nongovernmental organizations and local populations […] in policy planning, decision-making, and implementation and review of national action programmes”. See Article 10 (2) (f) of the Convention.

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5 The Way Forward: Transboundary Public Participation

Potentially, the state may guarantee participation rights – that is, access to information, making oneself heard in the course of rendering environmental decisions, access to administrative review or judicial proceedings – to the following personal scope: citizens potentially affected by the impact on the environment, • residents of the state affected by the potential impact on the environment, • persons residing on the territory of the state affected by the potential environmental impact, independently of their citizenship, • all citizens, independently of being affected by the impact of a potential environmental decision, • all persons residing in the country, • all persons potentially affected by the environmental impact, independently of whether he or she lives in the territory of the state or in part of the territory of another state potentially affected by the environmental impact, • anyone else. In the ambit of the rights to public participation, states are generally more lenient in guaranteeing access to information, while restricting participation in decision-making to their respective political community. The future development of international environmental law is expected to extend access to information regarding the environment to the widest possible personal scope with the least restrictions. At the same time, participation in decision-making and the related right to initiate judicial and administrative proceedings should be extended to all persons, irrespective of citizenship, whose environmental rights or interests are affected by the decision. Based on the above, we may assume that the greatest challenge facing effective public participation lies in establishing the framework and broadening the scope of transnational public participation possibilities. However, numerous examples have shown that there has been considerable development in this field which should be carefully and systematically assessed by scholarship to promote further legal trends.67



5.1 The Possibilities of Private Persons for Transnational Public Participation

As regards private persons, three favourable tendencies can be observed, the further development of which would be most desirable.



5.1.1 Private Litigation

In cases of transboundary environmental damage, the European Court of Justice allows the injured party to choose the judicial forum in 67

Mikadze, K. (2012), pp. 1393-1394.

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which he or she intends to take recourse. Accordingly, in the Cockerill Sambre case,68 a group of environmentalist civil society organisations and private persons sued a Belgian company before a Dutch court for contaminating the river Meuse, since the contamination led to adverse environmental impacts in the Netherlands as well. Although the aforementioned case was pleaded principally by civil society organisations, the judicial route may also be open for private persons in similar cases. Consequently, we can be hopeful that the internationalization of public participation may be served by recourse to national courts in justified and substantiated transnational environmental cases.



5.1.2 Civil Participation in Consultative Bodies

For the solution of sensitive environmental issues, it is necessary to establish a trans-boundary public sphere.69 An excellent example for this effort are the more than forty Public Advisory Committees established in the US and Canada in relation to the Great Lakes and the Saint Lawrence River. Private persons and members of local communities may participate in such committees. Furthermore, the public advisory committees of the Lakes Erie and Superior have bi-national membership.70 A Joint Public Advisory Committee (JPAC) also operates under NAAEC. Each state party delegates 5 members to the Committee, ensuring a broad representation of environmental and civil society interests. Trans-boundary cooperation, the dialogue of private persons represents new forms of social dialogue, which serve as role models for other countries as well.



5.1.3 Civil Action Related to the Financing Activity of Banks

In a great number of cases the financing activity of banks contributed to the significant deterioration of the environment, therefore, both environmental organisations and private persons try to impugn and prevent inappropriate investments, especially where private persons are personally affected by the activity of the bank. Major banks, as well as the member of the UN family, the World Bank, have recognized this problem and are exploring possibilities for remedy. The World Bank Inspection Panel intends to provide assistance in particular to those private persons whose interests had been violated through an action or omission of the bank.71 Private persons living in the areas affected can make effective use of the procedure for preventing investments that could cause significant environmental damage. 68

The Cockerill Sambre case.

69 70 71

Fraser, N. (2007), p. 7.

Klinke, A. (2012), pp. 87-89.

Rodgers Kalas, P. and Herwig, A. (2000), p. 58.

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Private persons or NGOs may also ask that the Access to Information Appeals Board operating under the framework of the World Bank request the actors financed by the World Bank to make public certain details of their investment.72 In exchange for the financing, the World Bank may oblige the economic actors concerned to make public the details thus requested. A significant group of private banks, comprising 78 member banks from altogether 35 states, adopted so-called Equator Principles with regard to project financing, aimed at expressing the banks’ commitment to transparent operation and the safeguarding of the environment. In case the activity of the banks may be harmful to the environment, private persons or environmental organisations may turn to the banks for violation of these principles. The banks make an inquiry into the case, and, if necessary, modify their activity.



6 En Route to Implementation of International Agreements on Environmental Protection and the Enforcement of International Environmental Law



6.1 Participation of NGOs in the Implementation of International Conventions

NGOs are the most useful stakeholders in global environmental governance since they create social awareness both at the international level and in the states violating an international agreement, which may in itself be sufficient for prompting the state to terminate the breach. International organisations have recognized and benefited from the participation of NGOs. For quite some time this only took the form of a sort of ex gratia generosity,73 that is, the toleration of NGOs participating in the conference of the parties’, often as members of the delegations of contracting states.74 However, various international agreements provide for a more active form of public participation, e.g. under FAO, environmental organisations may obtain a consultative status,75 while the UN Environment Program (UNEP) elaborated express guidelines for the participation of civil society organisations. Other organisations, such as the International Conference on Chemicals Management (ICCM) allows for civil and social organisations to be present in its sessions, whereas the NAFTA CEC committee provides personal and online information and video coverage of its sessions in order to facilitate the dissemi72 73

Access to Information: Al Appeals Board.

Wirth, D.A. (1996), pp. 2-3.

74

As Rosenau mentions, the decisions “may be formally adopted by the votes of states […] their substance is in many ways a product of pressures from outside to which they have been subjected by diverse nongovernmental constituencies.” See Rosenau, J.N. (1997), p. 250.

75

Anton, D.K. (2008), pp. 9-13. Yale/UNITAR Conference on Environmental Governance and Democracy, May 2008.

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nation of information to environmental NGOs and to further public participation.76 Under the Biodiversity Convention, civil society organisations coordinate their activities with the organisation in the framework of the group entitled “Friends of the Chair.” Thus, the participation and presence of NGOs in the work of international organisations may also be deemed an important form of public participation. Moving beyond the toleration of the mere presence of NGOs, cooperation with such organisations is actually the main focus of certain international organisations. For example, a significant proportion of the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal77 was elaborated by NGOs and Greenpeace played an important part in revealing the delivery routes of hazardous materials from OECD countries to non-OECD countries to facilitate the work of the organisation. Under the World Heritage Convention,78 three NGOs obtained official status, actively participating in the enforcement of the Convention’s objectives,79 while the operation of the CITES Convention80 would be impossible without the partner NGOs. These cases illustrate the cooperative partnership between international organizations and NGOs, without which the work of the former would be much less efficient.81 In global environmental governance we must underline the “tremendous contribution and increasing involvement of civil society actors and the private sector […] as ‘motors’ of international environmental policy-making through setting agendas, drafting treaties, providing scientific information and monitoring implementation.”82



6.3 Environmental Civil Society Organisations Before the Courts: Amicus Curiae Briefs

Environmental civil organisations contribute to international enforcement in a number of cases by submitting amicus brief petitions assisting international courts in rendering their decisions. For example, under the system of WTO dispute resolution, an NGO supported the US position banning the use of nets gathering shrimps because the nets led to the death of tortoises en masse.83 The WTO Appellate Body adopted an additional working document in the Asbestos case84 as well, under which they accepted amicus brief petitions 76 77

Werksman, J. and Foti, J. (2011), pp. 6-7.

Basel Convention.

78

World Heritage Convention, entered into force on 17 December 1975.

79

Article 8 at para. 3 of the World Heritage Convention.

80 81

CITES.

Jacobson, H.K and Brown Weiss, E. (1998a), p. 545.

82 83

Najam, A. (1999), p. 142.

United States – Import Prohibition of Certain Shrimp and Shrimp Products.

84

European Communities – Measures Affecting Asbestos and Asbestos-Containing Products. For a comprehensive assessment, see Cordonier Segger, M.-C. and Gehring, M.W. (2003), pp. 289-321.

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from NGOs. Not only the WTO but also the UNCITRAL and the NAFTA allow for the submission of amicus briefs, while the International Criminal Court also provided for this possibility in Section 103 of its Rules of Procedure and Evidence. Thus, NGOs can also contribute to the judicial enforcement of environmental law through their specific professional activity.



7 Conclusion

We have outlined the development of the rules of public participation in order to analyse possible paths for the future development of international environmental law. It can be established that the rules on public participation were formulated very decisively and efficient mechanisms were created for their enforcement. Unfortunately however, in other parts of the world, the use of the complete spectrum of rights related to public participation has not become a recognized element of national law and a number of countries have not even undertaken international legal obligations for enforcing the rules related to public participation. This study attempted to draw attention to the fact that a Western European and North American inspired view was integrated into the interpretation of the rules related to public participation, which considers the activity of environmental civil society organisations and their impact on the state the most important element of public participation. In the interest of the consolidation of the rules of public participation in the specific legal systems, the human rights approach towards the private persons’ access to information, participation in decision-making and recourse to judicial channels should not be set aside. Individual initiative plays a far more important role in newly established democratic societies than in other parts of the world, due to the fact that civil society organisations and their networks are much less developed in these states than in Western Europe or North America. Consequently, the human rights approach to public participation may lead to the further development of this area in countries where no breakthrough has been achieved in achieving environmental democracy. In the second part of the article, we intended to emphasize that there is still a lot of room for the further development of rights related to public participation, even in states where the civil society basis of environmental democracy is strong. The path for further development, regarding both private persons and environmental organisations, is closely tied to achieving international public participation. Private persons can contribute to the creation of an international public sphere in particular through participation in international social advisory committees, while the cooperation of environmental organizations with international organizations and judicial forums may lead to a more efficient international environmental governance.

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Public Participation under Article 6 of the Aarhus Convention Role in Tiered Decision-Making and Scope of Application Jerzy Jendrośka*

chapter 6

public participation under article 6 of the aarhus convention

The chapter aims to present the main legal issues related to implementation of the public participation provisions under Article 6 of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters signed in Aarhus in June 1998 (Aarhus Convention). To this end, it briefly presents the scope and legal nature of the relevant provisions of the Aarhus Convention against the rest of the public participation provisions of the Convention and the approach to so-called tiered decision-making focusing on the place of public participation within the decision-making with the aim of providing “early public participation”. In this context, the chapter attempts to present the scope of application of Article 6 by providing a brief analysis of the legal nature and characteristic features of the decisions covered by this article in the context of multiple decision-making. This is complemented with presenting some observations regarding the scope of activities covered by Article 6. The attention of this chapter is focused on selected topics, mostly related to issues brought to the attention of the Aarhus Compliance Committee.1 The discussion is therefore illustrated by, and sometimes even based on, the relevant opinions of the Compliance Committee. Another source of inspiration for this contribution comes from the experience of the author as the legal consultant responsible for the preparation of the draft Recommendations on Public Participation prepared under the auspices of the Task Force on Public Participation in Decision-making of the Aarhus Convention. The discussion in this chapter does not attempt to provide a comprehensive coverage of all the issues potentially involved; in particular, it does not address the issues related to the implementation of the respective provisions of the Aarhus Convention into the European Union (EU) law as well as issues related to public participation in GMO decisions, which both deserve a separate account. .



1 Article 6 and its Role in the Second Pillar of the Convention

Legal framework for public participation under the Aarhus Convention (constituting so-called “second pillar” of the Convention) includes a couple of different legal regimes, which are meant to match a typical structure of environmental decision-making.2 On top of the structure there are decisions taken during the preparation of policies and of executive regulations and other generally applicable legally binding normative instruments. These all set the framework within which more detailed and focused strategic decisions in the *

Author is a member of the Aarhus Compliance Committee. The views however expressed in this Article are his personal ones and, unless clearly marked as such, should not be considered as the views of the Committee.

1 For more on the Aarhus Cconvention Compliance Committe, see Koester, V. (2005) or Kravchenko, S. (2007) or Jendrośka, J. (2011a). 2

For more on the concept of “environmental decision-making” in the Convention see Jendrośka, J. (2011b), pp. 94-99.

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form of plans and programs are taken. These in turn set the framework for decisions regarding specific activities. The need for and details of public participation in relation to each of the above mentioned types of decision-making were heavily discussed during the negotiations leading to the Aarhus Convention. The opinions diverged and therefore the negotiations resulted in slightly different legal regimes applied to each of them.3 The legal scheme in Article 6 related to public participation in decision-making on specific activities is by far the most detailed one. This is quite understandable because in this respect, already before the Aarhus Convention, there had been some pieces of legislation in some countries and even at the Community level and international level, which in fact gave a lot of inspiration for drafting respective provisions of the Aarhus Convention. 4 Bearing in mind the experience with the pre-existing pieces of legislation, the initial approach towards drafting the Convention assumed merely elaborating the legal scheme for public participation in decision-making on specific activities and, only during the negotiations, did it become apparent that a more comprehensive approach was needed to cover also “upper tiers” of decisionmaking.5 Thus, the “strategic decisions” were also covered, and in addition to Article 6 covering specific activities, also Article 7 and Article 8 complemented the second pillar of the Convention dealing with public participation in decision-making, albeit with less elaborated legal scheme and with legally binding language only in relation to plans and programs. While Articles 7 and 8 include visibly less elaborate legal scheme, nevertheless in both cases the legal scheme is based on the main elements of the legal scheme envisaged in Article 6. Furthermore, the legal scheme in relation to plans and programs in Article 7 clearly refers to some provisions of Article 6, which causes some problems with interpretation, in particular in the context of Article 9 paragraph 2 of the Convention concerning access to justice.6



2 Decisions under Article 6 and Decisions under Articles 7 and 8 of the Convention

The Convention does not establish precise boundaries between different types of decisions covered by its second pillar concerning public participation. The issue, in particular in relation to Article 6-type decisions and Article 7-type decisions, was subject to examination by the Compliance Committee,7 which has come to the conclusion, consistently held in its findings that, in determining how to categorise the relevant decisions under the Convention, their labels under the domestic law of the Party are not decisive. Rather, 3

More on the negotiations in this respect see Jendrośka, J. (2011b), pp. 93-95.

4 5

See Jendrośka, J. (2005).

See more on this in Jendrośka, J. (2011b), pp. 94-95.

6 7

See Jendrośka, J. (2009), p. 500.

ACCC/C/2004/8 (Armenia), para. 28.

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this is to be determined on the basis of the legal functions and effects of the decisions.8 In this context worth mentioning are certain differences in the approach to designing each of the various legal schemes for public participation in the Convention. Apart from the already mentioned differences related to the legal nature of obligations,9 there are also differences as to the scope of application and role in the decision-making. The scope of application of Article 7 and Article 8 is quite clearly indicated therein. The legal schemes in Article 7 for plans and programs and for policies differ as to the legal nature and level of details but it is clearly stipulated that they apply to plans, programs and policies “relating to the environment”. Similarly, it is clearly stipulated that obligations under Article 8 (however weak they are) apply during the preparation of executive regulations and/or generally applicable legally binding normative instruments “which may have a significant effect on the environment”. Neither Article 7 nor Article 8 envisage any list of categories of respectively, plans, programs, policies “relating to the environment” or executive regulations and/or generally applicable legally binding normative instruments “which may have a significant effect on the environment”. Thus, both Article 7 and Article 8 must be interpreted as covering respectively all plans, programs and policies “relating to the environment” and all executive regulations and/or generally applicable legally binding normative instruments “which may have a significant effect on the environment”. Furthermore, the concept of activities “which may have a significant effect on the environment”, while not defined in the Convention, is relatively well known; in particular, it is widely used in the context of legal regimes related to environmental assessments. The concept of activities “relating to the environment” is rather original, yet not defined in the Convention either. The Aarhus Convention Implementation Guide of 2000 interpreted this as carrying a “slightly higher standard” as compared with the concept of activities “which may have a significant effect on the environment”.10 Following some interpretations in the doctrine,11 the Aarhus Convention Implementation Guide of 2013 provides a list of types of plans, programmes and policies which “may” be considered as “relating to the environment”.12 It must be noted however that the word “may” used in the Guide in this context is not adequate because in fact in the light of the abovementioned interpretations in the doctrine, the types of plans, programs and policies mentioned in the list “shall” (and not “may”) be considered as “relating to the environment”. As opposed to Article 7 and 8 of the Convention, in case of Article 6 the scope of its application is far from clear. It is commonly known that the scheme 8

ACCC/C/2005/11 (Belgium), para. 29.

9

See Jendrośka, J. (2011b), pp. 95 -99.

10 11

Aarhus Convention Implementation Guide (2000), p. 115.

 Jendrośka, J. (2009), pp. 507-510.

12

Aarhus Convention Implementation Guide (2013), pp. 182-183.

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of Article 6 and scope of its application was generally based on Directive 85/337 (EIA Directive), IED/IPPC Directive, and Espoo Convention. While following this, it is already well accepted view that Article 6 generally applies to specific activities “which may have a significant effect on the environment”,13 it is not clear whether it applies to all such activities and to all decisions related to such activities. The legal scheme in Article 6 is diversified in this respect and requires certain analysis and interpretation (see below). Regardless however of the precise scope of application of Article 6, the legal nature of the decisions covered by this Article and their role in structure of environmental decision-making (as opposed to decisions and activities covered by Article 7 and 8 of the Convention) is generally well known. As already mentioned above, Article 6 covers the decisions at the bottom of the chain of decision-making. Therefore before entering into the discussion about the precise scope of activities and decisions covered, worth discussion is the implementation of the requirement for “early public participation” in the light of the role of decisions on specific activities in the concept of tiered decision-making.



3 The Requirement for “Early Public Participation”, the Concept of Tiered Decision-Making and the “Zero” Option

The Convention in Article 6(4) requires that “[e]ach Party shall provide for early public participation, when all options are open and effective public participation can take place”. This requirement applies also to decisions under Articles 7 and 8.14 By establishing this requirement the Convention attempts to address the problem of public participation coming too late during the decision-making process which is one of the key shortcomings of the traditional mechanisms of public participation.15 There is however a number of questions regarding the legal meaning and scope of this obligation as well as a number of challenges related to implementing this obligation. First of all, it must be observed that in most countries the national legal framework for environmentally relevant decision-making involves a number of various decisions, often of various legal nature and undertaken by different authorities. It consists of both strategic decisions under Articles 7 or 8 of the Convention (policies, plans, programmes, legislation/regulations) and individual decisions under Article 6 of the Convention. Thus, the first question to be addressed is whether the requirement to provide “early public participation, when all options are open and effective public participation can take place” is related to the entire national framework for decision-making or rather to each and every one of the decisions within this framework or maybe to both. 13

See Jendrośka, J. (2011b), p. 95.

14 15

 Jendrośka, J. (2011b), p. 133.

For more on this issue see Jendrośka, J. (2011b), pp. 97-99 and pp. 133-136.

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The answer to this question provided by the Aarhus Compliance Committee was that in principle this obligation applies to both situations. In case ACCC/C/2006/16 (Lithuania), the Committee made an observation that: “[the] requirement for ‘early public participation when all options are open’ should be seen first of all within a concept of tiered decision-making, whereby at each stage of decision-making certain options are discussed and selected with the participation of the public and each consecutive stage of decision-making addresses only the issues within the option already selected at the preceding stage. Thus, taking into account the particular needs of a given country and the subject matter of the decision-making, each Party has a certain discretion as to which range of options is to be discussed at each stage of the decision-making. Such stages may involve various consecutive strategic decisions under article 7 of the Convention (policies, plans and programmes) and various individual decisions under article 6 of the Convention authorizing the basic parameters and location of a specific activity, its technical design, and finally its technological details related to specific environmental standards. Within each and every such procedure where public participation is required, it should be provided early in the procedure, when all options are open and effective public participation can take place.”16

As far as the application of this obligation to individual procedures is concerned, the major issue is its application to environmental impact assessment procedures (whether EIA or SEA), in particular in relation to so-called scoping stage of such procedures when the scope of analysis and studies in the assessment documentation is determined including quite often also the scope of alternatives to be examined. The issue was raised on several occasions in the cases under the Compliance Committee which, without giving a clear opinion in this respect, found useful to note that it “welcomes the approach of the Lithuanian law which envisages public participation at the stage of scoping. This appears to provide for early public participation in EIA decision-making”.17 The issue is discussed more in detail elsewhere,18 so in this place it is sufficient to mention that for legal frameworks which apply scoping as a separate stage in the environmental assessment procedure, it seems to be indeed this early stage of the procedure where all options available during this procedure are still open and therefore, in accordance with the Convention, public participation should be provided. On the other hand it must be clearly indicated that providing opportunities for the public at the scoping stage alone would not be sufficient to satisfy the requirements of the Convention if it would not be complemented with the possibility to participate also at the stage when the assessment documentation is available. As far as the application of the obligation regarding “early public participation, when all options are open and effective public participation can take place” is related to the entire national framework – it must be noted that the 16 17

ACCC/C/2006/16 (Lithuania), para. 71.

ACCC/C/2006/16 (Lithuania), ECE/MP.PP/2008/5/Add.6, para. 73.

18

See Jendrośka, J. (2011b), pp. 135-137.

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above quoted observation of the Compliance Committee refers to the concept of “tiered decision-making” and assumes existence of certain hierarchy of decisionmaking. This however is not always the case. In many countries the national legal framework consists of a number of various decisions without clear hierarchy between them in terms of their timing and mutual relationship. Sometimes this framework is so far from being “clear, transparent and consistent” that this amounts to non-compliance with Article 3 paragraph 1 of the Aarhus Convention.19 Furthermore, they often have different names, which do not always properly reflect their legal nature and the role in the decision-making. Bearing in mind the mentioned above diversity of legal regimes envisaged in the second pillar of the Aarhus Convention, this fact often causes some problems in determining the scope of obligations applicable in a given case. Therefore the Aarhus Compliance Committee found that this must be determined on a contextual basis, taking into account the legal effects of each decision.20 Even in the national systems based on the above described concept of “tiering” assuring “early public participation…” is not always easy. The biggest challenge currently relates to the technological choices or application of modern technologies of high risk and unknown potential effects like for example fracking, carbon capture and storage (CCS) or so-called geo-engineering projects as well as to technologies which are relatively well-known but which are extremely sensitive (like for example nuclear energy or wind-mill energy). Quite often, even in the national systems based on the concept of “tiering”, there is no clarity at which of the consecutive stages the decision is actually taken as to the very need for the proposed technology to be applied. Quite often the only possibility for the public to raise this issue is at the latest stages of the decision-making when taking decisions regarding location or technological details of specific projects. At this stage however usually most of the options have already been closed and the decision is predetermined by choices made at earlier stages. This results in frustration and sometimes leads to illegal forms of public protests. In the light of the above and further to some opinions of the Aarhus Compliance Committee,21 it seems obvious that the public should have a possibility to discuss the nature of and need for the proposed activity at all (the so called “zero option”). Furthermore this possibility should be provided at the earliest stage of the entire decision-making, when it is genuinely still open for the project not to proceed.22 This would not only satisfy the requirements of the Convention regarding “early public participation” but also serve well the interests of devel19

See for example findings in ACCC/C/2005/12 (Albania).

20 21

For more on this issue see Jendrośka, J. (2011b), pp. 114-118.

Compliance with regard to Lithuania, ACCC/C/2006/16, para. 74; Compliance with regard to the European Commission, ACCC/C/2006/17, para. 51; Compliance with regard to Slovakia, ACCC/C/2009/41, para. 61 and 63.

22

Compliance with regard to Lithuania, ACCC/C/2006/16, para. 74.

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oper, who should be certain as to the future of their projects before investing significant resources to develop their technical design. It must be noted here that the above discussion must be seen in the wider context. A recommendation to discuss the “zero option” with the public at the earliest stage of the entire decision-making means in most countries discussing it at the level of “policy-making”. However, the legal scheme for public participation in relation to “policy-making” is rather weak in the Convention. Respective provisions of Article 7 are neither binding nor detailed enough. Furthermore, as opposed to specific decisions subject to Article 6, where a legal scheme for public participation is complemented with the legal scheme for related access to justice under Article 9 paragraph 2, the legal scheme in Article 7 for public participation in relation to policies is not complemented with a clear obligation to provide access to justice in this respect. Following the above features of the Convention, in many countries the framework for public participation in the preparation of policies is not always sufficiently detailed and comprehensive, and quite often is based on practical arrangements that are far from being binding. Furthermore, the public rarely has sufficient (if at all) access to justice to challenge such policy decisions. This results in a situation where even if there is a clarity as to which stage a strategic decision regarding “zero option” is taken and even if the public had proper possibilities to participate – the only possibility for access to justice is provided in relation to the specific decision at the end of the decision-making process when this is too late for challenging the respective strategic decision regarding “zero option”. The above described situation where access to justice comes too late reflects one spectrum of a wider problem, in particular encountered in many countries in Central Europe, where access to justice in environmental matters comes either too late or too early in order to sufficiently support the scheme for public participation. The issue is particularly visible in legal frameworks envisaging a number of individual decisions regarding specific activities, for which it is difficult to establish which of them actually permits the activity. Worth noting in this context is an attempt undertaken in the United Kingdom to address the above described problems with the “zero option”. The Planning Act 2008 introduced a new process for decision-making on so-called “nationally significant” infrastructure projects (NSIP) for energy, transport, water and waste. The key element of this decision-making is issuance of so-called “national policy statements” (NSP) which are meant to serve as blueprints for decision-making on individual applications for development consent for the relevant types of infrastructure. Without attempting here to assess this new scheme in terms of its compliance with the Convention and its effectiveness,23 one needs to note that the scheme provides for not only possibilities for public participation but also for access to justice which both seem to be provided at the very early stage of decision-making when indeed all options are 23

The issue is subject to the outcome of pending case ACCC/C/2012/77 (UK).

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open and the very nature of and the need for certain activities (technologies) is being decided upon.



4 Legal Nature of Decisions under Article 6

As already mentioned, the Convention does not establish precise boundaries between different types of decisions covered by its second pillar concerning public participation. However, as also already mentioned, the nature of Article 6–type decisions is relatively well recognized. It should be seen in the context of the entire Article 6 and in comparison to strategic decisions covered by Articles 7 and 8. Of particular assistance in recognising the nature of the decisions in Article 6 is paragraph 2(a) relating to “the application on which a decision will be taken,” and paragraph 6(a) relating to the site of the proposed activity. Following this, the Compliance Committee found out that characteristic feature of an Article 6-type decision is that it concerns carrying out a specific activity in a particular place by or on behalf of a specific applicant.24 On another occasion, the Committee observed that the very title of the Convention (ending with the words “in environmental matters”) implied that even though it was not spelled out in Article 6, the decisions under this Article should be at the very least environment-related.25 Following the above and some views expressed in the literature, 26 it may be concluded that a decision that falls within the ambit of Article 6 is typically: • an individual decision issued by an administrative organ, • usually upon an individual application by an individual or entity (such as a developer or operator of an existing installation), • setting certain environment-related conditions for a specific activity/project/ installation, • in a specific location, and • usually following the general requirements set by the plans or programmes setting the framework for such activities. From the above features it is obvious that Article 6 covers only regulatory decisions which are environment-related. Thus it does not cover regulatory decisions which are not environment-related, like for example decisions related to taxation, statistics or trade. It also, as confirmed by Compliance Committee, does not cover non-regulatory decisions in form of public or private contracts or agreements, even if they are environment-related.27 24 25

ACCC/C/2005/11 (Belgium), ACCC/C/2005/12 (Albania), para. 67.

ACCC/C/2006/16 (Lithuania), para 41.

26 27

 Jendrośka, J. (2009).

For a review of respective opinions of the Compliance Committee see Jendrośka, J. (2011b), pp. 115-116.

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Worth noting is certain differences in defining the decisions subject to subparagraph (a) and subparagraph (b) in paragraph 1 of Article 6. While subparagraph (a) refers to “decisions on whether to permit”, subparagraph (b) refers to “decisions on” proposed activities. The difference in defining the decisions subject to subparagraph (a) and subparagraph (b) may – or may not – reflect any purposeful differentiation as to the nature of these two types of decisions. The Aarhus Compliance Committee as yet has not clearly reflected on this difference between subparagraphs (a) and (b), perhaps due to the fact that it have not as yet had to undertake a comprehensive examination of the legal scheme envisaged in subparagraph (b). The Aarhus Convention Implementation Guide seems to be providing arguments for both interpretations.28 One interpretation, implicitly suggested by the Aarhus Convention Implementation Guide, is that there is a difference as to the nature of the decisions subject to subparagraph (a) and subparagraph (b). The difference, according to the Guide, reflects the fact that the activities listed in annex I, because of their recognized environmental significance, can be expected to be the subject of sophisticated permitting procedures, whereas the kinds of activities falling under subparagraph (b) might not ordinarily be subject to fully developed permitting procedures.29 The Guide however does not elaborate further on this differentiation, and, in particular does not explain what are the criteria for recognising “sophisticated permitting procedures” as opposed to those which are not “fully developed permitting procedures”. On the other hand, the Aarhus Convention Implementation Guide clearly states30 that the legal scheme for subparagraphs (a) and (b) is based on the scheme applied under Directive 85/337 (EIA Directive).31 Since in the Directive 85/337 (EIA Directive) there is no difference in the approach to the decisions (development consents) depending on whether it relates to Annex I or Annex II projects – there seem to be reasons to argue that the same applies to decisions under Article 1 paragraph 1 subparagraphs (a) and (b). Thus, following this line of reasoning, the very nature of these decisions is exactly the same and the only difference is that in paragraph 1(a) there is a list of types of activities subject to Article 6 while in case of paragraph 1(b), there is no list but a screening mechanism for any other proposed activity “which may have a significant effect on the environment”. According to this interpretation the reference to permitting in subparagraph (a) is meant to underline the regulatory nature of the decisions, while in subparagraph (b) due to a slightly different formulation, the reference to permitting was omitted but their legal nature is deemed to be the same. 28

See Aarhus Convention Implementation Guide (2013), p. 129-130.

29 30

Aarhus Convention Implementation Guide (2013), p. 129-130.

Which indeed can be confirmed by the personal memory of the current author who served as vice-chair of the negotiations.

31

At the time of negotiations of the Convention it was EC Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.

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In order to assess which of the above interpretations seems to be more convincing one needs to consider the issue in the wider context, in particular in the light of so-called “multiple decision-making”.



5 Application of Article 6 to Multiple Decision-Making

It is well known fact that Parties to the Convention in their national legal frameworks provide a variety of approaches to regulatory control of activities subject to Article 6, including in relation to those listed in Annex I of the Convention.32 The question therefore arises whether the requirements of Article 6 of the Convention should be applied in relation to all decisions on whether to permit proposed activities listed in Annex I of the Convention or only to some of them. In most countries there is an array of environment-related regulatory decisions required to be obtained before commencement of an activity. First of all, there are a number of decisions having a character of development consent, mostly required in relation to siting (usually called location or siting decision) and construction (usually called construction permit and/or approval of architectural/technical design). Apart from this, there are a number of decisions required in relation to use of natural resources (various water abstraction permits, mining licenses, forest licenses etc.). They both are quite often accompanied by separate decisions allowing the cutting of trees or bushes and decisions to kill wild animals (for example for killing birds). On top of this in most countries, there are a number of decisions related to pollution control and nuisances (differently called permits regarding air, wastewater, noise, waste etc.). The above decisions are issued at different levels of governmental structure and by different authorities (not only by specialised environmental authorities but also for example by planning or construction authorities or authorities with general administrative competence in a given area). They all are binding and mandatory but may have different names and sometimes varied legal natures. Some of them are required to be obtained only before commencing an activity (like decisions related to siting and construction) and once obtained, unless any changes are proposed, are valid for an undetermined period of time. Most of the other decisions however are valid only for a limited period of time. The Aarhus Compliance Committee, having been confronted with this issue in a number of different cases with respect to regulatory control of activities listed in annex I of the Convention, has had to address the question as to whether the Convention requires the public participation procedures set out in Article 6, paragraphs 2 to 10, to be applied in all, or all environment-related, permitting processes or just some of them. The Committee therefore already in 2005 in its report to the Meeting of the Parties at its II session (MOP II) indicated that: 32

ACCC/C/2006/17 (European Community).

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“there would be value in developing guidance on the scope of the permitting processes in which the public participation procedures set out in article 6 should apply, i.e. the extent to which such processes should be environmental in character and what ‘environmental’ would mean in this context, having in mind the environmental focus of the Convention. It has therefore recommended that the Working Group of the Parties should be mandated to develop such guidance and to present it for endorsement by the Parties at their third meeting”.

As no such guidance has been elaborated as yet the Committee has had to develop its own interpretation in this respect. In case ACCC/C/2006/17 (European Community) the Committee attempted to elaborate a comprehensive approach regarding application of Article 6 to multiple permitting. Generally the Committee observed that “[n]ot all decisions required within national frameworks of regulatory control should necessarily be considered as “decisions on whether to permit proposed activities”. On the other hand, this does not mean that there is necessarily only one such a decision “to permit proposed activities”. In fact, many national frameworks require more than one such permitting decision.”33 In the light of this general observation the Committee found that it did not: “consider that article 6 necessarily requires that the full range of public participation requirements set out in paragraphs 2 to 10 of the article be applied for each and every decision on whether to permit an activity of a type covered by paragraph 1. First, the very title of the Convention (ending with the words ‘in environmental matters’) implies that even though it is not spelled out in article 6, the permitting decisions should at the very least be environment-related. Second, even within the environment-related permitting decisions that might be required before a given activity may proceed, there may be large variations in their significance and/or environmental relevance. Some such decisions might be of minor or peripheral importance, or be of limited environmental relevance, therefore not meriting a full-scale public participation procedure.”34

On the other hand, the Committee made it clear that it did not: “consider that where several permitting decisions are required in order for an activity covered by article 6, paragraph 1, to proceed, it is necessarily sufficient for the purposes of meeting the requirements of article 6 to apply the public participation procedure set out in it to just one of those permitting decisions. Where one permitting decision embraces all significant environmental implications of the activity in question, it might be sufficient. However, where significant environmental aspects are dispersed between different permitting decisions, it would clearly

33

ACCC/C/2006/17 (European Community), para. 43.

34

ACCC/C/2006/17 (European Community), para. 41.

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not be sufficient to provide for full-fledged public participation only in one of those decisions.”35

On the basis of the above observations the Committee considered: “that some kind of significance test, to be applied at the national level on a caseby-case basis, is the most appropriate way to understand the requirements of the Convention. The test should be: does the permitting decision, or range of permitting decisions, to which all the elements of the public participation procedure set out in article 6, paragraphs 2 to 10, apply embrace all the basic parameters and main environmental implications of the proposed activity in question?”

The above reasoning elaborated in case ACC/17/EC, which can be treated as the leading case for the issue, has been somehow “codified” by the Committee in its report to the Meeting of the Parties at its III session (MOP II).36 In the light of these opinions of the Compliance Committee one should see the nature of the decisions subject to Article 6 of the Convention and in particular the question regarding differences between decisions subject to subparagraphs (a) and (b) in paragraph 1 of Article 6. As already noted above, it is well accepted view that Article 6 generally applies to specific activities “which may have a significant effect on the environment”. This is clearly stipulated in subparagraph (b) while in case of subparagraph (a) it is implicit as this subparagraph refers to annex 1 which consists of activities widely recognized as those “which may have a significant effect on the environment”. The basic difference between the two subparagraphs is that subparagraph (a) covers activities which, following some other legal instruments, have been predetermined as likely to have a significant effect on the environment and listed in annex 1 to the Convention, while subparagraph (b) covers activities, other than those listed in annex 1, which have been determined by Parties as likely to have a significant effect on the environment. In case of most of categories of activities listed in Annex 1 there are certain thresholds. The thresholds however do not reflect a borderline between “significant” or “not significant” but rather between “always significant” and “sometimes significant”. Thus for example a slaughterhouse with a carcass production capacity greater than 50 tons per day is considered to always have a significant effect on the environment while a slaughterhouse with a carcass production capacity of 49 tons per day is considered as not necessarily “always” having significant effect on the environment. In most countries both are subject to similar regulatory control and mostly the same, mentioned above, types of decisions: development consents, pollution control permits etc. The activities deemed to always have a significant effect on the environment (i.e. those listed in annex I to the Convention) in the European Union are subject to additional requirements: they are subject to mandatory EIA (Annex I to Direc35

ACCC/C/2006/17 (European Community), para. 42.

36

ACCC/C/2006/17 (European Community), para. 57-58.

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tive 85/337 (EIA Directive)) and – instead of several sectoral pollution control permits – subject to a mandatory integrated permit (Annex I to Directive 96/61/ EC (IPPC Directive)). These special requirements do not stem from the Aarhus Convention and are not binding upon non-EU Parties to the Convention. Thus, while in case of Parties from the EU one can talk on “sophisticated permitting procedures” applicable to Annex I activities, such procedures cannot be considered as a characteristic feature of Annex I activities under the Convention. In the light of the above one can conclude that subparagraphs (a) and (b) in paragraph 1 of Article 6 cover different activities but in principle apply to the same type of decisions. The question then is how in practice to apply the above presented test proposed by the Compliance Committee. In case of activities listed in annex I, which indeed are widely recognized as those “which may have a significant effect on the environment” a regulatory control is usually based on the mentioned above concept of “tiered decisionmaking” and includes a series of consecutive decisions authorizing the basic parameters and location of a specific activity, its technical and architectural design, and finally its technological details related to specific environmental standards. These decisions relate to the very existence of the activity in a particular place and “permit” this activity in this place providing appropriate conditions for undertaking it. Apart from them for the activity to be implemented a number of accompanied auxiliary activities might be needed. Thus for example in any mature regulatory system for environmental protection an installation for the recovery of the hazardous waste cannot be built and operate unless it is authorised by the respective development consent and appropriate waste permit. Whether however for constructing and operating it any other environment related decision is needed (for example for cutting trees, abstracting water or for air, noise or wastewater) depends on the individual circumstances. In most countries the decisions authorizing the basic parameters and location of a specific activity as well as its technical and architectural design are separated out from decisions authorising technological details related to specific environmental standards. The former are considered to be part of development control while the latter are often considered to be part of pollution control. In many countries, in particular in Central and Eastern Europe, development control consists of several “tiers”. Usually the first decision required for activity listed in annex I of the Convention is the so-called “environmental decision” (sometimes called “EIA” decision) which is followed by a siting (location) decision. These two decisions (which sometimes may be combined into one decision) in case of activities which do not involve construction (for example “peat extraction”) serve as a basis for issuing a final permit regarding use of natural resources (in this case a permit for peat extraction). As most Annex I activities involve construction, usually the two mentioned above decisions serve as the basis for elaborating a technical and architectural design of the activity which is subject to regulatory control in the form of approval of a technical and architectural design and construction permit (sometimes in the form of two separate decisions and sometimes in the form of one decision). In some coun127

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tries on top of this there is also a decision allowing commencement of construction works and – after construction is completed – a decision to start operations. Regardless of whether the latter decision is required or not, in order to start operating the activity all applicable environmental (pollution control) permits need to be obtained. In most countries at the stage of development control there is some form of EIA procedure applied.37 There are different approaches as to the stage in development control in which an EIA procedure should be conducted. In the EU the doubts in this respect were interpreted by the Court of Justice of the European Union (CJEU). In case C-201/02 Wells the Court made it clear that “the competent authority is to take account of the environmental effects of the project in question at the earliest possible stage in the decision-making process” and that “where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure”.38 Later on, in case C-290/03, Barker – Crystal Palace, the Court explained further that “Directive 85/337 (EIA Directive) are to be interpreted as requiring an environmental impact assessment to be carried out if, in the case of grant of consent comprising more than one stage, it becomes apparent, in the course of the second stage, that the project is likely to have significant effects on the environment by virtue inter alia of its nature, size or location”.39 As the EIA procedure is the main vehicle for providing public participation at the stage of development control of activities listed in annex I to the Convention, the above interpretation as the place of this procedure in the development control framework sets also the place of public participation in this framework. Another aspect worth mentioning in this context is an already indicated fact that in the EU all the industrial activities from annex I of the Convention are not subject to several sectoral pollution control permits but subject to a mandatory integrated permit (Annex I to Directive 96/61/EC (IPPC Directive)) which comprehensively addresses their technological details related to specific environmental standards. And issuing this permit also involves mandatory public participation. 37

For more on different approaches to EIA in the context of Aarhus Convention see the Aarhus Convention Implementation Guide (2013), pp. 124-127; see also Draft guidance on enhancing consistency between the Espoo Convention and the environmental assessment within the framework of State ecological expertise in countries of Eastern Europe, the Caucasus and Central Asia, ECE/MP.EIA/ WG.2/2013/INF.5.

38

Case C-201/02 Wells, para. 51 and 52.

39

Case C-290/03 Barker – Crystal Palace, para. 49, operative part 2.

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Thus the EU framework envisages mandatory public participation both at the stage of development control permitting (at least once but if necessary twice) and at the stage of environmental (pollution) control permitting. At both stages all environmental consequences related to undertaking an activity are supposed to be comprehensively assessed with the participation of the public. Thus for example, even if cutting the trees for the purpose of constructing may be subject to a separate decision the environmental consequences of this fact should be assessed in an EIA procedure conducted (including public participation) at the early stage of development consent. Thus, following the test proposed by the Compliance Committee, a respective separate decision regarding cutting the trees would not merit a separate public participation. Generally then the EU framework for environment-related decisions applicable to Annex I projects seems to be sufficiently meeting the standard set in the mentioned above opinion of the Compliance Committee. It does not necessarily mean that all the EU Member States may be deemed to comply with the Convention in this respect. It must be borne in mind, as observed by the Compliance Committee that “there is a need for clear and transparent sequencing of permitting decisions, so that it is clear to the public what is being decided and which options are under consideration at each stage.”40 And that may not always be the case in all Member States. It would be probably useful if all Parties were requested in their Implementation reports due to be presented to MOP to examine the respective frameworks and whether they actually meet the standard set in the mentioned above opinion of the Compliance Committee. Thus in relation to the consecutive decisions authorising the very existence of the project it should be examined whether “despite the existence of a public participation procedure or procedures with respect to one or more environment-related permitting decisions, there are other environment-related permitting decisions with regard to the activity in question for which no full-fledged public participation process is foreseen but which are capable of significantly changing the above basic parameters or which address significant environmental aspects of the activity not already covered by the permitting decision(s) involving such a public participation process” because “this could not be said to meet the requirements of the Convention.”41 As far as the need for public participation in relation to horizontal decisions (in particular sectoral environmental/pollution permits) is concerned, the Parties would probably need to check whether in their framework “significant environmental aspects are dispersed between different permitting decisions” and whether indeed the decisions where there is no requirement for public participation are only those “of minor or peripheral importance, or be of limited environmental relevance”. The examination should bear in mind that according to the Compliance Committee “[w]hether a system of several permitting decisions, where public participation is provided with respect to only some of 40 41

ACCC/C/2006/16 (Lithuania), para. 76.

ACCC/C/2006/17 (European Community), para. 43.

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those decisions, amounts to non-compliance with the Convention will have to be decided on a contextual basis, taking the legal effects of each decision into account. It is of crucial importance in this regard to examine to what extent such a decision indeed “permits” the activity in question.”42 The framework for public participation in multiple-decision-making under Article 6 of the Aarhus Convention must be seen in the context of Article 9 paragraph 2 of the Convention which requires appropriate access to justice to be provided. The Convention does not stipulate clearly at which stage of the multiple-permitting such access should be granted. Under EU law, if the EIA and IPPC schemes are not combined, access to justice must be granted separately in relation to development consent under Directive 85/337 (EIA Directive) and integrated permit under Directive 96/61/EC (IPPC Directive). In case of development consent, however Directive 85/337 (EIA Directive) in Article 11 paragraph 2 requires Member States to “determine at which stage the decisions, acts or omissions may be challenged”. The CJEU has not as yet provided a clear interpretation as to this provision in the context of the Aarhus Convention. Also the Compliance Committee has not provided as yet any general interpretation as to the issue of access to justice in multiple-permitting under Article 6. Worth mentioning however in this context is the opinion in case ACCC/C/2010/50 (Czech Republic) where the Committee recalled that: “in defining standing under article 9, paragraph 2, the Convention provides guidance to the Parties on how to interpret the “sufficient interest” of NGOs. Hence, the interest of NGOs meeting the requirements of article 2, paragraph 5, of the Convention should be deemed sufficient and should be deemed to have rights capable of being impaired. Moreover, the rights of such NGOs under article 9, paragraph 2, of the Convention are not limited to the EIA procedure only, but apply to all stages of the decision-making to permit an activity subject to article 6”. 43

Following this the Committee observed that “the Czech legislation limits the rights of NGOs to access review procedures regarding the final decisions permitting proposed activities, such as building permits” and found that “[i]n this respect the Party concerned fails to comply with article 9, paragraph 2, of the Convention.”44 In concluding the discussion regarding multiple permitting under Article 6 of the Aarhus Convention, it is worthwhile to mention that for the Parties to the Espoo Convention any arrangements in this respect must be co-related with the arrangements regarding implementation of Article 6 of the Espoo Convention which provides certain requirements regarding “final decision on the proposed activity”. In this context worth noting is that, as confirmed by hitherto practice under the Espoo Convention, the obligations under the Espoo Convention are 42 43

ACCC/C/2006/17 (European Community), para. 42.

ACCC/C/2010/50 (Czech Republic), para. 77.

44

ACCC/C/2010/50 (Czech Republic), para. 78.

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somewhat limited as compared with the Aarhus Convention. Obligations under the Espoo Convention relate only to the stages of multiple permitting where EIA procedure applies (i.e. permitting related to development control) and not to environmental/pollution control permitting which is covered also by Article 6 of the Aarhus Convention. Within the EU however there is a similar transboundary procedure under Directive 96/61/EC (IPPC Directive) which applies to integrated permits regarding activities having transboundary impact.



6 Activities Covered by Article 6(1)(a)

As already noted above, Article 6 generally applies to specific activities “which may have a significant effect on the environment” and the basic difference between the two subparagraphs is that subparagraph (a) covers activities which, following some other legal instruments, have been predetermined as likely to have a significant effect on the environment and listed in annex 1 to the Convention, while subparagraph (b) covers activities, other than those listed in annex 1, which have been determined by Parties as likely to have a significant effect on the environment. As already indicated Annex I is based, with some modifications, on the respective annexes to the Espoo Convention, the original Directive 96/61/EC (IPPC Directive) and Directive 85/337 (EIA Directive). As the activities listed in Annex I are well described elsewhere it should suffice here to provide a couple of observations on some specific provisions included herein. In addition to the many different types of activities listed in paragraphs 1–19 of annex I, paragraph 20 of the annex extends Article 6 to any activity that under domestic law requires an EIA procedure with public participation. This provision has been already interpreted by the Compliance Committee. In its findings on communication ACCC/35/Georgia, the Compliance Committee observed that the determination of whether an activity falls within the ambit of paragraph 20 of Annex I depends on three elements, namely: (a) public participation; (b) an EIA procedure in the context of which public participation takes place; and (c) domestic legislation providing for an EIA procedure. In this context, it observed that a national framework may include a process that includes all basic elements for an EIA, without naming the process by the term “EIA” and that such a de facto EIA procedure should also fall within the ambit of Annex I, paragraph 20. The Committee, however, except for public participation, did not indicate any other “basic elements” of an EIA procedure which should be considered in this respect. Following on this, one could guess that among such basic features would be preparation of an EIA documentation which would need to cover certain elements (including for example discussion of alternatives). As another basic feature of the EIA procedure one should consider the obligation that the assessment covers comprehensively impacts on all elements of the widely conceived environment. Thus, for example some

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“sectoral assessments” as for example, assessments required in the EU under the Habitat Directive or Water Framework Directive – would not fall within the ambit of Annex I, paragraph 20. On the other hand, it is already a well-accepted fact, confirmed by the Compliance Committee under the Aarhus Convention but also under the Espoo Convention that the so-called OVOS/expertiza procedures applied in many countries of Eastern Europe, Caucasus and Central Asia shall be considered jointly as a decision-making process constituting a form of EIA procedure. 45 Another issue under Annex I to the Aarhus Convention which merits some observations is the provision of paragraph 22 of annex I, which stipulates that where a change or extension of an activity listed in annex I itself meets the criteria or threshold set out in the annex for that activity, Article 6, paragraph 1 (a), will apply. In this context worth noting is the opinion of the Compliance Committee in case ACC/41/Slovakia where the Committee considered useful: “to stress that, while for many activities listed in annex 1 to the Convention there are certain criteria or thresholds envisaged below which the requirements of article 6 paragraph 1 (a) would not apply, for some of the activities listed (including nuclear power stations) the Convention does not establish any criteria or thresholds. This means that these activities, regardless of their size, are subject to article 6, paragraph 1 (a), and thus provisions of article 6 must be applied with respect to decisions of whether to permit such activities. By virtue of the first sentence of paragraph 22 of annex 1 the same applies to a change or extension of such activities. Thus, in principle, all changes or extensions to such activities are subject to article 6.”46

Furthermore, paragraph 22 of annex 1 stipulates that if the change or extension does not meet the threshold criteria set in the annex, it is subject to Article 6, paragraph 1 (b), of the Convention. According to the Aarhus Implementation Guide this approach is modelled on Directive 85/337 (EIA Directive) and effectively means that the changes or extensions will be subject to screening. 47 In this context one may note that Directive 85/337 (EIA Directive) in case of changes or extensions of projects in Annex I not meeting the criteria or thresholds make them subject to screening only if they may have significant adverse effects on the environment. This seems to be somewhat limited as compared with the Aarhus Convention which refers only to “significant effects” and not “significant adverse effects”.

45

See, for example the Draft guidance on enhancing consistency between the Espoo Convention and the environmental assessment within the framework of State ecological expertise in countries of Eastern Europe, the Caucasus and Central Asia, ECE/MP.EIA/WG.2/2013/INF.5.

46 47

ECE/MP.PP/C.1/2010/8/Add.1, para. 58.

See the Aarhus Convention Implementation Guide (2013), p. 255.

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7 Activities Covered by Article 6(1)(b)

As to the application of paragraph 1 (b) of the Convention worth noting is the fact that the Compliance Committee and the Implementation Guide have provided as yet very little guidance in this respect. In case ACCC/35 /Georgia the Committee observed that: “the determination of whether a decision falls within the ambit of article 6, paragraph 1(b) of the Convention depends, inter alia, on two main elements, namely: (i) the significance that the proposed activities may have; and (ii) the determination by the Party on whether a proposed activity is subject to the provisions on public participation”. Following this the Committee interpreted “article 6, paragraph 1(b) to the effect that its reference to these provisions implies either that the relevant domestic legislation has to contain an explicit reference to article 6 or that all the provisions of the article are reflected in one or another way in the domestic legislation in respect of activities not listed in annex I to the Convention.”

In case ACC/50/Czech Republic the Committee recalled that: “Article 6, paragraph 1 (b), of the Convention requires Parties to determine whether an activity which is outside the scope of annex I, and which may have a significant effect on the environment, should nevertheless be subject to the provisions of article 6. Therefore, when this is determined for each case individually, the competent authority is required to make a determination which will have the effect of either creating an obligation to carry out a public participation procedure in accordance with article 6 or exempting the activity in question from such an obligation. Under Czech law, that determination is in practice made through the EIA screening conclusions. As such, the Committee considers the outcome of the EIA screening process to be a determination under article 6, paragraph 1 (b). Article 9, paragraph 2, of the Convention requires Parties to provide the public access to a review procedure to challenge the procedural and substantive legality of any decision, act or omission subject to the provisions of article 6. This necessarily also includes decisions and determinations subject to article 6, paragraph 1 (b). The Committee thus finds that, to the extent that the EIA screening process and the relevant criteria serve also as the determination required under article 6, paragraph 1 (b), members of the public concerned shall have access to a review procedure to challenge the legality of the outcome of the EIA screening process”. 48

The above opinions of the Compliance Committee, while shedding some light on the obligations stemming from Article 6, paragraph 1 (b), are nevertheless not sufficient to provide practical guidelines on how to apply this provision. They seem to be putting stress on the subjective determination of each Party as to the need for public participation in relation to a given activity. 48

ACCC/C/2010/50 (Czech Republic), para. 82.

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The Implementation Guide provides only some limited hints in this respect. First it confirms that the word “Parties” used in subparagraph (b) should be understood in the context of the chapeau of the paragraph which is addressed to “each Party”. That is to say, it is up to each Party to make such a determination. It also suggests that the determination may be done by way of developing categories of activities within the scope of subparagraph (b) in addition to those found in annex I, or by developing guidelines for the application of the Convention’s principles by individual public authorities in decision-making on a case-by-case basis. Finally, it seems to be putting more stress on the objective criteria of significance by referring to the recognised criteria and guidance in this respect. 49 Generally, the Guide seems to be suggesting reliance on the well-known practice with the EIA procedure and refers in this respect to both Directive 85/337 (EIA Directive) and Espoo Convention. Both the Compliance Committee and the Implementation Guide fall short from providing a clear opinion as to the very nature of the obligation stemming from Article 6, paragraph 1 (b). It seems to be unconceivable to interpret this obligation as leaving Parties absolute discretion regarding the determination of whether a decision on a proposed activity which is not listed in annex I should be subject to subparagraph (b). The absolute minimum would be to consider that Parties must provide evidence as to considering the issue according to some established criteria. Much more advisable however seems to be elaborating some objective criteria to be applied by Parties when implementing this provision. An attempt to establish such criteria has been made under the auspices of the Task Force on Public Participation under the Aarhus Convention. At the time of writing the results of this work have not been finalised yet. Nevertheless some personal views based on the hitherto discussions may be presented. First of all, the basis for any discussion about the details must be understanding that Article 6, paragraph 1 (b), of the Convention requires a mechanism to be established within the national legal framework to determine whether a decision on a proposed activity which is not listed in annex I may yet have a significant effect on the environment and thus require public participation in accordance with the requirements of Article 6. Secondly, it seems useful to accept that a mechanism for such a determination does not need to be necessarily related to the system of EIA but also may be independent from it, or a mixture of both approaches may be applied. Irrespective of whether the above determination is related to the EIA procedure or not, the Parties should take steps to identify all activities which potentially may have an effect on the environment. Such activities may include: • Any activity listed in Annex 1 but below the threshold; • Any other activity which under national legislation requires an environmental permit or licence (such as noise permits, waste permits, permits for cutting trees and bushes, authorisations for culling or disturbing animals, water permits for discharge of water or for water intake, for underground 49

Aarhus Convention Implementation Guide (2013), pp. 130-131.

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water abstraction, fracking permits, land or sea-bed drilling permits, fishing permits, export or import permits for endangered species, etc.). Besides, such activities should include any other activity subject to an individual screening under national law. For example: • Changes to or extensions of activities within the scope of the second sentence of paragraph 22 of annex I to the Convention; • Activities subject to individual screening for environmental assessment (for example, annex II activities under Directive 85/337 (EIA Directive) ) or nature protection assessment (for example, activities subject to Article 6(3) and 12 of the Habitat Directive ) or activities subject to assessment under the Water Framework Directive. Following the identification of all activities that potentially may have an effect on the environment, a determination must then be made as to which of those may have a “significant effect” and therefore require public participation in accordance with Article 6, paragraph 1(b). The mechanism for this determination may take the form of: • Deeming particular types of decisions concerning certain types of activities to be subject to public participation in accordance with the provisions of Article 6 (the “list” approach, as used in Annex I of the Convention); or • Requiring public authorities to make such a determination through a caseby-case examination (the “case-by-case” approach); or • A mixture of both above procedures. If Parties choose to apply individual screening, i.e. they would require public authorities to make the determination under Article 6, paragraph (1) (b) through a case-by-case examination: • Parties should establish in their legal framework a list of clear criteria against which such a determination should be made; • These criteria should include the criteria that are used in the legal framework: i. To test for significance in environmental assessment (for example, the criteria listed in annex 3 to the Espoo Convention or Annex III of EU Directive 85/337 (EIA Directive); and ii. To decide which of the multiple decisions of a complex decision-making process require public participation. Finally, following the above-mentioned opinion of the Compliance Committee,50 Parties should ensure that the determination is subject to review under Article 9, para. 2, at the request of the public concerned, in particular to check if the criteria established for the purpose were properly applied in a given case. 50

Compliance with regard to the Czech Republic, ACCC/C/2010/50, para. 82.

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8 Reconsiderations and Updates under Article 6 Paragraph 10

The discussion regarding the scope of application of Article 6 must be complemented with addressing the issue of reconsiderations and updates. Paragraph 10 in Article 6 requires that when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate. This provision, according to the Implementation Guide, supplements paragraph 22 of annex I, which extends Article 6 to changes in or extensions of activities covered in that annex. Whereas paragraph 22 follows the approach found in EIA legislation in many countries and triggers obligations on the basis of physical changes, paragraph 10 is triggered in the case of subsequent administrative procedures. The Guide rightly points out that such administrative procedures are usually related to environmental licensing, such as integrated environmental permitting, but it is not necessarily right when saying that such reconsideration is “not related to EIA legislation”. Annex 1 to the Convention, similarly to similar lists of activities subject to the EIA (like annexes to Directive 85/337 (EIA Directive) and Espoo Convention), include activities (like groundwater abstraction or mining) which require permits for the use of natural resources. Such permits in most countries are granted only for a limited period of time (usually up to 10 years) and thereafter need to be renewed and/or updated. The reason for this is the fact that the amount of a resource to be used and conditions for this use heavily depend on the state of the natural resource in question. And this needs to be checked periodically in order to assess whether the same use is still possible bearing in mind the state of the resource in question. A similar situation exists in case of certain hazardous activities, like those related to nuclear energy or waste management, where the conditions of the surrounding environment have an impact on safety and where state of the art technology regarding safety measures is required. Therefore respective permits or licenses for operation are granted only for limited period of time and then need to be updated or renewed even if no change in the activity itself is planned. Such activities are clearly different from activities (like roads, railroads, electrical power lines) which once authorised can be implemented for an indefinite period of time without any further permits unless any change or extension to the activity is proposed. Directive 85/337 (EIA Directive) does not differentiate between the two above situations and does not envisage clearly a situation where a development consent needs to be updated or renewed. However, Directive 85/337 (EIA Directive), as already mentioned, is one of the main instruments to implement the Aarhus Convention in the EU law, and as such must be interpreted in line with the

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Convention.51 This includes also proper interpretation of Directive 85/337 (EIA Directive) in light of Article 6 paragraph 10 of the Convention. There could be two possible ways of interpreting the EIA Directive in line with Article 6 paragraph 10 of the Aarhus Convention. The first possible way would be to consider that in situations where an activity requires renewed permits it should be treated as a new proposed activity. The second possible way would be to interpret provisions regarding changes to cover not only physical change in the activity itself but also changes in the surrounding environment, including the cumulative effect with other activities, as well as changes in the applicable legislative framework, in particular in relation to safety measures or environmental protection requirements. This way of reasoning was proposed in the opinion of Advocate General Kokott in Case C-416/10 Križan, when discussing the issue of validity of the findings from an EIA procedure.52 Although this part of the opinion was ratione temporis not followed up in the verdict, it seems to be providing a solid basis for future reference. Unfortunately, the CJUE in Case C-121/11, Pro-Braine and Others found out that the definitive decision relating to the carrying on of operations at an existing landfill site does not constitute a “consent” within the meaning of Article 1(2) of EIA Directive unless that decision authorises a change to or extension of that installation or site, through works or interventions involving alterations to its physical aspect, which may have significant adverse effects on the environment within the meaning of point 13 of Annex II to EIA Directive , and thus constitute a “project” within the meaning of Article 1(2) of that Directive.53 The same position was taken in Case (C-275/09, Brussels Hoofdstedelijk Gewest and Others, in relation to the renewal of the existing consent to operate an airport.54 This position taken by the CJEU seems to be overlooking the role of the EIA Directive as a measure for implementing Article 6 of the Aarhus Convention and is not in line with the practice in this respect under the Espoo and Aarhus Conventions. Under the Espoo Convention, the draft Guidance on the application of the Convention to nuclear energy-related activities observes that “the renewal of an NPP license is generally subject to EIA, though the location, technology and operating procedures may remain unchanged”.55 Similarly, the Aarhus Convention Compliance Committee in relation to updating an operating license for a nuclear power plant found out in Case ACC/41/Slovakia that under “article 6, paragraph 10, of the Convention, the Party concerned was obliged to ensure that the provisions of article 6, paragraphs 2 to 9, were applied, “mutatis mutandis, and where appropriate”. In this context, the Committee wishes to stress that, 51

As clearly confirmed by CJEU see Case C‑263/08 Djurgården, Case C‑240/09 Lesoochranárske zoskupenie VLK or Case C‑416/10 Jozef Križan.

52 53

See Opinion of Advocate General Kokott (Case C‑416/10 Jozef Križan), para. 124-132.

Case C-121/11 Pro-Braine and Others, para. 38.

54 55

Case C-275/09 Brussels Hoofdstedelijk Gewest and Others, para. 27-30.

ECE/MP.EIA/2011/5, para. 9.

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although each Party is given some discretion in these cases to determine where public participation is appropriate, the clause “mutatis mutandis, and where appropriate” does not imply complete discretion for the Party concerned to determine whether or not it was appropriate to provide for public participation.” Furthermore the Committee observed that: “the clause ‘where appropriate’ introduces an objective criterion to be seen in the context of the goals of the Convention, recognizing that ‘access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns’ and aiming to ‘further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment’. Thus, the clause does not preclude a review by the Committee on whether the above objective criteria were met and whether the Party concerned should have therefore provided for public participation in the present case.”

Finally, the Committee concluded that “when the authority reconsidered or updated the operating conditions for an activity of such a nature and magnitude, and being the subject of such serious public concern, as this nuclear power plant, with the changes and increased potential impact on the environment as presented to the Committee, public participation would have been appropriate.”56 The above positions under both the Espoo and Aarhus Conventions were taken in relation to nuclear power plants but they reflect situations with many other activities whereby a clear obligation under Article 6 paragraph 10 of the Aarhus Convention is not sufficiently transposed into the legal framework for the EIA procedure and therefore the public is deprived of its right to participate in the decisions regarding their renewal or update.

56

ECE/MP.PP/C.1/2010/8/Add.1, para 55-57.

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Implementation of Public Participation Principles Experience of the EU Eva Kružíková

chapter 7



implementation of public participation principles – experience of the eu

1 Introduction

Within the framework of international environmental law the UN-ECE Convention on Access to Information, Public, Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) is of a particular importance. It introduced new concepts to the administrative procedures that had evolved in states for a long time and that had acquired certain relatively stabilised rules especially regarding the relationship between state/public administration body and citizen. The Aarhus Convention modified these rules introducing another – public – element that represents not only individual concerns (typical for property rights for example) but those important for the society as a whole. The Aarhus Convention thus reflects signs of a new development in the political system of democratic countries; a development that does not limit the involvement of the general public in public life only to elections but allows it to participate in and have an impact on decision-making about everyday issues. The Aarhus Convention has been already ratified by all the EU member states. The EC signed the Aarhus Convention on 25 June 1998 and ratified it on 17 February 2005, with the Declaration concerning particularly the third pillar in the Annex.1



2 EU Implementing Measures

This presentation will focus on the first and third pillars as they seem to have the most implementation problems both at the EU and national levels. 1

“… the European Community declares that it has already adopted several legal instruments, binding on its Member States, implementing provisions of this Convention and will submit and update as appropriate a list of those legal instruments to the Depositary in accordance with Article 10(2) and Article 19(5) of the Convention. In particular, the European Community also declares that the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons and public authorities other than the institutions of the European Community as covered by Article 2(2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations. Finally, the Community reiterates its declaration made upon signing the Convention that the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field covered by the Convention. The European Community is responsible for the performance of those obligations resulting from the Convention which are covered by Community law in force.”

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Within the EU legal framework two groups of legal measures have been adopted: • those addressed to MS (Directive 2003/4/EC,2 Directive 2003/35/EC3), • those addressed to EU institutions (Regulation (EC)No 1049/2001, 4 Regulation (EC)No 1367/2006).5



2.1 Access to Information (First Pillar)

The right to environmental information (or “right-to-know”) was for the first time introduced to the EC law in the beginning of the 1990s, by the Directive 90/313/EC. It defined basic terms and conditions to put this right into effect. More than 10 years later it was replaced by the Directive 2003/4/EC. The “new” Directive is based on experience with the practical implementation of its predecessor and implements the Aarhus Convention. The Directive took account of development in electronic communication technology and it stresses an active information supply. It also consolidated the case-law concerning the previous Directive. The crucial changes brought by the Directive 2003/4/EC: • a broader definition of “environmental information” (wider range of matters related to the environment); it encompasses all media and forms and all aspects of the environment; • broader definition of “public authorities” (including also persons who perform public special environmental/administrative functions including private entities responsible for carrying public functions or responsibilities); • shorter deadlines to make the requested information available (at the latest one month after the request, possibility to extend the deadline by a month where the volume and the complexity of information so require); • limitation of reasons for refusal of an information request (only if the disclosure would adversely affect one of the concerns specified by the Directive, the concept is to be interpreted in a restrictive way, taking into account the public interest served by the disclosure); • limitation of the specified reasons for refusal (if the request relates to information on emissions into the environment /so called “emissions rule”); more duties imposed on national authorities for collecting and disseminating information; • improved procedures for the review of actions or omissions of public authorities (review procedure before a court of law or another independent and impartial body established by law).

2 3

Official Journal L 41, 28 January 2003, p. 26.

Official Journal L 156, 25 June 2003, p. 17.

4 5

Official Journal L 145, 30 May 2001, p. 43.

Official Journal L 264, 6 September 2006, p. 13.

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As far as the implementation of the Directive by the Member States is concerned, the Directive substantially improved access to environmental information on request. Several Member States still have problems with implementation of the Directive, particularly concerning certain definitions, deadlines for providing information, practical arrangements to facilitate access requests, exceptions to disclose environmental information. The recent jurisprudence is crucial for the implementation and interpretation of provisions of the Directive. There are two key cases that contribute to clarification of important terms of the Directive: Case C-266/09, Stichting Natuur en Milieu and Others v College voor de toelating van gewasbescherming en biociden, and case C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany. In the first case (C-266/09), a preliminary ruling, the Court of Justice interpreted the term “environmental information”. It included “information submitted within the framework of a national procedure for the authorisation or the extension of the authorisation of a plant protection product with a view to setting the maximum quantity of a pesticide…” into the term “environmental information” (paragraph 43). This broad definition laid down in the judgment thus represents an important precedent for the interpretation of one of the crucial terms of the Directive. The same judgment also concerns the sensitive issue of a relationship between business secrets and the “emission rule”. In paragraph 53 the Court stated that authorities competent to provide access to environmental information are obliged to allow access even if the request for protection of the information as industrial or commercial secrets appears to them to be justified “… if it relates to emissions into the environment or if, in other cases, the public interest served by disclosure appears to outweigh the interest served by the refusal to disclose.” In the second case (C-204/09) the Court of Justice laid down a definition of “bodies or institutions acting in a legislative capacity” that may be exempted from the obligation to provide access to environmental information. It is the first ever definition of this term. The Court held that this term may be applied to ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions. This exemption can be exercised during the legislative process in question, but not after it has ended. As far as the implementation of the Aarhus Convention first pillar obligations by the EU institutions is concerned, the main legal act implementing the Aarhus Convention into the EU law concerning the EU institutions is the Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. (Aarhus Regulation). It deals with all the three pillars of the Aarhus Convention. As for the first pillar, the Aarhus Regulation refers also to the Regulation (EC) No 1049/2001, regarding public access to European Parliament, Council and Commission documents.

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The first pillar of the Aarhus Convention is covered by both Regulations. In Article 3 the Aarhus Regulation refers to the Regulation 1049/2001 stating that this Regulation: “... shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities”.

The important provision of Article 6 of the Aarhus Regulation deals with exceptions regarding requests for access to environmental information in relation with relevant provisions of the Regulation 1049/2001. As for the refusal of access to information the disclosure of which would undermine the protection of commercial interests of a natural or legal person, including intellectual property or the purpose of inspections, investigations and audits, the Aarhus Regulation stipulates that an overriding public interest in disclosure shall be deemed to exist. As for the other exception “allowed” by Regulation 1049/2001, the Aarhus Regulation requires that the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. There are certain differences between provisions of the Regulation 1049/2001 and requirements of the Aarhus Convention, particularly as far as allowed exceptions are concerned (Article 4(1)(a), (2), (3) of this Regulation). In addition, both the EU courts and the Ombudsman have found that the practice of the Commission is also not always in compliance with the requirements of both Regulations when evaluating requests for environmental information, replying to them and applying provisions on exceptions (for example, respecting deadlines or inadequate or too extensive application of refusal reasons, weighing-up the interests at stake or a clear demonstration of no overriding public interest when refusing the access to information).6 The EU is currently working on the amendment of the Regulation 1049/2001.7 It will reflect both the judgments of the EU courts and the Ombudsman’s recommendations.



2.2 Access to Justice (Third Pillar)

Regarding Member States, in 2003 the Commission submitted a proposal for a Directive on access to justice in environmental matters imple6

Case T-120/10 ClientEarth and Others v Commission; Case T-449/10 ClientEarth and Others v Commission; Case T-36/2/08 IFAW v Commission; Case T-105/95 WWF v Commission; Case T-36/04 API v Commission; Case 355/2007/TN; Case 035/2007/(TN)FOR.

7

Proposal for a Regulation Regarding Public Access to European Parliament, Council and Commission Documents, Commission of the European Communities.

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menting the Article 9(3) of the Aarhus Convention.8 The article of the Aarhus Convention requires access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. This proposal, however, has never been adopted. It would lay down general provisions on access to justice in addition to particular provisions on access to justice that are provided by the EIA and industrial emissions (IPPC) Directives.9 Provisions of these two Directives are identical. They require Member States to ensure access to justice for the public concerned insofar as they have a sufficient interest or maintain the impairment of a right. Following the Aarhus Convention wording they state that NGOs promoting environmental protection and meeting any requirements under national law are considered to be the “public concerned”. It means that it is still up to national law to determine which NGO can qualify as public concerned. What constitutes a sufficient interest or impairment of a right is also to be determined by Member States which again leaves the scope in the hands of national law makers.10 On the basis of the current jurisprudence of the Court of Justice it is possible to envisage how the implementation of those definitions and requirements by Members States will be evaluated and interpreted. Three recent preliminary rulings of the Court are of a particular importance: • Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholm kommun genom dess marknämnd (Djurgården); • Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Arnsberg, intervening party: Trianel Kohlekraftwerk Lünen GmbH & Co. KG (Trianel): • Case C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (VLK). In the first two cases, the national legislation affected NGO access to justice by certain conditions that excessively limit this right. In case C-263/08 the reference for a preliminary ruling was made in proceedings between a Djurgården-Lilla Värtans Miljöskyddsförening (the Djurgården-Lilla Värtans association for environmental protection) and Stockholm kommun genom dess marknämnd (Municipality of Stockholm). Three questions were raised, two of them regarding the scope of the term “public concerned” as used by the EIA Directive. The first concerned the right of the public concerned to challenge a decision of a court in planning consent proceedings if the public concerned had an opportunity to participate in the court’s examination of the question of planning consent and of submitting its views to that court. The second question concerned the national criteria defining which NGOs may participate in decision-making procedures and also have a right 8

Proposal for a Directive on Access to Justice in Environmental Matters (2003), 24.10.2003.

9

Directive 2011/92, Directive 2010/75.

10

Jans, J.H. & Vedder H.H.B. (2008), p. 334.

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of appeal as is referred to in Article 10a of the EIA Directive (now Article 11 of Directive 2011/92). The Court ruled that: “Members of the ‘public concerned’ …. must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views.”

According to the Court, the right of access to review procedure within the meaning of article 10a of Directive 85/337 does not depend on whether the authority which adopted the decision or act at issue is an administrative body or a court of law (paragraph 38). In the same judgment the Court also ruled that: “Article 10a of the Directive 85/337 as amended by Directive 2003/35, precludes a provision of national law which reserves the right to bring an appeal against a decision on projects which fall within the scope of that directive, …, solely to environmental protection associations which have at least 2000 members.”

The judgment thus provides guidance for interpretation of the term “public concerned” both for courts and public authorities. In the Case C-115/09, Trianel, the reference for a preliminary ruling was made in proceeding between the Nordrhein-Westfalen branch of Friends of the Earth, Germany, and the Bezirksregierung Arnsberg. It concerned the authorisation for construction and operation of a coal fired power station. The authorisation was issued by the Bezirksregierung Arnsberg to the Trianel Kohlekraftwerk GmbH & Co KG (“Trianel”). The question raised was whether Article 10a of the EIA Directive precludes legislation that does not allow NGOs promoting environmental protection to rely before the courts on the infringement of a rule that protects only interests of the general public and not those of individuals. The German Court also asked whether Article 10a of the EIA Directive precludes such legislation in general or only as far as it prevents such an NGO from relying before the courts on a particular provision of environmental law, Community or national. The Court ruled that Article 10a precludes legislation: “which does not permit non-governmental organisations promoting environmental protection …. to rely before the courts, in an action contesting a decision authorising projects ‘likely to have significant effects on the environment’ … on the infringement of a rule flowing from EU environment and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals.” (paragraph 50)

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Regarding the possibility of Member States to determine what constitutes a sufficient interest and impairment of a right the Court ruled that whatever option the Member State chooses for the admissibility of an action, environmental NGOs are entitled, pursuant to Article 10a of the EIA Directive to have access to a review procedure to challenge the substantive or procedural legality of decisions, acts or omissions covered by that Article (paragraph 42). The Court further stated that member States cannot deprive environmental NGOs of the opportunity of playing the role granted to them by the Directive and by the Aarhus Convention (paragraph 44). The concept of “impairment of a right” cannot depend on conditions that only physical or legal persons can fulfil, such as the condition of being a more or less close neighbour of an installation or of suffering in one way or another the effects of the installation’s operation (paragraph 47). It also follows from the judgment that the right of access to challenge decisions in environmental matters must be granted to environmental NGOs even where national procedural law does not permit this (paragraph 59). Because of its conclusions, this judgment is extremely important for Member States, their legislators and particularly for the courts. The Case C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (VLK) is important for interpretation of rules on public participation and access to justice mainly because of two reasons. First, the Court ruled, answering the question of the referring Slovak court, that Article 9(3) of the Aarhus Convention does not have direct effect in EU law. And second, it held that it is, however, for the referring court “to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union Law, in order to enable an environmental protection organisations, …, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law.”

Again, like in the previous case, this “instruction” from the Court of Justice is of a great importance for judicial bodies of Member States. The EU institutions’ rules of access to justice in environmental matters are laid down in the Aarhus Regulation. However, general rules are provided by Article 263 fourth paragraph TFEU. Also the Communication “Improving the delivery of benefits from EU environmental measures: building confidence through better knowledge and responsiveness”11 refers to the third pillar of the Aarhus Convention. 11

Communication Improving the Delivery of Benefits from EU environment Measures: Building Confidence from 7 March 2012.

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An individual intending to invoke a breach of the EU environmental law by public authorities of Member States or by other individuals can rely on the doctrine of direct effect, state liability through national procedures. But if an individual wants to challenge the validity of an EU legal measure in the field of environmental protection (that corresponds to Article 9(3) of the Aarhus Convention), the possibilities are limited. National courts cannot decide about the validity of the EU law; in such cases they have to refer the matter to the Court of Justice for a preliminary ruling according to Article 267 TFEU. However, the EC Treaty provided certain possibilities in its Article 230 setting standing requirements. Pursuant to the EC Treaty, access to EC courts was reserved primarily to Member States and to EU institutions. As for natural and legal persons they had the right to bring proceedings against decisions of the European Parliament, Council, Commission and European Central Bank if: • the decision was directly addressed to that person; or • the decision was addressed to another person but it was of a direct and individual concern to the former. The jurisprudence based on the pre-Lisbon wording of the Treaty limited the access to courts (Plaumann jurisprudence according to which the person must have been individually concerned).12 The main point of criticism was a “too narrow” interpretation of the term decision of “direct and individual concern” to them. It did not allow environmental NGOs access to the Courts as in their case there is no private, specific interest at issue but rather a public interest, not distinguishing them from other potential applicants.13 This criticism was also made by the Aarhus Convention Compliance Committee (CC) in its findings regarding the communication ACCC/C/2008/32. CC is convinced that “if the jurisprudence of the EU Courts …. were to continue, unless fully compensated for adequate administrative review procedures, the Party concerned would fail to comply with article 9, paragraphs 3 and 4, of the Convention.” However, in the following paragraph the CC concludes that “… the Party concerned is not in non-compliance with the Convention.” The CC therefore in its recommendations “…considers that a new direction of the jurisprudence of the EU Courts should be established in order to ensure compliance with the Convention.”14 12

Case C-25/62 Plaumann & Co v Commission, Case T-585/93 Stichting Greenpeace Council and Others v Commission, Case C-321/95P Stichting Greenpeace Council and Others v Commission, Case T-173/98 Union de Pequenos Agricultores v Commission, Case C-50/00P, Union de Pequenos Agricultores v Council, Case T-177/01 Jégo-Quéré & Cie SA v Commission, Case C-263/02P Commission v Jégo-Quéré & Cie SA, Case T-236/04 EEB and Stichting Natuur en Milieu v. Commission, Case T-91/07 WWF-UK Ltd v Council of the EU, Case T-37/04 Regiao autonoma dos Açores v Council.

13

Jans, J.H. & Vedder H.H.B. (2008), pp. 209-214.

14

Paragraphs 94 and 95 of the Findings and Recommendations with Regards to Communication. ACCC/C/2008/32 (Part I) Concerning Compliance by the EU.

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The Lisbon Treaty has changed the wording of the ex-Article 230 of EC Treaty. It somewhat moderated conditions for requests of annulment or EU institutions’ acts lodged by natural or legal persons removing the condition that the challenged act must be of individual concern to the person. The fourth paragraph of Article 263 TFEU stipulates that: “any natural or legal person may, under the conditions laid down in the first and second paragraph, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.”

The recent judgment of the General Court provided for the authoritative interpretation of the term “act” as used in the fourth paragraph of Article 263 TFEU: “... the fourth paragraph of Article 263 TFEU, read in conjunction with its first paragraph, permits a natural or legal person to institute proceedings against an act addressed to that person and also (i) against a legislative or regulatory act of general application which is of direct and individual concern to them and (ii) against certain acts of general application, namely regulatory acts which are of direct concern to them and do not entail implementing measures.”15

The conditions of admissibility of an action for annulment of a legislative act are more restrictive that in the case of proceeding instituted against a regulatory act. This judgment also interpreted a term being “directly concerned”, rejecting a broad definition of applicant in the case. It referred to the settled case-law that defines when an individual is directly concerned by an EU measure.16 As far as the right for standing of natural and legal persons (environmental NGOs in particular) the fourth paragraph of Article 263 in fine establishes 3 conditions: • the request concerns a “regulatory act”; • the act concerns the person directly, i.e. the effects of the act for the person arise from the act itself without any discretion possibility for the authority responsible for its application; • the act does not entail implementing measures – the act itself has effects for the person without the need for later measures.



3 Regulation 1367/2006 (Aarhus Regulation), Title IV

The Aarhus Regulation was adopted because there was a need to improve access to justice in environmental matters regarding acts of EU institutions. The Title IV sets rules the goal of which is to implement Article 9(3) 15

Case T-18/10 Inuit, para. 45.

16

For example Case T-127/05 Lootus.

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of the Aarhus Convention. Article 10 of the Regulation introduced the internal review of administrative acts. It entitles environmental NGOs to make a request for internal review of an administrative act or omission of the Community institution or body that adopted such an act. The Commission has received a lot of requests for internal review based on the Aarhus Regulation. Two recent judgments of the General Court have challenged provisions of the Regulation regarding correct implementation of the Aarhus Convention Article 9(3) by the Aarhus Regulation – Case T-338/08 and T-396/09. In the Case T-338/08 the applicants (NGOs) requested the Commission to review the Regulation 149/2008 setting maximum residue levels for certain products. In the Case T-396/09 the applicants asked the Commission to review its decision granting the Kingdom of The Netherlands a temporary exemption from the obligations laid down by the Directive 2008/50 on ambient air quality and cleaner air for Europe. In both cases the Commission refused to review the acts. It considered the requests inadmissible because the acts were not “administrative acts” according to the definition of the Article 2(1)(g) of the Regulation 1367/2006 – they were not of individual scope. In both cases the General Court annulled the Commission Decisions on the grounds that the Regulation 1367/2006 was contrary to Article 9(3) of the Aarhus Convention in so far as it restricted the administrative review procedure to acts of individual scope.17 The Commission decided to lodge appeals against both judgments.18 The key reason for appeal however does not concern the wording “…of individual scope”, if it is in compliance with the Aarhus Convention or not. It rather concerns the possibility of the Court to examine the legality of the EU secondary laws implementing international agreements – the so called Nakajima case law. According to the Nakajima exception EU measures could be held invalid as being incompatible with provisions of international agreements even if those agreements lack direct effect.19 In the Nakajima case, paragraph 28, the Court found that the applicant was not relying on the direct effect of the provisions of the GATT Anti-Dumping Code but was questioning the validity of a regulation indirectly, in accordance with Article 241 of the EC Treaty, by invoking one of the grounds for review of legality referred to in Article 230 EC Treaty. The Court found that the regula17

Para. 71-79 in Case T-338/08, para. 58-59 in Case T-396/09.

18

Cases C-403/12P Commission v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht and C-405/12P Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe. The Parliament has also appealed: Case C-402/12P Parliament v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht. The Council has done likewise: Cases C-401/12P Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht and C-404/12P Council v Stichting Natuur en Milieu and Pesticide Action Network Europe.

19

Paragraph (5) of both above mentioned Decisions.

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tion challenged by the applicant in that case had been adopted in order to meet international obligations incumbent on the Community.20 The development of particularly the third pillar implementation of the Aarhus Convention is of a particular importance and interest, both at the national and EU levels. It is and will be affected by the political will in member states and the EU, but to a significant extent also by the interpretation of relevant provisions by the courts. It is crucial not only for environmental law but it may serve as a precedent for other sectors.

20

Case C-69/89 Nakajima v Council, paragraph 28.

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Clarification and Networking Methodology for an Institution Representing Future Generations Sándor Fülöp

chapter 8



clarification and networking

1 Introduction

Following a couple of international examples, the Office of the Hungarian Ombudsman for Future Generations (FGO) also experimented with new methodologies led by the hope to accommodate better to the challenges of the system of ecological catastrophes that, similar to other countries, Hungary has had to face. Our major goal was to confront the decision-makers with the environmental consequences of their decisions and to break through the thick wall of self-deception we call sustainable development nowadays. Careful, consequential multidisciplinary clarification of the background, motivations, processes and outputs of long standing, and complicated environmental conflicts turned out to be quite an effective methodological tool in the four year work of the Hungarian FGO. No successful environmental campaign can be run by a single institution. Networking seems to be the other indispensable methodological trait of an institution working for intergenerational justice. Networking, as a key concept of the post-industrial, information age, determined the internal structure of the FGO as well as its policy towards its state and civil partners and even our work with the cases and projects on single or general environmental conflicts. Institutions working for intergenerational justice shall not be a mere replication of the administrative bodies. Clarification and networking seems to be in striking antagonism with the working culture of the old administrative bodies serving environmental protection or other related interests. Their single issue, narrow-minded professional standards prevent them from offering substantial solutions to such complex issues as unreasonable consumption of the resources of our offspring, a national energy policy that handicaps the renewable energy sources, arbitrary water management programs that overlook ecological services of large rivers, urban sprawl caused by shameless real estate speculation and the blind mass escape from the unbearable features of city life, such as noise which is a daily practice for those who cannot afford a green zone house. We found that consequential, multidisciplinary clarification of these problems within our inside and outside networks is a key to solving them. In other words, the Hungarian FGO tailored its work to the facts of multilevel ecological degradations and threats and tried to set up its internal structure, working methods and outside network so that it could effectively solve the smaller and larger environmental conflicts that were offered to its attention as an ombudsman institution. In forming our strategies we tried to take into consideration the knowledge of up-to-date social sciences about network society and the defence mechanisms that prevent individuals, groups and whole societies from confronting the great and threatening challenges of the age of ecological catastrophes.

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2 The Challenges

The World is facing a system of ecological catastrophes, rather than “only” climate change. Species extinction, soil degradation, the critical level of air pollution and noise in the cities and intolerably large piles of waste around them are major, mostly synergic parts of this system. The United Nations initiated studies with participants from more than a hundred states with thousands of scientists, such as MA,1 GEO 52 or IPCC,3 and also independent studies put together by several dozen leading environmental professors such as the Planetary Boundaries article, 4 the Club of Rome reports,5 essays 1

The UNEP homepage defines MA as follows: Millennium Ecosystem Assessment assessed the consequences of ecosystem change for human well-being. From 2001 to 2005, the MA involved the work of more than 1,360 experts worldwide. Their findings provide a state-of-the-art scientific appraisal of the condition and trends in the world’s ecosystems and the services they provide, as well as the scientific basis for action to conserve and use them sustainably. See: http://www.unep.org/maweb/en/index. aspx While in the summary a kind of “political correctness” prevented the large board from picturing the dramatic situation, the text summarizing the findings contains some astounding data, for instance about loss of nine-tenths of the valuable fish stock of the world’s seas.

2

The latest Global Environmental Outlook of UNEP was launched on the Rio+20 conference in 2012 June. Its major message was that even the 20 years between the two Rio de Janeiro Earth summits, with full awareness already of the threats on our ecosystems the environmental parameters had gone seriously worse. Global annual CO2 emission has risen by 36%; the global average temperature has steadily grown; we experienced the 10 hottest years of the ever measured ones; and the disappearing rate of glaciers and polar ice is unexpectedly high. During the same period, the world’s primary forest coverage has decreased by 300 million hectares, a territory of the size of Argentina. Accordingly, the global living planet index has decreased by 12 %, falling down to 30% in the tropical area.

3

The IPCC homepage describes the organisation as follows: “The Intergovernmental Panel on Climate Change is the leading international body for the assessment of climate change. It was established by the United Nations Environment Programme [see 14/20 Global Climate Change]àI no link anymore, reference in bib! and the World Meteorological Organization [see Resolution 4 (EC-XL)] in 1988 to provide the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts. (…) It reviews and assesses the most recent scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change. (…) Thousands of scientists from all over the world contribute to the work of the IPCC on a voluntary basis. Review is an essential part of the IPCC process, to ensure an objective and complete assessment of current information. (…) Currently 195 countries are members of the IPCC.” See more at the homepage http://www.ipcc.ch/organization/organization.shtml#.UREX2PJJTcs. The fourth IPCC report of 2007 stipulates amongst others: “Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice and rising global average sea level.”

4 5

Rockström et al. (2009).

On their home page (www.clubofrome.org) they write: “In April 1968, a small international group of professionals from the fields of diplomacy, industry, academia and civil society met at a quiet villa in Rome. Invited by Italian industrialist Aurelio Peccei and Scottish scientist Alexander King, they came

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from Balaton Group members6 and declarations from the worldwide network of WFC.7 Only very few, middle or lower level scientists, oftentimes with too close a relationship with polluting industries dare to question these findings. These sceptics, however, receive higher mass media attention than they would deserve proportionally and morally. Even if so, the members of general public and politicians, administrative and economic leaders can have no serious doubts that the resources of humankind are quickly tapering down and so much pollution has together to discuss the dilemma of prevailing short-term thinking in international affairs and, in particular, the concerns regarding unlimited resource consumption in an increasingly interdependent world. (…) The originality of their approach soon became clear. In 1972 the campaigning of this growing group of like-minded individuals gained a new worldwide reputation with the first report to the Club of Rome: “The Limits to Growth”, commissioned by the Club from a group of systems scientists at the Massachusetts Institute of Technology. The Report explored a number of scenarios and stressed the choices open to society to reconcile sustainable progress within environmental constraints. (…) The international effects of this publication in the fields of politics, economics and science are best described as a ‘Big Bang’: over night, the Club of Rome had demonstrated the contradiction of unlimited and unrestrained growth in material consumption in a world of clearly finite resources and had brought the issue to the top of the global agenda. With its focus on long-term vision and provocative scenarios, the report sold more than 12 million copies in some 30 languages worldwide.” The new publications of Club of Rome in recent years include: “Enough is Enough”, “Bankrupting Nature” and “2052 – a Global Forecast for the Next 40 Years”. 6

“The International Network of Resource Information Centers, more commonly known as “The Balaton Group,” is an international network of researchers and practitioners in fields related to systems and sustainability. Founded in 1982 by Dennis Meadows and Donella Meadows—co-authors of the groundbreaking book “The Limits to Growth”—the Balaton Group is a cross-disciplinary, multi-cultural, and inter-generational meeting point for leaders and thinkers in sustainable development” – an excerpt from the self introduction of BG from www.balatongroup.org. Further famous members are Bert deVries, Timothy Jackson, Robert Costanza, Junko Edahiro and many of the top environmental scientists mostly working with high level mathematical instruments of system sciences. In 2009 the Balaton Group discussed Planetary Boundaries (before the launch in the periodical Nature), in 2010 sustainable agriculture and food safety, in 2011 alternative indicators of wellbeing.

7

On www.worldfuturecouncil.org they write: “The World Future Council (WFC) consists of 50 respected personalities from all five continents. They represent governments, parliaments, the arts, civil society, academia and the business world. Together they form a voice for the rights of future generations. (…) We make politicians aware that they have an ethical responsibility to assess every decision-making process on the basis of how it will affect future generations. In close collaboration with civil society groups, members of parliament, governments, businesses and international organisations we research future just policies and legislation. We then advise political decision-makers, offer them tried and tested courses of action and support them in the concrete implementation of new policies.” In their policy action plan “Saving our Shared Future – Best Policies to Regenerate our World” WFC warns: “We are the guardians of all future generations of life on earth. The consequences of our decisions have greater and longer-term consequences than ever before. The interlinked crises now endangering our shared future are accelerating. They now threaten all our achievements, plans and hopes.”

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been accumulated in our waters, soil and air that almost no living system will be able to accommodate to it in the long run. Loss of or meagre access to some resources, such as the fossil fuels (their peak points are already behind us) or the phosphates (we haven’t reached their peaks yet), is really painful. Fossil fuels are indispensable rough materials for the chemical industry while, without the phosphates that cannot be recycled, there can be no large scale food production on Earth. With other resources, like the majority of metals, technical development might be able to work out the methods of recycling or other types of closed loops of production and consumption. So there are chances to tackle the issue of the decrease of the resources in the foreseeable future even if at the price of large scale conflicts. Environmental degradation on the other hand, as a rule, will require thousands of years to recover. We do not have to be afraid; life will not be eradicated on Earth: the microbes that form 60 % of the biomass of our planet8 are just patiently waiting for the arrival of their time … But we cannot be so sure about the fate of human civilisation. One thing is quite probable: dramatic changes in our life condition in the following decades will cast a lot of suffering on all people: famine, thirst, lack of sanitation, pandemia, loss of habitats, social aggression, wars, etc. could be ahead of us.



3 The Real Challenges

The imminent nature and deep consequences of the system of ecological disasters are not questions anymore. The real question is how these warnings from the most prestigious scientific groups, the hundred times double-checked data of the UN institutions, which have undergone the most scrupulous filters of diplomatic discussions, cannot keep the issue on the front pages of our written and paper based media. Some idealistic hope mongers expected that the Rio+20 conference will sober the decision-makers of our world, make them at least halt for a couple of moments in their unsustainable everyday practices. But there was no real chance that it would happen. Countries participating first on the expert level then on the highest possible level of their respective state structures played their usual prisoners’ games, all of them being aware meanwhile that this game will end up in the worst possible sum result for the World.9 Even if the cooperation or at least “coopetition”,10 a reasonable mixture of cooperative and competitive actions, would be mathematically profitable for all of the participants quite obvi8

See in McNeill, J.R. (2001).

9

See more about the failure of the Rio+20 conference in: Fülöp, S. (2012).

10

In the Budapest ELTE University, Faculty of Philology there is a long tradition of researching the dialectic of competition and cooperation especially in schools or business relations. See for instance in (none of the authors are relatives to the author of the present article): Fülöp, M., Sándor, M. (2006).

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ously, state representatives opt for the old patterns of rivalry in diplomacy. They keep wishing everyone else will save the world, while they themselves would rather continue their free-rider policy of the so called “economic development”. Is that inertia, inactivity or as others call it, inactivism11 a result of a conspiracy of the beneficiaries of the reckless industrial activities or “just” a paralysing mass psychology procedure, social level, large scale defence mechanism? It is true that Canadian and US fossil fuel internationals, especially those who are interested in the new, dirtiest ever sources of gas and oil (shale gas and tar sand) support with enormous amounts those scientists who are willing to question the obvious facts of climate science. It is also well documented that there is pressure on right wing media to allow “equal” chances to both sides of the climate “debate”, overlooking the fact that the climate sceptics’ side is represented by only a very few, methodologically weak, financially and/or ideologically biased persons. Along this line some extremists amongst them argue that global environmental protection will undermine free market and national sovereignty in their countries – trying to interconnect the ecological inactivism with conservative ideologies. Yet, I do not think that the average newspaper reader or Internet surfer is so easy to manipulate. Together with the really spectacular development of manipulation tools there are simple, house made devices (such as common sense, talking to others, using multiple sources of information) of protection against manipulation and they are getting stronger, too. I suspect that some more solid, inherent features are the main sources of the inertia in ecological matters as some processes of individual psychology are magnified, multiplied on the social level. If it is true in the case of one single person that the stronger the threat the stronger the defence mechanism works, it might be true on a social level, too and it is also possible that groups will even add further devices: blocking social exchange in connection with the threatening facts, developing myths and even norms that prohibits anyone from dealing with the dangerous mental contents. It is still a question whether and why the social level psychological protection tools are more aggressive in the sense that they allow less compromise between contradicting contents. Some negative traits of group cohesion are suspected to act here. Some of the primitive defence mechanisms we witness on a social level are also borrowed from the personal level: first of all denial (as was the first reaction of climate sceptics groups, lasting for decades), separation of the fearful contents, especially slicing (“the project might be slightly dangerous according to the experts, but legally I do not see any objections…”) and projection (“well, environmental catastrophes could happen, but only in far regions, where the dwellers were not careful enough”).12 11

See a very detailed and eloquent description of aggressive campaigns of inactivism in North America supported by big oil internationals from Leo Elshoff (Elshoff, L. (2011)).

12

This neo-freudian approach of social level protective mechanisms are naturally not the only explanation on the widespread paralysis about the threatening facts of environmental catastrophes of our times. Cognitive psychologists are also dealing with this phenomenon. They are interested in forming

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Without entering into the details of close relations between primitive, black-and-white perception mechanisms and psychopathy,13 and resisting the temptation to give a long list of features of economic and political life of our societies that have a close resemblance to the traits of such a borderline personality disorder, we can underline that according to the clinical practice the only possible treatment (or at least a tool to keep the patients symptomless in the long run) is clarification. I think, therefore, that societies who are sick of the too large ecological threats and fighting with phantoms of denial, separation and projection shall also be consequentially, continuously confronted with the facts of reality. It is natural that these facts make all of us relentless, but the feeling of fully gauging them, the adult-like surveying of our emerging tasks, responsibilities and chances, discussing them on public fora and occupying our place in the system of counteracting and resilience might fill us with strength and confidence. Naturally, aspects broader than psychological and social-psychological ones can also be taken into consideration when we try to find answers to the quite unreasonable inertia of our societies at the beginning of the age of ecological disasters. De Vries14 summarizes several dozens of social, historical development models and concludes that the developed world has reached a declining period, where the social cohesion, and trust as social capital is decreasing; communities and individuals turn inward and select more selfish, short-sighted life strategies instead of the altruistic, future oriented ones. In addition to that, institutions of declining societies seem to react more and more aggressively to any signs and actions that reveal their weaknesses and raise the need and possibility of radical changes. Therefore, unreasonable responses on the personal and social level to the challenges of the system of ecological catastrophes might be explained by these historical arguments, too. Similarly to the previous points I made in connection with the psychological, social-psychological approaches, there are possibilities of positive outcome in the historical interpretation of the inertia of our times. Even if we are at a border of two ages, chances of an organic development from here to there are not yet totally over. New technologies, especially in processing and disseminating information might change the economy, the power system, the attitudes and values of people and our whole life. Widespread availability and multiplied value of information might bring the age of networking,15 where social cognition and actions might turn to be much wiser and effective than in our present days. A more practical interpretation of the same process is transgovernance,16 attitudes, values and norms, in questions such as: how do individuals structure their thinking about environmental issues, how are these cognitions learned, and how do they influence behaviours? See for instance in: Henry, A.D. and Dietz, T. (2012). 13

See in Kernberg, O. (1976), p. 299; Kernberg, O. (1975), p. 361; and Hartocollis, P. (1977), p. 535.

14 15

de Vries, H.J.M. (2011).

See first of all at Castells, M. (2010).

16

In ‘t Veld, R. et al. (2011).

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where the ruling forces of our societies, representative democracy, top-down media and disciplinary science will have to share their realms with their raising counterparts such as participatory democracy, bottoms up community media and transdisciplinary sciences respectively. If we take into consideration the psychological, historical and philosophical approaches, we can sum up the trends, according to which these macro level social changes will result in a paradox growth in individualisation, where people will be less dependent from hierarchical power relations, while much more interconnected in horizontal networks. Orders and coercion will give their way to contractual types of relations. The only remaining question: will we be able to harvest the fruits of this new freedom before the ecological systems of Earth collapse? Will the societies be able to organise themselves quickly enough to cope with the catastrophes? Promising institutional developments in a handful of countries and new legal institutions might offer a very cautious yes to this question.



4 Experiences of the Hungarian FG Institution

In the last two decades, both the idea and the institutional expression of intergenerational justice were developed in several countries. These ideas and institutions represented longtermism in contrast to the reckless and self-destructive social practice of our times. The initiative of an environmental ombudsman was raised in Hungary as early as in the process of writing the constitution in 1989 and during the codification of the general environmental law in the early nineties. Although at those times the idea could not prevail, an NGO called Védegylet (Save the Future) embraced and transformed it into a proposal on an institution protecting sustainable development and intergenerational justice. In 2000 they produced a textual legal draft on this issue with the help of László Sólyom, formerly head of the Constitutional Court, later president of the country. Two years later Védegylet would convince a couple of government side and opposition MPs to issue a joint bill in the Parliament about the institutional representation of future generations, but it failed at that time. The NGO kept holding this issue on the political agenda and could harness a rare stalemate situation in the Hungarian political fights in 2007 when all the 5 parliamentary parties were eager to exhibit proactive thinking and were willing to amend the Ombudsman Act and insert a new chapter about an independent ombudsman for future generations. In 2008 the leaders of the new independent parliamentary ombudsman institution started to design it from scratch. We shared the views about the existence of and the ways to cope with the challenge of intergenerational justice amidst the circumstances of the systematic global ecological crises. Therefore, our slogan and leading idea of building up the structure of the new office and organising its work was “clarification and networking”. Retrospectively I think,

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we can conclude that this attitude saved us from arbitrary experiments, and at the same time it ensured the right track of organic development and brought us good results in effective solving of environmental conflicts of a different scale. In order to prove the practicality and effectiveness of these theoretical bases of clarification and networking I need to dwell upon some details of the structure of the Hungarian FGO and our everyday work. In designing the structure and hiring our 40 colleagues we ensured multidisciplinarity as a basic condition of effective internal network building. Being a constitutional guardian body, representing an extended arm of the legislative (parliamentary) branch of power in controlling the activity of the executory power, almost half of our employees had to be lawyers, with environmental (administrative) and constitutional legal background. However, the rest of the officials in the Office of the Hungarian Ombudsman for Future Generations (FGO) were representing various professions like physics, chemistry, biology, medical science, environmental economy and we even had an environmental philosopher working part time for the office. It was a key issue for us that lawyers and experts were strongly encouraged to work in teams and we spent considerable time (almost a whole day every week) with several internal meetings of the 6-8 department leaders and deputies, of the staff of the 4 departments and the ad hoc project teams of larger cases, research and networking programs, legislative lobbying issues, etc. As for the management concerns, FGO operated like a council, rather than an office led by a figurehead person. This institutional arrangement has ensured a systematic approach in the work of FGO. This approach ensured that our office could understand and work through all the legal and professional ramifications of the environmental conflicts we were supposed to solve in the average 200 individual cases annually and in our ex officio projects. We have called this approach the “finality principle” that involved a lot of follow up research too and long correspondence with the reluctant authorities we addressed in our multidisciplinary analyses and statements. This overall clarification of the background of all of our cases with the help of an effective internal network usually astounded the officials of the concerned environmental, construction, mining etc., governmental and municipal bodies, but made them gradually change their legal practice. During the investigation of our cases we had an iterative methodology, we visited the sites several times, also frequented the concerned local communities and all kinds of authorities with competence in the cases. At the closing stage of our examinations we asked the opinion of all the participants about our draft statements and tried to use the comments of them in some way even if we disagreed with them. This methodology in itself got close to a real (external) network building and helped us to clarify all the details and aspects of our cases. Our casework was in the majority of the issues led by the complainants. This way in the long run the division of the caseload of FGO has drawn a map of environmental conflicts. The major and most frequent issues were: spatial

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planning (where the fate of green surface and the future polluting activities are basically determined by local municipality representatives often times biased for short term advantages) and city noise (which is not taken seriously by the authorities although continuous noise is a serious health risk factor) . Less frequently, we had quite a couple of nuclear (several aspects of the Paks power plant) and non-ionizing radiation cases, nature protection, drinking water protection, clean air, hazardous waste and other priority cases.17 This conflict map allowed us to systematically review the major types of the environmental conflicts of the country: being aware of the system (nature and territorial division) of environmental conflicts in the country, FGO could organise 2-3 ex officio thematic researches per year focusing on the most controversial issues. Starting from the experiences deducible from our cases, we prepared interviews with the relevant administrative officials, read literature and convened scientific conferences. These procedures usually concluded in quite voluminous reports with detailed proposals concerning legislation and legal practice. While in these thematic researches FGO used the help (information, suggestions, analyses) of its external network of NGOs, scientific institutions, universities, churches, international organisations and the media, our findings were widely used and referred to by the members of the same network. These studies effectively bolstered our parliamentary (also governmental, ministerial) legislative lobbying and in our work with environmental authorities and other relevant administrative bodies, trying to amend their legal practices. Such projects of FGO included amongst many others: the background of city noise cases, the Danube issue, sustainable local communities, alternative indicators, environmental education, climate and energy, cultural heritage. As concerns the contents of these reports on general issues, we can give an insight into our methodology by shortly describing the FGO project in connection with the longstanding stalemate of the Danube river conflicts in Hungary.18 Based on our preliminary research, we called together a conference on the fall of 2010 with the representatives of as many as seventeen concerned professionals. Such a widespread network of experts mirrored our conviction that such an issue can only be solved in the network of all interested parties. As a follow up to the research and the conference, we have concluded in our proposal to the Government, that before any decisions were made concerning our large river, the decision-makers should listen to all of these opinions in order to avoid arbitrary decisions serving exclusively, for instance, energy or transport interests, overlooking nature protection, agriculture, drinking water, tourism and many

17

See more in the FGO English language annual reports between 2008 and 2011 on the homepage www. jno.hu.

18

In the eighties and nineties the major conflict in connection with the Danube was the planned hydropower station, while in the previous decade several shipping and related river regulation plans triggered off angry reactions from the professional and general public.

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others. We can add that this approach is in harmony with the ecological services concept of Robert Costanza.19 The largest research and networking enterprise of FGO was the sustainable local communities project. After an extensive research period we started to organise a network from the representatives of community experiences and the concerned administrative, business and civil role players. In close cooperation with them we developed numerous proposals to the Government and the Parliament that were aimed at making the lives and work of sustainable local community pioneers easier. For example we raised detailed legal and practical proposals in connection with access to local markets; ensuring healthy organic food in schools; removing administrative barriers from using historical construction materials; supporting ancient herb culture and saving the rich agricultural genetic heritage of the country. In connection with these topics, in 2012 in the Pannonhalma Monastery, we convened a conference with more than 100 experts of related fields and summarized our proposals to the decision-makers of the country in a document, called the Pannonhalma Declaration. Within the frames of our sustainable local communities project we also launched an initiative to save various ancient fruit tree species in church gardens (the bottlenecks of maintaining the agricultural genetic heritage are the available territory and committed supervision). Upon the invitation of FGO more than 80 religious local communities offered their church garden and work to host such tree plantations. These projects did not hurt directly any interests, but were considered quite strange by the administrators and politicians who encountered them. We know from the psychology literature that on the individual level the consequential clarification triggers irrational aggression – people feel surrounded, deprived from the convenient lies they might call “compromises with the reality”. In the political and administrative sphere identical psychological processes might take place. Officials using their inherited single track methodology might feel offended when confronted with the results of a multidisciplinary complex analysis and also the community culture within an administrative body, even if it is a modern environmental authority, develops mechanisms that defend the coherence and prestige of the organisation and counterattacks when it interprets the new approaches in an FGO report as an implicit criticism of (threat against) their value system and organisational culture. Also the cases, individual, local or small region environmental conflicts that FGO handled successfully, resulted in resentment from influential economic circles and therefore made the political situation of our office more and more difficult. Thousands of hectares of the last green spots around the larger cities of Hungary were saved by FGO (decreasing our popularity amongst real estate speculators, strong allies of several political parties), large polluting enterprises (such as the 50 MW Szerencs Power Plant in the buffer zone of the Tokaj World Heritage Site) were prevented and we could even cross out the plans of the 19

See for instance in Costanza, R., et al. (1997).

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Ministry of Defense to put a radio locator with strong and long lasting nonionizing radiation on the top of a hill in Pécs (a South Hungarian city with 160.000 dwellers). We considered these successes as a positive feedback of our methodology using clarification and networking, while our counterparts might feel differently. No wonder that when the new right wing government started to rewrite the constitution of the country, the institution of ombudsman for future generations was to be totally eradicated. However, a very large social network, including NGOs, the academia20 and several church leaders put strong pressure on the Government, so in the final text of the constitution FGO could stay, although unranked, as a deputy of the general ombudsman. While the battle was won, we lost the war. Later, the detailed regulations like the Ombudsman Act and the bylaws of the unified ombudsman office silently made the former independent and successful office into a pointless consultation body with no examination powers and no separate resources at all. Whatever was the fate of the Hungarian FGO we can tell that the two methodological traits, clarification and networking followed it all along its path. Were we a system alien with the consequential use of these methodological traits? Or was the system alien? Future generations will be able to tell, should they be interested in this momentum of the institutional developments in a small country like Hungary. However, some general issues are worthwhile to consider, because, fortunately in numerous other countries in Europe there is a growing interest towards developing institutions that represent and protect the interests of future generations. Wales has already developed a White Paper on a sustainable development body, and there are strong civil movements in Norway and the Netherlands that lobby21 for the same idea.



5 Experiences that Could be Generalised

Apart from the Hungarian FGO there are several other meaningful examples of innovative representation of future generations or sustainable development interests. The earliest example is the New Zealand Parliamentary Commissioner for the Environment (PCE) that started its operation in 1987; following the establishing piece of legislation, the New Zealand Environmental Act of 1986 and – which is even more important – the PCE is still in operation. This body is not dealing with individual cases, however it receives individual suggestions that might direct its attention to meaningful 20

Including numerous well-known foreign constitutional lawyers, who accepted our invitation and actively participated in the conference on environmental constitutional rights in January, 2011. Through this clarifying event we could convince the Hungarian legislators to include strong future generations language in the text of the new Hungarian Constitution of 25 April, 2011.

21

In Norway the campaign is led by the youth organisation Spire, while in the Netherlands the head of the coalition is the organisation of Worldconnectors.

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sustainable development problems that are worth deeper analysis. Similarly to the Hungarian FGO, they deal not only with environmental problems in their narrower sense, but with sustainable agriculture, energy and climate issues, water management, etc. The second institute that is important to mention is the New Jersey chief prosecutor for environmental protection, which operated between 1990 and 1994 until the new conservative governor eradicated it with one of her first measures. Even if the New Jersey office had no direct commitments toward future generations, the creative positioning, high level of independence, multidisciplinary staffing and methodology, wide spread networking, popularity and outstanding successes in solving longstanding stalemate environmental conflicts ensure a place to it in the almanac of the most eminent institutions that worked for the future generations. Third, a Parliamentary Commission of the Future Generations operated in the first couple of years of the first decade of the new century, until the Government had a convenient enough majority in the Knesset to suspend its operation. This Parliamentary Commission had the widest scope of authority amongst the similar bodies; it dealt with all kinds of issues that might concern future generations, starting from cultural issues, through childcare and pensions up to such symbolic cases as the free access of people to the seashore. The only power of the Commission was to halt the legislative processes of the bills they considered significant for the fulfilment and protection of the interests of future generation – but this right could be used effectively. Sooner or later the proponents of the bills realised that it was better to work out a compromise with the Future Generations Commission than to have no advance with their bills. Ideas of institutional representation of future generations are developing with the accumulation of the experiences of the last two decades. In the Welsh Government’s White Paper22 on Sustainable Wales a large part is spent on an Independent Sustainable Development Body, “a high level cross sector representation; be independent and strong enough to be critical of Government when needed; have responsibility for recommending and monitoring key indicators of progress; be focused on problem solving; bring an interdisciplinary approach and enable joint action from across sectors; ensure strong civil engagement to underpin its role; and be established for the long term with stable resources.”23 Even if the body is led by a Commissioner, there is an advisory panel that ensures collective wisdom in its operation. What is more important, the new Welsh Sustainable Development Body will be oriented by an explicit definition of sustainable development (included in the White Paper24 and most probably in the coming sustainable Development Bill, too) and it contains strong references on one hand to respecting the limits of the natural and cultural environment, using only our fair share of the earth’s resources and to promoting social justice 22 23

A Sustainable Wales: Better Choices for a Better Future (No. WG 17030).

Ibid, Point 3.2.

24

Ibid, Point 1.9.

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and equality of opportunity for the present and future generations as well, on the other hand. Naturally, legal and policy literature analyses these and other examples and tries to distil the most general features of a proper institutional representation of future generations. World Future Council, a think-tank supported by 50 eminent personalities from several professions with environmental relevance has formed a Future Justice sub-commission and working group and deals extensively with this issue. The major features of such an institution according to WFC are: longtermism, integration, bringing authority to agreed upon sustainability goals and holding governments and private actors accountable for not delivering on them, and also connecting citizens with the national and even international level decision-making procedures.25 WFC has issued and widely disseminated a brochure on this issue and further broke down the main branches of her responsibilities:26 “The Guardian • as an ombudsperson conveys citizen concerns to the legislating units; • as an interface creates incentives for integration and prevents policy incoherence; • as an advisory body recommends solutions; • as an auditing body traces conflicts of interests and road-blocks to implementation.” In their later works. the WFC team added further elements to it, such as having access to all information in all governmental departments; systematic overview of the work of government. Summarizing the views of WFC, a Guardian for Future Generations is to be: • Independent – the Guardian should not hold another post in the structure of the State, such as within a parliamentary committee and her office should also have an independent legal status (concerning election and re-election, budgetary issues, excluding specific instructions from any other bodies or organisations etc.); • Effective – that means according to WFC that its decisions should be legally binding. Research has shown, they continue, that the “shadow of enforcement” is very important for effective intervention, even if it is not used. The Ombudsperson should have the opportunity to put actions or policies on hold if evidence on the long-term consequences is insufficient. At best, he or she can call on a Court if subsequent delivery of more information is not convincing; • Transparent and accessible – in order to increase trust. In addition to that the office needs a clear and direct mandate and should report regularly about its results. It should allow for all inputs from all stakeholders; 25

http://www.futurejustice.org/action-the-campaign/?section=full#21.

26

“Guarding our future – how to include future generations in policy making”, Göpel, M. and Vincent, A. (2013), available at: http://www.worldfuturecouncil.org/fileadmin/user_upload/Future_Justice/Ombudspersons_for_Future_Generations_Broshure_WFC.pdf.

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• Legitimate – in close connection with the previous condition, the Guardian should enjoy large public support, should maintain good relationships with all stakeholders during investigations, and the results of them should be communicated widely in the media.27 The British Foundation for Democracy and Sustainable Development took part in the campaign of several environmental NGOs and think-tanks addressing Rio+20 Earth Summit and issued a paper in order to influence the outcome paper of the high level conference of the States.28 Indeed, the creation of a global institution for representing the interests of future generations is a logical development even without such an outstanding meeting of the world’s leaders – the proper handling of an inherently global phenomenon as the system of ecological crises will need global level responses, too. In many aspects the major traits of the global, regional and national level institutions representing future generations will be identical. As the FDSD study goes: “It must be widely understood that in addition to collaborative processes, the Office of the High Commissioner has authority of his or her own motion to initiate inquiries and to issue statements on matters of concern; to act independently and free from political interference”

and further: “The proposed powers and responsibilities span international agenda-setting and leadership (including dialogue and advocacy on matters falling within the scope of the mission; and offering advice, on request, on implementation of relevant existing intergovernmental commitments); monitoring, early warning and multistakeholder review; capacity-building for innovation at national and subnational levels; and fostering understanding and analysis related to the mission.”29

The public relations of this Commissioner should be really widespread: “The new Office will understand and maximise the value of networking, engagement and dialogue – with UN institutions, states, individuals and groups, as key tools in creating the necessary agencies for change. (…) There should be a presumption of public transparency in the implementation of the High Commissioner’s mission, whilst allowing for confidentiality in cases where this is appropriate or necessary (for example for the protection of individual privacy or in order to ensure access to full information in the course of a multi-stakeholder review process).”30 27

http://www.futurejustice.org/assets/Ombudsperson-Criteria-for-Impact.pdf.

28

Ward, H., et al. (2012).

29 30

Ward, H., et al. (2012), p. 11.

Ibid., p. 12.

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The tasks of such a global representative of the future generations as the FDSD study collects them to fit to all possible levels (naturally with the respective levels of partners): • Agenda-setting and leadership – contacting existing international institutions, treaty secretariats, international initiatives and states, advocating for matters at United Nations organisations and other international bodies, engaging in a dialogue with all states and other state level stakeholders, too; offering advice on implementation of existing intergovernmental commitments to or recognition of future generations or the common heritage of mankind; • Monitoring, early warning and review – based on interdisciplinary, systematic surveys and targeting not only the official decision-makers, but the members and associations of the public, too; performing comparisons in time and across territories and conclude the necessary recommendations out of them; summarizing the results of these surveys in widely accessible and high prestige reports; • Supporting public participation – to act as an advocate for, and to promote and facilitate, the engagement and full participation of the public in environmental cases and in matters of intergenerational justice; building the capacity of civil society groups, including promoting partnership with appropriate institutions and/or groups, advisory services and technical assistance and also by education and public information programmes. • Reporting – to report annually on the work to the respective constituencies, naturally fully accessible by the general public.31 Taking into consideration the existing examples collected by WFC and FDSD, the proper institutional representation of the future generations should have at least the following features: • System oriented – holistic, multidisciplinary and even transdisciplinary,32 aiming cross sectorial representation and integration. This trait logically concludes from the challenge itself: once the global ecological crisis forms a sophisticated system, it is unavoidable to use a system approach when tackling its consequences. The old style methodology of the “modern” administration, the one track, overspecialised, linear handling fails here, as a rule; • Future oriented – longtermist, proactive, agenda setting, actively recommending solid solutions to the ecological and other related conflicts. The one motion, “here and now” attitude of the present decision-makers of our world leads us deeper and deeper into the systems of intertwined economic and ecological crises; 31

Ibid., p. 16.

32

A study, research, a scientific approach etc. is multidisciplinary when able and willing to consider the viewpoints, statements, methodology of more than one branch of sciences, interdisciplinary when it is forming a coherent picture by using these several sciences and transdiciplinary when involving political, economic and civil viewpoints, attitudes, values etc., too. See In ‘t Veld, R. et al. (2011), p. 68.

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• Multilevel (global and local) oriented – even if the typical representative of future generations will work on a national level, it shall bridge the local and global levels.33 Its major constituency is the community of the environmental NGOs, whom it primarily serves with its work, especially the local, grassroots ones. Local communities are usually problem oriented, they are not interested in initiating and closing administrative files, they would like to see their environmental conflicts solved, therefore they have a holistic, problem oriented approach. Local communities are seldom selfish, shortsighted ones (even if some of the members, especially the leaders are); they don’t ignore the fate and interests of their children and grandchildren. The voices of local communities are to be added together as a natural expression of global interests and solutions of intergenerational nature. The future generations’ institutions, however, have also an important responsibility to deliver the global scientific information and social messages to the concerned local people and to interconnect them with other communities from several edges of our world; • Effective – meticulous, consequential clarification of the reasons and nature of the environmental conflicts of our times and that of our offspring can only make such a body effective. This clarification shall take place in a coalition with all the stakeholders of the cases and the results of clarification shall be disseminated also in the widest possible circles of interested groups and individuals. The future generations’ body shall present and prove any relevant policy incoherence in the work of the government and shall follow up on the activity of the bureaucrats once the proper handling of an environmental conflict was decided. A wide scale of relations shall be maintained with environmental scientific, civil and governmental circles and also churches. While this strong network and the solid professional background will ensure high level prestige and visibility for the future generations’ institution, direct administrative power (apart from having unconditional access to any administrative files and personnel to interrogate) would make that a part of the governmental system and – paradoxically – spoil its effectiveness; • Independent – since the institution for the future generations is primarily to control governmental plans and measures, its independence from the government is vital. A parliamentary affiliation is usually considered the best solution in positioning such an institution within the state system. Election and nomination rules, especially exclusion of re-election and beneficial long term budgetary arrangements shall also serve its independence. Periodical reporting and good governance (transparency and accountability, first of all) within the office of the future generations’ institution are also important guarantees of unquestionable independence.

33

“Think globally, act locally” sounds the slogan of the Friends of the Earth, since their establishing in 1969. See at http://en.wikipedia.org/wiki/Think_globally,_act_locally.

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I think that this summary of the deductive elements of the large scale and deep analyses from WFC and FDSD brings their results closer to the main features of the Hungarian FGO, basically put together with an inductive way, starting out from our convictions and speculations about the major bottlenecks in realisation and effective coping with the system of the ecological crises and about the major driving forces of our information age.



6 Law as a Tool in the Hands of the Future Generations

Talking about a procedural tool of enforcing the interests of future generations, the question of substantial legal bases emerges as a necessary logical component. It also seems to be an apt closure of these ideas about the institutional representation of future generations to position it in the system of procedural legal tools and accompany it with the possible sources of substantial laws to be implemented. In other words, we need to see how the existing body of environmental law, especially international environmental law can be an effective tool to protect future generations. While the procedural conditions of a successful operation of the institution representing future generations are analysed in depth in many sources, substantial issues of its operation are seldom addressed. Direct references to future generations’ interests (let alone rights) are rare in the present law, but some more general basic considerations that help in interpreting the environmental and intergenerational conflicts are already available, such as the principles of the Rio Declaration34 especially principle 3 on intergenerational justice and principle 15 on the precautionary principle. Even some sporadic mentioning of future generations in the constitutions of some countries, mainly in the case of the constitutions created or amended in the last decade, such as the new Hungarian Constitution of 2011.35 Also, substantial rules of environmental protection in many ways can be interpreted as protecting the future generations, as well. The main message of the referred to legal-constitutional sources is that in the decisions on social and economic and technical developments, a careful precautionary approach shall be applied; trial and error experiments are not acceptable when the future of our civilisation is at stake. We have to clarify the situation, agree to the necessary solutions, than establish them as values deter34

See for instance at: http://www.unep.org/documents.multilingual/default.asp?documentid=78&articl eid=1163.

35

As a result of the compromise during the creation of the new Hungarian constitution in 2011, the final text of it contains very strong future generations languages. Recital 8 of the Preamble refers to the responsibility of the present generations towards the future generations, Article P amongst the general provisions stipulates that natural resources such as living waters, forests, biodiversity, arable lands and cultural heritage forms the common legacy of the nation and as such shall be protected and sustained by the State and by everyone. Even in the section about handling the national budget, the new Hungarian Constitution warns that the interests of the future generations shall be taken into consideration.

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mining our legal systems.36 The legal form of these values are general principles, whose development started with the 27 Rio Principles from 1992 and was continued by the international environmental legal scholars, for instance by the 7 principles of the International Law Association in New Delhi, 2002.37 Some of the principles contain serious procedural elements, too, such as the nonretrogression principle or the precautionary principle that is interpreted also as a principle on the division of burden or proof (i.e. those who intend to install an environmentally hazardous activity or device shall prove beyond reasonable doubt that it will not cause harm in the long run – otherwise the plan shall be cancelled), but several others, such as the polluter pays principle or the common but differentiated responsibility. Having accepted these principles, countries, regions or even global organisations should build plans and policies around them (with implementation deadlines, responsible institutions and persons, cornerstones, indicators, feedbacks etc.). They should create then the necessary legal institutions and techniques in order to implement these plans properly:38 substantial legal requirements that infiltrate the whole legal system, institutions that implement them in an integrative way, procedures for implementation and enforcement, sanctions etc. in harmony with rule of law. Such modern environmental legal tools include: the environmental impact assessment (EIA) family of institutions, public participation, health based legal standards and thresholds. The institutional innovation of introducing a body into the state system that represents the interests of the future generations and that has a controlling balance function as ombudspersons have seems to be a logical step forward in the development of the legal protection of the environment and the future generations and would greatly reinforce the already existing legal tools.

36

This idea is in close relation with WFC idea on taboos. See http://www.worldfuturecouncil.org/future_ justice_taboos.html (not available anymore!). The most important taboos according to WFC are: “knowingly break the limits of our earth’s carrying capacity; oppress rights, remove freedoms, abuse trust and exploit fear among people in one’s own or other societies; maintain rules that continue or increase injustice and insecurity now and in the future.”

37

See in details at Göpel, M. (2010).

38

“History proves that there is no faster way to make change happen than through binding legislation. Laws are both the harbingers and fruits of the change of heart, mind and conduct we need today to save our planet and ourselves.” – sounds the WFC Policy Action Plan, titled “Saving our Shared Future – Best Policies to Regenerate our World”.

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Problems and Questions of Public Interest Environmental Litigation in Hungary and in the EU Csaba Kiss

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problems and questions of public interest environmental litigation in hungary and in the eu

1 Definition of the Topic Area

The area selected as a topic of this study is quite narrow; however, it is not standing alone or without factors that would define its features. Rather it is also embedded into a broader context that is again part of another broader context, etc. – until there are at least 3-4 layers of the problem area that are all interconnected and intertwined.



1.1 What are these Layers or Fields?

First of all, there is environmental decision-making in the broadest context. This encompasses all processes run by public authorities which affect the environment. Such processes can be legislative processes, planning or programming processes or processes related to individual projects. The latter may manifest either in the use of natural resources or the use of certain characteristics of the environment, e.g. as a place where waste can be stored, etc. Secondly, there is public participation in environmental matters. Public participation in its broadest sense has three major forms, i.e.: • access to information; • participation in decision-making; • access to justice. We will not examine all three forms; nevertheless, we must make a distinction and establish that public participation in a narrower sense is considered to be a collective noun for all the actions of the public that are performed in order to influence a planning, programming or project-level (individual) decisionmaking process before the final decision is made in environmental matters. This can take the form of comments, manifestos, public hearing, opinion or position papers, etc. Thirdly, there is access to justice in environmental matters that is not to be mistaken with access to courts, because the previous is a broader notion than the latter. This stems from the fact that not only courts or other judicial forums can deliver justice in certain (environmental) matters but other independent and impartial bodies can also serve recourse in environmental disputes. Finally, we have reached the actual subject of this paper, i.e. access to courts and litigation as part of public participation in environmental matters. We will also apply a geographical limitation here and examine only the case of Hungary and the European Union. Let us illustrate our subject matter on a chart as set forth below.

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Figure 1.



1.2 What is the Essence of Public Interest Litigation in Environmental Matters?

Public interest litigation as a form of access to justice in environmental matters is a field with many specific features and has a sociological as well as a legal significance. First of all, access to justice in environmental matters defies the traditional relationships between the three angles or sectors of society. Many believe that the environment is a matter between the business sector that uses the environment and the government sector that is a guardian of the environment. The government licenses the business sector to use the environment as a resource. The social sector is affected by this and stands up to have its say on the issue (requests information, participates in decision-making and seeks remedies). This applies to individuals or non-governmental organizations (NGOs) who exercise their access rights in the interest of the protection of the environment. The social sector, in this context, is the public, which is affected by the activities of the business sector that uses the environment through, for example, air pollution, noise emissions, loss of green spaces and of biodiversity, and waste generation.



1.3 What are the Public Interest Cases?

Opening a debate on what is public interest is like opening a can of worms. Most probably there is no precise and accurate definition of public

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interest, let alone that different public interests may even collide with each other. Let us just think about energy production and nature conservation. Both are highly regarded and important interests of society, however, their clash causes a dilemma that is almost impossible to solve. Should we erect wind farms to produce electric energy from renewable sources? Certainly! Can we do it anywhere? Well, not so much, e.g. where it would destroy the scenery of a beautiful coastline or disturb the flying routes of migratory birds, such installations are highly unwanted. As it unfolds between our very eyes in the previous example, two public interests may well contradict each other and the solution can only happen on a case-by-case basis. But in that case, we do not have a measurement unit in hand that we can apply to any such conflict to be able to easily resolve it. Nor do we have a clear definition of public interest – or at least the definitions such as “welfare of the general public” (in contrast to the selfish interest of a person, group, or firm) conceal the fact that manifestations of the public interest may vary considerably and the situation in real life is never crystal clear. For this reason, we suggest a legalistic approach, and recommend using a classification heading that applies a presumption saying: disputes initiated by the public in environmental matters are per se public interest cases. It is needed all the more because, while public interest may be elusive or fluid in instances, it surely is easier to find in debates, discussions, exchange of ideas or even legal disputes.



2 Pros and Cons of Public Interest Environmental Litigation

As we have already expressed our conviction, the public interest environmental cases are important both from a legal and a sociological point of view. Therefore it is advisable to allow broad opportunities for the public to participate in environmental decision-making and later seek remedies. What are the pros and what are the cons then? The most illustrative way to present the conflicting ideas is to use a matrix:

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Figure 2.

It is not a mistake that the balance is tilted towards the PROs – we believe that public participation (if for nothing else than at least for bringing in new ideas into debates on what the public interest is in a particular environmental matter) is an essentially good thing. Others also think that public participation by legal means, e.g. public interest environmental litigation is a desirable thing. The European Commission has expressed its opinion on the matter stating that: “A way of improving enforcement is hence to ensure that representative associations seeking to protect the environment have access to administrative or judicial procedures in environmental matters. Practical experience gained from granting legal standing to environmental non-governmental organizations indicates that this can enhance the implementation of environmental law. Better access to

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justice in environmental matters for representative groups advocating environmental protection will have numerous positive effects, the most significant being a general improvement of the practical application of environmental law.”1

But it is not only the standpoint of the Commission, it is also shared by members of the judiciary, e.g. from the UK: “[…] if the legislative and administrative instruments of protection of the environment are not developed sufficiently or do not work properly, the courts and judges shall “fill the gaps”, namely by “creative interpretation of the constitutional laws”. […] To perform this role successfully, the courts need that there is enough active individuals and groups, willing to “carry on the risks” of participation in the legal processes. Aarhus Convention, if interpreted and used properly, can be seen as a tool for limiting these risks and enhancing the position of the members of the public actively involved in the environmental protection.”2

And indeed the public interest environmental law organizations or NGOs protecting the environment through legal means also believe that increased access to justice is a progressive thing. Most importantly it is because access to justice in environmental matters has a crucial role of correcting maladministration of public authorities.



3 Conditions of Public Interest Litigation

But access to environmental justice has a number of barriers. The most important ones, just to name a few, are the following – in which by the way most of the public interest environmental litigants and practitioners agree:



3.1 Legal Barriers



3.1.1 Lack of Forum

There are only a few countries in the EU that have specialized environmental courts. Almost none of them are in the Central and Eastern European (CEE) region. As an exception, Austria has had a so-called Umweltsenat since 1994 but the situation will change and from 2014 this body will be dissolved and administrative courts will take over its tasks of adjudicating environmental (EIA) cases. There is definitely no specialized environmental court in Hungary as part of the judiciary; however, Hungary used to have an Ombudsman for Future Generations (2008-2012) and now has a Deputy-Ombudsman for Future Generations with much downgraded powers. This however may still 1

EC in the reasoning to the Access to Justice Directive Draft 2003 COM(2003) 624 final.

2

Lord Justice Robert Carnwath, 2008.

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qualify as another independent and impartial body but it has no competence to make binding decisions.



3.1.2 Restrictive Legal Standing Criteria

In order to exercise the right to legal remedies, one has to have legal standing. Legal standing is the legally protectable stake or interest that an individual or an organization has in a dispute that entitles him/her/it to bring the controversy before the court or another independent and impartial body to obtain (judicial) relief. Conditions of legal standing vary greatly according to the subject of legal standing (private individual, business entity, civil society organization); the object of the legal dispute (administrative law case, private law case, commercial law case, family law case, environmental case etc.); and the place where the dispute has arisen (i.e. country by country). Below are a few examples of aspects on which legal standing may depend in a given legal system, however, we will discuss this issue in more detail later.



Individuals

CSOs

No standing for individuals Only neighbours can have standing Proprietary interest establishes standing Direct and personal interest is needed for standing Sufficient interest is needed for standing The violation of a subjective right is sufficient to have standing Any interest is sufficient to have standing Being affected is sufficient to have standing Any person can have standing

No standing for organizations Organizations have to have their own interest to have standing Subjective rights have to have been violated/affected to have standing The aim of the organization must conform to the matter of the case The organization has to be active in the impact area Special registration is needed for the organization Any CSO can have standing

3.1.3 Difficult or Inefficient Injunctive Relief

In most cases, in order to stop a potentially environmental unfriendly activity until a legal dispute is decided in a final manner or to freeze a situation in order to prevent further deterioration of the environment, a claim for injunctive relief has to meet a number of conditions, such as: • Periculum in mora [danger in delay]: the delay in issuing an injunction would result in a danger to the environment; • Fumus boni iuris [smoke of a good right]: the claim cannot be frivolous or vexatious, and has to be brought to court in good faith; • Prima facie [first sight]: the case needs to have a fair chance of winning for the first sight. There is however a larger set of problems associated with injunctions, and this is the issue of bonds (deposits, cross-undertakings in damages, etc.) that have to be 180

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paid in order to make sure the loss of the adversary party is compensated once the legal dispute is decided in his and not in the applicant’s favour.



3.2 Practical Barriers

Besides legal barriers (those that stem from restrictive legislation or practice) there are so-called practical barriers that hinder full implementation of access to justice in environmental matters. These are rather practical in nature, i.e. they emerge due to lack of resources on the side on the parties to the legal dispute or cause a delayed end of a dispute. Certainly, these barriers also have legal backgrounds (e.g. laws that regulate the sharing of costs of court hearings or lack of norms ensuring a timely finishing of cases), however, they are less dependent on legislative actions or omissions than on factual situations. Such practical barriers are typically the following:



3.2.1 Lack of Timely Judicial Decisions

First of all, there is no exact definition of what constitutes a timely court decision-making process; therefore it is extremely hard to define this notion. While in terms of costs we are closer and closer by case law to be able to define what expense is bearable for parties, there is no such thing regarding timeliness and there is not even a major research study on this topic. While the European Court of Human Rights in Strasbourg has extensive case law via the Art. 6 (fair trial) cases and even the Aarhus Convention Compliance Committee has expressed its views on the subject (in fact in its very first case based on an NGO communication from Kazakhstan3), the topic is still a matter of discussion. Paradoxically, sometimes a delayed court decision – combined with the suspensive effect of the court procedure – may result in situations where project developers quit their ideas and do not implement a project using the environment in which case it may even be positive for the environment. However, this is rather the exception that the rule.



3.2.2 Costs of Judicial Proceedings

There are already a number of studies detailing this issue ranging from a survey called Price of Justice done by Justice & Environment in 2009 and 20114 to studies commissioned by the European Commission5 on the same subject. Findings of these studies start to converge in a way that they establish that: administrative cases are not prohibitively expensive or sometimes they are even cheap. Administrative court cases alike, however, there is one cost category 3

Compliance Committee: Kazakhstan.

4 5

Justice and Environment: Publications.

Possible Initiatives on Access to Justice in Environmental Matters and Their Socio-Economic Implications (Final Report).

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that may make the level of costs significantly rise, even above the bearable level: this is expert fees! Some countries apply certain methods both in their legislation and their court practice to keep costs of judicial proceedings begun in the public interest within reasonable limits. These are for instance one way cost shifting (when a public authority cannot claim its costs even if the adversary party loses in Slovakia), the total elimination of court tax for NGOs (if meeting certain criteria in Hungary) or the Protective Cost Orders (when the court sets the maximum amount of fee to be paid even in case of a loss for a party in the UK), etc. While there is still room for improvement (e.g. shift of burden of proof, public interest litigation fund, etc.), a major step has been made by the Court of Justice of the European Union in defining what costs are not prohibitively expensive (as Art. 9.4 of the Aarhus Convention requires) in its so-called Edwards Judgment:6 “The requirement, under the fifth paragraph of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and the fifth paragraph of Article 15a of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, that judicial proceedings should not be prohibitively expensive means that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result. Where a national court is called upon to make an order for costs against a member of the public who is an unsuccessful claimant in an environmental dispute or, more generally, where it is required – as courts in the United Kingdom may be – to state its views, at an earlier stage of the proceedings, on a possible capping of the costs for which the unsuccessful party may be liable, it must satisfy itself that that requirement has been complied with, taking into account both the interest of the person wishing to defend his rights and the public interest in the protection of the environment. In the context of that assessment, the national court cannot act solely on the basis of that claimant’s financial situation but must also carry out an objective analysis of the amount of the costs. It may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime. By contrast, the fact that a claimant has not been deterred, in practice, from asserting his claim is not of itself sufficient to establish that the proceedings are not prohibitively expensive for him. 6

Case C‑260/11 The Queen v Environment Agency and others.

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Lastly, that assessment cannot be conducted according to different criteria depending on whether it is carried out at the conclusion of first-instance proceedings, an appeal or a second appeal.”



3.2.3 Lack of Free Legal Aid

While legal aid is present in all countries of the region in one way or another (in some instances, even more forms of legal aid can be accessed, e.g. in the Czech Republic or France; not only the State but also the Bar Association operates such a service), they are not much of use in environmental court cases. Why is that so? Firstly, legal aid attorneys are not typically those that are specialized in environmental issues. Secondly, legal aid attorneys have quite limited capacities for each case – this sometimes stems from the limited amount of time they can spend on a case due to limited funding from the state budget. Thirdly, in some countries not necessarily the best attorneys join the legal aid service; therefore, their portfolio is hardly able to accommodate complicated environmental cases. Besides this overall negative phenomenon there are some good signs, since there are other sources where free or low-cost legal advice in public interest environmental litigation can be obtained. Instead there are Public Interest Environmental Law NGOs (PIELs) available in some countries (mostly those where Justice & Environment is active), or in some cases legal clinics deal with environmental cases, also pro bono lawyers (which initiative is widely encouraged by PILI, Public Interest Law Institute); however, none of these can really replace a state-operated legal aid system.



4 Legal Standing Criteria for Public Interest Environmental Litigation by NGOs in Selected EU Member States

It is useful to look at the different ways some EU Member States regulate legal standing criteria for NGOs in public interest environmental litigation. We – arbitrarily – selected legal standing for NGOs given that NGOs more frequently litigate in the public interest without any private interest involved in the legal dispute, unlike natural persons (individuals). The following countries apply the following conditions:7

7

Country

Legal standing criteria for NGOs

Austria

Environmental NGOs have legal standing solely within EIA proceedings, IPPC authorization proceedings and environmental rehabilitation proceedings (Umweltsanierungsverfahren). In EIA proceedings they are entitled to access the Administrative Court.

The information is correct as of 1 January 2013.

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Cyprus

The EIA law and the IPPC law and the Environmental Liability law specifically provide for environmental NGOs the locus standi needed to satisfy the requirements of the Constitution concerning access to the judicial process against specific administrative acts.

Czech Republic

The environmental organizations, according to the prevailing case law of the Czech courts, can claim only infringement of their procedural rights in the administrative procedures, not the substantive legality of the administrative decisions as such. This approach is further supported by the case law of the Constitutional Court, according to which legal entities, including environmental organizations, cannot claim a right for a favorable environment, as it can “self-evidently” belong only to the individuals.

Denmark

In general, nationwide NGOs having protection of nature and environmental or recreational interests as their main purpose have access to administrative appeal in environmental matters. Local organizations generally also have access to administrative appeal, however, with some variations from one area to another.

Finland

Right of appeal is provided for NGOs against most, but not all types of decisions. In addition, case law has provided for the further right of appeal also in some matters, where it has not been prescribed expressly by law. An NGO must be registered in order to be entitled to appeal. In addition, the applicable substance law usually includes requirements with regard to the organization’s geographic and/or substantial field of operation. Consequently, the EPA, for example, provides right of appeal to registered associations or foundations whose purpose is to promote environmental, health or nature protection or the general amenity of the environment and whose area of activity is subjected to the environmental impact in question. In cases where the connection between the NGO’s purpose and the challenged decision may not be self-evident, such as various residents’ or village associations, for example, the by-laws of the organization are usually consulted to resolve right of appeal.

Greece

The Greek Constitution, after its revision in 2001, gives NGOs legal standing rights in environmental cases. In most cases the Greek courts considered that the protection of the environment has to be generally described in the statutory objective of the legal entities without being the sole or predominant.

Hungary

NGOs have legal standing in environmental cases in two different circumstances. a) In procedures initiated against administrative decisions, those environmental NGOs have legal standing that operate in the impact area of an activity or facility. b) Environmental NGOs can start a lawsuit against polluters and ask the court to order the ceasing of the activity or the introduction of preventive measures by the polluter.

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Italy

A recognized environmental association whose right or legitimate interest has been breached by an administrative decision, act or omission can activate the judicial procedure. In order to be officially “recognized” by the Ministry of the Environment and to have legal standing, the associations need to fulfill the following requirements provided for by Law 349/1986: - act across the whole country or in at least 5 regions; - have democratic internal rules; - pursue objectives of environmental protection; - have continuity of action.

Latvia

The right to lodge complaints and appeals purely in environmental interests is the only exception where the so-called actio popularis (right to defend common interests) is allowed in administrative institutions or at the court. In any other kind of legal disputes the person must prove the infringement of his/her own subjective rights in order to have a right to lodge a complaint or to appeal to the court.

Netherlands

Article 8:1 GALA stipulates that only an interested party (belanghebbende) has the right to lodge an appeal against a decision made by a public authority. Article 1:2(1) GALA states that an interested party is a person (or any legal entity) whose interest is directly affected by a decision. Article 1:2(3) GALA stipulates that as regards legal entities, their interests are deemed to include the general and collective interests which they particularly represent in accordance with their objects and as evidenced by their actual activities.

Poland

NGOs which have not taken part in the preceding administrative proceedings if the judicial-administrative proceedings concern the scope of their activity (participation of those organizations) may be granted by the court upon their motion; the courts’ refusal may be challenged before the administrative court of second instance. According to the case law, the court has also to verify whether the ‘public interest’ speaks for the participation of the NGO. In certain environmental cases the environmental NGOs enjoy more far reaching rights.

Slovenia

According to the Nature Conservation Act only the associations (referred to as a kind of non-governmental organization) can get the status of public interest. This status allows them to attend all administrative or court procedures regarding environmental protection. In theory, according to the Environmental Protection Act, there is a possibility for actio popularis. In order to exercise the right to a healthy living environment, citizens may, as individuals or through societies, associations and organizations, file a request with the court, demanding that the holder of an activity affecting the environment, stops the activity, if it could cause or it causes an excessive environmental burden or if it could present or it presents a direct threat to human life or health, or requesting that the person responsible for the activity affecting the environment be prohibited from starting the activity, when there is a strong probability that the activity would result in such consequences.

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Spain

Actio popularis in environmental matters can be exercised by any citizen in certain environmental areas recognized by in specific laws and by environmental organizations meeting certain criteria in all environmental matters. The Spanish legal order recognizes an actio popularis in three acts relevant for environmental protection. These include the Land-use planning Law (Article 48), the Coastal Law (Article 109) and the National Parks Network Law (Article 22). The Aarhus Law establishes specific standing rules for environmental associations to facilitate their access to justice, both for administrative appeal and administrative judicial appeal procedures. That Law recognizes that associations meeting certain criteria would be able to challenge actions and omissions by public authorities without showing an interest or the impairment of a right. Thus, for environmental associations to use actio popularis they must meet the following criteria: • Their by-laws include as the association’s goal the protection of the environment or of any of its elements; • The association must be legally constituted at least 2 years before the date in which the action is initiated; it must be active in achieving its goals; • A geographical connection (established in their by-laws) with the area affected by the act or omission.

Sweden

The provision on access for justice for NGOs has been extended to sectorial legislation on planning law (PBL), and laws dealing with infrastructural projects, mining, electric power lines. However, NGOs do not have explicit standing in other sectorial legislation, for example on hunting and forestry, which are central for nature protection matters. Standing for NGOs in procedures under the Forestry Act has recently been provided in an administrative court judgment, motivated by provisions of the Aarhus Convention. The case is currently pending further appeal. EIA and IPPC rules for standing are not specifically regulated. These rules prevail quite generally in environmental procedures under the Environmental Code, as described above. However, NGOs do not have standing in all kinds of environmental procedures under the Environmental Code. They will have standing in licensing procedures of different kinds, in environmental liability cases under MB Chapter 10, and for some nature protection decisions.

As it can be seen from the above matrix, there are a number of variations in the regulation of the matter, even to such an extent that it demands for some unification, otherwise the purpose of the Union (to guarantee equal level of protection and a level playing field) may also be in danger.



5 Conclusion

Having all this said, we are about to make a conclusion on the current status and outlook of public interest litigation in environmental matters. We are convinced that public interest litigation contributes to better environmental protection. First and foremost, even in cases where concerns or objec-

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tions of the public are not all substantiated, it contributes to a debate that entails the thorough examination of the procedural as well as the substantive legality of environmental decision-making thus resulting in a better and more correct environmental decision. Or just by inspiring the participation of the public in environmental decision-making that is in itself a good thing and results in a better environmental decision, as Principle 10 of the 1992 Rio Declaration states: “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. States shall 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.”

Taking this into due account, we can say the following about the status of public interest environmental litigation in the EU. We take the courage to formulate corresponding recommendations or suggestions for a better solution after each item of diagnosis on the state of play in the topic: Diagnosis

Suggestion

Public interest environmental litigation would bring positive results but there is no public consensus about this; on the contrary, in many instances NGOs and the public are blamed for the hindering of economic development with unnecessary legal cases.

There should be a very deep and open discussion in the public sphere as well as the media with many high-profile participants in order to clarify the real impact of public interest environmental litigation on society, the economy, environment, law and culture. This could result in a consensus on the role of this phenomenon in society and thus make it easier for the public to apply this legal instrument.

There are no specialized environmental courts or tribunals and even the existing ones are sometimes merged with regular courts or are downgraded.

The optimum solution would be the setting up of specialized environmental courts or tribunals, or at least operating independent and impartial bodies that deal with environmental issues as their only competence.

Standing criteria are relatively acceptable and fair in most of the countries; however, they hardly take into account the preferential nature of public interest litigation.

Public interest environmental cases should be based on relaxed stranding criteria both for individuals and for NGOs. This could even result in creating an actio popularis in environmental matters since as evidence proves it, such a legal instrument does not result in a flood of cases contrary to popular belief.

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Injunctive reliefs are ineffective and expensive, due to the long time needed to decide over such motions and the large amount money the courts may impose on applicants in return for the order as a bond.

There is a clear need for totally different rules regarding injunctive relief in environmental cases. This should include: easier burden of proof on the side of the applicant public, a presumption to award an injunction, no bond or deposit for an injunction in public interest cases, no subsequent compensation for project developers even if the injunction turned out to be unnecessary later, etc. All these can ensure a situation when potential environmental damages can be halted at the source once discovered by the public.

Court proceedings in environmental cases are lasting too long, due to many factors, but as a result, there is no timely justice served: Justice delayed is justice denied, as the saying says.

Courts should be encouraged to finish cases more quickly. Also project developers would be more interested in a timely closing of legal disputes once injunctions are used more frequently and liberally. Specialized courts would also more probably finish cases in a timelier manner.

Both the administrative and the court fees are relatively low but as soon as the involvement of experts is needed – which is a common thing in environmental cases – the fees rise high.

There should be either a fee waiver in public interest environmental cases or some kind of mechanism that ensures that experts are involved in procedures and it does not entail excessive costs for the public (e.g. a fund for public interest litigation to cover expert fees).

Legal aid in public interest environmental litigation is weak.

Lawyers and bar associations should be encouraged to take part in public interest environmental cases. This (more appetite on the side of private attorneys to join environmental cases) could in fact be one spin-off effect if the society clarifies broadly whether such cases are useful or not for the common good. Also legal aid lawyers should be encouraged to specify their fields of interest and embrace environmental law. Finally, a public interest litigation fund should be set up (either domestically or in the EU, or alternatively in the UNECE region) to cover expenses of PIELs.

6 Future Prospects

The question inevitably and naturally arises of whether there is a chance of all this becoming better and whether in the short or in the long term. Well, it is very hard to foretell what may change a situation that has so many aspects many of which are interconnected. Nevertheless, there is at least a light 188

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of hope that some issues within the European Union will change due to the adoption of the Access to Justice Directive of the EU.8 This proposal has been in the legislative pipeline of the EU since 2003, the year when the European Commission first proposed this piece of legislation that would implement the 3rd pillar of the Aarhus Convention in the EU Member States. As we know, right now the system of EU law implementing the Aarhus Convention is incomplete. While there is a directive on access to environmental information (2003/4/EC) and on participation in environmental decisionmaking (2003/35/EC), and there is a regulation implementing the Aarhus Convention on Union bodies and institutions (1367/2006) further referring to the regulation on access to documents of the EU (1049/2001), there is no such thing as a directive on access to environmental justice. The much-expected A2J Directive would change that situation and bring a new and fresh air into the regulatory environment. Many believe that this directive has a fair chance of adoption if not in the 2nd half of 2013 under the Lithuanian Presidency, then most probably in 2014 under either the Greek or the Italian Presidency. And while at this point many readers of this paper would be interested in what this directive draft contains and would bring into public interest environmental litigation, that topic will be the subject of another detailed study to be written later…

8

Access to Justice in Environmental Matters.

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Public Participation in Environmental Decision–Making in Ireland The Good, the Bad and the Ugly Yvonne Scannell

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Public participation and access to information are critical in environmental management and are intertwined concepts. There is no effective right to participate in environmental decision making without a right of access to all relevant information needed to do this. Consequently, the rights to public participation and of access to environmental information are the first two pillars in the Aarhus Convention, which has been implemented by the European Union in two Directives: Directive 2003/4/EC on access to information, and Directive 2003/5/EC on public participation. Ireland is a very good case study for examining the operation of public participation in practice. Ireland has had extensive public participation requirements for decision-making in land use planning decisions since 1964 and Irish rules on legal standing to enforce environmental laws are the most liberal in Europe. Since the late 1977s, the actio popularis principle has been incorporated in statutes covering most major areas of environmental law1 and it was first incorporated in land use planning law in 1976.2 Public participation requirements relating to the environmental media are broadly modelled on those in land-use planning. Irish public participation requirements were refined, expanded and, more recently, constricted in the light of experiences with public participation and with evolving EU requirements. This paper will describe the nature and extent of public participation in environmental decision-making and in the enforcement of environmental law and will illustrate some difficulties which have occurred in practice which, if not addressed, will undermine the effectiveness of the principle.



1 Public Participation in Land Use Planning Law

The Planning and Development Acts 2000 to 2012 are the model for public participation in all environmental decision making in Ireland. Participation provisions in other environmental legislative codes (for example, air and water pollution, Integrated Pollution Prevention and Control and waste) are modelled on those in planning legislation although they are somewhat more accommodating to public participation. That is because most public participation in environmental decision-making occurs in the context of land use planning legislation and constraints have gradually been placed on it in the light of negative experiences. Planning law is amended very frequently and this facilitates the refinement of public participation procedures. Legislation in other areas of environmental law is less frequently amended so that less restrictive provisions which encourage public participation survive. 1

Legislation governing water, air, waste and foreshore. For list of relevant statutes see Enforcement of Environmental Law: The Case for Reform.

2

Planning and Development Act 1976, section 27. See Scannell, Y. (1996), pp. 254-257.

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Participation in Decision- Making on Land Use Management Plans All environmental legislation provides for extensive public participation in making environmental management plans. The most influential environmental management plans are development plans which determine land uses in the areas of the 87 local authorities which make them. Any person or body may participate in making these plans and special provisions are made to encourage participation by An Taisce (the most important environmental NGO in Ireland) and other stakeholders, particularly other public bodies with specialist expertise. Extensive use is made of the internet in the consultative process as is evident from the websites of various local authorities. The procedure for making these development plans is the model for making other environmental management plans such as river basin management plans, air quality management plans and waste management plans. One important difference is that, since 2003, waste management plans are not democratically made and are made by the unelected managers of each planning authority.3 This is because many local politicians (responding to public pressures) refused to comply with their statutory obligations to make waste management plans because they were unwilling to provide for and identify locations for waste facilities. In recent years also, competition has arisen between local politicians and NGOs when environmental controversies arose. Local politicians guard their representative functions jealously especially in rural areas and will often adopt causes promoted by NGOs which appear to attract a lot of public support irrespective of their objective merits. 4 The procedure for making development plans involves extensive consultation with NGOs, prescribed bodies (mostly other public authorities who may have an interest in the provisions of a proposed plan) and the public.5 The public is invited to submit proposals for provisions in a draft development plan, is consulted on the draft when it is published and put on public display and is enti3

The making of waste management plans was originally a function of the elected members of local authorities under section 22 of the Waste Management Act 1996 but it became an executive function under section 4 of the Waste Management (Amendment) Act 2001. Since 2001, waste management plans are made by city and county managers. Section 26 of the Protection of the Environment Act 2003 provided that a provision in a waste management plan (adopted by an unelected county or city manager) would override a provision in a development plan, whether or not the development plan was made before or after the adoption of the waste management plan. This provision was enacted because elected members responding to public pressures sought to override waste management plans by inserting contradictory provisions in later development plans.

4

For example, in 2011 the elected members of six planning authorities in Ireland proposed outlawing exploration for gas which would have involved fracking in their development plans although this issue was first raised by NGOs. See Professor Frank Convery and Yvonne Scannell Blog, Fracking and Local Responsibility.

5

See Planning and Development Acts 2000-2012 at http://www.lawreform.ie/_fileupload/Restatement/ Second%20Programme%20of%20Restatement/EN_ACT_2000_0030.PDF. Irish environmental legislation is notoriously opaque and is never officially consolidated but a consolidated version of the Planning Acts up to the end of 2012 is available at the above address.

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tled to access to the background papers which informed proposals made in the draft. Free copies of the development plan are provided to prescribed bodies and An Taisce and there is no charge for participating in the development planning process. Information on development plans is frequently made available on the internet. An indication of public participation in development plans in practice will be given by looking at the experience with the most recent draft plans made by the two largest planning authorities. Public participation in other environmental management plans (air, water etc) is far less extensive because the scientific and other issues they deal with are harder for the public to understand. Dublin City Development Plan The population of Dublin City is 506, 211. The Dublin City Development Plan 2011-2017 came into effect on the 22 December 2010. There was strong public input in the preparation of the plan. There were three key stages of public participation. First, during a ten week pre-draft process, an extensive consultation period got under way in which the views of infrastructure providers, sectoral groups, statutory agencies and adjoining local authorities were ascertained via public information and workshop events and an online discussion forum. During this process, 695 written submissions, comments from the online forum and the opinions which arose from ten public consultation meetings and two sectoral meetings were considered in the formulation of the development plan. The next stage was the public display of the draft plan in which a further 1,208 submissions were received. These submissions were summarised and submitted to the elected members for consideration. After this, 976 motions relating to the contents of the proposed development plan were submitted by the elected members in response to the public participation. (Proposals for amending the draft plan are incorporated in plans by motions which are voted upon). Finally, during the second public display period, proposed amendments made in response to the aforementioned submissions and motions were displayed. A further 114 submissions and 280 motions were made in respect of these proposed amendments.6 The plan was then adopted. The Cork City Development Plan Cork City has a population of about 123,000. The Cork County Council Development Plan 2007 was also implemented following a considerable degree of public participation. The initial consultation process requiring submissions for a proposed draft plan resulted in over 969 submissions. This was followed by 467 submissions and observations during the statutory consultation period on the draft plan put on public display. After this, 760 submissions were received in the final public consultation period.7 6 7

Dublin City Council Development Plan 2011-2017: Written Statement at 3-4.

Cork County Development Plan 2007 at 4-6.

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2 Public Participation in Decision-Making on Applications for Permissions to Develop Land

All developments (building works or material changes of use of lands or premises) unless specifically exempted by law,8 require a grant of planning permission from the relevant planning authority.9 Intentions to make applications for planning permissions must be advertised on the site where the development will be carried out and in an approved newspaper circulating in the area of the planning authority.10 Any person or body, on the payment of the prescribed fee (currently €20,11 a sum which both the Supreme Court12 and the ECJ13 has held does not negate the right of access to justice), is permitted to make a submission or observation in writing to the appropriate planning authority within five weeks of the date on which the authority received the application.14 Thus not only is “any person who wishes to object to a proposed development, however remote, insignificant or absent their interest in it”15 permitted to make such observations, so too are Non Governmental Organisations (NGOs)16 and any other body which wants to participate. The objectives of requiring prior participation in the process include enabling applicants for permission to respond to, or to improve, their proposals in response to the observations and submissions lodged. Another objective is to inform the planning 8

See section 4 of the Planning and Development Act 2000 as amended by section 5 of the Planning and Development (Amendment) Act 2010 and section 17 of the Environment (Miscellaneous Provisions) Act 2011. Special provisions for land use consents apply to developments by or on behalf of local and State authorities and for strategic infrastructure.

9

Section 32 of the Planning and Development Act 2000.

10

Planning and Development Regulations 2001, articles 18-21 as substituted by the Planning and Development Regulations 2006.

11

Planning and Development Regulations 2000-2006, Schedule 10, Part 12. There could be objections to this fee on the grounds that it inhibits public participation but the experience with members of the public flooding planning offices with objections to frustrate decision-making may have inspired this requirement.

12 13

Fallon v An Bord Pleanála.

Case C-216/05 Commission v Ireland where the ECJ permitted Member States the discretion as to how public participation rights might be exercised but stated that fees for doing so cannot be fixed at a level so as to prevent the EIA directive from being fully effective. This would be the case if, due to its amount, a fee were liable to constitute an obstacle to the exercise of the rights of participation conferred by Article 6 of Directive 85/337.

14

Article 29(1)(a) of the Planning and Development Regulations, 2001 as amended by article 10 of the Planning and Development (No. 2) Regulations 2007.

15

Harding v Cork County Council.

16

Article 29(1)(a) of the Planning and Development Regulations, 2001 as amended: Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.

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authority, which can take submissions and representations made into account in the decision-making process, and act upon suggestions made or meet objections by inviting modifications of plans submitted or further information on the proposals. Planning authorities pay particular attention to submissions made by other public authorities and well advised developers often consult these before lodging planning applications. Applicants sometimes withdraw applications in response to third party reactions, particularly if there is a negative reaction from a public authority or respected NGO. In some cases, planning authorities refuse permissions or attach conditions to permissions they give to meet the concerns of third parties, NGOs or other bodies who have participated in the process at the initial stage. Another advantage of requiring prior participation is that it enables an applicant for permission to anticipate a planning appeal17 if the concerns of the third party are not met and perhaps to meet these concerns privately provided the third party withdraws the appeal. The courts take a very strict approach to enforcing procedural requirements requiring public participation in planning applications and other environmental authorisation procedures and very inconsequential failures to comply with planning regulations have led to the invalidation of applications. Requirements that the nature and extent and location of the proposed development be properly described are strictly enforced and in one case, a planning application was invalidated because the public notice on the site of the proposed development had not been kept in place for the proper period.18 This led to developers providing 24 hour security at sites where planning notices were erected to prevent their removal by objectors in two cases known to the author. Appeals Against Planning Decisions Any person or body, even if they have no personal or proprietary interest in the matter, may appeal a planning authority’s decision on an application for permission to develop land to the Planning Appeals Board (known as An Bord Pleanála in Ireland) provided he or she has made an observation or submission to the local planning authority first. Exceptions to the rule requiring this apply in the case of (i) NGOs, (ii) prescribed bodies which were not properly notified by the planning authority when it received the application for planning permis17

Normally, a person appealing has to have made a submission to the planning authority first. See Planning and Development Act, section 217(e).

18

Article 20 of the Planning and Development Regulations, 2001 as amended requires site notices to be maintained in place for 14 days after a planning application is lodged. In Marshall v Arklow UDC, a planning application was declared invalid because the site notice had not been maintained in place for the required period. Peart J. in the High Court held: “It is only where the authority is satisfied, as stated in sub-article (7) that the reason for the non-existence of the site notice on the date of inspection is due to malicious defacing or destruction that the provisions of Article 26(3) or (4) shall not apply. The exceptions for “malicious defacing or destruction” were introduced in response to instances where objectors had destroyed notices in an attempt to ensure that they had not been on public display for the required period.

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sion and (iii) persons with an interest in adjoining lands, where the development permitted will differ materially from that applied for by reason of conditions imposed by the planning authority. The cost for an NGO or private person making an appeal is currently €220 and it is €100 for An Taisce and certain prescribed public bodies.19 It is very easy for a body to qualify as an NGO most of the time. Once a valid appeal is lodged, the Planning Appeals Board sends a copy of the appeal(s) to the planning authority, where it is available for inspection by the public, and supplied to any other parties to the appeal. It then obtains the relevant files from the planning authority and includes other relevant observations or documents in the appeal file. The Board then appoints an Inspector with the appropriate expertise to consider the case. Usually the inspector will visit the site and take photographs. In particularly complex cases, or developments of significant national or local interest, an oral public hearing may be held. Having considered the appeal, the inspector makes a written report to the Board. Board Members then convene to consider the entire file and make the decision which is then communicated to the parties to the appeal and to all those who made submissions or observations on the appeal.20 The Board is not obliged to follow the recommendation of the inspector but they do so in the vast majority of cases. The Board did not accept their inspector’s report in 289 (14.9%) cases in 2011 and 392 (14.5%) cases in 2010. The Board is obliged to explain why it does not accept an inspector’s recommendation. There is a statutory time limit of 18 weeks for the Board to decide on an appeal but its success in achieving this target varies from 23% of cases in 2008 to 81% in 2011.21 Although the Board decides many cases in time, developers of large or complicated projects are disproportionately likely to encounter delays. There is therefore a powerful incentive for developers to forestall appeals. In 2010, 8.7% and in 2011, 7.7% respectively of all planning decisions made by planning authorities were appealed to the Planning Appeals Board. Most appeals were made against decisions of planning authorities in the largest cities (Dublin and Cork) and in Dun Laoghaire which is effectively a suburb of Dublin. The Planning Appeals Board has power to require an applicant for a strategic infrastructure development to pay a contribution towards the costs of anyone appealing.22 In practice, routine applications for small developments are not appealed but promoters of most large developments generally anticipate appeals. A practice has developed of local residents’ associations and even some NGOs demanding public benefits in return for not appealing. This practice was endorsed by the Planning Appeals Board which often (in the author’s opinion illegally) required planning gains for local communities when permitting 19

See Case C-216/05 Commission v Ireland.

20 21

See www.anbordPleanála.ie.

Annual Report, 2011.

22

Strategic Infrastructure Act 2006, Section 182B (5A) (c). These applications are made directly to the Planning Appeals Board thereby bypassing the local authority.

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unpopular developments such as landfills. Eventually, section 37G (9) (b & c) of the Planning and Development (Strategic Infrastructure) Act 2006 gave a statutory imprimatur to the practice by empowering the Planning Appeals Board to require developers of strategic infrastructure projects 23 to finance or provide facilities or services constituting a substantial gain to the local community provided the cost of doing this would not substantially deprive the developer of the benefits likely to accrue from the permission.24 Relatively large sums of money and other public benefits have been required under this provision. The motivation for empowering the Board to require planning gains in these cases is not clear. It may have been to legitimatise an illegitimate practice or it may be a pragmatic recognition that some institutionalisation of planning gains exacted by public participation procedures was desirable when developments with significant negative impacts on local communities are permitted. Restriction on Making Further Planning Application Pending Decisions on Existing Appeal Section 37(5) of the Planning and Development Act, 2000 imposes a restriction on making further planning applications while an application for the same development, or development of the same description, is being considered by the Planning Appeals Board. This requirement was introduced to prevent abuses by developers making a series of applications for similar planning permissions hoping to mislead objectors and trick them into failing to exercise their participation rights. An objectors having objected might neglect or fail to examine further public notices for development at the same address. Public right to make submissions and observations on appeals When an appeal is lodged with the Planning Appeals Board, any person or body (colloquially referred to as “observers”) may make submissions and observations in writing within four weeks beginning on the date of receipt of the (last) appeal. The fee for doing this is currently €50.25 The time period for appealing can be extended, inter alia, in the case of development subject to EIA, and where the Planning Appeals Board directs that further public notice of the appeal be given. The Board sometimes does this if it considers that the notices published at the earlier stage were inadequate or misleading for the information of the public or to ensure compliance with some EU law requirement which may have been breached.

23

Strategic infrastructure is a development of economic or social importance to the State or region or a development which would make a substantial contribution to objectives of National Spatial Strategy or Regional Planning Guidelines or which would have a significant effect on the area of more than one planning authority.

24 25

Most of these developments are developments carried out by public authorities.

Current fees are listed at http://www.Pleanála.ie/.

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Board’s power to request anybody to make submissions or observations Moreover, the Planning Appeals Board has discretion under section 131 of the Planning and Development Act, 2000, to request submissions or observations from any person or body in relation to any matter which has arisen in relation to an appeal. The notice must specify a period within which such submissions or observations are to be made. This period cannot be less than two weeks, or more than four weeks, beginning on the date of service of the notice. Board’s power to dismiss appeals Owing to a number of unmeritorious appeals by fictitious appellants and others, the Planning Appeals Board was empowered under section 138 of the Planning and Development Act, 2000 to dismiss an appeal which is vexatious, frivolous or without substance or foundation, or which is made with the sole intention of delaying the development or with the intention of securing the payment of money, gifts, consideration or other inducement by any person. The Board can act of its own motion, and does not have to await one of the other party’s suggestions that the appeal is vexatious. Unfortunately, the Board rarely exercises these powers. In 2010, only 4 appeals were dismissed and only 8 in 2011. Clearly the Board is very reluctant to make a decision under section 138 that applicants are acting male fide or attempting to induce developers to pay them for withdrawing appeals. Anecdotal evidence is that these practices are not uncommon. In the author’s experience many appeals for industrial or commercial developments (for example, cement plants, quarries or shopping centres) are brought by commercial rivals trying to delay or prevent the project. Sometimes there are serial applicants who appeal all decisions for permissions by particular developers. One multinational in Ireland had almost every planning decision in its favour appealed by the same person (a neighbour) for several years. Public hearings A party to an appeal, or any person who makes a submission or observation on an appeal, may request a public hearing, colloquially called an oral hearing. The request must be made in writing and accompanied by the prescribed fee, currently €50. An appellant must make his or her request within the time limit for making the appeal. An observer must make his or her request within the time limit for making submissions and observations. The Planning Appeals Board has an “absolute discretion” as to whether or not to hold such an oral hearing.26 In particularly complex cases, or developments of significant national or local interest, or controversial developments, an oral hearing may be held.

26

See Egan v. An Bord Pleanála.

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Public hearings of planning appeals. Year

Oral hearing requested

Oral hearing held

2010

56

9

2009

74

13

2008

85

18

(Information from Annual Reports of An Bord Pleanála) It will be noted that there are very few public hearings of appeals. Generally the Board only grants a public hearing in politically controversial or complicated cases or for strategic infrastructure developments where there has been no public participation at the local authority level. These hearings are typically very expensive because parties are almost always represented by lawyers and expert witnesses. Planning appeals in practice A flavour of the how planning appeals work in practice can be obtained from the Board’s Annual reports. In 2010, planning authorities made 28,789 planning decisions. Of these 2,505 (approximately 11.5%) were appealed to the Planning Appeals Board,27 86% of these were formally decided and 14% were otherwise disposed of, probably withdrawn or dismissed. Of the 86% formally decided, 55% were brought by third parties i.e. members of the public or NGOs or perhaps prescribed bodies. In respect of these third party appeals, in just 1% of cases permission was granted under the same conditions as those in the planning decision being appealed. In 59% of cases permission was granted under revised conditions and in 40% of cases permission was refused.28 The number of oral hearing requested was 56 and nine hearings were held.29 In 2009, planning authorities made 38,123 decisions, 3,438 of which (approximately 11%) were appealed to the Board.30 Of these, 86% were formally decided and 14% otherwise disposed of. Third parties made 53% of these. Of these 53%, permission was granted under the same conditions in 1% of cases. Permission was granted under revised conditions in 60% of cases and refused in 39% of cases.31 Oral hearings were requested for 74 planning appeals and the number of hearings held was 13.32 27

An Bord Pleanála Annual Report (2010) at 35.

28

Ibid, appendix 1 at 33.

29 30 31

Ibid at 12.

Ibid at 35.

Ibid, appendix 1 at 34.

32

Ibid at 16.

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In 2008, 62,056 decisions were made by planning authorities of which 5,056 were appealed to the Board.33 80% of these decisions were formally decided, while 20% were otherwise disposed of. Of those cases formally decided were 46% of the appeals which were made by third parties. In 1% of cases permission was granted under the same conditions. In 60% of cases permission was granted under revised terms and in 39% of cases permission was refused.34 The number of oral hearing requests in respect of normal planning appeals was 85 and the number of hearings held was 18.35 Outcome of third party appeals against local planning authority decisions on planning applications Result of third party appeals. Year

% Permission granted under same conditions

% Permission granted under revised conditions

% Permission refused

2010

1

59

40

2009

1

60

39

2008

1

60

39

It will be seen from above that roughly 5% of all decisions on planning applications are appealed and a little over 50% of all appeals are brought by third parties. Third party appeals really do result in different outcomes because the Planning Appeals Board typically confirms the local planning authority decision in only 1% of appeals it deals with. In most cases, it either reverses the decision of the planning authority or grants permission subject to different conditions to those imposed by the planning authority. The number of appeals resulting in different decisions to those originally made by local authorities is remarkable. There has been no scientific study of why this is the case but practitioners know that many appeals against decisions in rural areas succeed because local authorities did not comply with regional or national guidelines in their decision making. Rural authorities are particularly liable to disobey guidelines recommending restricting the construction of single 33

Ibid at 35.

34 35

Ibid, appendix 1, at 34.

Ibid at 16. The Planning and Development (Strategic Infrastructure) Act 2006 (SIA) was enacted specifically to fast-track strategic infrastructure of vital importance to the State but the Board has not even met the targets for this. In 2009, only 17% of local authority applications and 50% of the non-local authority applications were decided within the statutory time limits for decisions. By 2011 when the economy had crashed, 50% of non-local authority applications and 28% of local authority applications were decided within the statutory time period. This represents a complete failure to meet one of the main objectives of the SIA for which no explanation has been given in annual reports.

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houses in the country side or new accesses to public roads. Many local authorities grant or refuse permissions knowing that the decisions will be successfully appealed thereby avoiding public criticism at a local level and transferring it to the geographically remote Planning Appeals Board in the capital. Others refuse permissions because they have not the in-house expertise to assess an application or because they are reluctant to expend resources examining the environmental implications of complicated projects. Cognoscenti know by the wording of some planning refusals that planning officials favour the proposed development but are refusing permission to appease elected members or local public opinion. It does not appear to be a concern that this adds to the costs of projects or that it may deter applications for permissions for desirable developments. The refusal by some planning authorities to grant permissions for locally unpopular but strategically necessary developments (for example, landfills, wind farms, motorways) was a factor which led to the enactment of the Planning and Development (Strategic Infrastructure) Act 2006, which enables promoters of certain categories of development classified as strategic infrastructure to bypass the local authority stage of the planning process and apply for permissions directly to the Planning Appeals Board. It was envisaged that this would speed up the process of getting permissions for strategic infrastructure but in fact, this objective was not achieved.



3 Experiences with Public Participation in EPA Decisions on IPPC Licences

The Environmental Protection Agency (EPA) is the competent authority for granting licences in accordance with legislation implementing Directive 2008/1/EC on integrated pollution control for IPPC activities. It makes decisions on licence applications called proposed determinations. Any person or body may object to these. In 2010, the EPA received 35 applications for IPPC licences and made 43 proposed determinations. Any person or body as well as the applicant for an IPPC licence has a right to object (appeal) to the EPA itself against its proposed determination. (This is not an ideal system but the EPA constitutes a special Board consisting of people who were not involved with the first decision to hear objections to its proposed determinations.) The fee for objections by NGOs and third parties is €126 and €63 for prescribed public bodies and the fee for requesting an oral hearing is €100.36 The EPA received 28 objections and made 30 final decisions in 2010. (The discrepancy is because some decisions relate to objections lodged prior to 2010) In other words, there were appeals against 28 out of about 30 applications for IPPC licences. In 2009, 41 applications for IPPC licences were received. In that year, 47 proposed decisions were made and 19 objections were received. Final decisions were made 36

Environmental Protection Agency Act 1992 -2003, section 99G (4). See Schedule of IPPC Licensing Fees.

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on 55 applications. In 2008, 52 IPPC licence applications were received, four proposed decisions were made, 37 objections were received and 40 final decisions were made.37 It is clear from above that a substantial number of appeals are made against the EPA’s initial decisions on IPPC licences. No information is provided in the EPAs annual reports as to the identity of those appealing but anecdotal evidence is that a greater proportion of appeals are made by applicants for licences than by third parties or NGOs. Nonetheless, in practice, members of the public and NGOs do exercise their rights to appeal against EPA decisions on IPPC licences. Appeals against EPA Proposed determination on IPPC licences. Year

Applications made

Proposed decisions

Objections received

Final decisions

2010

35

43

28

30

2009

41

47

19

55

2008

52

44

37

40

EPA Proposed Determinations on waste licences The EPA is the competent authority for granting licences in accordance with Directive 2008/98/EC on waste. In 2010, the EPA received 8 applications for waste licences and made 14 proposed decisions in respect of waste licences. (Decisions on licences are rarely made the year the applicant applies, hence the difference between the number of licence applications and the number of licence decisions) They received 28 objections and made 24 final decisions. In 2009, 29 waste licence applications were received, 30 proposed decisions were made and 18 objections were received and 19 final decisions were made. In 2008, 20 waste licence applications were received, 14 proposed decisions were made, 12 objections were received and 12 final decisions were made.38 Appeals against EPA proposed determination on waste licences. Year

Applications made

Proposed decisions

Objections received

Final decisions

2010

8

14

28

24

2009

29

30

18

19

2008

20

14

12

12

(Information from EPA Annual Reports) 37

EPA Annual Report and Accounts 2008 at 18.

38

Ibid. note 34 at 19.

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No information is given on the identity of objectors to waste licensees but third parties and/or NGO frequently appeal against the initial decision of proposed determinations if it permits waste facilities.



4 The Actio Popularis in Planning Legislation

Liberalising standing requirements for private environmental enforcement removes a significant barrier to public participation. A planning authority or any other person, regardless of whether he or she has a personal or proprietary interest in the land may make an application to the High Court or the Circuit Court under section 160 of the Planning and Development Act 2000 for what is termed a planning injunction where an unauthorised development 39 has been, is being, or is likely to be carried out or continued. 40 When the locus standi of private persons with no personal or proprietary interest to enforce planning control was questioned, the High Court held that there is no requirement that an applicant for a planning injunction should have suffered a loss peculiar or personal to himself, or any loss whatsoever for that matter41 and that the provision empowering any person to enforce planning law constituted every citizen “a watchdog for the environment”. 42 Actions can be brought in the High Court or in the Circuit Court. There is no locus standi requirement for those wishing to enforce planning legislation. 43 Case law shows that the majority of applications for injunctions are brought by planning authorities who have an obligation to enforce planning law but a few were also taken by individuals most of whom had a private interest (often a commercial interest) in enforcing breaches of planning controls. 44 The courts do not deny the right to enforce to those pursuing private interests but they disapprove of applicants for injunctions who conceal this by, for example, surreptitiously paying others to bring the action against a commercial competitor. 45 Nonetheless, provided the applicant for the injunction is candid about his or her interest, the fact that he or she will disable a commercial competitor will not prevent a court from making the appropriate order in the public interest to implement planning legislation. The court has wide powers under section 160 to make an extensive range of orders which may require any

39

This is development which is carried out without the required planning permission.

40 41

Planning and Development Act 2000, section 160 as amended.

Simons, G. (2004).

42 43

Barrington, J. (National Federation of Drapers v Allied Wholesale Warehouses).

 L een v Aer Rianta (possible political motive of applicant did not deprive him of standing).

44

See, for example, National Federation of Drapers v Allied Wholesale Warehouses, Robinson v Chariot Inns Ltd.

45

 O’Connor v Harrington. Applicant’s application was funded by one of the defendants’ competitors whose interest in the proceedings was not disclosed to the court. The court refused the injunction on this account.

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person, even an unknown person, to comply with planning law. 46 It may, for example, make the following orders; that the unauthorised development is not carried out, that any land is restored to its condition prior to the commencement of any unauthorised development and that any development is carried out in conformity with the permission granted for that development or any condition to which the permission is subject. 47 The burden of proving that the development is unauthorised or not exempted from the requirement to obtain planning permission rests with the applicant for the order. The court has discretion to refuse relief if applications are frivolous or vexatious or an abuse of process. 48 As section 160 orders are discretionary, there are a number of factors which a court may take into account in determining whether or not to grant them. These include the technicality or triviality of the breach, 49 the impact of the unauthorised development on the applicant,50 the hardship to the developer,51 the conduct of both the applicant52 and the developer,53 the public interest in granting or not granting the order sought,54the attitude of the planning authority,55 the extent to which EU law is involved56 and whether the order would pre-determine an issue to be determined in another forum.57 In 2010 and 2009, no High Court applications for section 160 injunctions were made by members of the public. However one successful application was made by a member of the public in 2008. There was greater activity in terms of applications under section 160 in the Circuit Court where costs are much lower. In 2010, four applications were made by members of the public and all four were granted. In 2009, six applications were made. These figures contrast with the number of applications made by planning authorities under the same legislation. For example, in 2010, planning authorities made 82 section 160 applications to the Circuit Court and 3 to the High Court. Of these, 47 and 2 46

The person need not necessarily be the owner or occupier of the land or the developer although this would typically be the case. Section 160(4)(a) provides that the rule of Court may allow for an order under section 160 to be made gains a person whose identity is unknown. See e.g. Order 103 Rule 8 of the Rules of the Superior Court.

47

Section 160(1) of the Planning and Development Act 2000.

48

Section 160(1) of the Planning and Development Act 2000. See Stafford v Roadstone Ltd at 19.

49 50 51

Grimes v Punchestown Development Ltd.

Ibid.

 Avenue Properties v Farrell.

52 53

 Stafford v Roadstone Ltd.

 Dublin Corporation v Mulligan.

54 55

 L een v Aer Rianta.

 White v McInerney Construction Ltd.

56

Case C-72/95 Kraaijeveld; Abbeydrive Developments Ltd v Kildare County Council. Supreme Court effectively annuls its decision to ensure compliance with EU law on environmental impact assessment.

57

 Mahon v Butler.

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respectively were granted.58 In practice, it will be seen that planning law is rarely enforced by third parties in the courts and most enforcement is by administrative notices served by planning authorities in response to public complaints or, less frequently, on their own initiative. Where a member of the public complains to a planning authority about a breach of planning control, it is obliged under section 160(7) of the Planning and Development Act 2000, as amended by section 27(b) of the Environment (Miscellaneous Provisions) Act 2011, to enforce it unless the breach is trivial or minor or there are compelling reasons not to do so. This obligation should make it unnecessary for any member of the public to enforce planning law in the future. The most important administrative enforcement procedure is under section 154 of the Planning and Development Act 2000 and in 2009, 2010 and 2011, this procedure was used by planning authorities 3313, 3592 and 2522 times respectively. Anecdotal evidence is that many planning authorities enforce mainly in response to public complaints rather than on their own initiative. Mechanisms allowing citizens to complain to public authorities allow private parties’ superior information to be used in enforcement proceedings by public authorities, without giving rise to the problems associated with private enforcement described below.



5 Enforcement of IPPC and Waste Legislation

Similar actions to the section 160 injunction described above can be brought by any person or body against a person who fails to comply with requirements of legislation enacted to transpose Directive 2008/1/EC on integrated pollution control or Directive 2008/98/EC on waste and the main air and water pollution controls. There is no information readily available on the extent to which third parties have exercised these rights but in practice these actions are rarely taken by members of the public or NGOs. However, members of the public and NGOs are very adept at relying on the EPA to enforce IPPC and waste controls. Obviously many of EPA enforcement actions have been in response to complaints by members of the public. This author knows of no case where a member of the public or an NGO successfully sued to enforce waste and IPPC controls although there have been many cases where they threatened to do so. In the author’s experience disgruntled and dismissed employees and mothers of persons who have failed to get employment in the allegedly polluting industries tend to be the most active in threatening to enforce breaches of environmental laws. Indeed, in one case, your author experienced “shakedowns”, in which unaffected individuals sued companies for minor public law breaches in order to extract lucrative out-of-court settlements. The scam was exposed when one pig farmer threatened to counter sue a fake anglers association for trespassing on private property. 58

See Annual Planning Statistics 2010.

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The paucity of private enforcement actions in the IPPC and waste areas may be because the public has greater confidence in the EPA to enforce environmental legislation and, in general, this confidence is well placed. The EPA is not subject to political constraints and is generally better funded and more experienced in pursing enforcement actions than local authorities or other public bodies. Private Law Remedies The objective of private law mechanisms such as the torts of nuisance, negligence, trespass, breach of statutory duty and the rule in Rylands v Fletcher are to protect the immediate private interest of the applicant as opposed to protecting ‘the environment more generally.59 Private enforcement is facilitated in four key ways: “by suing polluters to recover monetary damages inflicted on them by the pollution; by lodging a complaint with a designated public authority; by bringing a legal action against a public authority entrusted with responsibility for implementing the laws to force compliance with legislative or constitutional requirements and by bringing actions against polluters for the purpose of bringing them into compliance with the law.”60

Private enforcers may seek a variety of remedies, some of which will solely benefit their own interests and others which, while benefiting the individual applicant, will have broader implications in terms of environmental protection. For example, while a payment of damages for loss suffered may placate an applicant, it will do little else in the interests of the public unless it is spent in environmental remediation. In contrast an injunction granted under environmental legislation can result in the cessation of an activity damaging to the environment and/ or environmental remediation orders which will often benefit the public interest more than the applicant’s private interest. The limits of private enforcement in terms of access to the courts and the scope of available remedies, emphasises the necessity for public enforcement in environmental law. Private enforcement is merely an adjunct as opposed to an alternative to public enforcement and private enforcement actions are rare because statutory remedies are easier to process in the courts and more effective. There are hardly any reported cases of private parties using common law remedies to enforce environmental controls in recent years. As illustrated above, private parties have occasionally used the section 160 planning injunction to enforce planning law and they frequently pressure public authorities to take enforcement action against those who contravene environmental laws. 59

Enforcement of Environmental Law: The Case for Reform, p. 58.

60

Tietenberg, T. (1996), p. 4.

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6 Judicial Review of Planning Decisions

Grounds for Judicial Review Judicial review is essentially about the misuse of public powers. The grounds for judicial review in Ireland are very similar to those in the UK with an added Constitutional law dimension and a somewhat more enthusiastic attitude to the reception and applicability of EU Law. The exercise of any discretionary power conferred by statute on an administrative body or tribunal may be challenged on a number of grounds. An attempt to define them was made by Lord Radcliffe in Smith v East Elloe RDC:61 Of course it is well known that courts of law have always exercised a certain authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from; and if the authority that confers them prescribes, explicitly or by implications, certain conditions as to their exercise, those conditions should be adhered to. It is, or may be, an abuse of power not to observe the conditions. It is certainly an abuse of power to exercise it when the statute does not truly confer it, and the invalidity of the act does not depend in any way on the question whether the person concerned knows or does not know that he is acting ultra vires. It is an abuse of power to exercise it for a purpose different to that for which it was entrusted to the holder, not the less because he may be acting ostensibly for that authorised purpose. Probably most of the recognised grounds for invalidity could be brought under this heading: the introduction of illegitimate considerations, arbitrary or capricious conduct, the motive of personal advantage or the gratification of personal ill-will.

Irish courts have stressed the limited nature of the judicial review function especially in the context of decisions taken by specialised administrative tribunals such as the Planning Appeals Board and the EPA. They will only examine the merits of a decision when it is alleged that the decision is unreasonable i.e. when it is a decision which “plainly and unambiguously flies in the face of fundamental reason or common sense”.62 In O’Keefe v An Bord Pleanála 63 the Supreme Court held that a court will not interfere with planning decisions merely on the grounds that: (a) it is satisfied that on the facts as found, it would have raised different inferences or conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it. The courts set a very high (arguably an unrea61

 Smith v East Elloe Rural District Council (1956) at 767. Approved by O’Dalaigh CJ in Listowel UDC v Mc Donagh at 317.

62 63

 State (Keegan) v Stardust Tribunal.

 O’Keefe v An Bord Pleanála.

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sonably high) threshold of unreasonableness justifying judicial condemnation and will only examine the merits of decisions in “limited and rare instances”.64

The courts have set a very high (an unreasonably high) threshold of unreasonableness justifying judicial condemnation and the courts will not get involved in examining the substantive merits of a decision except in “limited and rare instances”. Very few environmental decisions have been overturned on grounds of unreasonableness and the author can only count five ever. Many decisions have however, been nullified for procedural impropriety (for example, failures to observe the rules of natural or constitutional justice or failures to comply with statutory requirements) or because they exceeded the statutory powers of the decision-maker.65 The Aarhus requirement relating to the right to question the substantive and procedural merits of decisions has recently motivated the courts to modify the doctrine in O’Keefe and to scrutinise the merits of decisions but it is still a very uphill battle trying to persuade a court to examine the substantive merits of planning and environmental decisions. Time limits A special statutory judicial review procedure applies to any challenge to the validity of a “decision” or “act” of a planning authority or the Planning Appeals Board and a special costs regime applies in the case of judicial review in respect of the EIA Directive. Applications for a judicial review of a planning decision must be made within an eight week time-limit unless there are exceptional circumstances. The requirements for judicial review of planning decisions are similar to those for judicial reviews of waste and IPPC licences. Applicants must have a sufficient interest An applicant for judicial review in planning cases must have a “sufficient interest66” in the matter which is the subject of the judicial review application and must demonstrate “substantial grounds” for taking the case. Planning legislation specifically states that a “sufficient interest” is not limited to an interest in land or other financial interest.67 Locus standi in most other environmental areas is the same although there is not a requirement to demonstrate substantial grounds. Standing of NGO’s and Incorporated and Unincorporated Associations A special status has been granted to An Taisce (the National Trust which is a company limited by guarantee) under planning and some other environmental legislation. Its standing to bring judicial review proceedings has never been 64 65

[1992] ILRM 262.

See Scannell, Y. (1996), pp. 185-209.

66

Environment (Miscellaneous Provisions) Act, 2011. Before then, an applicant was required to have a substantial interest but this requirement was modified in response to EU concerns.

67

Planning and Development Act 2000, s. 37(4).

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successfully challenged. Other incorporated and unincorporated environmental associations frequently apply for judicial reviews of environmental decisions. The Supreme Court accepted, as a general proposition, in Lancefort v An Bord Pleanála 68 that a limited company may have standing to bring judicial review proceedings even where it has not any property or economic interests affected by the relevant decision, stating that: “Our law, however, recognises the right of persons associating together for nonprofit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi.”

Although some judges have expressed reservations about this,69 in only two cases to date, Lancefort 70 and Springview Management Company Limited v Cavan Developments Ltd and South Dublin County Council 71 was standing denied to an incorporated association in an environmental case. (Other reasons were relied upon to support the denial in both of these cases.72) In Lancefort,73 for example, while Morris J. in the High Court held that persons claiming standing are required to show a sufficient interest, he also said that want of locus standi may be overlooked “if there are weighty countervailing circumstances to justify the departure from the rule”. He held that the fact that a number of “conscientious concerned persons would be denied access to the courts” if refused standing constituted “weighty countervailing circumstances” in that case. Misgivings about the reasonableness of applicants and their tactics have been resolved, not by denying standing, but by making an order for security for costs.74 The Supreme Court in Lancefort even accepted that a company will not necessarily lack standing if it is incorporated after the impugned decision is taken, although the majority stated that this would present it with “serious difficulties” in establishing an interest in the subject matter. If a court finds “as a matter of probabil68

 L ancefort v An Bord Pleanála.

69

The first hint of judicial reservations about individuals incorporating to avoid personal liability for costs, was expressed obiter by Lynch J. in Malahide Community Council Ltd. v Fingal County Council, when he stated that, in the absence of economic interests, a limited company is not an appropriate body to litigate planning matters. However, few objections have been voiced in recent years.

70 71

 L ancefort v An Bord Pleanála.

 Springview Management Company Limited.

72 73

See Special Statutory Provisions Regulating Judicial Review below.

 L ancefort v An Bord Pleanála.

74

See Blessington Heritage Trust Ltd. v Wicklow County Council. This is an order requiring an applicant for judicial review to lodge money in court to pay the other party’s costs if he loses. Courts rarely require security for costs or if they do, they require insubstantial amounts. In Lancefort, for example, the court required the applicant to lodge 40,000 euro although the actual costs of the case are said to have been something near 1 million.

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ity” there was “nothing but an abuse of process” in forming a company, it will deny it standing.75 Since 2006, NGOs who fulfil certain requirements are deemed to have a sufficient interest for the purposes of Article 10a of the EIA Directive.76 The requirements are, first, the aims or objectives of the organisation must relate to the promotion of environmental protection;77 secondly, the organisation must, during the period of twelve months preceding the date of the judicial review application, have pursued those aims or objectives; and, thirdly, the organisation must satisfy such (additional) requirements, if any, as may be prescribed by the Minister for the Environment, Heritage and Local Government.78 To date, the Minister has not yet prescribed any additional requirements. The current position under Irish law, therefore, is that the fundamental test for whether an NGO is entitled to avail of the special standing (locus standi) rules in EIA cases turns on the stated aims and objectives of the organisation. In non-EIA cases, locus standi of NGOs is at the discretion of the courts and the tests used are ironically less restrictive than they are for EIA cases. The experience with environmental cases to date has been that in determining the locus standi of NGOs, the courts will deal with each case on its own facts but that they are assiduous in finding reasons why applicants for judicial review have a “sufficient interest” in the matter. In ESB v Gormley 79and later in Chambers v An Bord Pleanála 80 and in Lancefort,81 the Supreme Court stated that judicial review is a remedy to uphold the rule of law, not to vindicate private interests. Judges appear to consider that there is an element of the actio popularis in environmental cases which justifies a liberal approach to granting standing.82 Standing is usually taken for granted and there are few recently reported cases where it was denied to an individual in an environmental case. In one such case, 75

Per Geoghegan J. in Village Residents Association Ltd. v An Bord Pleanála.

76

Section 37(4) (d) of the Planning and Development Act 2000 as amended by section 10 of the Planning and Development (Strategic Infrastructure) Act 2006.

77

The European Court has ruled in case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening that it is legitimate for a Member State to require that an association has as its object the protection of nature and the environment [46].

78

Planning and Development (Strategic Infrastructure) Act 2006, The Court of Justice ruled in Case C-115/09 Trianel Kohlekraftwerk that the last sentence of the third paragraph of Article 10a of the EIA Directive must be read as meaning that the “rights capable of being impaired” which the environmental protection organisations are supposed to enjoy must necessarily include the rules of national law implementing EU environment law and the rules of EU environment law having direct effect.

79

ESB v Gormley, 129.

80 81

 C hambers v An Bord Pleanála, 134.

 L ancefort v An Bord Pleanála.

82

See Haverty v An Bord Pleanála at 490. “Every citizen has, as a person residing in a civilised community, an interest in seeing that the Planning Acts are applied and observed”. Village Residents Association Ltd v An Bord Pleanála and Denham J’s powerful dissenting judgment in Lancefort.

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standing was refused because the litigation had been secretly financed by a commercial competitor of an applicant for planning permission.83 Argument relied on to establish a substantial case must have been raised prior to judicial review Applicants for judicial review must normally have raised an objection (which he or she relies on in the judicial review proceedings) before the decision-maker and they are not usually allowed to raise an issue for the first time before the High Court when it could have been, but was not, relied upon during the planning process.84 This requirement may not be compatible with EU law.85 Costs in Judicial Reviews Article 10a of the Environmental Impact Assessment Directive (as inserted by Directive 2003/35/EC) requires Member States to provide a “review procedure” whereby the “substantive or procedural legality” of “decisions, acts or omissions” subject to the public participation provisions of the EIA Directive may be challenged. Article 10a requires that the “review procedure” shall not be “prohibitively expensive”. Legal aid is not normally available in environmental cases. In practice, lawyers are generous in providing services at little or no cost in important cases, particularly when the prospects of success – and of ultimately being paid- are good. Costs in all cases are awarded at the discretion of the court86 but the general rule is that the losing party must pay all the costs of the case.87 Sometimes the courts depart from this rule, particularly where points of law of general importance are raised or where the respondent is a public authority. Sometimes they may make no order for costs which in effect means that parties must bear their own costs. In practice, public authorities and profitable corporations rarely enforce orders for costs.88 The courts have also deviated from the normal rule and awarded costs against a party by reference to that party’s conduct or where the claim or counterclaim was “frivolous or vexatious” and in favour of a party where the matter was of “exceptional public importance” or where in the special circumstances of the case it was in the public interest to do so.89 In 2011, under pressure from the EU Commission, the legislature modified the normal rule on costs for judicial reviews in section 50B of the Planning 83

But see Goonery and others v Lagan Cement Company Limited.

84 85

 Treacy v. An Bord Pleanála.

See Case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening.

86 87

Ord. 99, r.1(1).

Ibid., paras (3) and (4).

88

This writer knows of only one case where costs were enforced against NGO’s or unsuccessful applicants for judicial review. Developers and industrialists are deterred from enforcing costs against groups who may have attracted a good deal of public support by prospects of bad publicity and continuing vendettas.

89

Simons, G (Intensive Course on Planning Law).

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and Development Act, 2000 where an application for judicial review involves a decision made or an action taken or a failure to take action “pursuant to a law of the State that gives effect to” one of three EU Directives viz: the EIA Directive, the Strategic Environmental Assessment Directive or the Integrated Pollution Prevention and Control Directive.90 This was a response to the decision of the ECJ in Commission v Ireland, Case C-427/07, holding that the Irish provisions on costs did not adequately transpose Article 10a of the EIA Directive. The CJEU court found that mere judicial discretion not to award costs against the unsuccessful party in a judicial review cannot be regarded as a valid implementation of the EIA Directive as amended by Directive 2003/35/EC. The normal rule in these special cases is that each party must bear its own costs but the court has discretion to award some or all of the costs to a successful applicant and make the losing parties pay them to the extent that their acts or omissions contributed to the applicant’s success in the case. The court has discretion to award some or all of the costs against a party where its claim or counterclaim was frivolous or vexatious or because of the manner in which it conducted the proceedings or where it is in contempt of court. It is doubtful whether these amendments ensure that access to justice in environmental cases should not be prohibitively expensive. The courts have discretion to require applicants for judicial review to lodge security for costs i.e. a sum of money in court payable to the successful party to the litigation. Orders for security for costs against a private individual challenging environmental decisions are rarely made, even in circumstances where it is obvious that he or she has no assets.91 A common, and judicially acknowledged,92 strategy of NGO’s and residents’ associations challenging decisions who cannot find an individual willing to incur the risk of being bankrupted by the high costs of Irish litigation is to select an impecunious applicant who will not be a mark for costs if the application is unsuccessful. Another strategy increasingly being adopted is incorporation specifically to provide a shield against personal liability for costs. This strategy, although well known to the courts93 was never seriously challenged until recently. In appropriate cases, 90 91

Section 21 of the Environment (Miscellaneous Provisions) Act 2011. See Ryall, A. (2011).

 Maher v Phelan [1996] IR 95 at 98; Fallon v An Bord Pleanála.

92

In Fallon v An Bord Pleanála [1992] 2 IR 380 the applicant was identified as someone who had been “specifically chosen from a number of people to take the action, in that he was not a mark for costs and had no special material interest in the result of the action or any very special aesthetic or general interest.” He was in fact a 28 year old telephonist who certainly could not pay the high costs of judicial reviews in Ireland. Nonetheless the court granted him standing. In Chambers v An Bord Pleanála [1992] 1IR 134 the applicant was unemployed. In Mc Bride v Galway Corporation [1998] IR 485 the applicant was an out of work actor. In Murphy v Wicklow County Council, Supreme Court, 28 January 2000, the applicant was an eco-warrior.

93

See Village Residents Association v An Bord Pleanála and Mc Donalds Restaurants Ltd, High Court, 23 March 2000 where Ms Justice Laffoy stated that “it is reasonable to infer that its immediate sole raison d’etre was to constitute a vehicle for bringing these proceedings”.

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orders for security for costs may be made under section 390 of the Companies Act 1963. This has rarely happened in environmental cases.94 When an application for security for costs was made in Blessington Heritage Trust Limited v Roadstone (Dublin) Ltd.,95 Mrs Justice McGuinness in the High Court refused the application stating that the scheme of planning legislation is essentially one of balance between a number of interests: the developer, the local planning authority, the Minister for the Environment and that the courts should at all times “endeavour to maintain the balance envisaged in the legislation.” While accepting that incorporating to provide a shield against costs could sometimes tip the balance too far in favour of objectors, she stated that it could also tip it in favour of large scale and well-resourced developers. Accordingly, she held that each case should be considered on its own facts and that the balance would best be maintained by making an order for security for costs if this was necessary to maintain that balance The applicant company was granted standing and was not required to provide security for costs, presumably because the developer was a wealthy multinational. The position of unincorporated associations is unclear. In practice, applications by unincorporated associations are usually brought by a number of named individuals bringing a representative action. Irish law does not provide for class actions. Experiences with Judicial Review There is some information available on experiences with judicial review in planning cases. In 2011, High Court judicial review proceedings arising from the decisions of the Planning Appeals Board were instituted in 20 cases. Five of these were discontinued. High Court decisions were made in 5 substantive cases, 3 of which approved of the Board’s decisions and two of which overruled the Board. In 2 of the 3 cases where the Board was successful, the High Court refused leave to apply for judicial review but had, in the course of deciding on the application for leave, also heard the substantive case before arriving at this decision. In addition, the Board consented to the quashing of two of its decisions where procedural defects were identified. The Supreme Court decided one planning case and that upheld the Board’s decision.



7 Conclusions

It will be seen that the rights to participate and enforce environmental laws in Ireland are extensive and that the courts are generous in awarding standing to persons or associations challenging the legality of judicial 94

 L ancefort Limited v An Bord Pleanála. On 17 July 1998, the Supreme Court dismissed an appeal against a High Courts award of costs by Lancefort. Security for costs was also required in Village Residents Association Ltd v An Bord Pleanála and Mc Donalds Restaurants Ltd.

95

 Blessington Heritage Trust Limited v Roadstone (Dublin) Ltd.

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decisions. All of this is consistent with the aspirations of Directive 2003/35/EC and the Aarhus Convention. There are however some concerns about (i) abuses of process by third parties lodging appeals against decisions on environmental matters for reasons unconnected with environmental protection. Attempts to deal with this by empowering the Planning Appeals Board to dismiss appeals have been unsuccessful because so few appeals (2 in 2010 and 6 in 2011) have been dismissed on this account. The potential delays and the almost certain risk that the Planning Appeals Board will reverse or change a decision made at the local authority level means that there is a huge incentive for developers to induce objectors not to appeal or to withdraw appeals made. It is impossible to discover how many appeals were prevented or withdrawn by negotiation. But the 2010 and 2011 Annual Reports of the Planning Appeals Board show that appellants withdrew 95 and 77 planning appeals out of 2517 and 1673 appeals respectively. This is not a huge proportion of appeals (3.8% and 5.8% respectively) and more information is required to determine if the withdrawn appeals related to large projects but practitioners relate horror stories of abuses of the appellate process to obtain unmerited inducements. There is no doubt but that the appeal process is open to abuse. There are also some issues about private enforcement of environmental legislation. There are pragmatic arguments for universal standing to enforce. Public authorities are often under-resourced and may not have the capacity, or the will, to detect, investigate and prosecute every breach of environmental law. By supplementing public enforcement with enforcement by private individuals – who may possess superior information or resources – it is likely that a greater number of breaches will be identified and prevented. By increasing the probability (or the perceived probability) of pollution being detected and punished or breaches of planning controls reported, the actio popularis creates a greater deterrent to prospective polluters and illegal developers than restrictive rules on legal standing.96 It thus leads to improved compliance and superior environmental outcomes. In addition, private actions relieve the financial burden of enforcement for public authorities, and ultimately taxpayers, and allow them to concentrate resources more efficiently. But the disadvantages of the actio popularis have not been addressed– its dubious real-world impact and a litany of associated practical difficulties: vexatious litigation, sub-optimal remedies, duplication of cases, increased costs and the inconsistent application of the law. A fundamental principle of law enforcement is that the law should be applied consistently and equally – those in similar circumstances should be treated similarly. It could be argued that a public authority, with a unified enforcement strategy, is best placed to uphold this principle. Ad hoc actions by private individuals result in some perpetrators of relatively insignificant breaches being drawn into protracted 96

In traditional economic models of deterrence, the prospective wrongdoer weighs the benefit of breaking the law against the costs of being caught – the perceived probability of punishment multiplied by the expected penalty. Actio popularis deters pollution by making punishment more likely. See Becker, G.S. (1968).

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legal proceedings, while similar breaches elsewhere are overlooked. There is also the potential for frivolous actions driven by malign motives: personal vendettas, harming business competitors, delaying unwanted developments, or personal profit. There have been instances of bogus environmental NGOs searching for breaches of environmental laws to enforce and then settling cases for private gains. Duplication of actions unnecessarily burdens the resources of the judicial system and environmental authorities and results in higher legal costs for the alleged polluter. But many of these problems could be addressed by procedural restrictions on private enforcement. The principled case for actio popularis is convincing. Universal standing coheres more soundly with the nature of the environmental interest than traditional locus standi rules. The actio popularis is also more attuned to the growing international consensus on the value of public participation and democracy in environmental matters. Yet looking beyond its theoretical virtues, a question mark lingers over the practical impacts of open standing on the effectiveness of environmental law enforcement. The issue is confounded by a lack of comprehensive research on the frequency and merit of the actions which are facilitated by a universal right to enforce. This paper is a humble attempt to start this process.

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National Defence vs. Environmental Protection The Saga of a Radar Station in Hungary Attila Pánovics

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national defence vs. environmental protection

1 Introduction

It is the constant duty of the respective governments of the Republic of Hungary to provide the forces and equipment required for protecting Hungarian airspace, and to receive and control supporting NATO forces in case of an emergency. The goal of this essay is to summarise the history of the NATO-financed radar station, which is planned to be constructed on the Zengő, focusing on the legal aspects, also presenting political and other aspects regarding the background of the case. The story of the Zengő radar station is significant since it has been the first successful case of environment-related activism since the protests against the Gabčíkovo–Nagymaros Dams to earn a high profile nationally and on an international level, and its consequences are still not forgotten. Due to the actions of non-governmental organisations, in the end the Ministry of Defence abandoned the construction of the structure at the originally planned site, and it was later also badly defeated at its next proposed site, also due to public opposition. After the democratic transition in Hungary, the modernisation of air defence equipment, which operated with obsolete Russian technology and often produced failures,1 became urgent; therefore the National Assembly issued a resolution in 1995 on the development of the radar, reconnaissance, information and leadership systems of the air defence.2 The basic issue of the “radar case” was to determine whether there are satisfactory solutions in the case of conflicting interests of defence and natural and environmental protection during the selection of installation sites for the new, up-to-date radar stations, and whether the affected regulations in Hungary are actually applied in such cases. In the case of the Zengő, which is a mountain in a protected area situated in a nature protection area of national significance, the specific question of if it was in conflict with the Constitution was also raised. Is it possible to undertake a military development project obviously causing significant damage in a landscape protected area3 for the reason that it is of elementary importance for national security?

1

More than 3 thousand soldiers of 23 radar squadrons had to be kept in service due to the obsolete equipment. In this period the airspace was monitored by 131 separate radar stations operating on different frequencies.

2 3

Parliamentary Resolution 94/1995. (IX. 28.) OGY.

According to Article 28 Paragraph (3) of the Act on Nature Conservation in Hungary, landscape protection areas “are extensive and usually unitary territories of Hungary rich in natural and landscape endowments to which the interactions of Man and Nature have lent a particular aesthetic, cultural and natural character and whose primary function is the conservation of landscape features and natural values.”

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2 Preliminaries

The development of the new airspace defence system began in 1996 and it included the decision to replace the obsolete, frequently malfunctioning devices with radar stations featuring a three-dimensional view and a high detection distance. Military professionals suggested two, and due to the stricter requirements, three locations. Two of these (Bánkút and Békéscsaba) did not cause any problems, as these are situated far from residential areas, on areas owned by the Hungarian Defence Force. The military experts suggested the highest peak of the Mecsek mountain range, the Zengő (with its height of 682 metres) to be the location of the third element of the new airspace defence system. The most important aspect in choosing the location for the radar station was to enable the device to detect aircraft entering the country’s airspace from a southern or southwestern direction, even at low altitudes. Focusing on the two most important objects to be protected – the capital (Budapest) and the Paks Nuclear Power Plant – only the military, defence policy and radio technology aspects had been considered, and the radar installed on the Zengő could have provided for the defence system of the southern border area on its own. The essence of the conflict is the fact that the Zengő is a highly valuable area of nature protection, an almost undisturbed area in the Mecsek mountain range with little caused to the landscape, and it falls under national protection as a part of the Eastern Mecsek Landscape Protection Area since 1977. 4 The preparatory meetings on joining the Integrated Air Defence System of NATO (NATINADS) commenced in 1997, after Hungary – together with the Czech Republic and Poland – was officially invited to join NATO.5 The Republic of Hungary joined NATO in 1999 with an air defence system that could only partially satisfy the minimum NATO military requirements.6 Upon the enlargement of NATO its continuous southern border has been formed, and the southern national border of the Republic of Hungary became a section thereof. The North Atlantic Council approved the Hungarian development plans in 1999, and the NATO Infrastructure Committee consented to commencing a common procurement process. According to this approval, the Hungarian programme should have been finished by September 2006.7 An international tender was developed and concluded, and the contract with the winning offeror, Aleina Marconi Systems (AMS) of Italy was concluded. NATO has undertaken to cover almost all of the total investment-related costs (about the net sum of 23.5

4 5

Resolution 8/1977. OTvH of the National Nature Protection Office.

North Atlantic Treaty Organization.

6

http://www.honvedelem.hu/hirek/hazai_hirek/tajekoztato_a_magyarorszagi_radarprogram_megvalositasarol.

7

However NATO did not set a location or deadline for installing the radar stations.

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billion HUF)8 and the Government of Hungary only had to pay 0.65 percent (153 million HUF) of the expenses. From 1996 to 1998 two environmental authorisation proceedings were initiated regarding the cases of the radar stations planned on the Zengő. Since the nature protection administration9 failed to provide the required consent, the affected environmental protection inspectorate10 denied providing authorisation twice, and the High Inspectorate acting as a second instance authority denied it once. Finally, the authorisation was provided on 12 February 1998, but the High Inspectorate set forth 23(!) – partially contradictory – conditions to implementing the project.11 The project itself did not begin on the Zengő until 2004. Although the Ministry of Defence had relocated 12.000 protected plants from the route of the road planned to be constructed on the southern side of the Zengő, the experiment ended in total failure. Ninety percent of the plants perished, but they later reappeared on the route of the road, in higher numbers than before. Another attempt to relocate the plants ended with similar results in 2003. In the spring of 2002 – right before the parliamentary elections, as one of the last provisions of the government – a government decree12 was adopted that provided the Ministry of Defence with the powers of building control authority in case of structures having a military or defence objective. According to these provisions building permits could be issued by the military building control authority department13 of the affected bureau of the defence ministry, and the possible appeals were decided by the minister of defence. Thus the radar station to be constructed on the Zengő received the final building permit by the end of January 2003.

3 The “Battle of Zengő”



Residents living in the vicinity of the Zengő were shocked to read in the county’s daily newspaper that the construction of the radar station was soon to begin.14 Mayors of the affected municipalities were also surprised, as they had received no information from the government about the prepara8

80 percent of the costs were used for financing the radar equipment.

9

The Danube-Drava National Park Directorate (Duna-Dráva Nemzeti Park Igazgatóság).

10

Then called the Southern-Transdanubia Environmental Protection Inspectorate (Dél-dunántúli Környezetvédelmi Felügyelőség).

11

Resolution no. 2187/7/1997.

12 13

Government decree 40/2002. (III. 21.) Korm.

The building control authority department of the Ministry of Defence Central Controlling and Administration Bureau (HM Központi Ellenőrzési és Hatósági Hivatal).

14

In 1997 a local non-governmental organisation (Association of Friends of the Pécsvárad Castle) already collected signatures against the radar station, but the protests ended as the execution of the project was not completely sure.

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tion of the project for years. The Ministry of Defence possessed also formally required permits and authorisations; therefore it seemed very likely that the project would be completed within the deadlines. However, some local residents made up their minds to do everything to stop the construction, and started to use different methods to draw attention to the status of the project (e.g. by organising half-track blockade of roads and protest tours). They also established an informal organisation under the name “Civilians for the Zengő Movement” (Civilek a Zengőért Mozgalom) in the spring of 2003 that went on to coordinate protests. On 13 February 2004 a small group of local residents with support from Greenpeace activists and other volunteers,15/16 successfully prevented the felling of trees from commencing on the Zengő.17 Delaying the beginning of the works was a key issue for the protesters, as Hungarian regulations prohibit the felling of trees from mid-February to mid-October in forests. The protesters were careful not to commit any criminal offence, and therefore they protected trees with their own bodies, and when the security guards dragged someone away, another protester immediately stood in. Thus their acts were only considered trespassing, that shall be appropriated by the notary of the competent local government, and therefore no actual sanctions were imposed. On the evening before the mentioned day, László Sólyom, first president of the Constitutional Court (later, from 2005 the president of the republic) claimed on state television that the Constitution supported the protesters. Images of the “battle of Zengő” appeared throughout the media, and from then on the most active green organisations18 acted in the case together, jointly writing letters to the prime minister and the secretary general of NATO, publishing common statements in the press and representing the issue of Zengő in the Hungarian green movement.19 In April 2004 another civil protest was performed. When the project’s contractor started to dig ditches on the slopes of the mountain, on the route of laying cables, it was soon halted by some protesters.



4 The Ombudsman’s Report

Soon after the conflicts on the Zengő, the report on the investigation of the circumstances of the installation of the Zengő mountain radar station was published by Dr. Barnabás Lenkovics, the parliamentary commissioner 15

A total of approx. 40 persons, see Vay, M, (ed.) (2005), p. 42.

16 17

Vay, M, (ed.) (2005).

The project would have required the felling of a total of 330 trees.

18

The Civilians for the Zengő Movement (Civilek a Zengőért Mozgalom), Greenpeace, the Hungarian Association for Nature Conservationists (Magyar Természetvédők Szövetsége), Védegylet and the Green Circle of Pécs (Pécsi Zöld Kör).

19

On 24 February 2004 for example 63 NGOs signed the letter written to the prime minister.

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for civil rights.20 The ombudsman initiated the ex officio proceedings because of conflicting fundamental constitutional values. The report detailed the constitutional law context of the case, and investigated the environmental protection authorisation procedure, the building permit proceedings and the authority’s proceedings regarding the forest access road, with regard to the fundamental rights to property, a healthy environment, life and human dignity, appeals and fair proceedings prevailing. According to the practice of the Hungarian Constitutional Court the state’s obligations to protect life should also cover providing the natural basis of human life, the living conditions of future generations. The primary means of the state for satisfying this obligation are performed via the institutions of environmental and nature protection administration (especially authorities and bureaus). The report of the ombudsman concluded that in the subject case, the main conflict was between the different aspects and means of the state’s obligation to provide for the right to live: national defence that serves the purpose of immediate protection of human life through the means of military force, 21 and the protection of nature and the environment, that serves the protection of the natural basis of human life.22 Resolution 28/1994. (V.20.) AB of the Constitutional Court proclaimed the non-derogation principle, which means that the state may not let the level of nature protection provided by regulations deteriorate, 23 unless it is unavoidable for exercising another constitutional right or value. Therefore, in case of two conflicting constitutional fundamental values, one may only be exercised over the other if the tests of necessity and proportionality are applied. If these cannot be proven, “the reduction of the protection level still cannot be disproportionate to the goal to be achieved”. In case of the Zengő this meant that the advantage gained in protecting the airspace has to significantly exceed the amount of disadvantage caused to the other fundamental right, the protection of nature. The ombudsman’s report found that each of the 23 conditions of the environmental protection authorisation could be arbitrarily interpreted, and/or they contradicted each other. The report also cited Section 70 Paragraph (3) of the environmental protection act 24 which states that the environmental protection authority shall revoke the issued authorisation, in case the conditions existing at the time of the authorisation significantly change. According to the ombudsman several such conditions changed since the environmental protection authorisation had been issued. The report also acknowledged that the construction of the radar station could not begin on the Zengő lawfully, since the authorisations and permits were 20 21

OBH 3631/2003.

Sections 5 and 40/A of the Constitution of the Republic of Hungary.

22 23

Sections 18 and 70/D of the Constitution.

This shall be interpreted to mean that the areas and natural state (e.g. biodiversity) of the protected natural areas, and therefore landscape protected areas shall not be reduced.

24

Act LIII of 1995 on the General Rules of Environmental Protection.

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either void due to the material errors of the authorisation proceedings, or they were invalid because of the lengthy unfinished proceedings. The environmental protection authorisation issued for the Zengő did not contain a provision on expiry, although according to the environmental protection act the deadline of validity is one of the obligatory elements of the authorisation. According to the ombudsman’s interpretation, in such cases the authorisation shall be considered to be issued for the minimum duration set forth in the regulations (5 years), as otherwise the authority should have indicated this condition. For this reason he did not consider the environmental protection to be valid, and therefore did not find it necessary to initiate revocation. The ombudsman also addressed the issue of community law protection of natural values of the Zengő, but due to its significance I will discuss this further separately. Then he also emphasised that in case of a project affecting such a wide array of people, all affected parties (“civil society”) should be involved in the decision-making. So the ombudsman’s report had proven – contrary to the viewpoint of the Ministry of Defence – that several regulations were breached during the authorisation proceedings, and that constructing the radar on the Zengő would have been unconstitutional and contradicted the practice of the Constitutional Court. However, the public administration bodies established to protect the interests of nature and environmental protection were unable to preclude the issue of the unlawful authorisations.



5 The Activity of the “Zengő Committee”

In April 2004 the government officially announced suspension of the project on the Zengő, and the establishment of an independent committee to investigate the issues related to the radar station. The independent body of experts was established in May, with its 9 members representing the fields of security policy, radar technology, law and nature protection, upon recommendations of the affected ministries.25 The committee had to provide a recommendation regarding the installation site of the radar station based on three alternative locations (the Zengő, the nearby Hármashegy,26 and the Tenkes Mountain in a southern direction, situated in the Villány Mountains), that simultaneously satisfied two fundamen25

István Láng, chairman of the committee has earlier been the Hungarian member of the Brundtland Commission, secretary general of the Hungarian Academy of Sciences and chairman of the National Environmental Protection Council. Members of the committee included the then-dean of the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University, professor Gyula Bándi.

26

The Hármashegy is the third highest peak of the Mecsek with the height of 604 metres; it is also a part of the Eastern Mecsek Landscape Protection Area. A relatively good quality forestry road led to the Hármashegy, there have been buildings on the mountain peak, and the area was partially managed by the Ministry of Defence.

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tal obligations of the Hungarian state: a guarantee of national security and a preservation of environmental values. The committee’s work was guided by the following principles: • security of the country’s airspace necessarily requires the installation of a radar station in Southern Transdanubia, which integrates with the two other Hungarian radars into the unified airspace security system of the alliance (NATO); • the radar station shall increase the safety of domestic and overflying civilian traffic; • the radar station shall provide efficiency in executing air policing activities regarding aircraft flying on low altitudes, including the detection of air migration and air trafficking; • simultaneously with installing and operating the radar station, the preservation of natural values shall also be provided. In the committee’s report issued in October 200427 the findings concluded that theoretically all three locations were appropriate for the installation of the radar station, but neither site was suitable to satisfy all requirements simultaneously. It was also quite obvious that in case of choosing a location other than the Zengő, the installation was going to suffer a significant delay (at least 2.5 years), and negotiations with NATO were also required,28 and an approval could only be received when the proceedings are closed, taking several months. Regarding the Zengő, the committee stated that the construction of the radar station and the related structures may only be performed by decreasing the protection level of the protected natural area, partially destroying the protected and highly protected flora, by significantly using the natural habitat for construction purposes, and by causing an adverse change in the environmental conditions of these habitats. Therefore mitigating measures would be required for preserving biodiversity, in case the radar station would be built on this location. Then the prime minister requested the committee to continue the work and examine the possibility of providing airspace coverage with lowland radar stations. Based on the supplementary report of the committee, 29 the results showed that a radar station installed at either of the two examined locations30 in the vicinity of the mountains in Croatia and the Mecsek mountain range would be unable to cover the area the radar station on the Zengő could see. Thus in both cases squadrons of backbone radars and so-called filler radars would have to be used, which caused a sharp rise of expenses. 27

The document is available at: http://cmm.hu/index.php?cat=story&id=17.

28

Namely, the supplies office of NATO (NC3A) had to be contacted to amend the agreements related to the radar equipment.

29 30

Available at: http://misc.meh.hu/binary/6603_zengobizottsag_jelentese_041208.pdf.

Mórágy and Liszó.

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6 Effects of the Accession to the European Union

On 1 May 2004 Hungary joined the European Union and thus the country’s national borders in the south became part of the EU’s borders. After the introduction of the Schengen Agreement, it became a state priority to follow the border defence provisions of the EU. Upon accession the country undertook the application of EU law that covers the adoption and execution of nature protection regulations, including the habitat and bird directives. Therefore the areas covered by the EU’s ecological network, NATURA 2000 had to be selected, as Special Protection Areas (SPAs) for birds and proposed Sites of Community Importance (pSCI). According to the directive, any project or plan that would have a significant impact on the conservation status of a NATURA 2000 area or endanger the conditions of the areas could only be approved if they did not threaten the preservation of species or natural habitat types of Community interest. In case any overriding public interest would render the execution of a plan or project necessary, the member state must execute all mitigating measures to protect the unity of NATURA 2000 areas. After the selection of the Hungarian areas covered by the NATURA 2000 network, more than 21 percent of the country’s territory was protected under Community law.31 This alone meant a substantial change of circumstances, based on which the authorisations and permits issued for the Zengő could have been revoked. Upon Hungary’s accession, the EU’s 6 biogeographical regions were supplemented with the Pannonian region, and attention had to be paid to representing the selected areas in case of habitat and species types only appearing here. The habitat types and protected species of the Zengő were entered in the annexes of the Habitat Directive32 in 2001, after the negotiations on the terms of accession. Annex I of the Directive lists natural habitat types of community interest for which member states shall establish the necessary conservation measures. The associations of the forests on the Zengő, the formations on rock slopes and the Illyrian oak-hornbeam forests belong in this category. Annex II includes the priority protected species with community interests for which the member states have habitat protection obligations. The Banat Peony (Paeonia officinalis subsp. banatica) that has become a symbol of the Zengő case only has natural stock in one member state, Hungary (90% of the global stock) and the majority grows in the area of the Zengő.33

31

The Mecsek (HUDD20030) and the Tenkes Mountains (HUDD20001) were selected as parts of the NATURA 2000 network as “priority special areas of conservation”.

32 33

Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora.

http://mno.hu/velemeny/alternativ-megoldas-kell-a-zengoi-lokator-helyett-663028.

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7 New Location: The Tubes

In the May 2005 the Government requested the minister of defence to conduct and finalise an examination on the possible locations for installing the radar equipment (Hármashegy, Mórágy and Zengő). The Government also prescribed that the construction works regarding the selected site would have to be performed by observing these conditions: • the interests of national defence and nature and environmental protection shall be harmonised, • the habitats of possible protected plants on the selected site shall not suffer significant harm, • the felling of trees shall be minimised, • the least possible space shall be occupied.34 On 23 November 2005 Prime Minister Ferenc Gyurcsány announced that the Government officially resigned from constructing the radar on the Zengő. The newly selected location was the Tubes,35 a 612 metres high peak of the Mecsek, which lies within the municipal borders of the city of Pécs. The then-mayor of Pécs vocally supported the realisation of the project.36 The choice was surprising as the Zengő Committee earlier excluded the Tubes from its examination due to geographic, demographic and environmental reasons. The new location was different from the Zengő, as there had already been an operating military facility on the Tubes, and a part of the area was state property, managed by the Ministry of Defence, and there was also dirt road that connected the mountain peak through the forest. Therefore some of the concerns related to the Zengő could not be applied to the Tubes. However the vicinity of a city with 160.000 residents was a new factor, because Tubes is only a few hundred metres away from the nearest houses (which would obviously lose some of their value), and in case of a conflict it would become a primary military target.37 The effect of the project on the nearby areas – under protection38 – and the underground waters providing a significant proportion of the city’s freshwater reserves was also dubious. Other issues were also questionable, such as the construction’s damage to the landscape, as the Tubes is 70 metres lower than the Zengő, and 34 35

Government Decree 2097/2005 (V. 27.) Korm.

See Government Decree 2288/2005. (XII. 22.) Korm.

36

It was rumoured that as a compensation for the radar station the mayor agreed with the prime minister about Pécs winning the “European Capital of Culture” title for 2010. Suspicion increased when Pécs was announced as winner among the other Hungarian competitors on 19 October 2005, only a month after the Tubes location was announced. See http://www.nol.hu/cikk/449772/.

37

The fear from radiation was also regularly voiced in connection with the case of the radar station, as it would have affected many people in Pécs. However, the damaging biological impact non-ionising radiation was never proven scientifically, so the acceptable public concern could not be used in the protests.

38

The protected area of the Tubes merged in the Eastern Mecsek Landscape Protection Area in 2009, according to provisions of Decree 4/2009. (IV. 10.) KvVM.

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the radar tower would have been built much higher, while still being unable to individually cover the airspace. After the statement, the “Civilians for the Mecsek Movement” (Civilek a Mecsekért Mozgalom) was established in December 2005, which was initially implicitly, later openly39 supported by the green organisations working in the Zengő case. Opponents of the radar organised human chain protests, conferences, public hearings and a local referendum (the first in the post-communist history of Pécs) to amend the local building code. 40 They wrote a letter to the secretary general of NATO and initiated administrative action against the ministry to revoke the building permit of the radar station (the military building control authority of the first instance and the minister of defence as a second instance authority also permitted constructing the NATO radar on the peak of the Tubes). The Metropolitan Court of Budapest ordered suspension of the execution the resolution, but in 2009 it rejected the petition of the applicants, and thus theoretically construction could have begun. 41 Sándor Fülöp, parliamentary commissioner for future generations also intervened in the administrative action against the realisation of the NATO radar station planned on the Tubes. Based on a review petition, in January 2010 the Supreme Court suspended execution of the building permit issued for the Tubes, and in March 2010 it decided that the procedural and material breaches of law in the building permit proceedings42 could not be remedied in a retaken procedure of a court of first instance. Therefore the court ordered the administrative body acting in the first instance to conclude new proceedings, meaning that the Ministry of Defence would have had to undertake new building permit proceedings. However the court’s judgement included conditions (such as obeying the local building code) that rendered the construction practically impossible in the whole Mecsek Mountains, including the Zengő, the Tubes and the Hármashegy. The government had to find a location that simultaneously satisfied requirements of the military, conditions of protecting the nature and the environment, and was not opposed by the public.

39

On 30 March 2008, 39 green organisations issued a joint statement, requesting that the proposed radar station not be built on the Tubes, nor on the Zengő nor other protected areas of the Mecsek.

40

Due to the low turnout the local referendum was unsuccessful, but the opposing votes of the project were in the great majority, which provided the protesters a good argument later on.

41

Then the defence ministry possessed a final building permit, and the newly elected mayor (after winning the by-elections) joined by several other local politicians and civilians opposing the radar spent a night on the peak of the Tubes in December 2009, and the local government blocked the road connecting to the peak, blocking the movement of the heavy vehicles required for the construction.

42

E.g. ignoring the applications to prove and the expert testimonies, and breaches of laws regarding the protection of nature and the environment.

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8 Solution to the Case

After the local elections in 2010, the Ministry of Defence initiated negotiations with the leaders of Medina, a settlement near the Danube with 650 residents, about constructing the facility near the village. In March 2011 it was announced that the facility was going to be built near Medina, where radar had already operated since 1987, and therefore no public protests were expected. 43 The ministry also undertook to financially support the local government for four years, in the total value of 100 million HUF. 44 When the Zengő Committee earlier examined the conformity of the Medina location, they found that it could not provide complete detection of the airspace in low altitudes, even with the assistance of filler radar stations. The case finally ended with a political decision that did not exclude professional experts, but the final location met the strategic requirements of NATO45 and the solution proved to be acceptable to everyone affected. Apparently it was proven that the security of the country could be provided without harming environmental interests. Although the maintenance of this system, with the operation of the two filler radar stations and the servicing squadron facilities, would be 80-99 billion HUF more expensive in 20 years (until 2033), compared to having the radar built on the Zengő. 46



9 Conclusions

As Hungary’s airspace is one of the most crowded in Central Europe, the modernisation of the Hungarian air space defence system was of elementary importance to provide the county’s sovereignty and security. The new airspace defence radar system is able to control the complete military and civilian air traffic in the airspace, and can determine the event location and time in case of an air catastrophe. The third 3D radar station begins operation in the second quarter of 2014, 47 after completing the necessary tests. Thus, selection and the construction of the locations for the complex took at least two decades. During this period, several Hungarian governments came and went, although all of them were committed to fulfilling the pledges taken regarding NATO requirements. Since many governments had been affected, the fight against the radar on the Zengő could stay away from party politics all along, and the organisers of the protest also paid special attention to prevent the parties 43

http://www.kormany.hu/hu/honvedelmi-miniszterium/hirek/hm-javaslat-az-uj-3-d-radarallomashelyszinere.

44 45

http://nol.hu/belfold/20120427-nem_tudni__jar-e_penz_a_radart_ovezo_foldekre.

The supreme allied commander of NATO’s Supreme Headquarters Allied Powers Europe approved the new location on 4 September 2010.

46

The exact costs may only be determined after the radar station is installed.

47

http://htka.hu/2013/05/28/2014-kozepeig-hadrendbe-allhat-a-medinan-epulo-radar/.

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from gaining any advantage from the civil protests. In case of the Tubes the then-opposition openly supported the protesters, and finally – after entering the government – they could appropriately resolve the issue of the radar station. Preventing the construction of the Zengő project required the long and successful fight of the local residents, and the environmental organisations that supported them. A key reason to its success was the persistency of the protesters, who have not spared their time and energy to fight, even though the outcome seemed dubious for a very long time, because of the government’s actions. 48 The local grassroots initiative received enormous help and support from the actions of “professional” green organisations (especially Greenpeace) in this case, and it was also supported by statements of the first president of the Constitutional Court about the issues related to constitutional law. However, the role of the media and the public should not be underestimated. The press had a gigantic role in making the Zengő and the Banat Peony become symbols of civil movements and the protection of nature. The biggest mistake was clearly committed by the Ministry of Defence, having caused several cases of “communications failure” for the army. They treated the complete project as a military secret, 49 they did not undertake meaningful negotiations with the affected local governments, and did not consider local residents and green organisations partners in decision-making. In the end, military experts had to admit that their field of expertise was not the only meaningful aspect in the case, and that decisions of such importance cannot be made secretly, without public involvement. Another lesson learnt from the case of the radar station is that a non-transparent decision of the government, taken by a narrow group of decision-makers can easily lead to unlawful projects, and bodies of the environmental administration are no real guarantee to solve the problem themselves. In the case of the Zengő, the conflict of two fundamental interests (national defence and nature protection) was so intense that the resolution would have required unconstitutional action. In the case of the Tubes, it took some time to realise that concerns related to nature and the environment are so significant, that the project could not have been executed on the location lawfully. Administrative authorities (especially bodies of the environmental administration) practically failed in this case, as they showed no concern about allowing the radar station to be built on the Zengő. Interests of national defence were considered much more important within the government than aspects of environmental and nature protection. Without the actions of the public and the nongovernmental organisations, the state organisations created and operated in the 48

Local governments are also among the winners of the case, having received diverse support from the government “in exchange” for the radar, to some of their development projects (e.g. swimming pool, by-pass road, sewage treatment). The projects have actually been completed, but only Medina could rightfully request the compensation.

49

In case of the Tubes, the planning documentation of the construction was only partially classified, so other elements (e.g. the environmental impact study) could be accessed by the public.

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interest of protecting the environment were unable to perform their basic duties. By exercising prevention that is considered one of the most important principles of environmental politics and policy, all the efforts caused by the inflexibility of the government could have been spared. Taking a holistic decision in the beginning would have made the whole task less expensive.50 It is well-known that the protests against the construction of the Gabčíkovo– Nagymaros Dams significantly increased the popularity of the national green movement in the 1980s, and also promoted the organisation of opposition political movements in general. The Zengő case also played an important rule in having representatives of a green party51 – the first time in the county’s history – elected to the Hungarian Parliament. However, the resources intended for environmental protection significantly decreased in Hungary in the past years, and unfortunately the power of the non-governmental sector (green organisations) to enforce decisions also weakened simultaneously.

50 51

http://www.es.hu/schiffer_andras;rozsa_es_radar;2004-05-03.html.

Politics Can Be Different (Lehet Más a Politika, LMP).

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Promoting Public Participation beyond the EU The Road to Environmental Democracy Marta Szigeti Bonifert

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promoting public participation beyond the eu

Mr. Chair, Dear Ladies and Gentlemen, It is a privilege to take part in this conference on behalf of the Regional Environmental Center. The Aarhus Convention is the most prominent international legal instrument and it has been increasing transparency and environmental democracy in Europe and beyond and has significantly contributed to sustainable development and improvement of governance. The Convention is providing rights for public access to environmental information, the right to participate and influence decision-making from the early stage. It provides a framework for short, medium and long-term decision making (project level, policies, programs, plans, legislation) in environmental matters. It also ensures the right for the public to access to justice in environmental matters through Article 9 and its unique compliance mechanism. The Aarhus Convention offers grounds for better environmental governance. Good environmental governance is essential for real implementation of sustainable development. Effective public participation in each and every phase of a decision making process will reinforce the endorsement of stakeholders and citizens, providing a broad consensus and preventing future conflicts with social sectors. There are however, factors which may limit the application of the Convention. These include problems of practical implementation especially on public participation and access to justice pillars. The pressure by short term political and economic interests to leave out public participation and reduce transparency is still present. Public participation is often perceived as just an additional procedure and not as an opportunity. Sometimes the complexity of the administrative procedure is an obstacle for active public participation. The key challenge of implementation of the Public Participation Pillar is to increase the quality of public participation. Public involvement should not be formal, meeting legal criteria only, but should be tailored to specific decisions and needs in order to ensure that the public is reached, informed and involved (with a clear follow up). The public participation procedure should be planned in advance, and proper resources, including human and financial ones, should be allocated for carrying it out. The implementation practice should not differ across regions and sectors in a country. Public participation needs to be strengthened in strategic decision making as these decisions determine major environmental, social and economic directions for the longer term. It is necessary that decision making in sectors with environmental, social and economic components (i.e. decision making on climate change, energy and renewable energy, and those related to the green economy, etc.) is open for public participation and the public has a chance to influence them by putting forward comments and proposals. The Aarhus Convention experiences thus offer a potential to improve the quality of decision-making on sustainable development matters via stronger involvement of the public.

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There is a significant amount which must be done to improve implementation of the access to justice pillar in all regions in Europe as there are still serious challenges in this regard. Concerted actions are needed on the European regional level, under the Convention as well as by the Parties at the country level. This should include cooperation and dialogue with the environmental and judicial actors (environmental and justice ministries, judiciary, legal professionals, NGOs, judicial training centers) on how to improve the situation. The key actors should understand which are the most serious gaps and obstacles and actions should be initiated to reduce or remove access to justice barriers. Awareness should be increased also among the judiciary of the Convention in order to understand better its requirements and implement these requirements in their practice. It is also necessary to make citizens and NGOs aware of their rights and opportunities for access to justice and how to use them. The lack of free legal advice and assistance by public interest lawyers are other barriers which should be overcome. The Regional Environmental Center as an active contributor and actor since the birth of the Convention in Central and Eastern Europe has accumulated a wealth of experience and expertise. Among the lessons learned, the following can be mentioned: • A strategic approach is needed to support practical implementation to achieve efficient results on a long term basis; • Systematic and complex support should be offered to authorities, Civil Society and other actors and a combination of technical assistance and different capacity building methods; pilot projects could be used; • Dialogue should be promoted among the key actors with the involvement of the civil society in the Aarhus Convention implementation; • Synergies should be built with other processes (EU accession) and cooperation should be carried out with other key international actors; • The Aarhus Convention provisions and approach should be integrated and applied during decision making in the different sectors in a more prominent way, where there is or may be a likely significant effect on the environment and health, such as environment and water, waste, energy, climate change. Over a period of more than two decades REC has dedicated a lot of resources to the promotion of Aarhus convention throughout Central, Eastern, and South Eastern Europe. Employing the various tools developed within the scope of the Aarhus convention and in the framework of the EU legislation, REC has assisted multiple stakeholders in becoming prominent environmental actors and has enabled them to voice the environmental concerns on different policy levels – international, national, regional and local. Moreover, the REC has developed a range of guidebooks, manuals and study materials on public participation which were used widely by many stakeholders. A significant group of train-the-trainer on public participation was gradually

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established in many countries as a resource hub to reach out and empower the relevant stakeholders. Additionally, many of the good public participation practices and experiences, achieved in REC beneficiaries countries, have been replicated and translated to the context of neighbouring countries with REC facilitation and close guidance. It is worth noting some of the good practices accumulated in the region: During 2011, Albania drafted and adopted a new Law on Integrated Waste Management, in line with respective EU Directives. Besides the public participation during the drafting process, a group of NGOs, organized in the AKIP (Alliance Against Import of Waste) opposed one article of the Law, which allows the import of some categories of waste, listed in the Green List. The import is argued to be used as raw material by the recycling industry in Albania, but not for energy production. Initially, the Green List of Waste contained 55 different items. AKIP organized protests in several cities and media debates. They collected approx. 65,000 citizen signatures (out of 50,000 required by the law) and submitted the request for a national referendum. As result of the public pressure, on Sep. 2012, the Government of Albania reduced the Green List of allowed waste to just 25 items. In addition, the referendum is called eligible by the Central Election Commission, but the decision is to postpone it to early 2013. Besides, the new Albanian Law complies with EU regulations; the public pressure imposed changes by the Government in the respective waste management regulations. In addition, it created a positive precedent of the national referendum for environmental concerns. The activities of the civil sector in Serbia regarding public participation are in most cases focused on networking, mobilizing and strengthening the civil sector for such activities. All national institutions are obliged to involve wider public in the decision making process and CSOs are the main actors in addressing such initiatives and connecting citizens with decision makers. The project “Sustainable environmental policy at the local level: towards the effective and responsible management of urban communities in Serbia” was implemented by Belgrade Open School, EcoLor and Enthusiasts Kucevo. A Consortium worked on improving the participation of citizens in the management of urban communities. CSOs supported development of applicable Local Waste Management Plans in four municipalities, and inclusion of civil society organizations in this process of plan-development. Three out of four local governments adopted their Local Waste Management Plans (Gornji Milanovac, Indijija and Kucevo) during the project period, with local CSOs participating in the process of document-drafting. The consortium of three CSOs (Young Researchers of Serbia, ECO Center and Young Architects’ Club) implemented the project “The Right to the City”

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which dealt with the problem of sustainable traffic and transport in Belgrade. The goal of this project was to create conditions for addressing the problems related to the impact of traffic on the quality of environment in Belgrade, in a systematic way and by linking citizens, civil society and institutions with decision-makers. A platform of stakeholders was created with the goal to achieve joint participation of the public and civil sectors. Representatives of the city government had the opportunity to hear reflections and recommendations of civil society and the wider public. Representatives of civil society organizations and professional associations offered their cooperation and assistance in resolving complex issues of sustainable transport, but also insisted on being involved in the planning and decision-making process regarding these issues. As a conclusion, transparent and participatory mechanisms are essential for good environmental governance, sustainable development in the same way as a proper legal and financial framework is fundamental for an effective environmental policy. The Regional Environmental Center is committed to bring its expertise and experience to promote all 3 pillars of the Arhus Convention and relevant EU legislation in our region and beyond, and is keen to assist also in the future in all the strategic directions.

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Participation and Indifference The State of Social Participation in Hungary Benedek Jávor & Zsolt Beke

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Theories (and their practical implementation) focusing on “bottom-up” participatory processes over and beyond traditional “top-down” approaches to the exercise of power have globally drawn increasing interest in recent decades. The demand that people be directly consulted in community decision making has been expressed in fields as diverse as environmental impact assessment and decision making,1 science and technology,2 public health,3 development projects4 and forest management.5 A number of social movements also gave voice to these expectations. They were adopted at a global scale by the global justice/ alter-globalization movements of the third millennium, voiced over a series of historic rallies from Seattle to Geneva and a succession of World Social Forums did. Locally, participatory initiatives started to flourish from the countries of the global South to Western Europe to North America and the newly democratized countries of Central and Eastern Europe. Securing public participation, however, was not only expressed in terms of a citizen’s demand. The social demand influenced international law (the Aarhus Convention, 1998), EU Law (the Public Participation Directive 2003/35/EC), and the strategy development of the EU as well as domestic law (e.g., Act 2001/81 on Promulgating the Aarhus Convention, Act 2005/90 on the Freedom of Electronic Information and Act 1995/53 on the General Rules of Environmental Protection etc.6 John Dryzek (2000) called this complex process (which, he argues, unfolded in the nineties, primarily in the developed western democracies) the “participatory revolution”. The regime changes of Central and Eastern Europe carried the promise for many that these societies would be integrated back into the social development trends of Western Europe, adopting patterns of social organisation from countries with stronger democratic traditions providing ample room for active citizenship, public participation, transparency and community control. Yet in the course of 22 years, these hopes were partially realized at best. On the one hand, great progress was made at the regulatory level in Hungary,7 setting the basic framework of statutory conditions and guarantees (even if governmental efforts to curb NGO entitlements are a strong cause for concern). On the other hand, there was certainly no widespread boom in participatory processes. The general consensus is that no Dryzek-like “participatory revolution” swept over Hungary. Though a number of initiatives deserve attention, national and local governance is not imbued with the intention of cooperating with society, and normally, the local communities express only limited demand to be integrated into the decision making process. A number of studies called attention to this ambiva1

Rydin, Y. and Pennington, M. (2000).

2 3

Chopyak, J. and Levesque, P. (2002).

Zakus, D. and Lysack, C. (1998).

4 5

Bhatnagar, B. and Williams, A.C. (1992).

Buchya, M. and Hovermanb, S. (2000).

6 7

Cf: Kiss, I. and Jávor, B. (2009).

Kiss, I. and Jávor, B. (2009), Bullain, N. and Csanády D. (2008), Márkus, E.(ed.) (2005) and Fülöp, S. (ed.) (2005).

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lent situation in recent years.8 There is an extended literature on the theory of participation and its potential areas for development.9 A number of case studies or analyses on special areas were published,10 along with a summary of regulations.11 At the same time, we have less information on how the actors in the Hungarian institutional system or the citizens themselves see the issue of participation two decades after the regime change. Some articles were published on the attitudes of institutions in particular policy areas,12 but not much research was done, either qualitatively or quantitatively on what citizens think. The available Hungarian literature thus presents a lopsided picture: while there is an abundance of extensive theoretical analyses, descriptions of the regulatory background, even case studies on the practical implementation, our knowledge is more than limited as far as the attitudes, beliefs and general outlook of society and the institutional actors are concerned.



1 The Institutional Side

In a previous study, we tried to make up for some of these deficiencies. Relying on an interview-based methodology, we tried to shed light on the attitude of institutional actors and NGOs.13 According to our results, the employees of state institutions have on the whole a positive attitude towards social participation which they consider normatively significant and potentially useful. This supportive attitude is encouraging, as it creates the framework for programs and initiatives aimed at developing participative processes, at least in theory. At the same time, the frequency of mentioning specific advantages and disadvantages, as well as the points emphasised draw a rather clear image: there were relatively few cited advantages that would be realized within the institution itself, as opposed to the disadvantages of a similar sort which were indeed frequently mentioned. This picture should warn us to be cautious: though these actors support participation in general terms, they regard it as a source of extra duties in the sphere of their own activities. It is also significant that regarding the factors inhibiting social participation, the employees of the institutions made reference to an underdeveloped democratic culture on behalf of NGO actors and citizens. Thus, they account for the lack of participative processes in terms of the supply side, grounding it in low levels of social consciousness, knowledge and commitment. As far as this perception truly reflects reality, strengthening community participation should start at the level of the commu8

For example: Nizák, P. and Péterfi, F.

9

Bela, G. et al. (2003) and Reisinger, A. (2009).

10 11

See Glied, V. (2009), Kinyik, M. (2009), Baranyi, R. et al. (2004) and Jávor, B. et al. (2006).

For example: Julesz, M. (2006).

12

In the case of environmental authorities, see Jávor, B. and Németh, K. (2007) and Jávor, B. and Németh, K. (2008).

13

Boda, Z. and Jávor, B. (2012).

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nities themselves. At the same time, the talks with NGO representatives, conducted within the same series of interviews, should warn us to be cautious when assessing the position of the institutional side. The NGO activists put the focus on the deficiencies of the supply as opposed to the demand side, claiming that even if it is true that greater consciousness and activity levels would be called for on behalf of society, the existing intentions are more often than not shipwrecked on the resistance of public administration and local government actors. Institutional resistance greatly curbs any remaining enthusiasm, further deteriorating the community activity levels already at a low ebb: a vicious circle.



2 Social Needs and Capabilities

If we are to map the obstacles due to which social participation cannot fully flourish with any precision, we should see more clearly about the attitudes of Hungarian society towards social participation and active citizenship. We have presented the ambivalence of institutional attitudes above, but is there a real demand for the inclusion of communities in the decisions impacting them? Is society aware of the opportunities available? Are citizens willing to take part in decision making? If yes, what keeps them from taking a more active role in managing our common affairs than they presently do? Are there specific patterns according to age, schooling, location or gender regarding the attitudes to participation? Who can the programmes of participation be built on? What is the relationship of Hungarian society towards NGOs? What explains low participation: effective institutional resistance, real indifference on behalf of citizens, or the lack of trust, an a priori attribution of negative attitudes to the other party? The issue of how society judges the advantages and disadvantages of community participation is also a crucial one. In principle, there is extended foreign14 and domestic15 literature available on the community costs and benefits of social participation. The literature generously cites advantages such as reinvigorating the democratic principle, strengthening trust within the community, improving the quality of decisions and conflict prevention, etc. The community enjoys increased powers of advocacy over the decisions impacting it. In the course of participative processes, citizens become better informed on the issues relevant to the life of the community, and become more capable of making better informed and conscious decisions. Local points of view, knowledge and information can also be brought in that are neglected by traditional mechanisms of decision making. Institutions enjoy more robust legitimacy, are better embedded in society and can rely on wider support. It can increase the active involvement of citizens in implementing the decisions taken.16 14 15

Kaner, S. et al. (2005), Hartz-Karp, J. and Briand M.K. (2009) and Frame, B. and Brown, J. (2008).

Nizák, P. and Péterfi, F., Bela, G. et al. (2003), Ongjert, R. (ed.) (2002).

16

Boda, Z. and Jávor, B. (2012).

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At the same time, views emphasising the risks and/or costs of participation have also come to light. Some of this criticism addresses the foundations of community participation,17 some deals with its constituent elements. Processes of participation require significant time and cost investment that can barely be ensured, and provide unequal possibilities for different social actors to become involved. Unsuccessful processes give rise to frustration and further erosion of trust. Poorly managed procedures as well as ones that the institutions only halfheartedly engage in for the sake of appearances bring similar results. The institutions of representative democracy may have to face competitors with unclear legitimacy, creating confusion in decision making. Processes of community representation can be manipulated by business, political and social groups, and minority, business, or political interests can gain the upper hand over majority opinion. The efficiency of decision making can decrease: the solutions adopted will be “soft solutions” that all parties may find acceptable, but suboptimal from the point of view of solving the problems involved.18 At the same time, it is unclear how society sees and evaluates these advantages and disadvantages. Which theoretical benefits and drawbacks do the participating actors really perceive as important, and what issues are seen as trivial? Based on these considerations, what could be the motives driving social actors, and what fears turn them off from participation? These are the questions we are trying to answer in the present study.



3 Research Methodology and Database

Our conclusions are based on the results of a questionnaire survey conducted in the period February-April 2011 with the participation of students at the Faculty of Law and Political Sciences at Pázmány Péter Catholic University. The questionnaire surveyed 18 questions over 4 demographic dimensions (see Appendix). Survey respondents were selected randomly, not systematically, thus the 529-strong sample can not be considered representative. Nevertheless, it provides an extended workable cross-section of Hungarian society (Table 1). SPSS software was used for the processing of the raw data. Residence type

Education

17

Budapest

Large city, city of county rank

Other city

Town, large village

Small village (< 1000 inhabitants)

220

73

125

84

27

Elementary – 8 classes (or less)

Vocational school, or other high school without a high school leaving certificate

High school leaving certificate

College or university degree

Blondiaux, L. (2005).

18

Hartz-Karp, J. and Briand M.K. (2009), Boda, Z. and Jávor, B. (2012).

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Age

Gender

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53

41

0-14

15-25

8

197

242

193

26-35

36-50

51-65

65-

97

115

81

31

Male

Female

199

330

Table 1. Some demographic characteristics of the sample (Σ: 529)



3.1 Results

Trust and participation In analysing the database, we fundamentally tried to learn how trust in institutions19 is related to social or NGO activities of the individuals in the sample.20 At least two assumptions can be made here. First, it is conceivable that greater trust in the institutions fosters activity in the NGO sphere, while willingness to participate increases as a function of the general level of trust on behalf of the citizens. The correlation of different types of trust is supported by a number of studies. E.g., Boda and Medve-Bálint 21 clearly indicate a positive correlation between interpersonal and institutional trust: “(…) it can be stated that institutional and interpersonal trust as well as economic development are closely correlated. It can be assumed in general that certain social characteristics create a favourable climate for trust, which can foster economic development, which in turn reinforces trust of the citizens in each other and in the institutions as well.”

Second, there are arguments to the effect that as a kind of alternative to the network of state institutions, the civil sphere gains strength from the very lack of trust. (A note in parentheses only: one could also investigate whether (successful) social participation strengthens trust in state institutions). 19

The main component “Trust” was created from the items of the Trust panel of the questionnaire. From this block, we inserted opinions having to do with parliament, government and the local governments in a main component. From these, we could create a PC with a quite high information conservation rate (68.5%). The remaining three items of the Trust block did not properly correlate with the other indices; thus we could not individually bring them into the scope of the analysis.

20

Indices measuring social participation were derived from the answers given to block 6 of the questionnaire, 2 binary variables of question 10 and the group of questions indicating participation in NGOs, by adding up the YES answers on the one hand, and on the other hand by weighing the answers for the sake of more precise interpretation as taking part in a protest may mean more active and less frequent participation than voting at a local referendum or attending a public hearing. To facilitate analysis, there are several categorical and high measurement value variables making different variations possible.

21

Boda, Z. and Medve-Bálint, G. (2012), p. 37.

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Based on the data we can say that trust in state/political/public administration institutions is markedly lower than trust in NGOs. Out of all the institutions queried, trust in government (2.48 on a scale of 5) and parliament (2.49) is the lowest, while trust in the police (2.79) and the media (2.69) is only slightly stronger (Figure 1). It is only local governments (2,98) and NGOs (3.26) that citizens trust significantly above the average (2,77), while it is only trust in NGOs that slightly exceeds medium values. Thus, trust in the NGOs, arguably the paramount actors of participation, exceeds trust enjoyed by the institutions of representative democracy, the police or the media. This is a sign of a general lack of trust; at the same time, higher levels of trust vested in the civil sector also indicate that there is a confidence base that can potentially provide the foundations for the participatory processes managed by NGOs.

Figure 1. How strongly do you trust that the given institution does its job properly? (on a scale of five, 1: not at all; 5: fully) Our results also show that social participation in general has no significant correlation with trust in the institutions. At the same time, activity in the NGOs, based on the variance analysis positively contributes to strengthening trust in public institutions. We can also state that stronger trust in state/political institutions positively impacts participation in the work of NGOs, given that the model above indicates that the more diverse ways people engage in NGO work, the greater their average ranking according to the index showing trust in the network of political institutions.22 Thus it seems that openness towards participatory processes is not generated by low levels of trust in the institutions of the 22

Reszvet3/bizalom variance analysis (where the significance of the F-test is below 0.05).

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state or by looking for alternatives to them, but on the contrary, higher levels of trust foster involvement in the work of NGOs (considered as the primary stage for public participation). The correlation, however, is not completely linear. If we now turn our attention to the group of questions measuring trust in the state institutions and we compare trust in Parliament with a variable composed from the answers related to the perceived benefits (‘elony5’), we get a correlation with a rather particular pattern (cf. Figure 2). Thus social participation is mostly considered beneficial by those who have a medium level of trust in Parliament. More than 50% of this group sees social participation as very beneficial or rather beneficial. Only 37% of the respondents with the highest trust vested in Parliament belong to this group, while their absolute majority thinks of participatory processes as providing little to medium benefit. Thus we can see that a positive judgment on community participation and openness towards it is significantly fostered by the existence of a minimal level of institutional trust (in correlation with NGO activity), while above a certain critical threshold, affinity for participation starts to decrease. The typical subject of community participation has a general capital of trust, whereas they are also characterized by a critical attitude of sorts towards institutions: they do not vest unhindered trust in the institutions of representative democracy. They could be perhaps described as “trustful critics”. As opposed to those suffering a general crisis of trust or the “statists” characterised by unhindered trust in the institutions of the state, it is among them that one may look for the citizens acting as the engine of participation.

Figure 2. The correlation of trust in the Parliament (bizogy) and social participation (elony5) For the sake of further analysis, we created clusters from the variables indicating “trust” and realized participation. In this process, we created 3 interpretable clusters. The first group comprises those who have great trust in the system of institutions and who also actively take part in social processes – the group of “the integrated” in our terminology (137 individuals), who accept the

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institutional framework provided by politics and also take part in the work of NGOs. The second group is made up by those who show low values over both segments: they do not trust the system of institutions and they also do not participate in social life in the ways we investigated. We called them “the sceptics” (330 individuals). People with no trust in the system of institutions, but having an extended scope of social activities make up the third group, that of “the autonomous” (45 individuals). The distribution shows that the greatest part of the respondents (62.3%) belong to “the sceptics”, which is in line with other research data on the deep-seated crisis of trust of Hungarian society.23 The presence of “the integrated” (25.8%) (more than on quarter of the sample), and of “the autonomous”, (almost one tenth) can fill one with the hope that there is a basis for active citizenship and community participation in decision making in our society as well, which could provide the foundations for various elements of participative democracy to become progressively more widespread. It is important to see where, i.e. in what social groups this basis/ foundation can be located, and what attitudes the different groups (according to place of residence, education and age) have towards community participation. 1. Distribution according to age groups First we investigated how age impacts the attitudes to participation. If we create a high measurement value variable from the items expressing participation and the willingness to participate24 we see that only the variable of participation in fact realized shows significant correlation with the age (Figure 3). The middle-aged (36-50 years of age) and the elderly (51-65) are the most active, while the least active are the two youngest age groups (15-25 and 26-35 years). The striking passivity of the young (not only in the high-school/university age group, but also the actives aged 26-35) falsifies the widespread notion that democratic rights are not exercised owing to a pattern of passive socialization attitudes that would make citizens expect everything from the state, as it is principally the age groups which show the greatest apathy towards directly getting involved in decision making that were socialised primarily after the regime change. This picture is supported by an investigation of the interrelations of the cluster triad of “the integrated – sceptics – the autonomous” (Figure 4). The fact that sceptics make up more than 70% within the two youngest age groups (as opposed to a value approximating 40% in the case of the middle aged) clearly indicates that active willingness to participate is the weakest among the youth, which is in line with other research conclusions on weak willingness to participate among young people.25 Contrasting this with data from longitudinal research26 will reinforce the impression that trust in democratic institutions and procedures did not get stronger, but decreased in the course of a severe process 23

Bakonyi, E. and Balázs, B. (2012), Győrffy, D. (2007).

24 25

Weighing action and the desired activities, formulating the variables through a Z-score method.

Bánszegi, Z. (2009).

26

Bakonyi, E. (2011).

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of disillusionment, bringing about low-level demand for taking part in decision making within the youngest generation. Figure 3: The correlation of age and effective participation

Figure 4.: Contrasting the clusters constructed upon the relationship of institutional trust and social participation (high/high, low/low, low/high) with age



4 The Impact of the Place of Residence on Participation

Examining the changes in attitudes to participation according to place of residence unveils an interesting pattern. First of all, we investigated trust in the local institutions of representative democracy, i.e. the local governments (Figure 5). It can be seen that the smaller the size of the community, the 251

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greater the average trust value towards the local government. The only exception to this trend is provided by the category of “Major city, city of county rank” – characterized by the minimum values for average trust in the local government; even the residents of Budapest have more confidence in the institutional system of their own local government. If we compare trust in individual elements of the system of political institutions with the residence variable, we get the result that among the 6 items of the question group, it is only the trust vested in local governments which shows a significant correlation with this demographic index, thus we are not dealing with a general trend concerning trust in political institutions; rather, the result bears out the different trust status of local governments. The trust index of small communities is especially striking. This can in all likelihood be linked to the results27 suggesting that personal acquaintance of and direct contacts with the local government officials and mayors significantly increases trust in the local government. Differences in the personal distance from the local government and trust in it draw a widely diverging pattern in different locality types. The smaller the community one lives in, the more likely it is that they take part in residential forums (this ratio for Budapest residents is 22%, 43% for the smallest localities, with a stronger correlation than in the case of other variables), and it is also the more likely that they are active in some community volunteer work (36% and 61%, in the order indicated above) (Figure 6). On the other hand, the greater the locality one lives in, the greater the likelihood that they will take part in citizens’ protests (Figure 7). Figure 5. Trust vested in local governments according to type of locality

27

For example Cowell, R. et al. (2005).

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Figure 6. Correlation between participation in residential/community work and place of residence

Figure 7. Typical correlation between participation in NGO protest and place of residence

If we compare place of residence with the answers to the question addressing the participatory processes that the respondents would take part in, provided they took place locally, we will find that willingness to participate in public hearings, residential forums and local referendums will correlate with the type of locality. In the case of the former, the correlation is relatively strong: the smaller the community one lives in, the more likely it is that they would like to participate in social life in such a manner (Figure 8). Though conditional participation in the referendum is more difficult to interpret, there is a significant correlation:

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the proportion of those in Budapest who would not take part in such an event is 43%, whereas it is 63% in small communities. We also get widely diverging figures in intermediate levels of localities. Figure 8. Would participate in citizens forums if conditions were right

All of this supports the conclusion that residents of villages and smaller communities have a different attitude to their own local governments, and also prefer different forms of participation, than the citizens of larger communities, especially major towns. In smaller settlements, there is a preference for more direct, more constructive solutions, based on personal relationships (residents’ forums, public hearings, participation in community work ) whereas in larger localities – especially in major towns – the emphasis is on more institutionalized, impersonal forms that tend to focus on differences of opinion and protests (citizens’ protests, local referenda etc.) Increased levels of trust towards the local government foster the adoption of more cooperative forms of participation with lower levels of conflict. It is interesting to take a closer look at the relationship of locality type and the answers to the question regarding more direct participation in decisions. It appears that the smaller the community one lives in, the less importance they will attach to this issue, and vice versa. Residents of Budapest and major county-rank cities consider it the most important (Figure 9). It is deemed the most significant by residents of major cities (except for Budapest), with decreased trust in their local governments. Mistrust towards the given institution increases faith in the importance of participation, whereas a number of processes of real participation and cooperation with the local government call for higher levels of trust. We can also put this by saying that lack of trust increases support in principle for community participation as an alternative to representative democracy; whereas participation in practice, unless it does not primarily take the

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form of protesting, but the use of constructive techniques of cooperation, require higher levels of trust. Figure 9. How important it is for respondents that citizens directly participate in decision making, according to place of living



5 Education and Participation

Given that among the fixed demographic indices the sample presents the strongest bias in terms of education, it is worth treating the related results with increased caution. Nevertheless, the sample shows correlations that are robust enough even if this factor is considered in order to draw some conclusions. Those with higher education levels consider processes of social participation more useful on the whole (Figure 10.a), and a higher proportion of them participate in these processes (Figure 10.b).

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Figure 10. a) Correlation of variable ’elony4’ based on the responses concerning the benefits of social participation with level of education; b) Correlation of variable ’effekt3’ based on the responses concerning the effective participation with level of education

From Intention to Action Our earlier proposition concerning the difference between the theoretical and practical attitudes towards participation leads us to the next issue under investigation: is there a difference in the extent and forms of participation respondents would think desirable and the ones they actually engage in? If there are, what is it that hinders them from realizing the desired forms of participation in practice? The first fact we can state – and this is not a surprise – is that the desire for participation (block 7 of the questionnaire) and the participation realised strongly correlate in a way that those who would participate in the processes of

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social participations do so on the whole.28 This at least means that there is no significant barrier to civil action (Figure 11). The structure of attitudes towards taking the role of an active citizen or civilian participation (a structure that cannot unfortunately be defined here with sufficient precision) may influence whether they can get from desired social action to effective social action. Block 14 of the questionnaire included questions that correlated with each other. It is from these questions that an attitude register was constructed by means of which we could describe the attitudes to taking an active role relatively well.29 We contrasted this variable with the indices of effective participation and desired social action and found significant correlation on both accounts. Thus, the attitudes shaped within us really influence how we relate to effectively taking action as citizens. The direction of this relationship shows – not quite surprisingly – that the more positively someone sees social participation and the groups and organisations that organise it, the more they desire to participate and the more they are active partners on these issues. From among the attitude register and the two variables investigated, it is the index describing the desire for social participation which is stronger, showing that these attitudes will lead to a desire; however, other factors may block the way to realized action. The difference between the two models in the strength of their relationships is quite small, which again indicates that there are no significant obstacles to turn desire for participation into effective action.30 We were trying to express the relationship of desired and effective action when we created two clusters of 3 elements each that we hoped could easily be interpreted from the indices of conditional action (desired participation) and effective action. The first group of our three-item clusters contained those who desire action and also do engage in it: they are the active “realizers” (80 individuals). The second group is made up of individuals who can be characterised with low values according to both variables: they do not wish to act, and quite consistently, do not take part in processes of social participation. We called them “the indifferents” (264 individuals). The third group, in the end, contained those who scaled high according to ‘desired action’ (thus, they could do more activities if the conditions were right), but they participated in few activities so far – we labelled them as “the powerless” for the sake of ease of interpretation (185 individuals).

28

Whether we look at the vagyott4/effekt4 cross tables (naturally, with a significant correlation, the value of Crame-V is a relatively high value of 0.305), or the results of the more sophisticated vagyottindex/ összreszvetindex linear regression, the correlation holds.

29 30

Out of the 7 questions in Block 14, 5 could be located in a single structure through factor analysis.

We compared the attitude register by means of a linear regression with the variables “vagyottindex” and “osszreszvetindex”. In case of a significant correlation, the Adjusted R Square is 0.119 and 0.086 in case of the former and the latter, respectively.

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Final Cluster Centres Cluster 1

2

3

vagyottindex(z-score)(+szeretne részt venni)

6,26

-3,49

2,28

effektivrészvét-index(z-score) (+résztvevő)

6,96

-2,14

,05

Table 2. 3 group cluster structure constructed from variables ‘vagyottindex’ and ‘effektindex’, with numbers standing for: 1.’realizer’ 2’indifferent’ 3’powerless’ The correlation of the clusters with age could clearly be demonstrated. “Realizers” represent 10% in the two younger generations as opposed to 20% in the two older age groups. More than 50% of the young belonged to the “uninterested” group, sharing it with less then 50% of those aged 36-51 and above 51, however, the difference is not too great and is not linear. 39% of 15-25ers and 35% of 26-35ers are “powerless”, with 33% and 30% being the figure for the two older age groups. Here the correlation is entirely linear: the younger someone is, the more likely it is that they belong with the group of the “powerless” who desire, but fail to act (Figure 12). Figure 12. Distribution of the three clusters according to age groups

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Figure 13. Distribution of the three clusters according to level of education

From among the clusters, it is the group labelled “powerless” that most clearly represent the difference between desired and actually realized participation. Let us take a look at the reasons for this behaviour, i.e. what is it that keeps citizens wishing to participate in community decisions from actually doing so. Based on the extent of agreement with the statements formulated in the questionnaire, one can draw conclusions regarding the role of individual factors. The respondent’s agreement with the statement that citizens do not wish to have their voices heard on public affairs because the politicians and authorities would not listen to them anyhow reached an average 3,75 on a scale of 5. The younger respondents turned out to be the more sceptical: they agreed much more with the above statement than the older age groups (Figure 15). The statement that citizens are not participating in public affairs is that they do not have the time enjoyed weaker levels of agreement (an average of 3.36). When the question was formulated as “whether the citizens and institutions are sufficiently open for realizing community participation”, the results received supported the data above. On a scale of 5, citizens received an average of 2.64, while authorities/local governments/public administration received an average of 2.14 for openness. Both values are below the medium value, i.e. both citizens and institutions show little willingness for participation, whereas the resistance of institutions is seen as a slightly more severe problem. Openness of citizens is perceived more critically by those with higher education levels (who otherwise take part more intensively in these processes) (Figure 16).

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Figure 14. Extent of agreement with the statement “People are unwilling to have their say on public affairs because politicians and authorities would not listen to them anyway” and “People are unwilling to participate more actively in public affairs, because they don’t have time and energy” (1: no agreement, 5: total agreement; mean: 3,75 and 3,36)

Figure 15. People are unwilling to have their say on public affairs because politicians and authorities would not listen to them anyway

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Figure 16. Citizens are sufficiently open to get involved in decision making – according to education level

Advantages and disadvantages In our research, we tried to identify which positive and negative features discussed in the literature are also reflected in the way people think about social participation. The questionnaire specifically addressed the issue of potential benefits as shown in Figure 17. The responses clearly indicate that strengthening social cohesion and trust is perceived to be the strongest benefit by far. The greatest number of respondents (282 individuals) highlighted strengthening cohesion within the community as a benefit. Furthermore, the option of strengthening social support for the decisions taken was supported by more answers than the average response rate (137.5) (the two items mentioned so far, i.e. questions no. 5. and 8. can be seen as the direct expression of a trust-community perspective), and so did two other items, related to direct consultation and feedback by the community (question 1.: 156; question 2.: 175). In comparison, creating community control, efficiency in carrying out certain tasks, the role of preventing conflicts or facilitating participation in the implementation of decisions seem less pressing considerations for Hungarian society. On the other hand, it was only 7.5 percent of the respondents (40 individuals) who could not see any benefit in social participation. This, again, implies significant social demand. Assessing the responses according to age group, what we see again is that older generations have more pronounced democratic consciousness. They highlighted factors related to control by the community (Question 7.) more often than did their younger cohorts, and they were also more inclined to agree that citizens’ protests and actions are important and efficient elements for exercising democratic rights, and that active participation by the citizens in decision making could improve the quality of decision making.

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Figure 17. Distribution of responses to the question ‘What are the advantages of social participation in your opinion?’

Figure 18. Distribution of responses to the question: “What are the disadvantages of social participation in your opinion?”

Regarding potential disadvantages of social participation, it is again the case that the attitudes are crystallized around a definite hub of apprehension: fears that participatory processes may enable minority groups or partial interests to dominate the processes themselves, or even that thus these groups/interests could gain the upper hand over the majority opinion. (Response group 6-9) (Figure 18). Besides this, the responses also indicate the worry that unprofessional or lay approaches might dominate. It is worthy of attention that worries regarding the position of elected decision makers (representative democracy) are barely referred to; the number of respondents identifying this issue as a problem is only slightly higher than the number of those who think social participation provides no disadvantages at all.

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age group, 4 groups

Total

15-25 yrs.

26-35 yrs.

36-50 yrs.

above 51

does not agree

54,8%

71,1%

73,0%

75,9%

66,4%

agrees

45,2%

28,9%

27,0%

24,1%

33,6%

100,0%

100,0%

100,0%

100,0%

100,0%

Total

Table 3. Disadvantages of social participation: lay/non professional approaches may become dominant If we contrast disadvantages with the age variables, we again find interesting correlations. In the younger age groups, the proportion of those who are worried that lay decisions shall win if the decisions are preceded by wider consultations at the level of society is 45%, while among the eldest, this proportion is much lower: 24%! (Table 3). age group, 4 groups

Total

Total

15-25 yrs.

26-35 yrs.

36-50 yrs.

above 51

does not agree

68,0%

75,3%

83,5%

83,9%

76,2%

agrees

32,0%

24,7%

16,5%

16,1%

23,8%

100,0%

100,0%

100,0%

100,0%

100,0%

Table 4. Disadvantages of social participation: slows down decision making A similar result will be obtained when we investigate the question of whether social participation slows decision making (Table 4). Thus if we evaluate social participation from the aspect of how much extra time that requires, it will be again the younger who look at social participation: it is 32% and 25%, respectively, of the young aged 15-26/26-35 who agree that social participation slows down decision making, whereas in the two older age groups this proportion is around 16%. Again, we can see that it is the younger ones who are more strict and critical towards social participation. We are not even surprised when we see that it is also especially the young voters who are of the view that social participation can be an obstacle to decision making owing to individual grievances or personal convictions. The figure clearly shows a linear correlation between negative (and positive) assessments and age: the younger a respondent, the more likely they are to negatively judge social participation. Almost 41% of the young agree with this negative statement, while the proportion among seniors is 33%. 263

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6 Conclusion

The “participatory revolution”, (Dryzek, 2000) which swept across the globe in recent decades has only superficially impacted Hungarian society. On the one hand, the solutions belonging into the toolbox of direct democracy appeared and became more or less known, but it is still only a humble minority of citizens who take part in such activities. Among these tools, one will mostly encounter ones that are more formalized from a legal point of view (local referenda 22.8%, residents’ forums 13.5%), or forms of participation that do not require strong effort (donations to NGOs, 17.8%). Involvement in procedures requiring greater energy input or deeper levels of commitment is to be found at a modest scale (citizens’ protests 8.7%, activity in local NGOs 6.2%, common action against local government decisions 5%; giving feedback to local government plans 5%). At the same time, relatively high proportions of community/voluntary work (20.1%). Trust in public institutions show very low levels. In comparison, trust vested in NGOs (arguably the paramount actors for community participation) is significantly higher. Low trust in the institutions of representative democracy does not however mean greater openness for participatory processes. Social participation has no significant correlation in general with trust in the institutions (though activity in the NGOs contributes to reinforcing strength in trust vested in the institutions of the state). It thus seems that openness to participatory processes is not created by low levels of trust vested in them or the lookout for alternatives to them, but, to the contrary, generally greater levels of trust fosters getting involved in the work of NGOs considered as the primary stage for community participation. The correlation, however, is not entirely linear. Social participation is perceived to be the most beneficial by those respondents who have medium level trust for the institutions of representative democracy. As we can see, positive judgment on community participation and openness towards the latter is greatly fostered by a certain minimal level of institutional trust, while over a certain critical level, affinity starts to drop again. Our further results show that the lack of trust strengthens support in principle for community participation as an alternative to representative democracy, while participation in practice, so long as it does not only take the form of protesting, but constructive and cooperative techniques, requires higher levels of trust. The typical subject of community participation is characterised by a general level of trust, whereas they also have a critical attitude of sorts towards institutions: they do not vest trust in the institutions of representative democracy in an unreflective manner. This group could perhaps be described as that of “trustful critics”. As opposed to those suffering a general crisis of trust or the “statists” characterised by unhindered confidence in the institutions of the state, it is among them that one might look for the citizens likely to act as the engines of participation.

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To support this hypothesis, we created clusters based on the responses related to trust and variables indicating “trust” and realized participation. This method validated the existence of three groups: “the integrated” (137 individuals), with great trust in the system of institutions while also actively taking part in social processes; “the sceptics” (330 individuals), showing low values over both segments: they do not trust the system of institutions and also tend to avoid participation; as well as “the autonomous” (45 individuals), mistrusting the system of institutions, but having an extended scope of social activities. The greatest part of the respondents (62.3%) belongs to “the sceptics”, which is in line with other research data on the deep-seated crisis of trust of Hungarian society.31 The presence of “the integrated” and “the autonomous”, (about one third of the sample) inspires hope that there is a basis for active citizenship and community participation in decision making in our society as well. From this basis, various elements of participative democracy could progressively gain more ground. (It would also have been possible to set up a four-item cluster system, with a further group the members of which have a strong belief in the institutions of the state, while they are mistrustful against community participation. This group, however, had so few elements that it did not make further investigation possible.) Analysing the age distribution of this cluster structure entails falsification of the widespread notion that democratic rights are not exercised because Hungarian society inherited a pattern of passive socialization attitudes from the communist era. In fact, the proportion of “sceptics” among the cohorts socialized before the regime change is much lower. They will get much more intensively involved in participatory processes, while younger generations tend to avoid them, and seem to be much more disillusioned in their views on the importance of these processes or judging how effectively they contribute to democracy. As far as the relationship of participation and place of residence is concerned, we can say that the residents of smaller communities have significantly greater trust vested in their local governments than do inhabitants of larger towns and cities. They also engage in different kinds of participatory processes. In smaller settlements, there is a preference for more direct, more constructive solutions, based on personal relationships (residents’ forums, public hearings, participation in community work ) whereas in larger localities – especially in major towns – the emphasis is on more institutionalized, impersonal forms that tend to focus on differences of opinion and protests (citizens’ protests, local referenda etc.). Increased levels of trust towards the local government foster the adoption of more cooperative forms of participation with lower levels of conflict. In our research we also tried to identify the factors that might hinder taking part in participatory processes. The natural assumption is that the first and foremost factor of influence is the attitude taken towards community participation. The more positive the perception someone has on participatory processes and 31

Bakonyi, E. and Balázs, B. (2012), Győrffy, D. (2007).

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the stronger the desire they have for participation the more they actually will get engaged. This at least means that there is no significant barrier to civil action and those who want to join in will mostly do so. In order to analyse the relationship of desired and effective action in more detail, we identified 3 ideal type groups by clustering. The first group contained those who desire and engage in action: the active “realizers” (80 individuals). The second group consisted of individuals with low values on to both variables: “the indifferent” (264 individuals). The third group contained those who scaled high according to ‘desired action’ (thus, they could do more activities if the conditions were right), but had participated in few activities so far – “the powerless” (185 individuals). Analysing the 3 clusters validated earlier results: most of society is passive and indifferent when in comes to participatory processes. There is a significant majority (35%) who want to be active in the field of community decision making and public life, but are unable to do so for a number of reasons. Higher education level increases the probability to belong with the more open clusters of “the powerless” and the “realizers”. If we take a look at the barriers that could block the way of more active participation by “the powerless”, it turns out that they mostly blame institutional resistance for low activity levels on behalf of citizens, but also refer to a passive social environment as an important factor. Institutional resistance is perceived as more important by the young, whereas social passivity is underlined by the older groups. Eventually it is clear that as far as pros and cons are concerned, the primary benefit for society seems to be identified with strengthening social cohesion and trust (and this might in fact be the primary requirement as well). Other normative democratic arguments or practical benefits only come later. Among the disadvantages identified, on the other hand, manipulating and influencing the decision making process by different groups was seen as the most severe. On the whole one can say that the perception and practice of social participation is very ambivalent. 22 years after the regime change, most of society, especially the young, are passive and not very open to participatory processes. On the other hand there is a not insignificant part of Hungarian society which does in fact consider that active participation concerning public affairs is fundamental and they do exert efforts to take part in the participatory processes they considered significant. The way they see it, however, is that there are a number of obstacles blocking the way: first of all, resistance of the institutions, and also (though less strongly) a passive social environment is blamed for low levels of social participation in Hungary. However, the techniques and procedures they encounter matters a lot. It seems that the population, weary of constant public tension and the “cold civil war”32 expects participation to strengthen social cohesion as opposed to escalating conflicts. The lack of trust may also reflect fear that these activities be manipulated. Furthermore, the desired (and effectively realized) participatory procedures may differ according to the place, context and type of locality where they are implemented. 32

Szilágyi, Á. (2010).

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Thus there is room and support for participatory processes in Hungary does exist. Nevertheless, such procedures should be designed with great care. One has to identify the groups that might wish to join, the proper techniques have to be selected, the feeling of community cohesion should be reinforced and guarantees must be provided to protect the procedure from being hijacked. In order to achieve this on a great scale, starting programmes of training and knowledge transfer is indispensable for the employees and decision makers working in the institutions, while there is also need for awareness raising, providing assistance and implementing widespread empowerment.

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Appendix Respondent data 1. Gender: male, female 2. Age: 0-14, 15-25, 26-35, 36-50, 51-65, 653. Place of residence: Budapest, Major city, city of county rank, Other city Town, major village, small village (< 1000 inhabitants) 4. Education level: 8 elementary school classes (or less), Vocational school, other school not providing a school living certificate, high school leaving certificate, university/college degree Trust 5. How much trust do you have that the institutions below do their jobs properly?: (1-5 scale, 1: I do not agree at all, 5: I completely agree) a. Parliament; b. Government; c. Local governments; d. Police; e. Media in general; f. NGOs Familiarity with processes of social participation 6. Have you taken part in the following activities/procedures? (Several options may be selected.) • residents’ forum/public hearing • citizens’ protest • local referendum • activity in NGOs • community/voluntary work • donation for NGOs • common appeal by local residents against decisions by the local government • early feedback on local government designs (urban development plans, regulations, licensing processes) • other, specifically: ……………………………………………………………………… 7. If conditions were right, would you take part in the following activities/ procedures? (Several options may be selected.) • residents’ forum/public hearing • citizens’ protest • local referendum • activity in NGOs • community/voluntary work • donation for NGOs • common appeal by local residents against decisions by the local government • early feedback on local government designs (urban development plans, regulations, licensing processes) • NGOs 8. Please name NGOs you have heard of.

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9. Please name NGOs you have directly encountered at your workplace/place of living. (if applicable) 10. Do you take part in the work of some NGO? 11. If the answer to the question above is yes, how do you participate? (Several options may be selected.) • I am an employee. • I am a volunteer. • I support its work through donations. • As an activist, I have subscribed to newsletters and receive information. • I take part in their activities. • other, specifically: …………………………………………………………………… Opinion on social participation 12. What are the advantages of social participation in your opinion? • opportunity to directly influence decision making • channelling local opinion into the decision making process • more rapid solutions for certain issues • it can prevent conflicts between locals that could escalate in the future • strengthening the community • it becomes easier to mobilise and involve people • creating community control • strengthening social legitimacy for decisions • it can be successful in managing non state tasks • other, specifically: …………………………………………… • I can see no advantages 13. What are the disadvantages of social participation in your opinion? • lay/non professional ideas may dominate • slows down decision making/time consuming • creates conflicts within the community • costly • questions the legitimacy of the elected decision makers • a “loud minority” may become dominant • political concerns may dominate decision making • business concerns may dominate decision making • individual grievances/convictions may hinder decision making • other, specifically: …………………………………………… • there are no disadvantages 14. How far do you agree with the following statements? (1-5 scale, 1: I do not agree at all, 5: I completely agree) Participants in NGOs’/citizens’ demonstrations only want to draw attention to themselves. • Citizens’ protests and actions are important and effective tools of exercising democratic rights.

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• Active participation of citizens may improve the quality of the decisions taken. • Most NGOs only protest in order to make a living. • NGOs significantly facilitate voicing and advocating the voice of the citizens. • People are unwilling to have their say on public affairs because politicians and authorities would not listen to them anyway. • People do not participate in public affairs because they have no time or energy. 15. How important it is for you to be able to have your voice heard on public affairs? (1-5 scale, 1: It is not important for me at all, 5: It is very important for me) 16. Altogether, how important it is for you that citizens directly participate in decision making? (1-5 scale, 1: It is not important for me at all, 5: It is very important for me) 17. On the whole, how efficient is direct participation by citizens in decision making in Hungary according to you? (1-5 scale, 1: I do not think it is efficient at all, 5: I think it is very efficient) 18. Would you be more willing to join a participatory process if it was launched by some “higher body” (e.g. government, church)? (1-5 scale, 1: not at all, 5: much more willing) 19. Do you think the public administration/authorities/local governments are sufficiently open and willing to take the initiative in order to get citizens involved in decision making? (1-5 scale, 1 :not at all, 5: very much indeed) 20. Do you think the citizens are sufficiently open and willing to take the initiative in order to get involved in decision making? (1-5 scale, 1: not at all, 5: very much indeed) 21. Do you consider the organizations created with this objective strong enough, do they have proper support? (1-5 scale, 1: not at all, 5: very much indeed) 22. Do you think the media covers the issue of social participation and the work of NGOs extensively enough? (1-5 scale, 1: not at all, 5: it provides very intensive coverage)

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The Hungarian Parliamentary Commissioner for Future Generations István Sárközy

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the hungarian parliamentary commissioner for future generations

1 Establishment of the Office of the Hungarian Parliamentary Commissioner for Future Generations

The idea of institutionalized representation of future generations in Hungary first arose more than twenty years ago. The idea had been realized in the summer of 2008 when the Office of the Parliamentary Commissioner for Future Generations (hereinafter: FGO) of Hungary started operating. The road to the final victory was not easy. “Protect the Future” (Védegylet), a Hungarian civic organization, invested over the years substantial efforts into convincing political parties of the importance that future generations be heard in the present. The first round of negotiations between 2000 and 2002 was not successful. The first bill was drawn up with the assistance of leading legal experts.1 Then two Members of Parliament 2 submitted a bill to Parliament, two parliamentary committees even discussed the draft, but the major opposition party did not support the bill. Reaching political consensus, a two-third majority in Parliament, seemed very distant at this point. Protect the Future intensified its campaign again in 2006 after it started promoting the idea of European level representation for future generations. The organization made an excellent strategic decision when it chose the year of 2006 for its renewed activities. Political parties were more willing to stand behind the proposal in an election year, because lending support to a noble initiative such as representation of future generations was assumed to resonate well with most voters.3 Two parliamentary committees discussed again the bill and passed the initiative this time. Unfortunately, the parliamentary term ended without a final vote. Protect the Future realized in 2007 that an all-party deal was indispensable. The initiative gained important momentum when the organization succeeded in convincing all the five parliamentary parties. One party, the Alliance of Free Democrats, considered inexpensive state administration particularly important; therefore, it did not support the bill as long as it entailed the establishment of an additional state institution. The conflict has been resolved by proposing the elimination of the status of the Deputy Civil Rights Commissioner from Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (hereinafter: “Ombudsman Act”). The major opposition party was convinced by emphasizing the strong powers of the new ombudsman to investigate state authorities. The governing party supported the bill since its two MPs submitted it to Parliament originally. Two further factors promoted the success of Protect the Future in striking the all-party deal. First, every actor in Hungarian politics needed some relief from the political tension in the country due to the leaking of the Prime Minister’s speech on withholding the national budget information before the election. 1

Mr László Sólyom and Boldizsár Nagy.

2 3

Mrs Katalin Szili and Mr Gyula Hegyi.

Tóth Ambrusné, É. (2010), p. 18.

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The initiative of Protect the Future provided a great opportunity to show voters that the parties were still capable of cooperation. Second, sensitivity of politics towards environmental protection issues gained strength due to intensified international activity in the field; both the Fourth IPCC Assessment Report and the Stern Report were released around this time. Protect the Future made another excellent strategic decision when it organized a press conference immediately following a roundtable discussion of political parties. Once the all-party deal was released to the press, none of the parties could afford to retreat from it. Nor could they afford to fight over the most important competences of the new ombudsman laid down in the original proposal of Protect the Future. Fortunately, 85 percent of the originally proposed competences remained in the text. The Hungarian Parliament passed the amendment of the Ombudsman Act with near unanimity in December 2007, establishing the institution of the Parliamentary Commissioner for Future Generations (hereinafter: the Commissioner). The new commissioner, Mr Sándor Fülöp, was elected by a 2/3 qualified majority only in May 2008, after three failed rounds of voting. The Office of the Parliamentary Commissioner for Future Generations had been operating with a full staff of 34 including 17 lawyers, two economists, five engineers, two biologists, a chemist, a geologist, a philosopher and a medical doctor. The Office comprised three units: the Legal Department, Strategy and Research Department, Coordination Department.



2 Impact of the Parliamentary Commissioner for Future Generations

Various criteria can be applied to measure the impact of the activity of the Commissioner. The following five criteria 4 are only preconditions of the future impact. First, the Commissioner must be free of any political influence. Second, the Commissioner must have the right competences which enable him to affect the lives of future generations in a positive way. Third, the Commissioner must actively use these competences, i.e. concrete efforts must be demonstrated. Fourth, the concrete measures that the Commissioner has the power to initiate must be effective in theory at least. Fifth, the institution must receive proper funding. If these five preconditions are met then there is a chance that the Commissioner can have a positive impact on the lives of future generations. To determine whether the Commissioner’s actions will or not will have a real impact in the future is rather difficult for several reasons. There are numerous complex and interacting factors that impact the lives of future generations even in smaller fields of actions. Finally, it is very difficult to assign the right methodology to measure the long-term impact. 4

Tóth Ambrusné, É. (2010), p. 18.

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3 Independence and Long-Term Vision

Long-term thinking requires freedom from any political influence. The Commissioner was responsible only to Parliament. Only a two-third majority of Parliament could terminate his mandate upon certain exceptional reasons. His long-term vision and independence was also ensured by the length of his term of office, which exceeds the regular parliamentary and municipal election cycle by two years, six years altogether.5 The Commissioner reported to Parliament annually, while the formal acceptance of the report was not a condition of his further operation. The funding of the institution was also determined only by Parliament. The Office of the Parliamentary Commissioner for Future Generations was funded from the state budget annually. It received 266,8 million HUF in 2009 and 259,2 million HUF in 2010 and 246,7 million HUF in 2011, which could be considered as adequate support.6 It can be stated that the institution met the first precondition. The independence of the institution has encouraged several organizations which have sought our partnership. For instance, the Association of Administrative Judges and the Commissioner organized a workshop for judges together with FGO, where colleagues of the Commissioner and the European Commission gave presentations on EU environmental law. Civic organizations and even ministries often relied on the Commissioner’s team of lawyers to help with legal analyses. The Commissioner also played the role of a mediator several times between civic organizations and ministries or headed their working groups. The working group on access to information held by nuclear power plants or the ad hoc expert group working out Hungary’s strategy against the European Union’s authorisation of Genetically Modified Organisms (GMOs) must be mentioned as eloquent examples. The Project on Sustainable Communities was an excellent example of the Commissioner’s long-term strategic pro-active work plan.



4 Competences of the Parliamentary Commissioner for Future Generations

The Hungarian Constitution of 1989 provided for the right to a healthy environment but it did not contain any references to future generations. The Fundamental Law of Hungary,7 which entered into force on January 1st 5

The Commissioner has underlined in several press interviews and during his proposals concerning the new Constitution of Hungary in 2011 that the possibility of a one time re-election of the ombudspersons are against the independence of their functions; therefore it should be eliminated.

6

Approximate values, taken from the Commissioner’s Annual Report. Report of the Office of the Parliamentary Commissioners of Hungary (2008-2009), Report of the Office of the Parliamentary Commissioners of Hungary (2010).

7

The Fundamental Law of Hungary of 25 April 2011, available at: http://www.kormany.hu/download/2/ ab/30000/Alap_angol.pdf.

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2012, refers expressly to future generations.8 The Constitutional Court, however, in its decision9 interpreted the Constitution as obliging the State to preserve the quality of the natural environment for future generations and maintain the already achieved level of its protection (non-retrogression principle). In another decision,10 the Constitutional Court also stated that the fundamental right to a healthy environment and human dignity creates the obligation for the state to provide institutionalized protection for living conditions of future generations. The modification of the Ombudsman Act in 2007 satisfied this obligation by establishing a new institution not only for the protection of present but also the future generations’ right to a healthy environment.11 The Hungarian ombudsman system up to 2012 consisted of the “general ombudsman” responsible for civil rights in general and three special ombudspersons in charge of ethnic and minority rights, privacy and freedom of information, and representation of future generations. According to the Fundamental Law of Hungary, a new ombudsman system has been established with a principal and two deputy ombudspersons. The “principal ombudsman” is the Commissioner for Fundamental Rights, while the two deputy ombudspersons are responsible for the defence of the interests of future generations and the rights of nationalities living in Hungary. Establishment of a special ombudsman institution is justified when the identity of those whose constitutional rights are violated cannot be determined unambiguously or the informational imbalance between those who violate the right and whose right is violated cannot be resolved by providing state assistance to representation in court. The Commissioner met both of these criteria. Forming a more or less unified system ruled by a single ombudsman was based on the theoretical consideration that all the constitutional rights are equal and deserve the same level of protection. As concerns the environmental rights, the FGO totally agreed with this approach, while we regret that, in the everyday practice of the life of the Hungarian State and other states, environmental rights have been much less protected than the rights of an economic and social nature. For a real equal protection environmental rights needed extra institutional support and eradication of that is clearly against the non-retrogression principle established by the Hungarian Constitutional Court. The reasoning of the 2007 amendment of the Ombudsman Act provides a good point of departure for introducing the competences of the Commissioner. The aim of the legislation was to protect the nature-related condition of the life and health of present and future generations; to preserve the common heritage of mankind and provide solutions to the common concerns of mankind; to preserve freedom of choice, the quality of life and the unobstructed access to natural resources for future generations. Therefore, it had to be the Commis8

See also Conclusions.

9

Decision 28/1994.

10 11

Decision 64/1991.

Tóth Ambrusné, É. (2010), p. 19.

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sioner’s duty to represent future generations when long-term decisions are made significantly affecting their living conditions and to facilitate enforcement of laws related to the state of environment. Accordingly, Section 27/B (1) of the 2007 Ombudsman Act laid down the following competences for the Ombudsman: • monitoring; • assessment and control of the enforcement of legal provisions ensuring sustainability and improvement of the environment and nature; • investigation of any improprieties of which he becomes aware relating to these. The term “legal provisions ensuring sustainability” extended the competences of the Commissioner further than monitoring enforcement of strictly defined environmental protection cases. It was difficult to determine and define precisely the boundaries of the concepts of environmental protection law and sustainability. Consequently, it was crucial to decide on the main functions and competences of the Commissioner within the limits of the Constitution and the Ombudsman Act immediately after commencing the operation. The Commissioner sometimes faced problems regarding his competence while investigating cross-cutting issues. Three factors influenced the Commissioner’s decision on the details of his competences: environmental protection laws and principles (especially the integration principle and the precautionary principle), the scientific and public discourse leading to the establishment of the institution and expectations of the public.



4.1 Competences Determined by Law

The above mentioned decisions of the Constitutional Court set the broadest framework of the Commissioner’s work. Article 4 of Act LIII of 1995 on the General Rules of Environmental Protection provides a more precise definition of an “environmental case”: any activity, omission of activities, decision, measure, etc., relating to the elements of the environment (land, air, water, biodiversity and their components), their system or structure. The same Act determines all the following areas that must be regulated with respect to environmental protection, such as energy, land and soil protection, transportation, spatial development, water and waste management, nature and landscape protection and the protection of historical monuments. These cross-cutting issues established the Commissioner’s competence as long as they affected the relationship between man and the environment, the protection of the environment, and the conditions of sustainable development. The Commissioner also considered certain economic, social and institutional issues relevant to the sustainability of nature and the environment. He played an active role in these areas as well.

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Integrating environmental protection aspects into the state budget planning process stood out from the sustainability related economic issues. That is why the Commissioner issued a statement that analysed the draft state budget with regard to the implications for sustainability. The cooperation with the National Sustainable Development Council demonstrated the Commissioner’s efforts in this area. The Commissioner addressed the institutional requirements of sustainability as well, such as access to and the quality of environmental information and the framework of public participation. The Ombudsman Act gave the Commissioner significant competences in relation to the European Union decision-making process. The Commissioner could participate in the elaboration of the Hungarian position represented in the institutions of the EU. Unfortunately, the Commissioner had not been able to fulfil this obligation, because he had not been provided with the necessary documents by the Government. Monitoring and facilitating proper application of European Union law was also particularly important in the work of the Commissioner since 80-90 percent of the Hungarian environmental legislation had been transposed from EU law. In the field of international law, the Commissioner monitored and assessed the domestic enforcement of international conventions related to environmental and nature protection, the common heritage and the common concerns of mankind (such as world heritage). Competences of the Commissioner were not as comprehensive as the list of fields in the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations but a reasonable number of areas were covered. They were also capable of moving forward all the Planetary Obligations12 of present generations towards future generations as determined in the doctrine of Intergenerational Equity developed by Professor Edith Brown Weiss. Therefore, the second precondition of a possible impact on future generations was also met.13



5 Activities and the Impact of the Commissioner

The third precondition of future impact besides long-term vision and the right competences is the actual activity of the Commissioner. These activities can be divided into three categories: investigation, parliamentary advocacy, scientific and strategic research.



5.1 Investigation

The primary duty of the Commissioner was the investigation of constitutional improprieties. The legal basis and the framework of the procedure were defined in the Ombudsman Act. The basis of the Commissioner’s 12 13

Brown Weiss, E. (1989).

Tóth Ambrusné, É. (2010), p. 20.

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investigation was the same as the General Ombudsman’s procedure,14 but his powers were stronger. The official reasoning of the Ombudsman Act explained this difference with the special nature of environmental and nature protection cases: the late or illegal actions of the administrative authorities often result in extremely high or immeasurable costs and irreversible damage to the environment. Anyone could submit a petition to the Commissioner’s Office and the Commissioner could also launch an investigation ex officio. Only two restrictions apply: cases where the final administrative decision was made more than one year ago, and where a court procedure had been initiated for the review of the resolution or a final court decision had been taken are excluded. The investigation started with drafting an investigation plan, consisting of the activity of lawyers, including an international lawyer if necessary, and an expert scientist of the investigated environmental field (e.g. biologist, environmental engineer, medical doctor, etc). The method of cooperation between the departments (different fields of knowledge) reflected the principle of integration and the holistic, pro-active approach. In order to carry out a proper investigation the Commissioner and his colleagues were allowed to enter any premises and to have access to any documents during their fact-finding without the court’s permission. The investigation concluded in the statement of the Commissioner. The final version of the statement was drafted in an iterative process; its draft was circulated amongst every stakeholder and they were invited to comment on the drafts of the statement. Such a broad network of information and opinions rendered the statements and analyses well grounded.15 The Commissioner had received 422 complaints in the second half of 2008 and in 2009. The Commissioner’s Office had dealt with 874 cases in 2010 and even more in 2011.16 At the establishment of the institution, the Office had a substantial backlog, due to the new structure and methodologies to be created, simultaneously with the training of the staff. The Commissioner also might take very specific measures provided in the Ombudsman Act.17 Measures at his disposal were included in the statements concluding the investigations. The investigated authorities, organizations and private persons had to respond to the Commissioner’s statement within a certain period of time. This was the first stage in the procedure where the Commissioner received feedback on his work and could measure the direct effect of the statements. The different measures at the Commissioner’s disposal may have had very different impacts; they had various legal characters.18

14 15

Article 18 of Act LIX of 1993.

Tóth Ambrusné, É., p. 20.

16 17

The statistical analysis of the year 2011 is not finished yet.

Articles 27/B-F of Act LIX of 1993.

18

Tóth Ambrusné, É., p. 21.

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5.1.1 Recommendations

The Commissioner issued recommendations, when constitutional improprieties, in connection with the right to a healthy environment, were discovered, to the authority having brought about the impropriety or to the supervisory authority thereof as well as to private persons and organizations. The Commissioner might issue specific recommendations for remedies, and general recommendations as well when several petitions were similar or a systemic problem was discovered. Recommendations did not have direct legal effect, i.e. they were not binding, which reduced the probability of their impact. However, careful fact-finding and detailed legal analyses were crucial to the acceptance of recommendations. In order to increase the probability of compliance with recommendations, the Commissioner often took advantage of and relied on media publicity.



5.1.2 Measures of Direct Legal Effect

The Commissioner might undertake measures of direct legal effect. First, the Commissioner might seek the suspension of the execution of administrative decisions if prima facie it appeared illegal and its implementation might result in irreversible damage to the environment. Second, the Commissioner might call on any person or organization to stop any activity that harms the environment. The person addressed had to respond within a deadline set by the Commissioner. In case of an unsatisfactory response, the Commissioner might seek the suspension of the activity in court. Third, the Commissioner might participate in all applicable administrative and judicial review procedures or initiate them. He might appeal against any environmental administrative decision and/or seek judicial review thereof. He also might intervene in court procedures on behalf of any party seeking the review of administrative decisions relating to the environment. The above mentioned measures demonstrate that the Ombudsman Act provided the Commissioner with strong powers. In fact, the Commissioner stood out from the other three ombudsmen (Commissioners for civil rights, national and ethnic minority rights, data protection) with respect to his powers. It can be concluded that these tools were capable of having a profound impact on the environment and the lives of future generations as well.



5.2 Policy Advocacy

The Commissioner had to be consulted on all draft legislation and governmental initiatives affecting the environment and sustainable development, although his opinion was not mandatory.19 He might express his opinion on long-term municipal development and spatial plans or other plans and 19

Article 27/B e) of Act LIX of 1993.

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concepts of municipalities directly affecting the lives of future generations.20 He might even present his position to the parliamentary committees and he was one of those few who may take the floor during plenary sessions of Parliament. This was a last resort tool for the priority cases when his opinion was not heard by the respective administrative bodies. The Commissioner might find in the course of an investigation that a legislative provision violated the right to a healthy environment or his comments in the legislative consultation procedure were neglected. In these cases the Commissioner could initiate constitutional review of the legal norm with the Constitutional Court.21 He might also suggest that the national or municipal legislator amend existing legislation or adopt new legislation.22 The Commissioner presented most of his substantial proposals to the relevant parliamentary committees (Committee on Environmental Protection, Finance and Audit Office, Committee on Agriculture, Committee on Sustainable Development) several times. He has taken the floor twice in the plenary session of Parliament in the course of the preparation of the Fundamental Law of Hungary, to express his concerns thereof.



5.3 Strategy and Research

The Commissioner interpreted his competences as wide as possible in order to facilitate intergenerational equity. He acted not only as a complaints investigator but as a proactive guardian of the rights of future generations as well. The Commissioner carried out research and promoted long-term thinking and a holistic approach in the course of the investigations. In order to promote sustainable values and ways of life, the Sustainability of Local Communities Project worked with local communities committed to the implementation of several aspects – environmental, social and economic – of sustainable development in their settlements. The project covered more than 30 local communities with innovative solutions in the field of sustainable agriculture, waste management, energy and heat production, food security, and even education. The Commissioner provided professional and coordinative support to these initiatives. In its third year this Local Communities Project of FGO proliferated and ended up in a couple of practical results. In September 2011, more than 100 leading professionals from the Government, science, churches and NGOs convened by FGO at one of the biggest and oldest monasteries of Hungary and discussed and undersigned the “Pannonhalma Declaration”. This large and detailed document contained more than 60 practical (legislative, legal practice, administrative, organizational etc.) proposals in four priority fields of sustainable life on the countryside. Access of the local farmers to local markets, healthy 20 21

Article 27/B f) of Act LIX of 1993.

Article 22 of Act LIX of 1993.

22

Article 25 of Act LIX of 1993.

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local food in the public institutions especially in schools, saving and cultivating the centuries old agricultural genetic heritage of the country and revitalizing herb culture were all important. This Declaration was accompanied by such practical projects with a joint proposal with the Education Ombudsman, followed by a strong institutional and legal commitment from the concerned ministries and the Fruit Trees in the Churchyards project where more than 60 local communities have undertaken to host and cultivate ancient fruit tree species with the help of a network of administrative bodies, scientific institutions and NGOs, organised by FGO staff.



6 Map of Environmental Conflicts – Examples from the Cases of the Commissioner’s Practice23

In terms of the aims, the substance of Hungarian environmental laws reach the European level, but they are regularly misinterpreted and not properly enforced, if at all, which means that they are incomplete (lacking the organizational and procedural guarantees of application), or ambiguous. Still today the law and the practice hardly takes into account one of the basic ideas of environmental protection, that is the precautionary principle. The tragedy of commons is a characteristic feature: people consider themselves to be entitled to destroy a small piece of our common natural heritage, and all in all this has a tragic effect on the community as a whole. There is very little trace of a real environmental change of attitude in the decisions of the national level, and this hides serious risks for the future generations. From the establishment of the office at the end of 2008 to the end of 2009, the Commissioner has received 119 government initiatives and participated in 81 consultation procedures concerning legislative proposals, the Commissioner initiated one constitutional review and the adoption or amendment of 17 legislative proposals. In this period the Commissioner has dealt with 422 complaints, investigations have been launched into 271 cases and have been completed in 97 instances. In 37 cases the bureau issued a statement and encountered improprieties on 26 occasions. The Commissioner’s working practices were special in regard to the way that lawyers and environmental experts cooperated; in major cases they examined the location and inquired of the local inhabitants too, talked to the administrators charged with the respective cases, to experts, NGOs and local community representatives, then their draft statements were sent to the stakeholders, and were finalized taking into account their opinions. One of the largest groups of complaints handled was related to municipal spatial plans, the very root of local environmental conflicts. Noise pollution also causes an enormous number of problems, our environmental legislation and the 23

The examples are cited from the article of Éva Tóth Ambrusné, and the Commissioner’s Annual Reports of 2008-2009 and 2010.

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administrative practice is the least stringent and most inconsistent in this field. The Commissioner’s office received many complaints on air pollution, related mainly to smell; neither the legislators, nor the authorities took this really seriously, emitting odours was considered to be a remissible sin. It was still apparent that nowadays the population paid less attention to the conservation of living waters and nature. The complaints related to transport were precipitated above all by the unstoppable expansion of the public road network. The petitions of major professional non-governmental organizations (NGOs) made a grievance of the fact that our increasing energy demand is covered almost exclusively by nonrenewable sources, an unsustainable pattern in the long term. The Commissioner received many complaints because of the environmental pollution of the waste management industry itself and illegal waste disposal as well. Even the rural population was no longer willing to tolerate the everyday consequences of animal husbandry. The cases received by the Commissioner therefore could be divided into the following main categories: municipal spatial planning, protection against noise, air protection, water protection, nature conservation, traffic, energy production, waste management, animal husbandry, public participation.



6.1 Municipal Spatial Planning

This is the field, where nearly everything is decided in relation to projects polluting the environment, as based on the spatial plan the different licences of establishment are issued almost automatically. Therefore municipal spatial planning has a determining role in the state and sustainability of the environment and influences directly the present and future generations’ quality of life. The municipality of District XV in Budapest planned to amend its spatial plan in order to allow higher building density. The area of the intended development was located near a crowded motorway and experiencing substantial environmental pressure already with noise and air pollution levels exceeding the limit values. The Commissioner came to the conclusion that further increasing the number of residential units and decreasing the exceptionally high ratio of green areas in this location would be the source of further environmental problems. The Commissioner stated that the development would not be compatible with the principle of sustainable development. The statement emphasized the importance of considering environmental aspects in spatial planning procedures. The municipality did not pass the spatial plan and decided to have an impact assessment prepared in line with the Commissioner’s conclusions. The major influencing factor of this municipality decision was that the FGO statement had revealed that owing to the elimination of the green spots a kindergarten and an elementary school would be in a much worse environmental situation where the air and noise standards would not be met.24 24

http://www.jno.hu/hu/af/273_2010_MAV-ovoda.pdf.

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The preliminary spatial plan of the municipality of Piliscsaba foresaw the construction of an underground water reservoir on a karst site for drinking water and bottling water for commercial purposes. Since the water balance of the area is already negative, the planned exploitation of water was therefore deemed unacceptable. The municipality assembly ordered the review of the planning measure. These examples were quite typical to the spatial development plan cases of FGO: revealing the facts in connection with loosing the green territories and the other environmental consequences and putting them onto the domain of public discussions (local newspapers, NGOs, local communities, asking that the FGO statement be put on the agenda of the local council’s meeting etc.) usually successfully embarrassed those who were financially interested in the projects and their local political supporters.25



6.2 Protection Against Noise

As we have said already, many of the complaints received by the Commissioner were related to noise nuisance. The noise pollution is increased by the general and mass motorization, particularly in the capital and its conurbation. Cities try to manage the increased traffic by constructing new roads; however this effort leads to the further growth of utilization of them and the formation of areas burdened with fresh conflicts. The conflicts of noise emission could, in many cases, have been prevented by responsible municipal spatial planning and decision-making by authorities and users of the environment. However, in the absence of these, FGO had to provide for the protection against noise subsequently with extremely expensive investments, but such insulation, or the implementation of sporadic and inconsequential authority obligations are rather dragged out and usually are not possible any more. In one of the typical cases of FGO, the petitioners complained about the excessive noise level generated by a neighbouring fibre-board factory in the city of Mohács. The investigation established that operation of the factory caused excessive noise pollution; therefore, the environmental inspectorate should have ordered the operator to submit an action plan for noise reduction. The Commissioner also found that the inspectorate failed to impose any fines. As a result of the Commissioner’s statement the authorities carried out a noise level measurement and decided to take the necessary measures.26



6.3 Air Protection

With air protection it is also apparent that the emerging environmental conflicts are often the symptoms of system-level problems; they indicate that there is a missing harmony between sustainable development and 25

http://www.jno.hu/hu/?doc=5965_J_2009.

26

http://www.jno.hu/hu/af/jno-4-2010_mohacsi_farostlemezgyar.pdf.

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society’s different sub-systems (traffic, sewage treatment, waste management etc.). Sometimes even the environmental interests facing each other are contradictory, clashing almost irreconcilably. Smog is a recurring problem in Hungary every year. The Commissioner reviewed a couple of such cases, one amongst those was the draft smog alert plan of the city of Miskolc. A smog alert plan is a local ordinance laying down emergency measures to decrease air pollution in connection with second type of (winter) smog. The draft plan in the Miskolc case did not include clear definitions of crucial terms, such as “smog situation” that would trigger the measures of the authorities and certain responses from the population of the city, too. The Commissioner stated that unclear terms prevent effective implementation and might result in delayed action. The assembly of the municipality accepted the Commissioner’s recommendations and revised its draft.27



6.4 Water Protection

The particular self-interest of the water management sector, managing the waters and constructing different types of hydrological facilities is often in contradiction with the interests of protecting nature and the environment and therefore of long term sustainability of water services. The supply of healthy drinking water is more and more in danger, due to the various natural circumstances and the weather that often causes disasters in water conservation. While everybody lays claim to the healthy drinking water and the use of waters in general, the population often protests against the performance of the tasks related to water management and the limitations needed for water protection. The Commissioner investigated the military radio locator on the hill Tubes. The planned investment was to take place within the protective zone of the karsts drinking water base of the city of Pécs of 160.000. However, the Budapest Metropolitan Court concluded that the special military law, allowing reliefs from the rules of construction, overruled the norms of protecting water resources as well. The Commissioner had entered into the court case as “amicus curiae” and initiated an extraordinary judicial review of the secondinstance judgement at the Supreme Court. The claim had been accepted and the construction license issued for the locator was annulled by the second instance court. Following several years of lawsuits and community protests, the conflict seemed to have ended; the Minister of Defence declared that the locator would not be built on the hill Tubes.28

27

http://www.jno.hu/hu/?doc=1975_J_2009.

28

http://www.jno.hu/hu/?doc=tubes_elok.

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6.5 Nature Conservation

The Commissioner primarily analyses in his investigations the rules and the enforcement of European Union and Hungarian provisions concerning Natura 2000 sites. Unfortunately, several large sport and other public events seem to overrule even the most important Natura 2000 rules. In one case of FGO, the track of the Central Europe Rally affected Natura 2000 areas and therefore on the basis of a complaint the Commissioner examined the authorization circumstances. According to the license that was issued to a request of the organisers only two days before the race, the environmental inspectorate concluded that the race caused no harm to the environment. However, the inspectorate and the national park affected had to state after the event that serious harm happened to highly protected natural territories and species and even the very lenient specifications of the license had not been observed in the course of the race. The inspectorate launched a nature conservation compensation procedure and inflicted a fine on the client. The Commissioner concluded in the statement that the unlawful issue of the licence caused the infringement of the right to a healthy environment. The subsequent fines did not compensate for these losses. The inspectorate did not accept the Commissioner’s conclusions.29 The FGO’s experts were amongst those few that recognized that under the circumstances of the changing climate and political situation the heritage and natural values stored in the old agricultural species of the world third largest gene pool in Hungary could be the key to our successful resilience. However, our decision-makers seemed to forget about its importance. The Commissioner was successful in advocating for state financing of agricultural gene banks. In his letters, he called the attention of the Agricultural Minister and Parliament to the risks that lack of financing and privatisation of gene banks carried. Fortunately, the Government had recognised the importance of gene banks was evident when considering new ecological and economical challenges as a result of climate change. Decreasing diversity of agricultural plants irreversibly increases the vulnerability of the food supply.30 As we have referred to it earlier, the Commissioner has organized a conference, by the support of the Ministry of Rural Development and the Pannonhalma Benedictine Archabbey, on the issues of sustainable rural development in September 2011. The participants drafted a declaration which contains specific tasks for the protection of the landscape and the conservation of biodiversity at local communities. The purpose of the Pannonhalma Declaration was to strengthen the local economy and the local society at the same time: by shortening the distance between the producer and the consumer, the preference of local products in public catering, the elimination of legal obstacles from the operation 29 30

http://www.jno.hu/hu/af/jno-544-2010_magyar_dakar.pdf.

http://www.jno.hu/hu/?doc=erdi-genbank-allasfog.

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of small-scale agricultural enterprises, the establishment of collection gardens with local tree species.31



6.6 Traffic

In the past two decades the Hungarian traffic sector tried to catch up with the developed industrial countries: the road traffic and transport, the number of cars, the quantity of kilometres, the density of motorway network, as well as the air traffic has dynamically increased. In the meantime the ratio and standard of public transport has significantly worsened, the railways got in a disadvantaged situation and the water transportation was also pushed into the background without reason against road transport. The Commissioner carried out a comprehensive investigation into the licensing problems of projects implying intervention into the environment, in light of EU law (acquis communautaire), with special regard to the linear infrastructure establishments. The Ministry of Transport partly used the environmental statements issued by the Commissioner’s office as grounds for its legislative and enforcement activity in this field.32 Related to rail transport, the office launched an ex officio investigation on the issue of the timetable and the termination of passenger transport on several railway lines. The Commissioner invited the Minister of Transport to assess the impact of the decision and a concept for the timetable, and the Commissioner called upon the government to make a proposal to create harmony among the Acts on Traffic, Regional Development and Environmental Protection.33



6.7 Energy Production

Energy policy is an issue of crucial importance for future generations, so the relevant legislation and the associated authority practices were handled as a prominent priority by the FGO from the very beginning. In this field the interests of the environment and future generations are injured on the system’s level: the attitude of leaving behind a higher concentration of greenhouse gases in the atmosphere and radioactive waste does not guarantee the rights and opportunities the present adult generation has for our children and for people not yet born. Several civic organisations and municipalities submitted a complaint against a planned and authorised power plant in the buffer zone of a world heritage site in the city of Szerencs. The Commissioner’s investigation determined that the power plant would have a negative effect on the site. Traditional wine growing and the cultural landscape that had earned the title of a World Heritage site would be endangered by energy grass production. Energy efficiency and impacts 31

http://www.jno.hu/hu/pdf/pannonhalmi_nyilatkozat.pdf.

32 33

http://www.jno.hu/hu/?doc=131_JNO_2010.

http://www.jno.hu/hu/?doc=4895_J_2009.

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on traffic were also among the numerous problems the Commissioner found. Nevertheless, no authority assessed the impacts of the project on the world heritage site and its general social and economic (agricultural) impacts in the course of the authorisation procedure. The supervisory authority rejected the Commissioner’s recommendations and the court also decided in favour of the authority in the litigation the FGO initiated. However, as time went on and the FGO clarified the facts in a detailed statement, the publicity about the planned incinerator became worse and worse and it might have played a determining role that the investors and banks concerned finally abandoned the plan. Another aspect of the case was successful, too. The investigation concluded that the World Heritage Convention was not implemented properly in Hungary; therefore, the Commissioner made recommendations on the preparation of a World Heritage Act. The Ministry of Culture and Education accepted the recommendation and even involved the Commissioner in the drafting procedure.34



6.8 Waste Management

Waste management in Hungary reflects the contradictions of environmental protection. The separated collection of waste is successful, but the deposit system has declined. The closure of outdated landfills has taken place according to the requirements of the European Union; recultivation is under way, however the new regional landfills do not represent the best solution as they render impossible local disposal opportunities and generate long transport distances. Besides, it seems that both the legislator and the authorities have become less rigorous in this field. This is because they qualify rightly the landfills as environmental projects and they conclude – wrongly and harmfully – that such projects should be supported by the environmental authorities almost unconditionally. In case of the communal landfill of the village of Vép the Commissioner concluded in his statement that there were improprieties related to the establishment of the landfill by the municipality without the license of the inspectorate. However, following this, the inspectorate failed for a long time to order the proper sanctions, the ban or suspension of the activity. After the investigation of the FGO the landfill was completely recultivated. The Commissioner hosted a conference in September 2010 entitled “The problems of the application of waste law and waste management of the European Union law” as a part of the cooperation with the Association of Administrative Judges. The invited lecturers discussed the problems especially related to waste management and the application, implementation of EU law.35

34 35

http://www.jno.hu/hu/?doc=3737_J_2008.

http://www.jno.hu/hu/?doc=szeminarium-100909.

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6.9 Animal Husbandry

Animal husbandry in inner city areas frequently generates conflicts mainly due to odour problems. The number of animals has declined by between a half and one-third since the democratic transition, while an increase could be desirable. The trouble that comes with the continuous care of animals is becoming more and more problematic. The Commissioner has refused the complaint about the major smell effect of the poultry-farm in the village of Kissomlyó, because in the case of a farm that can be regarded as traditional and serves the livelihood of the farmers, the tolerance obligation of neighbourhood residents is higher, compared to the situation where the same activity is performed in an urbanized environment of a city. Unfortunately, such a difficult balance of interests took part in several other cases of FGO, too.



6.10 Public Participation

The Rio Declaration formulated public participation as a basic principle and the same approach characterised the Environmental Action Programme of the European Union too. In 1998, in Aarhus, Denmark the environmental ministers of Europe signed an international convention of unique specificity and completeness on the three plus one pillars of public participation in the field of environmental protection: access to information, participation in decision-making, access to justice and capacity building. In this field too the Commissioner participated in the legislation and dealt with the draft amendment of the Act on Administrative Procedure that would have rendered having standing granted difficult in many cases. The Commissioner objected that the draft would have made access to justice and a legal remedy possible for NGOs only if they participated in the entire first-instance procedure. This seemingly logical modification would have in practice reduced to a minimum the participation of NGOs in the administrative procedures relevant to environmental aspects. Due to the Commissioner’s intervention the Act does not contain such difficulties to the acknowledgement of standing, while the limitation of the NGOs’ access to justice appeared in the text not as a main rule but only as a further regulation option. The Commissioner could influence the amendment of one of the most important procedural law codes, the Act on Administrative Procedure, only by taking advantage of the support of the President of the Republic, the President and the Parliamentary Committee on Environmental Protection, the other three ombudsmen, as well as the NGOs. Following the legislative work on the procedural code, the Bills on Road Traffic, Rail Transport and Hunting were drafted, also with the primary aim of reducing the NGOs’ rights of access to justice. In this case the Commissioner also issued a statement and carried out negotiations with the representatives of the Ministry of Justice. The Commissioner managed to confirm that the limitation covered

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only those cases in which the organizations did not participate in the procedure of first-instance despite a subpoena. This time the Commissioner turned to the Constitutional Committee and the Environmental Committee of the Parliament and enjoyed the full support of the latter.



7 International Relations, Activities

From the establishment of the institution the Commission’s activities attracted a great deal of international interest. At the national level the Commissioner’s office was considered as a new ombudsman’s bureau with a special mandate, while the international general public sensitive to environmental and sustainability issues appreciated the election of the Commissioner. The establishment of the Commissioner’s office was a world-standard step forward in the direction of the institutional representation of future generations. Beyond the classic functions of the ombudsman (complaint investigation, parliamentary advocacy) and as the result of the broad interpretation of the competences, strategic development and research, the Commissioner has been actively looking for international cooperation and to take part in a widespread international network. The main directions and aims of the Commissioner’s foreign relations were the cooperation of ombudsmen, the promotion of the institutional representation of future generations and scientific collaboration. Within the cooperation of ombudsmen, the Commissioner has established relations with several international cooperation ombudsmen forums and provided information regularly about the major statements in significant publications of the international and European ombudsmen network on his webpage. The Commissioner has also participated in a personal exchange of experience with the British Local Government Ombudsman, the Parliamentary and Health Ombudsmen and the British and Irish Ombudsman’s Association operating as an umbrella organization. Regarding the operation of the Commissioner’s office, close relations were established with the former Environmental Commissioner of New Zealand and the head of the Future Generation Parliamentary Commission of Israel, which provided the office with very important material. Establishment of the Commissioner’s office was followed with interest by international bodies and embassies. These institutions ranked among the prominent partners of the Commissioner. This circle included the Embassy of the United Kingdom that has supported actively the presentation of the Commissioner’s office in Great Britain, and the organization of several events of key importance for the Commissioner (for instance a two day climate conference in Budapest). The Embassy of Sweden in Budapest was likewise an important partner and it bestowed special attention on the cooperation with the Commissioner’s office related to the domestic environmental events of the Swedish

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EU-presidency in 2009. The Commissioner’s office maintained contacts with the embassies of Canada, Finland, Denmark and Norway.



7.1 Participation in Decision-Making on European Union Issues

At the end of 2010 the Ministry of Foreign Affairs of the Republic of Hungary and the Ministry of Rural Development called upon the Commissioner to provide experts for the government to manage the Hungarian EU Presidency in the second half of 2011. In the framework of this cooperation the head of the Commissioner’s Strategic and Scientific Department chaired the meetings of the Working Party on International Environment Issues in the course of the preparation for the 26th session of the United Nations Environment Programme Governing Council (UNEP GC). The Commissioner was invited to participate in and to speak at the informal Environmental Council meeting of the EU, held in March 2010 in Gödöllő. The Commissioner’s staff supported the EU Presidency with expertise at the meetings of the Environmental Council, and at the high level session of the UN Committee for Sustainable Development held in May 2011. Upon the invitation of the Ministry of Rural Development the Commissioner’s colleagues participated in the preparatory works of the Hungarian EU Presidency’s tasks related to the Aarhus Convention, in cooperation with the ministry. A colleague of the Commissioner attended the meeting of the EU Council’s Working Party on International Environmental Issues (WPIEI).



7.2 Activities Aimed at Following the Enforcement of International Treaties

The Commissioner paid special attention to the enforcement of European Union law. Authorities and courts have to properly interpret the EU law as this is the only way to ensure the proper enforcement thereof. In several cases the Commissioner called the attention of ministries and authorities to the judgements of the Court of Justice of the European Union, the primary sources of interpretation of the EU law. The Commissioner launched an ex officio investigation in connection with the authorization of projects intervening in the environment, in order to reveal the problems related to EU law. The outcome of this investigation served as a basis for further statements. The European Union initiated the Aarhus Working Group to conduct national level dialogues to feed a European level discussion about the experiences of the enforcement of the Aarhus Convention in the cases related to nuclear energy. The Commissioner participated in the Aarhus Working Group upon the initiation of the Regional Environmental Centre (REC). The Commissioner’s office prepared professional background materials and owing to its inde-

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pendence played a mediator role in the discussions. The analyses and proposals were supported by the working group. In connection with nuclear issues, the Commissioner facilitated the revival of the Aarhus Working Committee as it had operational deficiencies. The Commissioner called upon the minister of the environment to establish the conditions to continue the operation of the Aarhus Working Committee as soon as possible. The minister of the environment informed the Commissioner that the working committee would be convened out of turn.



7.3 Cooperation with Prominent Partners

The Commissioner maintained active and close contact with the World Future Council. The aim of the World Future Council (WFC) is to have the decision-makers all around the world bring long-term decisions that promote sustainable life and guarantee the respect for future generations’ right to have the opportunity to live in a healthy world. The organization referred to the FGO as a model in its campaign aimed at the European level and global representation of the interests of future generations. In several studies the WFC has mentioned the Commissioner as one of the eloquent examples of institutionalizing the representation of future generations. These references were copied in many preparatory materials to the 2012 Rio+20 Conference. The European Commission’s Directorate-General for the Environment turned to the Commissioner raising the possibility of cooperation. The European Council invited the Commissioner to take part in the preparation of the charter on shared social responsibility. In 2011 the Commissioner took part in the Green Weeks with one lecture and also addressed a conference of the European Parliament about the road to Rio.



7.4 Participation at the Rio+20 Summit

Some of the Commissioner’s colleagues took part in the conference in New York and the side events preparing the United Nations Conference on Sustainable Development, the Rio+20 Summit. Mentioning the Hungarian ombudsman’s institution and the efforts by the preparation workgroups and organizations, it recognized and acknowledged the FGO’s pioneer role along the institutional representation of the future generations’ interests. Upon the invitation of the Environmental Directorate-General of the European Commission, Dr Sándor Fülöp summarized the activities, results and issues of the FGO in course of a section meeting the Green Week Conference held in Brussels. The Commissioner gave a lecture at a meeting of the Environmental Committee of the European Parliament preparing the Rio+20 Summit.

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8 Conferences and Appearance in the Media

Participation at conferences has a dual role: to share the messages of the Commissioner’s activity with the audience and the experts, and to learn from the outcome of the conferences. The Commissioner’s colleagues shared the method of networking and the iterative approach which might be effective in the understanding and the resolution of the environmental conflicts. As regards appearances in the media, the Commissioner is considered to be the advocate of the interest of future generations in the present. Members of the Commissioner’s team participated in 130 conferences in 2008 and 2009 and more than 100 both in 2010 and 2011. In the first one and a half years the Commissioner organized three conferences to address greening the budget, indicators of sustainability and the Climate Summit in Copenhagen and beyond that was followed by more than a dozen FGO conferences in 2010 and 2011 with the topics ranging from the ecological services of the Danube river, the overall regulation and practice of noise and air protection, through the methodology of exchange of hunters, foresters and nature protection professionals, corruption in the field of environmental protection to the alternative indicators of social development. The Commissioner appeared in approximately 1000 press articles and in the same amount of electric media news, interviews etc. in every years; the online and printed media appearances are estimated to reach around 84 million readers annually. The Commissioner and his colleagues held presentations at several international conferences as well several times in London (once upon the invitation of Ministry of Justice, once upon the invitation of civic organisations and once at a TEDx event), in Lisbon, Poitiers in Athens (about intergenerational justice) and in several other cities. Various programmes were organized under the auspice of the Commissioner, for instance the “jövő:re” (“future”) open university.





9 The Transformation of the Hungarian Ombudsman System, the Fundamental Law of Hungary and the New Ombudsman Act 9.1 Drafting of the Fundamental Law and its Provisions in Connection with the Right to a Healthy Environment

The process of drafting the Fundamental Law of Hungary had commenced in August 2010 and finished in April 2011. The FGO has actively participated in the process until the acceptance of the bill with draft proposals and the experiences of the institution’s four year of functioning. The FGO’s initial policy during the drafting process was to emphasize the relevance of the right to a healthy environment and the interest of future generations. Upon the request of Dr László Salamon, head of the Special Constitution

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Preparation Committee of the Hungarian Parliament, the FGO resumed the most important aspects concerning the new constitution. The proposal underlined the importance of the achieved Hungarian goals in the field of environmental law from the beginning of the 1990s until the beginning of the drafting process. First, the Constitutional Court of Hungary developed the principle of non-retrogression in the Decision 28/1994. (V. 20.) AB (hereinafter: the Basic Decision) which means that any retrogression of the level of environmental protection may cause irrecoverable damage in the environmental elements; second, the unique personnel and working methods of the Hungarian National Council on the Environment; and third, the establishment of the Parliamentary Commissioner for Future Generations itself. The FGO expressed detailed proposals related to the drafting process of the new constitution. The research analysed the constitution’s acceptance in the last two decades with special regard to the idea of the responsibility towards future generations and its two pillars: strengthening the social control over the natural resources and the institutional guarantees of environmental protection. The Fundamental Law would combine the protection of the environment and the interests of future generations on the same regulation level, in the same document. The right to a healthy environment has been generally accepted in international law. The Universal Declaration of Human Rights acknowledged the connection between human rights and environmental protection. Some years later the Stockholm Declaration on the Human Environment and the Rio Declaration on Environment and Development expressly recognized the right to a healthy environment. Many regional and multilateral conventions followed these declarations, e.g. the Aarhus Convention, covering the guarantee of procedural rights. However, the European Convention on Human Rights does not specify the right to a healthy environment, but the European Court of Human Rights acknowledged this right in several decisions through the right to respect for private and family life. The Treaty on European Union does not contain directly the right to a healthy environment but Article 3 defines the Union’s aim to promote peace, its values and the well-being of its peoples. Well-being encompasses the right to a healthy environment as well. Article 191 of the Treaty on the Functioning of the European Union declares that the Union’s policy on the environment should aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. This policy should be based on the precautionary principle, the polluter pays principle and the principle of prevention. Act XX of 1949 on The Constitution of the Republic of Hungary (hereinafter: former Constitution) briefly declared the right to a healthy environment. Article 18 of the former Constitution states that The Republic of Hungary recognizes and shall implement the individual’s right to a healthy environment. This article defines both aspects of the constitutional relation. On the one part the State’s passive action, the acknowledgement and validation of this right; on the other

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part the active behaviour of the State, to establish the necessary conditions to guarantee the right to a healthy environment. The Constitutional Court declared in its Basic Decision that the State’s obligation to protect the environment has an objective, institutional aspect which comprises the establishment of the living conditions of future generations. The Constitutional Court also added that the State does not possess free discretion in allowing the decline of the state of the environment. Regarding environmental damages that may cause irreversible processes, the retrogression from the achieved level of protection is only acceptable if another fundamental right had had to be restricted. Retrogression is only allowed in case of unavoidable necessity by means of proportional derogation. The protection of interests of future generations is receiving the focus of international and national conventions. The preamble of the Aarhus Convention and the Charter of Fundamental Rights of the European Union refers to the responsibility towards future generations and the duty to preserve and improve the state of the environment and to ensure sustainable and environmentally sound development. The International Court of Justice also interpreted the interest of future generations and the responsibility of the present generation to maintain the state of the environment. The World Future Council prepared a proposal for the representation of future generations on the level of the European Union. Considering the development of law, a new constitution has to include a reference to the interest of future generations. The principles of environmental law have an unavoidable role in a constitutional context. The principle of integration, prevention, the polluter pays and the precautionary principle are mentioned in international and regional documents but it is also advisable to define them on the national level as well. The principle of integration sets out that the decision makers have to take into consideration the environmental aspects along every decision. Ensuring the public participation in the decision-making process means the right to access to information and their active participation, too. The transparency of decision-making is cited as one of the key elements of good governance. The FGO mentioned in its textual proposal the connection between the national assets and future generations. National assets are considered those elements of the state property which have relevance related to sustainable development and the living conditions of future generations. The former Constitution referred to the national assets in Article 10 (1) as property of the State of Hungary and considered to be part of the national wealth. Article 38 (1) of the Fundamental Law states that the properties of the State and local governments shall be national assets. According to Article P of the Fundamental Law all natural resources, especially agricultural land, forests and drinking water supplies, biodiversity – in particular native plant and animal species – and cultural assets shall form part of the nation’s common heritage. A major point of conflict is the relation of environmental protection and private property. The exercise of the property may interfere with environmental aspects regarding the public interest. Finding the optimal balance

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between economic and ecological interests, however, needs a careful analysis, taking into consideration all details of the parties concerned. In February 2011 the FGO hosted an international conference with eminent foreign and Hungarian lecturers to review the potential regulation of the right to a healthy environment and of the interest of future generations. The lecturers agreed that one of the most important statements of the conference was the integration of the competence of the FGO into a unitary ombudsman system; this fact would harm the principle of non-retrogression by definitely weakening the competence of the future deputy commissioner representing the interests of future generations. The institutional representation of environmental matters is not restricted only to the green ombudsman; it has to be present in the whole structure of State described in the constitution.



9.2 Activity in the Press Related to the Drafting of the Constitution

The FGO maintained a conscious passive media policy as environmental facts speak for themselves, stressing the consistently represented point of view of the Commissioner. Around 1000 printed and 1500 online media appearances could be counted annually. The Commissioner deemed unacceptable the abrogation of the post of the parliamentary commissioner for future generations, which endangers the State’s long term interests for the accidental benefits of short term economic aims. The original bill would have abrogated completely the institutional representation of the interests of future generations. The Commissioner referred to the consensus of the four political parties, whereas the institution of the FGO has been almost unanimously accepted and supported, and after three years of the establishment of the institution, it was to be weakened, abolished.



9.3 Reflections on the FGO’s Proposals

The FGO received various reflections on the proposals concerning the new constitution and the transformation of the ombudsman system. The first argument of the critics was the arrangement of the “ombudsman overgrowth”, given that the role of the general commissioner would become less important and the ombudsmen could be confused with each other. The unitary ombudsman system was the second argument, since it is more acknowledged than those systems which encompass more than one ombudsman. The Parliamentary Commissioner for Civil Rights explained the third argument with the number of the finished cases. In his point of view the other three ombudsmen were not so overwhelmed, so it is not necessary to work simultaneously with independent ombudspersons. The FGO rejected the last argument, since the registering of the cases, the outcome of the investigations of the two commissioners in question were completely different. The reports of the Parliamentary

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Commissioner for Civil Rights were 6-8 pages long, while the FGO reports were put together in 30-40 pages based on field-surveys and consultations with the affected authorities.



9.4 The Commissioner at the Parliament’s Plenary Session

As the efforts of the FGO have not reached the desired goals, the Commissioner took the floor in the plenary session of Parliament. Mr Sándor Fülöp summarized the main points of the FGO’s proposal in the process of drafting the new constitution. The Commissioner underlined the importance of the separated, independent ombudsman system. The incorporation of the other ombudsman offices should terminate the co-ordinative positions of the ombudspersons, establishing a subordinate relation between the commissioners. This hierarchy could endanger the validation of the right to a healthy environment since this right would be represented by an “inferior commissioner”. This dependency could cause contradictory reports, not to mention the principle of non-retrogression.



10 Analysis of the Fundamental Law and its Comparison with the Former Constitution

The former Constitution referred to the right to a healthy environment in Article 18: “The Republic of Hungary recognizes and shall implement the individual’s right to a healthy environment.” Article 70/D completed this general provision with the protection of the environment and the right to the highest possible level of health. According to Article 70/D: “(1) Everyone living in the territory of the Republic of Hungary has the right to the highest possible level of physical and mental health. (2) The Republic of Hungary shall implement this right through institutions of labor safety and health care, through the organization of medical care and the opportunities for regular physical activity, as well as through the protection of the urban and natural environment.” The environmental provisions of the Fundamental Law can be divided into two parts: first, the new dispositions cover the whole structure of the State and the legal system by the protection of natural resources with regard to the interests of future generations; second, the Fundamental Law carries the properties of the classic conception of fundamental rights, referring to the right to a healthy environment. The Preamble (National Avowal) of the Fundamental Law refers to future generations, under the eighth indent: “We commit ourselves to cherishing and preserving our heritage, […] the natural and man-made riches of the Carpathian Basin. Bearing responsibility for our descendants, we shall protect the living conditions of future generations by making prudent use of our material, intel-

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lectual and natural resources”. Article P provides the protection of natural resources, illustrated with examples: “Natural resources, in particular agricultural land, forests and the reserves of water, biological diversity, in particular indigenous plant and animal species, as well as cultural assets shall form the nation’s common heritage; the State and every person shall be bound to protect, maintain and preserve them for future generations.” Financial aspects can be found in the chapter of Public finances, Article 38 (1) and establishes the balance between the present and the future generations’ needs, respect to the definition of sustainable development. “The property of the State and of local governments shall be national assets. The aim of the management and protection of national assets shall be to serve the public interest, to satisfy common needs and preserve natural resources, and to take into account the needs of future generations. The requirements for preserving and protecting national assets, as well as for the responsible management thereof, shall be laid down in a cardinal Act.” The Fundamental Law reinforces the right to a healthy environment by acknowledging it and defining the State’s responsibility of protecting the environment. The prohibition of GMO’s agricultural application fairly reflects the precautionary principle to avoid even the smallest risk of the results of GMO products. Under Article XX everyone shall have the right to physical and mental health. Hungary shall facilitate the enforcement of the right referred to in Paragraph (1) by ascertaining that the agricultural sector is free of all genetically modified organisms, by providing access to healthy foodstuffs and potable water, by the protection of occupational health, by health care institutions and medical care, by supporting sports and regular physical exercise, as well as by ensuring the protection of the man-made and natural environment. The polluter pays principle has been drawn up in Article XXI: “(1) Hungary shall recognize and implement the right of all to a healthy environment. (2) Any environmental damage shall as a priority be rectified at source in accordance with the relevant legislation and the principle that the polluter shall pay.” In the course of the application of these rights it must be borne in mind that the restriction of certain fundamental rights may only be executed taking into consideration the constant practice of the Constitutional Court, and the provisions of Article I (3): “The rules relating to fundamental rights and obligations shall be laid down in an act of Parliament. A fundamental right may only be restricted in order to enforce another fundamental right or to protect a constitutional value, to the extent that is absolutely necessary and proportionate to the objective pursued, and with respect to the essential content of the relevant fundamental right.” The incorporation of the right to a healthy environment and the rule of intergenerational equity attributes international dimension to the Fundamental Law in Article Q: “(1) In order to establish and maintain peace and security, and to ensure the sustainable development of humanity, Hungary shall endeavour to live in harmony with all the peoples and countries of the world.”

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The Fundamental Law has resumed the continuity of environmental law achievements of the last 20 years by establishing the basic institutions and the acknowledgement of the right to a healthy environment. The practice of the Constitutional Court and the elaborated principles thereof, including the classical principles of environmental law, has gained a constitutional level. Although the public participation is explained directly, it can be conducted from other fundamental rights. The Fundamental Law not only encompasses the former values and constitutional results, but it develops further principles and trends. The incorporation of the necessity and proportionality test practically means the acknowledgement of the non-retrogression principle. By mentioning several times the protection of the interests of future generations, emphasising the relevance of the common responsibility, describing the national assets and common heritage, prohibiting the agricultural use of GMOs, the Fundamental Law represents the sustainable development on a constitutional level.



10.1 The New Ombudsman Act and the Fundamental Law

The Fundamental Law provides the protection of the interests of future generations through the preservation of natural resources and the most important financial sources. A deputy commissioner, with independent legitimacy and competences, has been designated to deal with these issues. The enforcement of the improvements of the Fundamental Law on the field of environmental law is restricted by the termination of the independent functioning of the FGO. The incorporation of the former professional ombudspersons into the unitary system may endanger the free choice of future generations, the conservation of living conditions and the access to natural resources. These were the original ideas for the establishment of the post of the Parliamentary Commissioner for Future Generations. The right competences were at the Commissioner’s disposition, such as calling upon the persons or organizations to terminate the illegal activities endangering, polluting or damaging the environment. The Commissioner could issue a recommendation to an authority to perform the adequate action in connection with environmental protection, carry out an investigation as a supervisory action. He could participate in law suits as the amicus curiae, furthermore, had the competence to propose the suspension of the execution of a specific action. The Commissioner had to be consulted on long-term plans and concepts of local governments for development. The Commissioner could express an opinion on motions relating to the recognition of obligatory effect of international agreements with environmental protection or nature conservation subjects or affecting the common heritage and concerns of the mankind. The abrogation of these special competences could cause a dependant status, as the deputy commissioner would be subordinate to the actual commissioner for fundamental rights. The provisions of the new Ombudsman Act are likely to weaken the achieved level and the efficiency of environmental protection, opposed to the non-retro-

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gression principle. The establishment of the unitary ombudsman system would not have necessarily caused the complete abrogation of the independence of the investigation competence and structure of the FGO. The Fundamental Law emphasizes the role of sustainability, the values of future generations and the environment. These goals can be only achieved if the other laws and decrees of execution cover the dispositions of the Fundamental Law by the adequate competences, power and instruments. The FGO expounded in its Annual Report of 201136 a detailed analysis of the new Ombudsman Act. The FGO explained that the new Ombudsman Act is contradictory to the provisions of the Fundamental Law, it does not ensure the protection, the representation of the interests and the right to a healthy environment of future generations; therefore it jeopardizes the acquis of the Fundamental Law. These provisions infringe the principle of non-retrogression. This withdrawal could be avoidable in case of guaranteeing the deputy commissioner’s independence. The Commissioner explained that the abrogation of the special competences of the deputy commissioner may endanger the efficient operation of the FGO. The right of initiative does not equally ensure the former special competences: the right to estimate bills, plans, conceptions; the right to participate in law suits; the right to call on the person or organization illegally endangering the environment. The deputy commissioner responsible for the protection of the interests of future generations shall only monitor the enforcement of the interests of future generations instead of actively participating therein. The FGO deems that the abrogation of the independent post of the Parliamentary Commissioner for Future Generations is contradictory to the accepted dispositions of the Fundamental Law and the original will of the decision makers. Leaving unattended the representation of the interests of future generations may cause a significant loss of prestige on international level.

36

In English, see Evaluation of the State of Right to a Healthy Environment, in Hungarian, see http:// beszamolo2011.jno.hu/JNO_beszamolo_2011.pdf.

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Competences of the deputy commissioner

Ombudsman Act

New Ombudsman Act

The Parliamentary Commissioner for Future Generations could exercise the powers ensured for the ombudsman by this Act, with specific differences.

The Deputy Commissioner is not empowered with the competences the Parliamentary Commissioner for Future Generations had; these are reserved for the Commissioner for Fundamental Rights.

The Commissioner

The Deputy Commissioner

a) may call on the person or organization illegally endangering, polluting or damaging the environment to terminate this activity,

a) shall regularly inform the Commissioner for Fundamental Rights of his or her experience regarding the enforcement of the interests of future generations,

b) may call on the competent authority to take measures relating to the protection of environment,

b) shall draw the attention of the Commissioner for Fundamental Rights to the danger of infringement of the rights affecting a larger group of natural persons,

c) may issue general recommendations in his sphere of tasks or recommendations for certain organs, institutions, authorities or persons in individual cases,

c) may propose that the Commissioner for Fundamental Rights institute proceedings ex officio,

d) may initiate the conduct of supervisory proceedings against administrative resolutions relating to the conditions of the environment, and the suspension of execution thereof, and may participate in the suit as intervening party during its judicial review,

d) shall participate in the inquiries of the Commissioner for Fundamental Rights, and

e) shall express an opinion on the drafts of statutory instruments and other governmental motions connected with his tasks, and may make a proposal for legislation in his sphere of tasks,

e) may propose that the Commissioner for Fundamental Rights turn to the Constitutional Court.

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f) may familiarize himself with and express an opinion on the long-term plans and concepts of local governments for development, area settlement or those otherwise directly affecting the life quality of future generations, g) shall express an opinion on motions relating to the recognition of the obligatory effect of international agreements with environmental protection or nature conservation subjects or affecting the common heritage and concerns of the mankind, shall contribute to the preparation of national reports drafted on the basis of these international agreements; furthermore, he shall follow with attention and estimate the emergence of these agreements under Hungarian jurisdiction, h) shall participate in cases relating to his tasks in the elaboration of Hungarian standpoint represented in the institutions of the European Union operating with governmental participation, i) may participate in obligatory public hearings held on the basis of the provisions of the law which are connected to his sphere of tasks. Relation to the general ombudsman

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Definitely independent from the other ombudspersons. Special competences, autonomic rights to launch an investigation, participation in litigation procedures.

Subordinated to the Commissioner for Fundamental Rights. Competences related to reporting and proposing specific actions.

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11 Conclusions

The Commissioner was provided with adequate and effective competences to promote the interests of future generations. The competences and measures were explicitly defined in the Ombudsman Act which enabled authorities and organizations to comply with his statements and it was possible to measure the Commissioner’s direct impact. The Commissioner’s office proved to be successful based on annual reports. The Commissioner was also successful in the role of mediator between different branches of the government or decision-makers and NGOs. Sometimes it was enough that the Commissioner had announced the launch of his investigation to trigger the recognition of environmental protection interests. The most significant procedure in the field of public law was the beginning of drafting the Fundamental Law of Hungary at the end of 2011. The Commissioner considered particularly important the participation in this process. The priorities of FGO were the integration into the Fundamental Law of the protection of the interests of future generations; the sustainable development and the right to a healthy environment is an essential requirement. The Commissioner’s office had hosted an international conference with leading national and international lecturers to contribute to the drafting of the new constitution. The Commissioner’s office had prepared analyses and textual proposals based on an intense research. The right to a healthy environment ensures the protection of long-term interests, the natural basis of life versus the short-term aspects. The FGO’s standpoint was that this long-term vision could be ensured institutionally by the declaration of independence and autonomy of the ombudsman for future generations or of any other similar organisation. The right to a healthy environment is a particular fundamental right; it requires special tools, institutions, competences and expertise. In addition to that, the Commissioner offered to the attention of those who prepared the text of the new constitution that Hungary was a unique example of the institutionalized representation of future generations. The Fundamental Law of Hungary has entered into force from January 1st 2012. The Commissioner considers as a success that the new constitution has incorporated the protection of living conditions of future generations37 and the protection and sustainment of natural resources for future generations.38 The right to a healthy environment has been amended with the personal responsibility for the environment.39 At the same time, the Fundamental Law comprises changes related to the ombudsman system. 40 It redefined the structure of the ombudspersons establishing the post of the single Commissioner for Fundamental Rights. 37

Fundamental Law of Hungary, National avowal.

38

Article P of the Fundamental Law.

39

Article XXI of the Fundamental Law.

40

Article 30 of the Fundamental Law.

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Two deputy commissioners defend the interests of future generations and the rights of nationalities living in Hungary. Therefore, the Commissioner became a deputy commissioner in the integrated new structure of the ombudsman system. Mr Sándor Fülöp announced his resignation as the Parliamentary Commissioner for Future Generations from September 1st 2012. He explained the reason for his decision by the retrogression of the possibilities provided for the deputy commissioner in the new Ombudsman Act. The former commissioner presumed that the actual competences defined in the Act are not suitable to maintain the earlier achieved and significant level of the FGO. Mr Fülöp desired to draw the attention of the decline of the institutional framework of environmental law in Hungary. Parliament has elected Mr Marcel Szabó as the Deputy Commissioner for Fundamental Rights responsible for the protection of the interests of future generations in October 2012. Mr Szabó holds this post at the moment of finishing the current study. 41

41

31 July 2013.

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Public Participation in GMO Regulation Ágnes Kovács

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1 Global Effect1

The use of GMOs within the field of agriculture, with all its advantages and debated effects, is commonplace globally. Academics (science, law and economics) have diverging opinions as the number of unanswered questions relating to the cultivation and utilization of GMOs remains substantial. Key questions arise from the collision of economic interests with those of environmental or healthcare; the application of the principle of precaution2 in connection with the deliberate release of GMOs into the environment, the environmental risk assessment, the drafting of the rules of coexistence, the application of the principle of precaution in connection with the establishment of a security zone, the adequate protection of biological resources, the regulation of ethical issues, and the efficient application of the principle of social participation. Biotechnology has become the dominate technology in the agricultural environment globally, possessing the capacity to address issues related to food insecurity and low productivity. Developing countries therefore cannot afford to be left behind. Despite how beneficial biotechnology has been portrayed, the major task hinges on how to ensure that farmers in developing countries adopt it amid various controversies and perceptions surrounding its application. That’s why the regulation of genetic modification technology using the tools of law is crucial. The factors that make such regulation necessary can be grouped into four distinct groups. The initial group comprises the partially undetected long-term risks of genetic technology and its implications on the flora, fauna and human beings. This serves as a basis for the principle of precaution during the drafting of any regulatory framework. The need for regulation also derives from the fact that this area is affected by other areas regulated by the commercial (and competition) law. The fact that genetic technology interests have entered the political arena also makes the need for regulation indispensable. Last but not least, the global take up of the agricultural application of GMOs also underlines the need for regulation.

1

Directive 2001/18 defines the term genetically modified organism as an organism whose ‘genetic material has been changed in a way that does not occur under natural conditions through cross-breeding or natural recombination’ (Article 2). GM foods, on the other hand, are foods that are derived from or containing genetically modified ingredients or organisms.

2

In national and international context, the precautionary principle has become a legal mechanism for managing environmental risks in situations where scientific knowledge of a proposed activity or technology is incomplete or uncertain. The 1987 London Declaration on the Protection of the North Sea was the first international agreement that adopted the precautionary principle. Since then, the principle has been included in over 20 international agreements in a wide range of environmental issues like ozone protection, climate change, sustainable development and bio-safety.

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2 Principle of Public Participation

The principle of community participation in the establishment of a regulatory framework has been and is still today seeing a growing importance, specifically in the field of environmental law.3 Public participation is a political principle or practice, and may also be recognised as a right (right to public participation). The term public participation may be used interchangeably with the concept or practice of stakeholder engagement and/or popular participation. It is recognised that environmental problems cannot be solved by the government alone. 4 Participation in environmental decision-making effectively links the public to environmental governance. By involving the public, who are at the root of both causes of and solutions for environmental problems, in environmental discussions, transparency and accountability are more likely to be achieved, thus securing the democratic legitimacy of decision-making that good environmental governance depends on.5 Further, in the context of considerable scientific uncertainties surrounding environmental issues, public participation helps to counter such uncertainties and bridges the gap between scientificallydefined environmental problems and the experiences and values of stakeholders.6 Although broad agreements exist, the notion of public participation in environmental decision-making has been subject to a sustained critique concerning the real outcome of participatory environmental governance. Critics argue that public participation tends to focus on reaching a consensus between actors who share the same values and seek the same outcomes. However, the uncertain nature of many of the environmental issues would undermine the validity of public participation, given that in many cases the actors coming to the table of discussion hold very different perceptions of the problems and solutions, which are unlikely to be welded into a consensus due to the incommensurability of different positions. This may also run the risk of expert bias, which generates further exclusion as those who are antagonistic to the consensus would be marginalised in the environmental decision-making process, which violates the assumed advantage of a participatory approach to produce democratic environmental decisions. This raises the further question of whether consensus should be the measure of a successful outcome of participation.7 Participative democracy could not guarantee the substantive environmental benefits if there are competing views of what the environment should be like and for what it is valuable. Consequently, who should be involved at what points in the process of environmental decision-making and what is the goal of the participation become central to the debates on public participation. 3

Bándi, Gy. (2011), p. 60.

4 5

See Pring, G. and Noé, S.Y. (2002).

See Bulkeley, H. and Mol, A.P.J. (2003).

6 7

Fischer, F. (2000), p. 222.

See Owens, S. (2000), pp. 1141-8.

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The dynamics of public participation is also an omnipresent issue within the regulation of the use of GMOs. The public should have a strong voice, because it is the public as consumers who will eat GMOs, and there is evidence of widespread support for the view that regulation should impose at least a labelling obligation. It is generally accepted that consumers are not always convinced by the conclusions of government and industry scientists; and yet it is those government and industry scientists who have been accorded so prominent a role in the regulation of GMOs.8 But there are many possible meanings for ‘public participation’, and many possible purposes, from improving democracy to encouraging regulatory compliance.9 For example the Commission’s “European governance” project typified the turn to participation.10 The governance project was instigated in 2000, a self-conscious response to, bluntly put, the unpopularity both of the EU and of the Commission more specifically. The five “principles of good governance” established in this process were “openness, participation, accountability, effectiveness and coherence”.11 In practice, there are many forms of public participation. The Articles of the AAarhus Convention declare these in a formal manner, which is the most widespread. Accordingly, against this background, two aspects may be examined: first the extent to which the public has the ability at a formal level to contribute to the regulation of agricultural biotechnology; and secondly, the extent to which the public has exerted influence through less formal channels.12



3 Public Participation as Regulated by Law



3.1 Public Participation in International Law



3.1.1 Convention on Biological Diversity

On the international level, a leading role is played by the Cartagena Protocol to the Convention on Biological Diversity (2000). However, the question of public participation had already been addressed by the Convention on Biological Diversity itself (1992). Article 14 (1) a) stipulates that “as far as possible and as appropriate” the contracting parties were to “introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation such procedures”. The Convention defines that the 8

Bodiguel L. and Cardwell M. (2010), p. 12.

9

Lee, M. (2008), p. 7.

10

White Paper on European Governance, Communication on the Collection and Use of Expertise by the Comission: Priciples and Guidelines, White Paper on Reforming the Commission.

11

See White Paper on European Governance, Pring, G. and Noé, S.Y. (2002), p. 10.

12

Bodiguel L. and Cardwell M. (2010), p. 12.

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Contracting Parties shall promote and encourage understanding of the importance of and the measures required for the conservation of biological diversity, as well as its propagation through media, and the inclusion of these topics in educational programmes. They shall cooperate, as appropriate, with other States and international organizations in developing educational and public awareness programmes, with respect to conservation and sustainable use of biological diversity.13 Each contracting party, as far as possible and as appropriate, shall introduce appropriate procedures requiring environmental impact assessments of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures.14 They shall facilitate the exchange of information from all publicly available sources relevant to the conservation and sustainable use of biological diversity, taking into account the special needs of developing countries.15



3.1.2 Cartagena Protocol

The Cartagena Protocol on Biosafety seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology.16 To facilitate its implementation, the Protocol establishes a Biosafety Clearing-House for Parties to exchange information, and contains a number of important provisions, including capacity-building, a financial mechanism, compliance procedures, and requirements for public awareness and participation. Article 23 of the Protocol requires Parties, on their own and in cooperation with other states and international bodies, to promote and facilitate public awareness and education, including access to information, regarding the safe transfer, handling and use of (living) modified organisms. It also requires parties to consult the public in the decision-making process, to make public the final decision taken and to inform the public about the means of access to the Biosafety Clearing-House. “There would seem to be an obligation only to consult, not an obligation to feed the responses into the decision-making process; and the allowance made for national laws and regulations has apparently resulted in considerable variation, with information being accorded priority over participation.”17 13

Article 13. Public Education And Awareness.

14 15

Article 14. Impact Assessment And Minimizing Adverse Impacts.

Article 17. Exchange Of Information.

16

The Biosafety Protocol makes clear that products from new technologies must be based on the precautionary principle and allow developing nations to balance public health against economic benefits. It will for example let countries ban imports of a living modified organism if they feel there is not enough scientific evidence that the product is safe and requires exporters to label shipments containing genetically altered commodities such as corn or cotton.

17

Bodiguel, L. and Cardwell, M. (2010), p. 15.

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Public awareness, education and participation are fundamental elements for the effective implementation of the Protocol. It is important for the public to know and understand the issues and processes related to GMOs and to have access to relevant information in order to make informed choices and actions, and to be able to participate effectively in the decision-making processes. Likewise, public participation in the decision-making process is crucial for facilitating transparency and accountability, and strengthening public support for the decisions taken regarding GMOs.18 What has been done on awareness and participation? The COP-MOP in its decision BS-I/12 on the medium-term programme of work for the COP-MOP agreed to consider, at its second meeting, “options for cooperation between Parties, other States and relevant international bodies on the promotion and facilitation of public awareness, education and participation concerning the safe transfer, handling and use of living modified organisms”. At its second meeting,19 it encouraged countries to develop and implement national programmes, to make effective use of the media and to leverage opportunities for cooperation in the promotion of public awareness, education and participation concerning the safe transfer, handling and use of GMOs. It invited them to support subregional and regional initiatives and share, through the BCH,20 information, awareness materials and case studies about their ongoing initiatives. This issue will be considered again at MOP 5. At its fourth meeting, they considered an interim report on the status of implementation of Article 23, the experiences gained and the lessons learned and underscored the need for a cohesive and focused approach to public awareness, education and participation. In its decision BS-IV/17, the COP-MOP agreed to develop a programme of work on public awareness, education and participation concerning the safe transfer, handling and use of GMOs and invited Governments and relevant organizations to submit views on its possible elements. The Executive Secretary was requested to prepare a draft work programme, taking into account the submissions, for consideration at the fifth meeting. The COP-MOP also welcomed the new Outreach Strategy for the Cartagena Protocol on Biosafety (2008-2012) and requested the Executive Secretary to advance its implementation and report on the progress at the sixth meeting. At its fifth meeting, 21 it adopted a comprehensive programme of work on public awareness, education and participation concerning the safe transfer, handling and use of GMOs and invited governments and relevant organizations to implement it and share their experiences and lessons learned through the BCH. The programme includes the following 18

Biosafety Clearing House: See: What Has Been Done on Awareness and Participation.

19

The COP-MOP in Decision BS-II/13.

20

The Protocol established a Biosafety Clearing-House (BCH), in order to facilitate the exchange of scientific, technical, environmental and legal information on, and experience with, living modified organisms; and to assist Parties to implement the Protocol (Article 20 of the Protocol, SCBD 2000).

21

The COP-MOP in Decision BS-V/13.

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four elements: 1) capacity-building, 2) public awareness and education, 3) public access to information and 4) public participation.22



3.1.3 Aarhus Convention

In the formal category is the Aarhus Convention also, as ratified by the Community in 2005. It is coverage extends to environmental matters generally; the recitals expressly recognize “the concern of the public about the deliberate release of genetically modified organisms into the environment and the need for increased transparency and greater public participation in decisionmaking in this field”. “Further, all its three ‘pillars’ have the capacity to impact upon the regulation of GMOs; but it is the second which arguably provides the strongest lever for civil society, since generosity in terms of access to information and even in terms of access to justice would appear materially circumscribed if a restrictive approach is taken to participation in the decision-making process itself.”23 Under the second ‘pillar’ provision is made for public participation in respect of: first, decisions on specific environmental activities (Art. 6); secondly, plans, programmes and policies relating to the environment (Art. 7) and thirdly, the preparation of executive regulations and/or generally applicable legally binding normative instruments (Art. 8). “The scope of Article 8 would seem wide enough to engage participation rights when enacting Community or national legislation on GMOs.”24 Article 6bis requires that the Aarhus Convention “provide for early and effective information and public participation prior to making (such) decisions”. Further, the accompanying modalities stipulate that each party should “endeavour to ensure that, when decisions are taken on whether to permit the deliberate release of GMOs into the environment including placing on the market, due account is taken of the outcome of the public participation procedure. This would seem more restrictive than the Cartagena Protocol, but it must be recognized that the amendment is not yet in force.”25 A party has the opportunity, to provide for exceptions to the public participation procedure subject to certain conditions. “For example, in the case of a deliberate release of a GMO into the environment, where such a release under comparable bio-geographical conditions has already been approved by the party concerned and sufficient experience has previously been gained with the release of the GMO in comparable ecosystems.”26 The Aarhus Convention confers specific rights on environmental NGOs. For the purpose of access to justice (second ‘pillar’), NGOs promoting environmental protection and meeting requirements under national law are deemed to 22 23

Biosafety Clearing House: See: What Has Been Done on Awareness and Participation.

More on this: Bodiguel, L. and Cardwell, M. (2010), p. 15.

24 25

Ibid.

Ibid.

26

Ibid.

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have sufficient interests, and to have rights capable of being impaired, for the purposes of obtaining access to a review procedure before a court of law and/ or other independent and impartial body established by law. “An example of national rules would be the twin criteria applicable in France, requiring that the NGO has existed for three years and acts in the field of environmental protection.”27



3.1.4 Nagoya Protocol

The Nagoya Protocol on Access & Benefit Sharing (ABS) was adopted on 29 October 2010 in Nagoya, Japan. Its objective is the fair and equitable sharing of benefits arising from the utilization of genetic resources, thereby contributing to the conservation and sustainable use of biodiversity. It is a supplementary agreement to the Convention on Biological Diversity. It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources. Each party shall take measures to raise awareness of the importance of genetic resources and traditional knowledge associated with genetic resources, and related access and benefit-sharing issues.28 Leading up to the Conference of the Parties (COP 11) meeting on biodiversity in Hyderabad, India 2012, preparations for a World Wide Views on Biodiversity has begun, involving old and new partners and building on the experiences from the World Wide Views on Global Warming. On the whole, the national autonomy has been limited by signing these agreements and this might compromise the outcomes of an eventual national debate and public decision-making process on GMOs, leading to disillusionment with the consultation process. Before developing regulatory frameworks and approving GM products, development of a national biotechnology policy, based on public consensus and decision-making, should be the priority.29 27

Milieu Ltd, Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters.

28

Article 21 Awareness-raising. Such measures may include, inter alia: Promotion of this Protocol, including its objective; Organization of meetings of indigenous and local communities and relevant stakeholders; Establishment and maintenance of a help desk for indigenous and local communities and relevant stakeholders; Information dissemination through a national clearing-house; Promotion of voluntary codes of conduct, guidelines and best practices and/or standards in consultation with indigenous and local communities and relevant stakeholders; Promotion of, as appropriate, domestic, regional and international exchanges of experience; Education and training of users and providers of genetic resources and traditional knowledge associated with genetic resources about their access and benefit-sharing obligations; Involvement of indigenous and local communities and relevant stakeholders in the implementation of this Protocol; and Awareness-raising of community protocols and procedures of indigenous and local communities.”

29

Summary document of the FAO e-mail conference: “Public participation in decision-making regarding GMOs in developing countries: How to effectively involve rural people”. It ran from 17 January until 13

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After reviewing the Cartagena Protocol and the Aarhus Convention, it can be concluded that the obligation to efficiently involve the public can only be implemented to a certain degree. This obligation only extends to the holding of consultations and not to the processing of feedback received during the consultations into the regulation. While the Convention on Biological Diversity and the Aarhus Convention represent important initiatives by the United Nations, participation rights may also be found under the umbrella of other international bodies. The Organisation of Africa Union (AU) encourages states to harmonize their measures in accordance with the African Model Law on Safety in Biotechnlogy.



3.2 EU Legislation



3.2.1 Policy Making

Amid a wider debate over the European Union’s democratic deficit, ‘science and governance’ has attracted particular attention. Science and technology have become a special problem because they are routinely cited as an objective basis for policy. Through dominant models of science and technology, policy frameworks serve to promote and conceal socio-political agendas, while pre-empting debate on alternative futures. Technological-market imperatives are invoked to mandate a single path towards economic survival. Expert advice is implicitly equated with ‘science’, in turn invoked as if scientific knowledge were a value-neutral basis for regulatory decisions. This has led to a legitimacy crisis. As governments search for a remedy, the rhetoric of openness has been tagged onto the dominant models, rather than superseding them. Consequently, underlying tensions emerge within proposed reforms, as illustrated by the case of agricultural biotechnology. If the aim is to re-legitimise decision-making, it will be necessary to change the institutions responsible for promoting innovation and regulating risks, in particular their preconceptions of science, technology and public concerns.30 The EU’s policy for the drafting of the legal framework relating to genetic technology is influenced by the environmental, the agricultural and the food safety policies. Policies relating to consumer protection and healthcare also have an influence, albeit to a much lesser extent. The EU policy relating to the areas of genetic technology are partially underdeveloped. In 2002, the document “Life Sciences and Biotechnology – a Strategy for Europe” formulated the EU’s policy relating to GMOs.31 As a result, the EU supports continuous co-operation and consultations. In summary, it can be said that genetic engineering legislation February 2005, available at: http://www.fao.org/biotech/logs/C12/summary.htm. Accessed 7 December 2013. 30 31

Levidow, L. and Marris, C.

Accordingly, the results were summarized in the Committees report in 2004; nevertheless the following years brought uncertainty as to the policies relating genetic technology. It can be said that regulat-

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focuses on human health and the environment as legally protected endpoints. Recently, the coexistence of non-GM agriculture has joined this duo.32 As an antecedent, Directive 2001/18/EC33 introduces for the first time a mechanism for public consultation34 in the authorization procedure and defines the rules of consultation of and information to the public. Directive 2001/18 introduces provisions for public participation at both the national and supranational levels. With regards to the national level, Member States shall, without prejudice to the provisions of Articles 7 and 25, consult the public and, where appropriate, groups on the proposed deliberate release.35 In doing so, Member States shall lay down arrangements for this consultation, including a reasonable time-period, in order to give the public or groups the opportunity to express an opinion. Member States shall make available to the public information releases on GMOs in their territory. At the European level, it is the responsibility of the Commission to make all relevant information available to the public, except for those disclosures exempted to protect the intellectual property rights of applicants. Following the publication of relevant information on the proposal by the Commission, the public is given the opportunity to submit comments to the Commission within 30 days.36 In the same year, in 2001, in the wake of the participatory reform, the EU also acknowledged the importance of public input in the policy-making process and organised, following the strategies set by the European Council in the Lisbon Summit in 2000,37 for the first time a public consultation in the field of biotechnology. In March 2001, the European Council in Stockholm invited the Commission to examine and improve the European biotechnology sector with a particular emphasis on the health and safety issues, as well as the ethical values of the European public. The Commission then initiated a public consultation38 and also organised a Stakeholder Conference in 2001. If anything, both the outcomes of the public consultation and the Stakeholder Conference underlined ing the area of GMOs requires careful planning and drafting of actions and directives to address issues effectively. 32 33

Von Kries, C. and Winter, G. (2012), p. 569.

Directive 2001/18/EC.

34 35

Article 10.

Article 9.

36 37

Article 24.

In its Lisbon Summit in March 2000, the European Council set a new strategic goal for the EU to realise in the next decade: “to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion.”

38

The public consultation is entitled as ‘Towards a Strategic Vision of Life Sciences and Biotechnology’, held between 4 September and 23 November 2001. The Commission called for comments from citizens, consumers, NGOs and public authorities and industry representatives to contribute to the Commission’s efforts to establish the Union’s policy.

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the need to open up the public debate to a wider audience, to promote contributions from experts in various disciplines and to encourage a plurality of points of view and positions, including those of experts in ethical issues, NGOs, and those directly concerned, such as patients and disabled people. There were also calls for organising ongoing forums to discuss the issues. Based on the results of the consultation and the Stakeholder Conference, the Commission issued a policy paper entitled ‘Life Sciences and Biotechnology – Strategy for Europe’ in 2002. In this policy document, the Commission emphasized the need for good governance in regulating biotechnology and proposes that “societal dialogue and scrutiny should accompany and guide the development of life sciences and biotechnology”. While the Commission defines inclusive, comprehensive, wellinformed and structured dialogue as a prerequisite for a democratic society, these principles have not been transferred into the practice of regulating GM products, at least not so far.39



3.2.2 Directive 2001/1840

The effect of the adoption of the EU’s response to the debate over the safety assessment of GM foods in multi-level regulatory environment was to establish a new institution, the European Food Safety Authority (EFSA), responsible for risk assessment and communication on food safety issues. There is no doubt that the establishment of the EFSA has important implications for the institutional balance in the multilevel system with regards to the authorization of GM foods. The autonomy granted to the national competent authorities within the authorisation process by Regulation 258/97 is slowly being eroded and is being replaced by a centralised system, in which the EFSA has become the overarching authority in assessing risks posed by GM foods. 41 Tools of the Public for Democratic Control of the EFSA’s activities are written submissions to the Commission on the EFSA’s report within 30 days of its publication, control by the EFSA Management Board and the GMO Panel and administrative review of the EFSA’s activities. In the case of the first tool, the form of and the time limit for public input is problematic. In the Management Board no representation of consumer associations and/or NGOs dealing with environment or animal welfare exists. By administrative review individuals are included in the administrative review process, but not public interest groups. 42

39

Kesim H.K. and Ayirtman, S.

40 41

Directive 2001/18/EC.

Kesim H.K. and Ayirtman, S.

42

More on this Kesim H.K. and Ayirtman, S.

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3.2.3 Regulation 1829/200343

Regulation 1829/2003 lays down in their preamble, that in accordance with Article 153 of the Treaty, the Community is to contribute to promoting the right of consumers to information. In addition to other types of information to the public provided for in this Regulation, the labelling of products enables the consumer to make an informed choice and facilitates fairness of transactions between seller and purchaser. 44 The application for authorisation, supplementary information from the applicant, opinions from the competent authorities designated in accordance with Article 4 of Directive 2001/18/EC, monitoring reports and information from the authorisation holder, excluding confidential information, shall be made accessible to the public. Member States shall handle applications for access to documents received under this regulation in accordance with Article 5 of Regulation (EC) No. 1049/2001. 45



3.3 Legislation at National Level

On the national level there would seem to be considerable variation in the degree to which public participation is accommodated within the legislative process. “In the United States, such participation is largely confined to comment within a regulatory framework where federal agencies shoulder the greatest responsibilities. To take one example, where a petition is lodged for determination that GM crop should receive unregulated status under the Plant Protection Act 2000, the Animal and Plant Health Inspection Service must file notice of the petition in the Federal Register, inviting public comment. By contrast, in the United Kingdom there has been extensive consultation.”46 Despite these initiatives, the effect of formal public participation would seem to be blunted by a combination of the following factors. First, not all the measures which have been considered are prescriptive in nature. For example, while AU encourages states to harmonize their measures in accordance with the African Model Law on Safety in Biotechnology, there is no binding obligation so such a requirement is effectively excluded. 47 More generally, “doubts have been raised as to the effectiveness of any such consultation procedure. For example, it may be reiterated that the Cartagena Protocol does not expressly require that responses from the public be fed into the decision-making process.”48 Thirdly, a potential weakness in regulatory frameworks is the heavy financial cost of challenging non-compliance with environmental measures. “This 43

Regulation (EC) No 1829/2003.

44 45

Preamble (7).

Article 29 Public access.

46 47

More on this: Bodiguel L. and Cardwell M. (2010), p. 18.

Ibid, p. 19.

48

Bodiguel L. and Cardwell M. (2010).

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weakness would, nevertheless, seem to be recognized by Aarhus Convention, with Article 9 (4) providing that review procedures should not be “prohibitively expensive”; and several national regimes would appear vulnerable (not least, when the ‘loser-pays’ principle applies).”49 Thus, the UK Report ‘Ensuring Access to Environmental Justice in England and Wales’ stated that “the current principles concerning costs and potential compliance with the requirements of Aarchus concerning to environmental justice”; and the same view has been taken by the Court of Appeal in R (Burkett) v London Borough of Hammersmith and Fulham, where Brooke LJ declared that if the figures revealed by this case were in any sense typical of the costs reasonably incurred in litigating such cases up to the highest level, very serious questions would be raised as to the possibility of ever living up the Aarchus ideals within our present legal system. In a specific context of GMOs, such cost implications were thrown into sharp relief by the recent decision of the Saskatchewan Court of Appeal in Hoffman and Beaudoin v Monsanto Canada and Bayer Cropscience Inc.50 Fourthly, public participation is inevitably dependent on access to information, yet in many regimes such access is substantially limited for reasons of confidentiality. The Aarhus Convention does not cover the procedures with public authorities, as these are regulated by national law.



4 Informal Public Participation

Two ways may be considered in which wider civil society would yet appear to have shaped the development of GM crops,51 the first being consumer preferences and the second being public protests.



4.1 The Role of NGO’s

At the same time it is praiseworthy that NGOs are granted special rights by the EU legislation and the Aarhus Convention. NGOs, since they are an integral part of the legislation, have the goal of environmental protection while, at the same time, national laws do not limit these institutions as they do not represent any interest of the inferior situation. This is not only the case in the case of consultation during a deliberate release of GMOs, but also during the prevention of environmental damages and reconstruction thereof as well as in the achievement of the goals of the directive of environmental liability. Unfortunately, actions cannot be taken retroactively in the case of GMOs. The definition of environmental damages is not adequate for GMOs, because GMOs do not have environmental status. 49 50 51

Ibid, p. 21.

Ibid, p. 19.

More on this Bodiguel L. and Cardwell M. (2010) p. 22.

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4.2 Public Protest

In this part of our essay we wouldn’t like to recite the public protests that occurred all over the world against GMOs since the 1970s onward. Demonstrations have been held mainly against the use of GMOs. We would like to show only one (a global extensive) case in a million, which case can highlight every feature of the public protests against using GMOs. This case clearly reflects the society’s interest and willingness to express their opinion. Millions of activists around the world have rallied against Monsanto, the biotechnology giant for genetically engineering agriculture and food while suppressing negative scientific research. Organized by the ‘March Against Monsanto’ movement, on May 25, 2013, an estimated two million took part in the massive event spanning six continents, 52 nations, and at least 48 US states.52 Initially a small, grassroots event, the march became a globe-spanning movement through the efforts of local activists and environmentalists. The protests are still being organized on Facebook and Google Documents, where users can find a list of events near their location. The organizers of the May 25 rally called for labeling of GM foods and further scientific research on the health effects of GMOs. They also urged supporters to vote with their dollar by buying only organic products and boycotting Monsanto-owned companies. Besides that, they urged a repeal of the so-called Monsanto Protection Act. In March, Congress passed a biotech rider dubbed the ‘Monsanto Protection Act’ that effectively allows Monsanto and other companies that use GMOs to plant and sell genetically altered products even if legal action is taken against them. Up until it was signed, the USDA [US Department of Agriculture] oversaw and approved (or denied) the testing of genetically modified seeds, while the federal courts retained the authority to halt the testing or sale of these plants if it felt that the public health was being jeopardized. With HR 933 now a law, however, the court system no longer has the right to step in and protect the consumer. But according to Food & Water Watch, the relationship between Monsanto and the government extends beyond Congress and the Supreme Court.53 The consumer rights group the Food and Water Watch disseminated a report highlighting how “the State Department strategy sought to foist pro-biotech policies on foreign governments.” The report describes a four-prong approach: promote 52

In Europe: in Germany, the Netherlands, the UK, Ireland, France, Malta, in Brisbane and Melbourne in Australia and across Japan and South Africa in the western part of the globe – in North and South America – are also gearing up for the global march.

53

In a statement accompanying a health report, Food & Water Watch wrote that communications uncovered by WikiLeaks detailed how “the US State Department lobbies foreign governments to adopt proagricultural biotechnology policies and laws, operates a rigorous public relations campaign to improve the image of biotechnology and challenges commonsense biotechnology safeguards and rules– including opposing genetically engineered (GE) food labeling laws.”

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biotech business interests; lobby foreign governments to weaken biotech rules; protect US biotech exports and press developing world to adopt biotech crops.54 In their ongoing struggle to reach a wider audience through the mainstream media, anti-GMO activists have outlined a number of solutions and goals for which they are advocating, including the “labelling of GMOs so that consumers can make those informed decisions easier,” “further scientific research on the health effects of GMOs,” and, perhaps most importantly, “taking to the streets to show the world and Monsanto that we won’t take these injustices quietly.” The case also demonstrates the political and economic concentration. It is much more difficult for NGOs to communicate their position as well as influence affect the decision-making process or lastly the regulation.



5 Summary – Negative Effects on Public Participation

The elements that negatively affect the principle of societal participation are grouped in three categories: • First of all, not all actions related to gene technological activities are also rules, which could be debated; • Second, there are doubts as to the efficiency of public consultations. The review of a given state’s regulatory framework in connection with genetic technology does not reveal the nature of societal participation in that state. The best system for participation is worthless if the public does not exercise its right to participate; • Third, public participation is directly linked to the level of access to information; in many regulatory systems, the access to information is limited due to confidentiality (for example, business confidentiality) reasons. It can be argued that court rulings in connection with GMOs nowadays do not only consider the economic damages caused, but also include environmental and health protection issues as well as the rights of consumers that are being violated. It can be argued that the protection of consumers is partially provided for by law relating to monitoring and labelling (from the cradle-to-the-grave principle). Exceptions to the obligation of labelling set the burden of proof on the producer, who needs to prove that he took all necessary steps to avoid contamination by GMOs. We note that it would be practical to implement a regulation, whereby the producer has the obligation to label the presence of GMOs in case there is a minimum amount in the product. This would be in compliance with the principle of precaution and furthermore secure the right of choice on the consumer level. 54

With the protest approaching, organizers have accused Monsanto of going on the offensive and wrote on the event’s Facebook page that the mass rallies had not been cancelled, debunking a false rumor they accused Monsanto sympathizers of spreading.

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We share the views of those scientists and scholars who believe that the principle of precaution should be kept in mind at all times during the drafting of any legislation, even if the dangers and detrimental effects cannot be fully excluded.

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Public Participation in Waste Legislation of the EU Szilvia Szilágyi

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public participation in waste legislation of the eu

1 Foreword

Public participation includes the information rights of citizens, their rights to participate in the relevant decision making as well as the right of legal remedy in the relevant proceedings. Public participation in the wasterelated decision making has countless aspects and the topic can be approached from multiple directions. Why is public participation in waste related issues so important and why does the European and national legislators pay particular attention to those rights of members of the public (individuals and their associations)? At the outset I only want to highlight one aspect of this question: waste, as defined by the WFD1 Article 3(1) as ‘any substance or object which the holder discards or intends or is required to discard’, represents a huge loss of limited natural resources in the form of both materials and energy; in addition, the management and disposal of waste may have serious environmental impacts. Incineration results in emissions of dangerous air pollutants into the air even though there are detailed and rigorous regulations, while landfills uses precious and limited natural resources and may cause soil, water and air pollution.2 The aim of the relevant waste management policy and legislation both at the level of the European Union and at the level of the Member States therefore is to reduce the environmental and health impacts of waste and improve resource efficiency. The long-term aim of these policies is to reduce the amount of waste generated and when waste generation cannot be avoided, to promote it as a resource and achieve higher levels of recycling and the safe disposal of waste. And this cannot be realized without the contribution of the members of the public; without adequate information and the participation of the citizens and their groups. The Aarhus Convention3 acknowledges and enforces these rights. The provisions of the Aarhus Convention shall be applied on information regarding waste as well;4 consequently waste-related regulations of the EU are subject to the provisions of the Aarhus Convention without any further reference in the respective legislation itself. However, additionally we can find specific provisions in each of the respective waste-related regulations and directives, which further specify these partici1

Directive 2008/98/EC. (WFD).

2 3

See Waste Statistics.

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the city of Aarhus (Århus). It entered into force on 30 October 2001. The Decision on conclusion of the Aarhus Convention by the EC was adopted on 17 February 2005 [Council Decision 2005/370/EC]. The EC is a Party to the Convention since May 2005. Most of the Member States of the EU are also Parties to the Convention.

4

Based on Article 2 (1) b) factors, such as waste, including radioactive waste, are covered by the definition of ‘environmental information’ and are subject to the provisions of the Convention.

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patory rights and establish definite rules, characteristic on the nature of the given framework legislation or waste treatment operation itself. In the following, I will summarize the main aspects of the European legislation on waste from the point of view of public participation with a special attention to the relevant case law of the Court of Justice of the European Communities.



2 The EU’s Thematic Strategy on the Prevention and Recycling of Waste5

In 2005 the European Commission published its Communication on the Thematic Strategy on the prevention and recycling of waste, which is one of the seven thematic strategies6 programmed by the 6th Environmental Action Plan (EAP).7 The thematic strategy highlights that, although there are remarkable steps in the Member States towards an effective European waste management system, and substantive progress has been made in the last 30 years, waste volumes continue to grow. Legislation is, in some cases, poorly implemented and there are significant differences between national approaches. The potential for waste prevention and recycling is not yet fully tapped. The emerging knowledge about the environmental impact of resource use is not yet fully reflected in waste policy. The Strategy builds on existing legislation and extensive stakeholder consultation, and identifies full and effective implementation by Member States as a condition for making progress towards the goals set in the thematic strategy. The combination of measures emphasized by the thematic strategy builds on the following measures:8 • A renewed emphasis on full implementation of existing legislation; • Simplification and modernisation of existing legislation where experience has shown that this is necessary to reduce administrative burden while maintaining the level of environmental protection, in line with the objectives of better regulation; • Introduction of life-cycle thinking into waste policy; • Promotion of more ambitious waste prevention policies by clarifying Member States’ obligations to develop publicly available waste prevention programmes; 5

Communication from the Commission “Taking Sustainable Use of Resources Forward”.

6

The 6th EAP introduced the concept of Thematic Strategies, to be developed by the Commission by the third year of operation of the 6th EAP. The thematic strategies cover the following fields: air, waste prevention and recycling, marine Environment, soil, pesticides, natural resources and urban environment. For more information on the thematic strategies see: http://ec.europa.eu/environment/newprg/ archives/strategies_en.htm.

7

Decision No 1600/2002/EC.

8

Communication from the Commission “Taking Sustainable Use of Resources Forward”, point 4.

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• Better knowledge and information which will underpin the continued development of waste prevention policy; • Development of common reference standards for recycling; • Further elaboration of the EU’s recycling policy. The measures listed above involve such changes, which hardly can be realized without the effective participation of the public. Within this framework anticipated by the thematic strategy, the detailed framework and specific regulations specify how this involvement, participation and exchange of information shall be realized.



3 Framework Legislation on Waste and Waste Treatment Operations

Within the framework legislation, the WFD, the waste shipment legislation9 and in respect of the waste treatment operations, the incineration Directive of the EU has to be mentioned. Other directives, like the Landfill Directive,10 do not contain any special provisions regarding public participation. In the following, only those waste-related legislative acts will be mentioned and analysed, which contain any remarkable provisions on public participation and access to information.



3.1 Shipment of Waste

As regards shipment of waste, Regulation No 1013/2006 refers to the provisions of the Aarhus Convention and stipulates, that: “Member States should be required to ensure that, in accordance with the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (Aarhus Convention), the relevant competent authorities make publicly available by appropriate means information on notifications of shipments, where such information is not confidential under national or Community legislation”.11

Article 21 of the Regulation No 1013/2006 specifies public access to notifications and requires that the competent authorities of dispatch or destination may make publicly available by appropriate means, such as the Internet, information on notifications of shipments they have consented to, where such information is not confidential under national or Community legislation. 9

Regulation No 1013/2006.

10 11

Council Directive 1999/31/EC.

Paragraph (23) of the preamble.

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Thus, summarizing the special requirements of Regulation No 1013/2006 concerning public participation, it has to be highlighted that, as a general rule, notifications of waste shipments shall be made publicly available (without any special request). It should be noted that, as it was mentioned above, the environmental information falling under the provisions of the Aarhus Convention is nevertheless public and is subject to the provisions of the Convention.



3.2 Waste Incineration

The Waste Incineration Directive12(WID) entered into force on 28 December 2000. It repealed former directives on the incineration of hazardous waste13 and household waste14 and replaced them with a single text. The aim of the WID Directive is to prevent or to reduce as far as possible negative effects on the environment caused by the incineration and co-incineration of waste. In particular, it aims to reduce pollution caused by emissions into the air, soil, surface water and groundwater, and thus lessen the risks of waste incineration to human health and the environment.15 The WID has special provisions16 aiming to ensure access to information and public participation under the scope17 of the directive. The public shall have access to information with a view to allowing it to be involved in decisions to be taken following applications for new permits and their subsequent updates. Additionally, the public shall have access to reports on the functioning and monitoring of the plants burning more than three tonnes per hour in order to be informed of their potential effects on the environment and human health: • Applications for new permits for incineration and co-incineration plants shall be made available at one or more locations accessible to the public. • These applications shall be made available for an appropriate period to enable it to comment on them before the competent authority reaches a decision. • That decision, including at least a copy of the permit, and any subsequent updates, shall also be made available to the public. • For incineration or co-incineration plants with a nominal capacity of two tonnes or more per hour, an annual report to be provided by the operator to the competent authority on the functioning and monitoring of the plant shall be made available to the public.18 12 13

Directive 2000/76/EC (WID).

Council Directive 94/67/EC.

14 15

Council Directives 89/369/EEC and 89/429/EEC.

See The Waste Incineration Directive: Summary of Directive 2000/76/EC.

16 17

Article 12 of Directive 2000/76 (WID).

The scope of the Directive covers incineration and co-incineration plants. Plants excluded from the scope of the Directive are listed at Article 2 point 2 of the WID.

18

This report shall, as a minimum requirement, give an account of the running of the process and the emissions into air and water compared with the emission standards in the WID.

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• A list of incineration or co-incineration plants with a nominal capacity of less than two tonnes per hour shall be drawn up by the competent authority and shall be made also available to the public.



3.3 The Waste Framework Directive

The revised Waste Framework Directive19 (Directive) was adopted by the Council on 20 December 2008, and published in the Official Journal of the European Union on 22 November 2008. It entered into force on 12 December 2008. The deadline for transposition of the revised Waste Framework Directive into the national legislation of the Member States passed on 12 December 2010. The Directive establishes the legal framework for the treatment of waste within the EU. It lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use.20 One of the main measures of the WFD is the requirement that the competent authorities must establish one or more management plans to cover the whole territory of the Member State concerned. These plans contain, notably, the type, quantity and source of waste, existing collection systems and location criteria.21 Prevention programmes must also be drawn up, with a view to breaking the link between economic growth and the environmental impacts associated with the generation of waste. These programmes are to be communicated by Member States to the European Commission.22 With a special attention to public participation, the WFD highlights23 that Member States should ensure that relevant stakeholders and authorities and the general public have the opportunity to participate in the elaboration of the waste management plans and waste prevention programmes. Further, they must have access to them once elaborated, in accordance with Directive 2003/35/ EC24 or, if relevant, Directive 2001/42/EC25 of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. It is an obligation of the Member States to ensure that those plans and programmes are placed on a publicly available website. 19

Directive 2008/98/EC.

20 21

Article 1 of the WFD.

Article 28 of the WFD.

22 23

Article 29 of the WFD.

Article 31 of the WFD.

24 25

Directive 2003/35/EC.

Directive 2001/42/EC.

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Directive 2003/35 is one of the special directives,26 which aimed to transpose the requirements of the Aarhus Convention into the legal framework of the EU. Directive 2003/35 shall be applied on the one hand in those cases where an SEA is required for the preparation of a plan or programme. On the other hand, the Directive shall be applied to the authorization procedure of those activities which fall under the scope of the Environmental Impact Assessment (EIA) or the Integrated Pollution Prevention and Control (IPPC) regime of the EU. Directive 2003/35 ensures the following rights to members of public:27 • the public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures; • the public shall be entitled to express comments and opinions when all options are open before the decision is taken; • reasonable time-frames for the different phases of public participation shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making. Assessing the requirements of the WFD regarding public participation, the WFD includes provisions regarding the participation of the public in the elaboration of the waste management plans and waste prevention programmes. Public participation in these planning procedures must be ensured by the Member States and that members of the pubic have access to these planning documents.



4 Directives on Waste Streams

Some of the special directives on different waste streams also have additional requirements on access to information and public participation.



4.1 Batteries28

Provided that the objectives set out in the Directive are achieved, Member States may transpose the provisions set out in Articles 8 (regarding collection schemes), 15 (regarding export of waste batteries and accumulators) and 20 (information for end-users) by means of agreements between the competent authorities and economic operators concerned. Such agreements shall meet the following requirements:29 • they shall be enforceable, 26

In 2003 two Directives concerning the first and second “pillars” of the Aarhus Convention were adopted; they were to be implemented in the national law of the EU Member States by 14 February and 25 June 2005 respectively: Directive 2003/4/EC and Directive 2003/35/EC.

27

See Public Participation in Waste Management Related Decision-Making, p. 4.

28

Directive 2006/66/EC.

29

Article 27 of Directive 2006/66.

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• they must specify objectives with the corresponding deadlines, • the competent authorities shall ensure that the progress achieved under the agreement is examined; • they must be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission. The results achieved must be monitored regularly, and reported to the competent authorities and the Commission, and made available to the public under the conditions set out in the agreement. In cases of non-compliance with the agreements, Member States shall implement the relevant provisions of this Directive by legislative, regulatory or administrative measures. So, in case certain provisions of the Directive 2006/66 are implemented by means of agreements between the competent authorities and economic operators concerned, these agreements shall be made available for the public, similarly to the results achieved in the framework of such agreements.



4.2 Waste of Electrical and Electronic Equipments30

The WEEE Directive contains similar provisions as Directive 2006/66, regarding the publication of voluntary agreements concluded within the framework of the Directive. Based on Article 24 of the WEEE Directive, provided that the objectives set out in the Directive are achieved, Member States may transpose the provisions set out in Article 8(6),31 Article 14(2) (information for users of electrical and electronic equipment in private households) and Article 15 (information for treatment facilities) by means of agreements between the competent authorities and the economic sectors concerned. Such agreements shall meet the following requirements: • agreements shall be enforceable; • shall specify objectives with the corresponding deadlines; • shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission; • the results achieved shall be monitored regularly, reported to the competent authorities and the Commission and made available to the public under the conditions set out in the agreement; • the competent authorities shall ensure that the progress achieved under the agreement is examined; • in the case of non-compliance with the agreement, Member States must 30 31

WEEE Directive.

Article 8 (6) of WEEE Directive: “Member States shall encourage establishments or undertakings which carry out treatment operations to introduce certified environmental management systems in accordance with Regulation (EC) No 1221/2009 of the European Parliament and of the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS).”

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implement the relevant provisions of this Directive by legislative, regulatory or administrative measures.



4.3 End of Life Vehicles (ELV)32

Article 10 of the ELV Directive contains a similar regime to the WEEE Directive and Directive 2006/66. Provided that the objectives set out in the Directive are achieved, Member States may transpose the provisions set out in Articles 4(1) (encouragement of prevention measures), 5(1) (collection measures), 7(1) (reuse and recovery measures), 8(1), 8(3) (coding standards/dismantling information) and 9(2) (reporting and information) and specify the detailed rules of implementation of Article 5(4)33 by means of agreements between the competent authorities and the economic sectors concerned. Such agreements shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission and the results achieved under an agreement shall be monitored regularly, reported to the competent authorities and to the Commission and made available to the public under the conditions set out in the agreement. Consequently, the requirements of public participation and information shall also be applied to those voluntary agreements which aim is to implement the requirements of the ELV Directive and the subsequent national legislation. In other words: such agreements are public by the regulations of the Directive itself and it is not possible to restrict the publicity of these agreements referring to business secrets or to the limited publicity of private contracts for example.



4.4 Mining Waste34

Waste from extractive operations (i.e. waste from extraction and processing of mineral resources) is one of the largest waste streams in the EU. Due to the waste statistics published by Eurostat the two activities that generate the highest level of waste streams across the EU-27 are construction, mining

32 33

Directive 2000/53/EC (ELV Directive).

Article 5(4) of the ELV Directive: “Member States shall take the necessary measures to ensure that the delivery of the vehicle to an authorised treatment facility in accordance with paragraph 3 occurs without any cost for the last holder and/or owner as a result of the vehicle’s having no or a negative market value. Member States shall take the necessary measures to ensure that producers meet all, or a significant part of, the costs of the implementation of this measure and/or take back end-of life vehicles under the same conditions as referred to in the first subparagraph. Member States may provide that the delivery of end-of life vehicles is not fully free of charge if the end-of life vehicle does not contain the essential components of a vehicle, in particular the engine and the coachwork, or contains waste which has been added to the end-of life vehicle.”

34

Directive 2006/21/EC (Mining Waste Directive).

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and quarrying; a third of all waste generated in the EU-27 came from the construction sector, a quarter from mining and quarrying in 2010.35 The mining waste directive lays down minimum requirements in order to prevent or reduce any adverse effects on the environment or on human health which are brought about as a result of the management of waste from the extractive industries.36 It covers the management of waste from land-based extractive industries; the waste arising from the prospecting, extraction (including the pre‐ production development stage), treatment and storage of mineral resources and from the working of quarries. The mining waste directive connects the specific regulations on information and public participation to the different stages of the project development (like the application of the waste management permit) and to the different measures relating to public safety (like accident prevention). Article 6 of the mining waste directive contains the provisions on majoraccident prevention and information. According to these provisions, before the start of operations, operators are obliged to draw up a major-accident prevention policy for the management of extractive waste and put into effect a safety management system implementing it. As a counterpart of these provisions, the competent authority shall draw up an external emergency plan specifying the measures to be taken off-site in the event of an accident.37 These emergency plans have the following objectives:38 • to contain and control major accidents and other incidents so as to minimise their effects, and in particular to limit damage to human health and the environment; • to implement the measures necessary to protect human health and the environment from the effects of major accidents and other incidents; • to communicate the necessary information to the public and to the relevant services or authorities in the area and • to provide for the rehabilitation, restoration and clean-up of the environment following a major accident. The public concerned shall be given early and effective opportunities to participate in the preparation or review of the external emergency plan; to that end, the public concerned shall be informed about any such proposal and relevant information shall be made available, including, inter alia, information about the right to participate in the decision-making process and about the competent authority to which comments and questions may be submitted. It is the obligation of the Member States to ensure that the public concerned is entitled to express comments within reasonable time frames and that, in 35

See Environmental Statistics and Accounts in Europe, pp. 15-16.

36 37

Paragraph 4 of the preamble of the Mining Waste Directive.

Article 6 point 3 of the Mining Waste Directive.

38

Article 6 point 4 of the Mining Waste Directive.

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the decision on the external emergency plan, due account is taken of these comments.39 Information on safety measures and on the action required in the event of an accident, containing at least the elements listed in Section 2 of Annex I40 of the mining waste directive, shall be provided free of charge, and as a matter of course, to the public concerned. 41 Article 8 of the mining waste directive stipulates the detailed measures of public participation and lists all of the information which has to be communicated towards members of the public. This information ranges from the application for a permit to the exact content of the final decision. The information shall be provided at an early stage of the authorization process, at the latest, as soon as the information can reasonably be provided. The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken and the results of the consultations shall be duly taken into account by the competent authorities in taking the final decision of authorization. When a decision has been taken the competent authority shall inform the public concerned and shall make available to the public concerned the relevant information on the content of the decision, including a copy of the permit as well as the reasons and considerations on which the decision was based. It is the obligation of the Member States to enable the public concerned to prepare and participate effectively, 42 however, what the term ‘effective’ exactly means shall be interpreted in line with the practice of the Court of Justice of the European Communities43 and the Aarhus Compliance Committee. 44 As regards the transboundary effects of projects under the scope of the mining waste directive, 45 Member States shall ensure in the framework of bilat39

Article 6 point 5 of the Mining Waste Directive.

40

Annex I of the Mining Waste Directive lists the elements of the major-accident prevention policy and information to be communicated to the public concerned; section 1 of Annex I lists the elements of the major-accident prevention policy while section 2 lists information to be communicated to the public concerned from the name of the operator to the necessary actions to be taken by the public in the event of a major accident.

41

Article 6 point 6 of the Mining Waste Directive.

42 43

Article 8 point 7 of the Mining Waste Directive.

For example: Judgment in Case C-416/10 Jozef Križan and Others v Slovenská inšpekcia životného prostredia.

44

For example: ACCC/C/16 (Lithuania); ECE/MP.PP/2008/5/Add.6, 4 April 2008, para. 67, ACCC/C/2007/22 (France), ECE/MP.PP/C.1/2009/4/Add.1, para. 41, ACCC/C/2008/24 (Spain); ECE/ MP.PP/C.1/2009/8/Add.1, 30 September 2010, para. 92. In: Case Law of the Aarhus Convention Compliance Committee 2004-2011. A. Andrusevych, T. Alge, C. Konrad (eds). European ECO Forum, Oekobuero, Resource & Analysis Center “Society and Environment”, European Environmental Bureau, 2011.

45

Article 16.

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eral relations that in cases where the operation of a Category A waste facility46 is likely to have significant adverse effects on the environment of, and any resultant risks to human health in, another Member State, the applications are also made available for an appropriate period of time to the public concerned of the Member State likely to be affected so that they will have the right to comment on them before the competent authority reaches its decision. Every year Member States shall transmit to the Commission information on events likely to affect the stability of the waste facility and any significant adverse environmental effects revealed by the control and monitoring procedures of the waste detected during the operation or following the closure of the waste treatment facility, notified by the operators47according to the provisions of Article 11 (3) and 12 (6). Member States shall in their turn make this information available to members of the public concerned on request. Article 20 of the mining waste directive further requires that the establishment of an inventory of closed waste facilities by the Member States, including abandoned waste facilities located on their territory which cause serious negative environmental impacts or have the potential of becoming in the medium or short term a serious threat to human health or the environment, is drawn up and periodically updated. Such an inventory, to be made available to the public, shall have been carried out by 1 May 2012.



4.5 Packaging Waste48

The packaging directive covers all packaging placed on the market in the Community and all packaging waste, whether it is used or released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used. It pursues the objective of the harmonizing of national measures concerning the management of packaging and packaging waste in order to prevent or reduce any impact from packaging on environment of all Member States as well as of third countries. To realize the objectives of the directive, it creates a system of measures from marking and identification requirements to systems for the return and/or collection of used packaging. Based on Article 7 of the packaging directive, Member States shall take the necessary measures to ensure that systems are set up to provide for the return and collection of used packaging and/or packaging waste from the consumer, other final user, or from the waste stream in order to channel it to the most appropriate waste management alternatives, as well as systems to realize the 46

Annex III of the Mining Waste Directive defines the criteria for determining the classification of waste facilities, and category A includes those waste facilities, where a failure in the operation could give rise to a major accident either by the size, the location and the environmental impact of the waste facility or by the nature of waste treated.

47

Article 18 point 2 of the Mining Waste Directive.

48

Packaging Directive.

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reuse or recovery including recycling of the packaging and/or packaging waste collected. Similarly to Directive 2006/66 and to the WEEE directive, Member States may transpose these provisions by means of agreements between the competent authorities and the economic sectors concerned. 49 Such agreements shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission and the results achieved under an agreement shall be monitored regularly, reported to the competent authorities and to the Commission and made available to the public under the conditions set out in the agreement.



5 Case Law or the Court of Justice of the European Union

From the practice of the Court of Justice, I would like to highlight two special cases regarding waste-related decisions in the Member States and the interpretation of the legal framework of public participation.



5.1 Case C-416/1050

An antecedent of the case is that the regional urban planning service of Bratislava (Slovakia) adopted an urban planning decision concerning the establishment of a waste landfill site (receiving more than 10 tonnes of waste per day or with a total capacity exceeding 25,000 tonnes of waste) in a trench used for the extraction of earth for use in brick-making, called ‘Nová jama’ (new trench). The relevant national environment inspectorate initiated an authorisation procedure. Residents of the town of Pezinok requested publication of the urban planning decision of regional urban planning service of Bratislava, which authorised the construction and operation of the landfill site without having first published the decision in question. In the context of the administrative procedure at the second instance, the appellants in the main proceedings relied, inter alia, on the error in law which, they submit, consisted of the integrated procedure being initiated without the urban planning decision on the location of the landfill site being available, then, after that decision had been submitted, without publication thereof, on the alleged ground that it constituted confidential commercial information. Following an appeal brought through administrative channels, the environmental protection body at second instance confirmed that decision, after having published the urban planning decision. 49 50

Article 22 (3a) of the Packaging Directive.

Jozef Križan and Others v Slovenská inšpekcia životného prostredia. Request for a preliminary ruling under Article 267 TFEU from the Najvyšší súd Slovenskej republiky (Slovakia).

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The concerned parties then brought an action before the Slovak courts and the Supreme Court of the Slovak Republic has requested the Court of Justice in a preliminary ruling procedure for the interpretation of the public’s right to participate in procedures for the authorisation of projects having significant effects on the environment. In its ruling the Court of Justice highlighted first of all that the relevant landfill site falls under the scope of the IPPC legislation51 of the EU. Secondly, the Court of Justice stated that Directive 96/61 must be interpreted as meaning that it:52 • requires that the public concerned have access to an urban planning decision, such as that at issue in the main proceedings, from the beginning of the authorisation procedure for the installation concerned; • does not allow the competent national authorities to refuse the public concerned access to such a decision by relying on the protection of the confidentiality of commercial or industrial information where such confidentiality is provided for by national or European Union law to protect a legitimate economic interest; and • does not preclude the possibility of rectifying, during the administrative procedure at second instance, an unjustified refusal to make available to the public concerned an urban planning decision, such as that at issue in the main proceedings, during the administrative procedure at first instance, provided that all options and solutions remain possible and that rectification at that stage of the procedure still allows the public to influence effectively the outcome of the decision-making process. The question of injunctive relief also arose in the case. In this regard the national court raised the question whether Articles 1 and 15a of Directive 96/61, read in conjunction with Articles 6 and 9 of the Aarhus Convention, must be interpreted as meaning that members of the public concerned must be able, in the context of an action under Article 15a of that directive, to ask the court or the competent independent and impartial body established by law to order interim measures of a nature temporarily to suspend the application of a permit within the meaning of Article 4 of that directive pending the final decision. According to the answer of the Court of Justice, Article 15a of Directive 96/61 must be interpreted as meaning that members of the public concerned must be able, in the context of the action provided for by that provision, to ask the court or competent independent and impartial body established by law to order interim measures such as temporarily to suspend the application of a permit, within the meaning of Article 4 of that directive, pending the final decision. Finally, the referring court asked, whether a decision of a national court, taken in the context of national proceedings implementing the obligations resulting from Article 15a of Directive 96/61 and from Article 9(2) and (4) of 51

Council Directive 96/61/EC.

52

Point 91 of Case C-416/10 Jozef Križan, and others v Slovenská inšpekcia životného prostredia.

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the Aarhus Convention, which annuls a permit granted in infringement of the provisions of that directive, is capable of constituting an unjustified interference with the developer’s right to property enshrined in Article 17 of the Charter of Fundamental Rights of the European Union. As the Court of Justice pointed out, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed.53 Established case law shows that protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the use of the right to property54 and Directive 96/61 operates a balance between the requirements of that right and the requirements linked to protection of the environment.



5.2 Case C-255/0555

The proceeding was brought under Article 226 EC by the European Commission and alleging failures on the part of the Italian Republic to subject a ‘third line’ of an incinerator belonging to ASM Brescia SpA to an environmental impact assessment under the EIA Directive.56 First of all the Court of Justice established that, by not making the project to implement the third incinerator line subject to the environmental impact assessment procedure provided for in Articles 5 to 10 of Directive 85/337 before consent was given for its construction, the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of that directive. Secondly, the Court of Justice examined the circumstances under which the national law excluded the application for a permit to operate the third incinerator line available for an appropriate period at one or more locations accessible to the public to enable it to comment on the application before the competent authority reached a decision and by not making the decision on that application, including a copy of the permit, available to the public. Due to the facts of the case, the third incinerator line was the subject, under the simplified procedure established by the relevant national legislation, of a declaration in respect of the commencement of operations dated 24 July 2003. That declaration was followed by two decisions taken by the competent provin53

Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, para. 355, and Joined Cases C-379/08 and C-380/08 ERG and Others, para. 80.

54

Case 240/83 ADBHU, paragraph 13; Case 302/86 Commission v Denmark, para. 8; Case C-213/96 Outokumpu, para. 32; and Joined Cases C-379/08 and C-380/08 ERG and Others, para. 81.

55

Judgment of the Court (Second Chamber) of 5 July 2007. Case C-255/05 Commission v Republic of Italy.

56

Directive 85/337/EEC as amended by Directive 97/11/EC.

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cial authorities, a prohibition against commencing of 21 October 2003 and then an authorisation of 19 December 2003. As the Court of Justice pointed out, it was apparent from Article 12(1) of Directive 2000/76 that applications for new permits have to be made available at locations accessible to the public for an appropriate period to enable it to comment on them before the competent authority reaches a decision. That decision including at least a copy of the permit and the subsequent updates also have to be made available to the public. The purpose of that provision, as is apparent in particular from the 31st recital in the preamble to Directive 2000/76, is to ensure the transparency of the process by allowing the public to be involved in decisions to be taken following applications for the grant of authorisations. Therefore, according to the interpretation of the Court of Justice the concept of ‘application for a new permit’ must be given a meaning which fully satisfies the objective pursued by Article 12(1) of Directive 2000/76. Accordingly, that term must be construed broadly as covering any procedure comparable to a procedure for granting permits or authorisation. The declaration in respect of the commencement of operations to which the third incinerator line gave rise must, having regard to its characteristics and in particular to the role allotted to the provincial authorities, be equated with an application for a new permit for the purposes of Directive 2000/76. As such, that declaration should have been made available at one or more locations accessible to the public, for a period which would have enabled the public to make comments to the competent provincial authorities before the expiry of the 90-day period which is given to those authorities to check whether the necessary legal conditions for recovery to be carried out are met. It is common ground that, in disregard of the provisions of Article 12(1) of Directive 2000/76, the declaration in question was not publicised. Moreover, the decisions taken by the province concerned as regards the third incinerator line, namely the prohibition against commencing and the authorisation, were not, contrary to the requirements of Article 12(1) of Directive 2000/76, made available to the public either. In view of the above, the Court of Justice concluded that, by not making the declaration in respect of the commencement of the operations of the third incinerator line available at one or more locations accessible to the public for an appropriate period, to enable the public to comment on it before the competent authority reached a decision, and by not making the decisions relating to that declaration, including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil its obligations under Article 12(1) of Directive 2000/76.

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6 Summary

The concept of public participation in waste-related issues is a very important area of environmental decision making. Members of the public, like individuals and non-governmental NGOs, might play an important role either in the planning and programming level or in the permitting process of waste facilities. They can provide valuable information to the relevant decision makers, give insight into those aspects of the procedures (like locating the infrastructure, possible consequences on human health or the environment) which might have a decisive role in the decision making. On the other side, practical examples show that when there is an opportunity for people to interact, share and debate ideas, they have the ability to change their views and to contribute to better decision-making and mutual understanding.57 Within the legislation of the European Union we have to make a difference between the planning and programming level and the project level related regulation. Consequently, from the context of public participation, it is not the same if the case is about a decision for example on a regional or local waste management plan or on the authorization of a given waste management facility. Also it has to be considered, that the legislation ranges from the sphere of international conventions like the Aarhus Convention (as the most general level) via the level of directives on public participation in the environmental decision making (like Directive 2003/4/EC and Directive 2003/35/EC) to the scope of framework legislation and legislation on specific waste-streams. Regarding those projects, which fall under the scope of environmental impact assessment58 or integrated pollution prevention and control59 legislation, the detailed rules of these directives and the relevant national legislation shall also be applied. All the above described rules can be applied parallel to each other, depending on the given decision and the current level of decision-making. This ensures, or more precisely, creates a greater chance towards effective public participation.

57

Vasconcelos, L., Marques, M. J. and Martinho, G. Proceedings Sardinia 2005, Tenth International Waste Management and Landfill Symposium. Margherita di Pula, Cagliari, Italy; 3 – 7 October 2005. CISA, Environmental Sanitary Engineering Centre, Italy, 2005, pp. 2-3.

58

Directive 2011/92/EU.

59

Directive 2008/1/EC.

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Public Participation in European Energy Utilization András Lovas

chapter 17



public participation in european energy utilization

1 Introduction

Hollywood superstar Matt Damon held a very plastic conversation about public participation with his counterpart John Krasinski, who represented an environmental interest group’s activist in their movie from 2012, called Promised Land.1 Damon played a good willed and naive salesman of an unconventional shale gas company and, during his speech with the environmentalist, briefed him aggressively about the power and capability of his 9 billion dollar valued company in order to get the needed land leasing contracts with the American farmers of a promised shale gas exploiting area. During the movie, the activist informed and empowered the local farmers to participate publically and used billboards of dead cows to propagate the dangers of the new mining technique, fracking. The twist of the whole movie was at the end, when it became clear for Damon and the public that the billboards were knowingly false and the fictive environmental interest group was secretly paid by the gas company itself. The entire conspiracy of the pseudo-activist and the company was aimed at the lack of credibility of public participation and environmental protection. Public participation is a common international law principle and is based on the right of those who may be affected to have a say in the determination of their environmental future.2 Almost all forms of public participation can be viewed in the mentioned film, such as local elections, grass roots action, lobbying, public speaking, public hearings, and other forms of governance. Public participation is also often called social participation or citizen involvement and it became one of the sole fundamentals of environmental issues of democratic political systems in the past decades.3 The basics of public participation are well researched by different scientific methods and the legal aspects of this phenomenon in the energy sector are detailed, described by such comprehensive studies as the research project of the International Bar Association’s Section on Energy and Resources Law. 4 Public participation has different aspects and different impacts on environmental issues, but without question, it has gained as one of the main influences in energy related topics. This article investigates the mechanisms and impacts of public participation law in the special fields of European energy utilization.



2 Public Participation Trends in Energy Issues

Public participation and sustainable development become lucrative and supplementary concepts during the last decade of the 20th century, 1

Gus Van Sant (directed): Promised Land, 2012.

2 3

Shelton, D. and Kiss, A. (2007), p. 103.

See further Hays, S. (2000), p. 194.

4

After the 3 year of an in depth analysis the following book was published: Zillman, D.N. et al. (eds.) (2002).

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as the current energy utilization methods caused climate change and reached the world’s societies attention.5 According to Braun, in climate change, problem one and one of the main challenges is to encourage society to act collectively to protect the environment by reducing greenhouse gasses.6 Therefore public participation is crucial in order to minimize greenhouse gas emissions in all development plans, programs and projects which are initiated by multilateral agencies, governments or the private sector companies. This new and strong social behaviour, which was empowered with biding international legal agreements such as the Aarhus Convention from 1998, has resulted in fundamental changes to and challenges in the energy utilization sector. There is a strong multiplication effect of this problem and the rapid transformation of energy systems. Resource depletion, rising extraction costs of fossil fuels, the strong commitment of primer energy importing countries for more energy independence and security, and furthermore the growing awareness of energy’s impact on the climate have resulted in a fundamental shift in energy policy debates and actions. The new energy paradigm is slowly becoming the green energy and efficiency paradigm and the decentralized energy generation.7 However, this shift involves a new concept, the integration of energy in society. The new techniques – and not only the renewable technologies (!) – are psychically becoming part of the society. They are characterized by greater resource availability, small scale, next to the backyard location, and more land use requisite. The windmills in Denmark, the solar parks in Spain, the biogas plants in Germany and so on have become part of the countries landscape and are often sugarcoated in service providers’ advertisements. However the rapid renewable penetration and the strengthening of the energy security by new native technologies like shale gas extraction in Poland, CO2 storage in the Netherlands, or high voltage transmission lines for offshore wind parks all over northern Europe are much more controversial. These novelties entail local, national or EU wide public participation actions. As a result, the energy utilization is no longer a separate system from the society, and it is even not a more faraway problem of some indigenous people living next to huge oil and gas fields in exotic countries. In any kind of new energy investment the society and local people are truly involved. They are all interested in the energy story and they become stakeholders in energy projects. These new stakeholders are directly and formally involved in projects of local authorities, service providers, technology developers, or they are indirectly involved and affected by the projects, i.e. neighbours, media, NGOs, or the general public.8 5

To be more precise public participation is a fundamental part of the sustainable development process as emphasized at the Rio Conference in 1992. Sustainable development can only be achieved through the involvement of all stakeholders.

6 7

Braun, R. (2010), p. 778.

Droege, P. (2009), p. 15.

8

Feenstra, Y. (2013), p. 4.

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These socio-economic trends has been strongly affecting the law making processes and the public participation movement is more and more strengthened by effective European wide legal regimes. The key momentum in this process was the European Council Decision 2005/370/EC. At the end of the so-called “Aarhus package”, the EU become part of the Aarhus Convention, and EU law was harmonized with the characteristic rules of the Convention.9 The application of the three pillar rules of the Convention has different effects on different energy segments but one statement is everywhere true: the Convention’s rules influence heavily the way and the perspective of the use of the given energy source on the given location.10 For a more detailed picture, four different energy utilization forms will be shortly examined from a public participation perspective.



2.1 Nuclear Energy

Since the very beginning of the use of nuclear power, this technology has been a very controversial one. The social acceptance of nuclear power varies highly in time and by country, it is dependent on the grade of acceptance and thus, the public participation question can be very different. However, the thesis of Golay about the triad of major factors, which govern whether nuclear power can be accepted socially, cannot be affordable.11 Golay differentiates about the technology itself, the organizations using the technology and the degree of trust gained in those who are involved in using the technology. The question of trust is truly one of the main factors. Although, firstly, not just the technological users of nuclear energy should be satisfied with the socially useful utilization of nuclear power plants, but the majority of ordinary people, who are using the electricity coming from nuclear power plants (NPP), should be as well. The best way to gain the civil societies’ sympathy is to provide them with public participation possibilities. In the new concept of nuclear governance of the Directorate General Energy of EU Commission, exactly this new element can be seen, as the EU wants to facilitate a more transparent and, for public involvement, more open European nuclear industry..12 The non-binding recommendations of the European Nuclear Energy Forum about the good practices on information, communication, participation and decision-making to governments and to stakeholders in the nuclear debate could be very useful tools. However their EU wide voluntary following is very questionable recently. Leastwise the Hungarian actions about the planned new NPP in Paks show a more complicated picture. The 77/2011. (X.14) Parliament Decision about the 9

See further Pánovics, A. (2010), p. 94, and OJ L 124 (17 May 2005), p. 1.

10

The three pillars are access to information, public participation in decision making and access to justice in environmental matters, see further Makuch, K.E. (2012), p. 510.

11

Golay, M.W. (2001), p. 2.

12

See DG Commission’s Initiative European Nuclear Energy Forum and the Recommendations of Working Group Transparency.

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Hungarian Energy Strategy 2030 contains the building of the so-called Paks 2 NPP, which will be a new NPP next to the existing Paks NPP. The project is recently in a preparatory phase, whereas the project developer and the operator of the running Paks NPP, the state owned MVM company is working on the official start of the project. The 25/2009 (IV.02.) Parliament Decision gave the principal consent to this preparation work for the possible new NPP. This decision was based on the so-called Teller project and its final study which was performed by the MVM during 2007-2009. There was a strong information deficit about the project developer side during this process, because the entire documentation of this project was secretly qualified and more years of litigation initiated by NGOs resulted in the public access to relevant information. The legally binding judgment of the Tolna County Court in 2011 didn’t change the operator’s attitude to its public information obligation and the Teller’s follow-up project, the so-called Lévai project was qualified newly secret. The Hungarian Supreme Court with his judgment on the 28.11.2012 verified the previous court practice and obliged the MVM for the publication of the Lévai project’s documentations.13 The state owned company’s attitude is strongly reconcilable with the 1194/2012. (VI.18.) Government Decision, where according to article 15. point b), it should try to inform objective, continuous and to the widest possible extent the native and international general opinion about the developing and permitting process of the new NPP. Although the implementation of the mentioned Government Decision is in a one year delay and there is no public information about the completion of the forecasted unified government information strategy about the new NPP, there were in parallel some little positive steps for a wider public participation in the process. The Regional Environmental Center, an international NGO, was the organizer of the so-called Aarhus and the Nuclear Roundtable of Hungary in 2010, where all of the relevant stakeholders (government, authorities, ombudsman, project developers, NGOs, academic experts, etc.) were represented.14 This initiative would have represented a good practice of the second pillar of the Aarhus regime, however the roundtable held only two meetings and after 2011, the roundtable was not joined together. The direct and formalized public participation in this project development phase could not be qualified as an effective tool, and the Hungarian civil and green society will certainly use other forms of participation in this matter. It can be summarized according to the Hungarian case that a nuclear power plant developer and a national government which wants to extend the country’s nuclear power capacity could not abandon the Aarhus Convention pillars. If the access to information factor does not work on a voluntary basis, then the access 13

Energiaklub (2012).

14

Presentation of Bálint Dobi about the Aarhus Roundtable according to Paks 2 NPP (Presentation: Important Stakeholder Interactions in 1 and Phase 2 of the Nuclear Power Programme in Hungary) and Joint Project Group (2011), p. 10.

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to justice pillar along with rules grounding litigation proceedings will help the civil society use their public participation rights.



2.2 Renewable Energy

The Projectnoproject, an initiative of the US Chamber of Commerce, estimated the potential economic impact of permitting challenges facing proposed energy projects in USA in 2011.15 The study assessed the broad range of energy projects – renewable, coal, nuclear, transmission, but not oil and gas drilling projects – that are being stalled, stopped, or eliminated nationwide due to “Not In My Back Yard” (NIMBY) activism and/or a broken permit process. According to the key findings, the assessed 351 project would generate $577 billion in direct investment, calculated in current dollars. The indirect and induced effects would generate an approximate $1.1 trillion increase in the US GDP.16 Naturally, the Chamber of Commerce represents only an economic point of view, and therefore they do not hesitate to shuffle the renewable and non-renewable projects to find heavy economic arguments against the so-called overall nimbyism. They listed in this research 140 renewable projects – mainly wind and biomass – which have been blocked by local protests. From this data, they conclude that clean energy projects are hitting the same roadblocks as gas, oil, nuclear and coal projects.17 However, this conclusion is very oversimplified, and according to the basic theoretical thesis from Wüstenhagen et al, the social acceptance of renewable energy innovation is a three dimensional issue.18 Firstly, socio-political acceptance by regulators, political actors, and the general public is needed to establish institutional changes and effective policy measures to foster market and community acceptance. Secondly, market acceptance by producers, distributors, financial actors and consumers is crucial to invest in new clean infrastructure and renewable energy generation. After the two before mentioned steps, the community acceptance by local government, permitting authorities and residents is needed. The actual project development should be based on trust, distributional justice and fairness of process. This complex methodology is contrary to the NIMBY concept. This means according to Bell et al, there is a confusing social gap between a high level of public support of renewable energy and frequent local hostility towards specific project proposals.19 Others, like Devine-Wright also criticized this concept and revealed the complexity of the public responses and stressed the importance of public participation, arguing that a lack of meaningful and timely opportunity to have a say in the decision-making can contribute to public scepticism, mistrust and opposition.20 As Casperson and Ram settled: “Everywhere the call is out for 15

US Chamber of Commerce (2011).

16 17

Ibid., p. 2.

US Chamber of Commerce (2011), pp. 5-6.

18

Wüstenhagen, R. et al. (2007).

19

Bell, D. (2005).

20

See further Devine-Wright, P. (2011), p. xxiii.

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‘stakeholder’ involvement as a means for improving public acceptance and developmental decisions, particularly those involving complex technology, uncertain risks, and conflicting values.”21 This stakeholder involvement or public participation is especially needed in an area of the intensive, used renewable energy technology, where the new energy policy concepts are the smart grid and the distributed generation. Today’s energy trend is the distributed generation, which means smaller, numerous geographically dispersed power generation units on the basic renewable energy sources, situated close to energy consumers. These units will be in connection via the smart grid, which is a network of integrated micro grids that monitors and heals itself. Wolsink defines this new challenge as the next phase of social acceptance in renewable energy innovation.22 From his point of view the key factor will be the question of space and of the siting of infrastructure facilities, and particularly who has the control over the infrastructure and over decision-making about siting them. However, not only these sides of social acceptance and participation should be seen during the summary of using renewable energy. The ongoing case T-168/13 (EPAW v Commission) before the Court of Justice of the European Union shows that the topics of the NIMBY effect, social acceptance and public participation rights secured by the Aarhus Convention could be intermixed in one legal proceeding.23 Article 15 of the Aarhus Convention established the Compliance Committee, which is an ordinary convention body. This committee is entitled to make individual decisions about compliance of the parties with the Aarhus Convention. Since the European Union is also a party of the Aarhus Convention, the Compliance Committee adopted the findings and recommendations with regard to communication ACCC/C/2010/54 concerning compliance by the European Union in 2012.24 In this decision the committee defined the non-compliance of the EU with the Aarhus Convention rules, whereas the “adoption of NREAPs by its member States on the basis of Directive 2009/28/EC has failed to comply with article 7 of the Convention.”25 This means that the adoption of the 27 National Renewable Energy Action Plan of the Member States was not in compliance with the public participation rules of the Aarhus Convention. The finding of this international body strengthens the anti-renewable NGO’s attacking position, which initiated a claim in March 2013 against the recent renewable energy friendly policy of the EU Commission. The European Platform Against Windfarms (EPAW) is an Ireland based NGO, which has 625 member NGOs from 25 EU member states, and it wants to achieve a declaration of a moratorium on the approval of new wind farm projects all over the EU.26 The EPAW 21

Kasperson, R.E. and Ram, B.J. (2013), p. 23.

22 23

Wolsink, M. (2013), p. 12.

Case T-168/13 EPAW v Commission, see the Application of EPAW under http://curia.europa.eu/juris/ document/document.jsf?text=&docid=139886&pageIndex=0&doclang=EN&mode=req&dir=&occ=first &part=1&cid=155116 (accessed 02 November 2013).

24 25

ECE/MP.PP/C.1/2012/12.

Ibid., p. 16.

26

See www.epaw.org.

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initiated the T-168/13 court proceeding and pursuant Art. 264 of the Treaty on Functioning the European Union requested the General Court to declare null and void the EU Commission Communication: “Renewable Energy: a major player in the European energy market.”27 This Communication is effectively the EU Renewable Energy Strategy document for 2020, and it wants to accelerate heavily the penetration of new renewable – among the wind – projects. In the EPAW’s understanding, the Communication is unlawful as it infringes the Aarhus Convention as approved by the European Council Decision 2005/370/ EC. The main argument of the applicant is that the Communication is based on the NREAPs findings and therefore as the NREAPs are not accepted in accordance with the EU legal framework on the environment – including the Aarhus regulation, decided by the Compliance Committee – the Communication itself breaches the Aarhus Convention. The coming court decision would be a fundamental of case law of the ECJ on energy and public participation matters. It can be although concluded right now, that after this kind of legal action, the NIMBY concept should be treated as a misleading theory and the European renewable energy community should be faced with not only local participation actions, but the social acceptance at the subnational level could be attacked via the existing public participation rules too.



2.3 Carbon Capture and Storage and Unconventional Natural Gas

The word mining in a wider sense means extraction of valuable minerals or other geological materials and other resources such as petroleum, natural gas, or even water from the earth. The whole mining industry – the hydrocarbon and the mineral miners too – is linked heavily to the public participation rights by its activity affected local communities and peoples. The sustainable development phenomena of the last 20 years affected deeply the mining activities all over the world, and as a part of it, the public participation rights gained an extraordinary influence. A unique research project, called the Mining, Minerals and Sustainable Development evaluated the global mineral mining industry from an environmental point of view 10 years ago.28 It marked the key issues – among them local communities and mines – where the common positive actions of all stakeholders were urgently needed. Although as Buxton summarized in his 10-year project follow-up publication: “the community involvement overall cannot be considered an area of achievement, and remains one of the biggest challenges for minerals and sustainable development.”29 In this overall context it should be interesting to examine the status and aspects of public participation of the two youngest “mining” techniques in 27

See Renewable Energy: a Major Player in the European Energy Market.

28

See Mining, Minerals and Sustainable Development (MMSD), the MMSD special site of the International Institute for Environment and Development.

29

Buxton, A. (2012), p. 18.

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Europe, particularly the CO2 underground storage and the unconventional natural gas extraction.30 Both technologies are in the pre-industrial deployment phase in Europe, however first demonstration projects are already ongoing in some EU member states. From the perspective of the traditional fossil energy industry and the EU Commission, CCS can significantly reduce the emission of CO2 into the atmosphere and is one of a number of crucial technologies for combating climate change.31 There is a consensus in the EU that the future deployment of the CCS as a large-scale green energy key technology is mainly hanging on the questions of the next few years’ development.32 However, the direction of this development is influenced by three main factors: technological improvement, financial aspects, and public participation. As the importance of the last mentioned factor is evident to the pro-CCS community, the different aspects of this topic are well researched thanks to such comprehensive compilations such as Desbarates’s study.33 Fundamentally the issue of public participation in accordance with CCS has a dual nature, whereas the stakeholder’s involvement is crucial by the regulation framework development and by the ongoing demonstration project development. The 2009/31/EC Directive as the basic legal regulation according to CCS in the EU is very young and controversial legal act.34 Its transposition to national law has often been delayed due to public participation actions during law making processes in some EU countries – such as Germany, Czech Republic – therefore public engagement is the key topic of CCS development in these specific member states.35 In this early stage of deployment, it is obvious that public opinion is more inquisitive. The anti-CCS movements are seeing a proper moment to block through public participatory actions the adoption of a CCS friendly national regulatory framework. The other side of the coin is that in some EU member states, before the solidification of the regulation, the practical implementation of the technology already have started. So the European Carbon Capture and Storage Demonstration Project Network contains 7 ongoing CCS projects in 7 different member states.36 These projects had different project starts and development status, 30

To be technically precise the CO2 underground storage pillar of the carbon capture and storage (CCS) technology is not an ordinary mining technique. In this case, the CO2 flows are not extracted from the ground, but they are injected from the surface to the underground storage site. The whole technology process is largely similar to natural gas storage technology, which is a common technology of the hydrocarbon mining industry.

31

Situation Report, p. 7.

32 33

On the Future of Carbon Capture and Storage in Europe, p. 22.

Desbarats, J. (2010).

34 35

See further Lovas, A. (2012), p. 46.

See detailed information about regulatory challenges of CCS in Germany and Czech Republic in International Energy Agency (2012), pp. 14-15.

36

See Situation Report, pp. 17-23. From these projects only the in 1996 commenced Norwegian Sleipner project is in operation.

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but all of them have more than 3-year preparatory periods behind them. These projects already have good and bad practices according to public participation, stakeholder engagement, and public communication, and the evaluation of their results are summarized in the Situation Report.37 Besides these projects, the CCS project case from the Netherlands is well researched, where the so-called Barendrecht project of the company Shell was cancelled after 4 years of preparation due to public participation and opposition movement of the local community.38 As Brunsting and Dijkstra summarize, the navigation on the minefield of stakeholder participation would have been more successful in this case also, when the stakeholder participation had left all main parties satisfied with the process through establishing a flavour of trust.39 The importance of trust according to CCS is well known from the European legislators’ side too. Therefore the 2009/31/EC Directive itself has contents special to the CCS technology related public participation and trust strengthening provisions. Article 26 specifies that member states must make publicly available environmental information relating to the geological storage of CO2 in accordance with applicable community legislation. The factor of trust is also on the top of the development agenda of unconventional natural gas (shale gas) utilization in Europe. 40 The shale gas technology due to the intensity and scale of the operations is typically requiring the use of high volume hydraulic fracturing combined with horizontal drilling. Therefore it is a much more complex technology than the conventional gas exploration. Hence the extraction of shale gas has significant risk potential to the environment and to local people; before the EU-wide commercial deployment of this new hydrocarbon mining technology a heavy public debate is occurring.. 41 The European regulatory framework was recently researched by Milieu Ltd, however there are some member states – such as Poland, UK, and Netherlands, – where the practical use of the technology has already begun. 42 According to the findings of Milieu Ltd. Member States rely mainly on the general mining and environmental legislation transposing the EU legislation and related permitting procedures to regulate such activities, as they do for conventional gas extraction. Very few countries have adopted specific requirements dedicated to shale gas practices, although there are on-going reviews, which cause at present legal 37

Situation Report, pp. 56-60, where the Report enhance the overall positive status of public participation according to project development.

38

Brunsting, A. and Dijkstra, S. (2013), pp. 14-15., and Communication, Project Planning and Management for Carbon Capture and Storage Projects: An International Comparison, pp. 30-65 (Csiro (2010)).

39

Brunsting, A. and Dijkstra, S. (2013), p. 15.

40

Unconventional natural gas means more types of natural gas, like shale gas, tight gas and coal bed methane. For simplification, hereinafter the terminology of shale gas will be used.

41

See further the environmental impacts of shale gas at Shale Gas: a Provisional Assessment of Climate Change and Environmental Impacts.

42

Regulatory Provisions Governing Key Aspects of Unconventional Gas Extraction in Selected Member States.

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uncertainties in the existing Member States legislation. 43 The application of the general public participation rules like the EIA Directive and SEA Directive is uncertain too, whereas it is not entirely clear to competent authorities whether shale gas activities such as exploration or exploitation always fall under the scope of the national requirements transposing these Directives. 44 This unpleasant situation just has been detected by the European legislators, and the European Parliament (EP) proposed an amendment during the ongoing reconsideration of the EIA Directive. According to the EP, a new proposal on the exploration and hydraulic fracturing extraction activities for non-conventional hydrocarbons should be subject to the environmental impact assessment, regardless of the amount to be extracted. 45 So far as this new regulation will come into effect, it would represent a substantial shift towards a more environmental and participatory friendly European regulatory framework of shale gas utilization.



3 Conclusion

There is no information about the existence of such a comprehensive economic study on the impacts of the participation actions according to new energy projects, neither on such an interesting movie in Europe as the mentioned American examples. However the issues discussed in this paper do not leave any query, that all kind of energy utilization forms – be it renewable or traditional, brand new or established, climate friendly or CO2 emitter – are heavily affected by the public participation phenomena in Europe. In this regard the similarity is obvious to the USA. The legal framework for public participation relating to energy issues is already pretty effective in Europe, and it could play much more in the heavyweight league, if the illustrated ongoing legislative (see the Amendment of EIA Directive) and judicative (see the T-168/13 case) procedures will be favourable. All kinds of European energy project developers will be faced with serious consequences, if they underestimate the fact that the energy utilization is no longer an economic-energetics development question. It is already a complex socio-environmental issue, which is reflected by the current regulatory framework as well.

43

Regulatory Provisions Governing Key Aspects of Unconventional Gas Extraction in Selected Member States, p. 7.

44 45

EIA Directive is Directive 2011/92/EU, and SEA Directive is Directive 2001/42/EC, ibid. p. 9. and 41.

See Amendment 31, at Amendments on the Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/92/EU.

352

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372

Table of Cases

environmental democracy and law

ACCC/C/2004/8 (Armenia) Aarhus Convention’s Compliance Committee, ECE/MP.PP/C.1/2006/2/Add.1.

ACCC/C/2005/11 (Belgium) Aarhus Convention’s Compliance Committee, ECE/MP.PP/C.1/2006/4/Add.2.

ACCC/C/2005/12 (Albania) Aarhus Convention’s Compliance Committee, ECE/MP.PP/C.1/2007/4/Add.1.

ACCC/C/2006/16 (Lithuania) Aarhus Convention’s Compliance Committee, ECE/MP.PP/2008/5/Add.6.

ACCC/C/2006/17 (European Community) Aarhus Convention’s Compliance Committee, ECE/MP.PP/2008/5/Add.10.

ACCC/C/2007/22 (France) Aarhus Convention Compliance Committee, ECE/MP.PP/2009/4/Add.1.

ACCC/C/2008/24 (Spain) Aarhus Convention Compliance Committee, ECE/MP.PP/2009/8/Add.1.

ACCC/C/2009/41 (Slovakia) Aarhus Convention’s Compliance Committee, ECE/MP.PP/2011/11/Add.3.

ACCC/C/2010/50 (Czech Republic) Aarhus Convention’s Compliance Committee, ECE/MP.PP/C.1/2012/11.

ACCC/C/2012/77 (UK) Aarhus Convention Compliance Committee, ACCC/C/2012/77 UK, United Kingdom, Pending, Communication submitted 21 August 2012.

Abbeydrive Developments Ltd v Kildare County Council Supreme Court of Ireland, Abbeydrive Developments Ltd v Kildare County Council, Decision, 2009, IESC 56.

Arrondale v United Kingdom European Court of Human Rights, Arrondale v United Kingdom (App. No. 7889/77), Judgment, 15 July 1980.

Avenue Properties v Farrell Avenue Properties v Farrell, 1982, Irish Law Reports Monthly 21.

Barrington, J. (National Federation of Drapers v Allied Wholesale Warehouses) Barrington, J., National Federation of Drapers v Allied Wholesale Warehouses, 29 November 1979, Irish Times.

Blessington Heritage Trust Limited v Roadstone (Dublin) Ltd High Court, Blessington Heritage Trust Limited v Roadstone (Dublin) Ltd, 21 January 1998.

Blessington Heritage Trust Ltd. v Wicklow County Council High Court of Ireland, Blessington Heritage Trust Ltd. v Wicklow County Council, Decision, 21 January 1998, IECH 8.

Case 240/83 ADBHU Court of Justice of the European Union, Case 240/83 Procureur de la République v Association de défense des brûleurs d’huiles usagées (ADBHU), Preliminary Ruling, 7 February 1985, European Court Reports 1985, p. 531.

Case 302/86 Commission v Denmark Court of Justice of the European Union, Case 302/86 Commission of the European Communities v Kingdom of Denmark, Judgment, 20 September 1988, European Court Reports 1988, p. 4607. 374

table of cases

Case C-71/10 Office of Communications v Information Commissioner Court of Justice of the European Union, C-71/10 Office of Communications v Information Commissioner, 28 July 2011, Preliminary Ruling, European Court Reports 2011, p. I-7205.

Case C-72/95 Kraaijeveld Court of Justice of the European Union, Case C-72/95 Kraaijeveld, Preliminary Ruling, 24 October 1996, European Court Reports 1996, p. I-5403.

Case C‑115/09 Trianel Kohlekraftwerk Court of Justice of the European Union, Case C‑115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen eV v Bezirksregierung Arnsberg, intervening party: Trianel Kohlekraftwerk Lünen GmbH & Co. KG, Preliminary Ruling, 12 May 2011, European Court Reports 2011, p. I-3673.

Case C-121/11 Pro-Braine ASBL and Others Court of Justice of the European Union, Case C-121/11 Pro-Braine ASBL and Others v Commune de Braine-le-Château, Preliminary Ruling, 19 April 2012, European Court Reports 2012, p. 00000. 

Case C-186/04 Pierre Housieaux v the Délégués du Conseil de la Région de Bruxelles-Capitale Court of Justice of the European Union, C-186/04 Pierre Housieaux v the Délégués du Conseil de la Région de Bruxelles-Capitale, Preliminary Ruling, 21 April 2005, European Court Reports 2005, p. I-3299.

Case C-201/02 Wells Court of Justice of the European Union, Case C-201/02 The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions, Preliminary Ruling, 7 January 2004, European Court Reports 2004, p. I-723.

Case C‑204/09 Flachglas Torgau GmbH v Federal Republic of Germany Court of Justice of the European Union, C‑204/09 Flachglas Torgau GmbH v Federal Republic of Germany, Preliminary Ruling, 14 February 2012, not yet published.

Case C-213/96 Outokumpu Court of Justice of the European Union, Case C-213/96 Outokumpu Oy, Preliminary Ruling, 2 April 1998, European Court Reports 1998, p. I-1777.

Case C-215/04 Marius Pedersen A/S v. Miljøstyrelsen Court of Justice of the European Union, C-215/04 Marius Pedersen A/S vs. Miljøstyrelsen submitted by l’Østre Landsret, Preliminary Ruling, 16 February 2006, European Court Reports 2006, p. I-1465

Case C-216/05 Commission v Ireland Court of Justice of the European Union, Case C-216/05 Commission v Ireland, Judgment, 9 November 2006, European Court Reports 2006, p. I-10787.

Case C-227/0 Commission v Kingdom of Spain Court of Justice of the European Union, Case C-227/01Commission v Kingdom of Spain, Judgment, 16 September 2004, European Court Reports 2004, p. I-8253.

Case C-233/00 Commission v Republic of France Court of Justice of the European Union, C-233/00 Commission v Republic of France, Judgment, 26 June 2003, European Court Reports 2003, p. I-6625.

Case C-237/07 Dieter Janecek Court of Justice of the European Union, Case C-237/07 Dieter Janecek v Freistaat Bayern, Preliminary Ruling, 25 July 2008, European Court Reports 2008, p. I-6221. 375

environmental democracy and law

Case C‑240/09, Lesoochranárske zoskupenie VLK Court of Justice of the European Union, Case C‑240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, 8 March 2011, European Court Reports 2011, p. I-1255.

Case C-255/05 Commission v Republic of Italy Court of Justice of the European Union, Case C-255/05 Commission of the European Communities v Italian Republic, Judgment, 5 July 2007, European Court Reports 2007, p. I-5767.

Case C‑260/11 The Queen v Environment Agency and others Court of Justice of the European Union, Case C‑260/11 The Queen, on the application of David Edwards, Lilian Pallikaropoulos v Environment Agency and others, Preliminary Ruling, 11 April 2013, European Court Reports 2013, p. 00000.

Case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening Court of Justice of the European Union, Case C‑263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, Preliminary Ruling, 15 October 2009, European Court Reports 2009, p. I-9967.

Case C-275/09 Brussels Hoofdstedelijk Gewest and Others Court of Justice of the European Union, Case C-275/09 Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, Preliminary Ruling, 17 March 2011, European Court Reports 2011, p. I-1753.

Case C-290/03 Barker - Crystal Palace Court of Justice of the European Union, Case C-290/03 The Queen, on the application of: Diane Barker v London Borough of Bromley, Preliminary Ruling, 4 May 2006, European Court Reports 2006, p. I-3949.

Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and others v Commission Court of Justice of the European Union, Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and others v Commission, Judgment, 2 April 1998, European Court Reports 1998, p. I-1651.

Case C-321/96 Wilhelm Mecklenburg v. Kreis Pinneberg Court of Justice of the European Union, C-321/96 Wilhelm Mecklenburg v. Kreis Pinneberg, Preliminary Ruling, 17 June 1998, European Court Reports 1998, p. I-3809.

Case C-402/12P Parliament v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht Court of Justice of the European Union, Case C-402/12 P European Parliament v Vereniging Milieudefensie en Stichting Stop Luchtverontreiniging Utrecht, Appeal, 24 August 2012, Official Journal of the European Union.

Case C-403/12 P Commission v Vereniging Milieudefensie en Stichting Stop Luchtverontreiniging Utrecht Court of Justice of the European Union, Case C-403/12 P European Commission v Vereniging Milieudefensie en Stichting Stop Luchtverontreiniging Utrecht, 27 August 2012, Official Journal of the European Union.

Case C-404/12 P Council of the European Union v Stichting Natuur en Milieu and Pesticide Action Network Europe Court of Justice of the European Union, Case C-404/12 P Council of the European Union 376

table of cases

v Stichting Natuur en Milieu and Pesticide Action Network Europe, 3 September 2012, Official Journal of the European Union.

Case C‑416/10 Jozef Križan, and others v Slovenská inšpekcia životného prostredia Court of Justice of the European Union, C‑416/10 Jozef Križan, and others v Slovenská inšpekcia životného prostredia, Preliminary Ruling, 15 January 2013, not yet published.

Case C‑567/10 Inter-Environnement Bruxelles and others v Région de Bruxelles‑Capitale Court of Justice of the European Union, Case C‑567/10, Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL and Atelier de Recherche et d’Action Urbaines ASBL v Région de Bruxelles‑Capitale, Preliminary Ruling, 22 March 2012, not yet published.

Case T-168/13 EPAW v Commission Court of Justice of the European Union, Case T-168/13 EPAW v Commission, Order, 21 January 2014.

Case T-374/04 Commission v Federal Republic of Germany Court of Justice of the European Union, Case T-374/04, Commission v Federal Republic of Germany, Judgment, 7 November 2007, European Court Reports 2007, p. 00000.

Case T-585/93 Stichting Greenpeace Council and others v Commission Court of Justice of the European Union, Order of the Court of First Instance (First Chamber), Case T-585/93 Stichting Greenpeace Council and others v Commission, Inadmissibility, 9 August 1995, European Court reports 1995, p. II-2205.

Chambers v An Bord Pleanala Chambers v An Bord Pleanala, 1992, 1, Irish Reports.

Dubestka and Others v Ukraine European Court of Human Rights, Dubestka and Others v Ukraine (App. No. 30499/03), Judgment, 10 February 2011.

Dublin Corporation v Mulligan High Court, Dublin Corporation v Mulligan, 6 May 1980, unreported.

Egan v. An Bord Pleanala High Court of Ireland, Egan v. An Bord Pleanala, Decision, 10 February 2011, IEHC 44.

ESB v Gormley Electricity Supply Board (ESB) v Gormley,1985, Irish Reports.

Fadeyeva v Russia European Court of Human Rights, Fadeyeva v Russia (App. No. 55723/00), Judgment, 9 June 2005.

Fallon v An Bord Pleanala Fallon v An Bord Pleanala, 1992, 2, Irish Reports 280.

Goonery and others v Lagan Cement Company Limited High Court, Goonery and others v Lagan Cement Company Limited, 16 July 1999.

Grimes v Punchestown Development Ltd Grimes v Punchestown Development Ltd, 2002, Irish Law Reports Monthly 409.

Guerra and Others v Italy European Court of Human Rights, Guerra and Others v Italy (App. No. 116/1996/735/932), Judgment, 19 February 1998.

377

environmental democracy and law

Harding v Cork County Council Murray CJ, Harding v Cork County Council, Decision, 02 May 2008, 4 Irish Reports 218, at 332 per.

Haverty v An Bord Pleanala Haverty v An Bord Pleanala, 1987, Irish Reports 485.

Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and others v Région Wallonne Court of Justice of the European Union, Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and others v Région Wallonne, Preliminary Ruling, 18 October 2011, European Court Reports 2011, p. I-9711.

Joined cases C-379/08 and C-380/08 ERG and Others Court of Justice of the European Union, Joined cases C-379/08 and C-380/08 Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others (C-379/08) and ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others (C-380/08), Preliminary Ruling, 9 March 2010, European Court Reports 2010, p. I-2007

Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission Court of Justice of the European Union, Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Judgment, 3 September 2008, European Court Reports 2008, p. I-6351.

Lancefort Limited v An Bord Pleanala High Court of Ireland, Lancefort Limited v An Bord Pleanala, Decision, 1998, 2 Irish Reports 511.

Lancefort v An Bord Pleanala Supreme Court of Ireland, Lancefort v An Bord Pleanala, Decision, 1998, 2 Irish Law Reports Monthly 401.

Leen v Aer Rianta High Court of Ireland, Leen v Aer Rianta, Decision, 31 July 2003, 4 Irish Reports 394.

Listowel UDC v Mc Donagh Listowel UDC v Mc Donagh, 1968, Irish Reports 312.

López Ostra v Spain European Court of Human Rights, López Ostra v Spain (App. No. 41/1993/436/515), Judgment, 9 December 1994.

Mahon v Butler Mahon v Butler, 1997, 3, Irish Reports 369.

Malahide Community Council Ltd. v Fingal County Council Malahide Community Council Ltd. v Fingal County Council, 1997, 3, Irish Reports 383.

Marshall v Arklow UDC High Court of Ireland, Marshall v Arklow UDC, Decision, 19 August 2004, IEHC 313.

Moreno Gomez v Spain European Court of Human Rights, Moreno Gomez v Spain (App. No. 4143/02), Judgment, 16 February 2005.

National Federation of Drapers v Allied Wholesale Warehouses 378

table of cases

National Federation of Drapers v Allied Wholesale Warehouses, 29 November 1979, Irish Times.

Natural Resources Defense Council, Inc. et al. v. Nuclear Regulatory Commission United States Court of Appeals for the District of Columbia Circuit Natural Resources Defense Council, Inc. et al. v. Nuclear Regulatory Commission and United States of America, Decision, 14 July 2000, 216 F.3d 1180, available at: http://law. justia.com/cases/federal/appellate-courts/F3/216/1180/570328/.

O’Connor v Harrington High Court of Ireland, O’Connor v Harrington, Decision, 28 May 1987, unreported.

O’Keefe v An Bord Pleanala O’Keefe v An Bord Pleanala, 1993, 1 Irish Reports 39.

Öneryildiz v Turkey European Court of Human Rights, Öneryildiz v Turkey (App. No. 48939/99), Judgment, 18 June 2002.

Opinion of Advocate General Kokott (C‑71/10) Advocate General Kokott, C-71/10 Office of Communications v The Information Commissioner, Opinion, 10 March 2011, European Court Reports 2011, p. I-7205.

Opinion of Advocate General Kokott (Case C-186/04) Advocate General Kokott, Case C-186/04 Pierre Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale, Opinion, 27 January 2005, European Court Reports 2005, p. I-3299.

Opinion of Advocate General Kokott (Case C‑260/11) Advocate General Kokott, Case C‑260/11 The Queen, on the application of David Edwards, Lilian Pallikaropoulos v Environment Agency and others, Opinion, 18 October 2012, European Court Reports 2013, p. 00000.

Opinion of Advocate General Kokott (Case C‑416/10) Advocate General Kokott, Case C‑416/10 Jozef Križan and Others v Slovenská inšpekcia životného prostredia, Opinion, 19 April 2012, European Court Reports 2013, p. 00000.

Opinion of Advocate General Sharpston (Case C-115/09) Advocate General Sharpston, Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen eV v Bezirksregierung Arnsberg, intervening party: Trianel Kohlekraftwerk Lünen GmbH & Co. KG, Opinion, 16 December 2010, European Court Reports 2011, p. I-367.

Opinion of Advocate General Sharpston (C‑204/09) Advocate General Sharpston, Case C‑204/09 Flachglas Torgau G,bH v Federal Republic of Germany, Opinion, 22 June 2011.

Opinion of Advocate General Sharpston (Case C‑240/09) Advocate General Sharpston, Case C‑240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, Opinion, 15 July 2010, European Court Reports 2011, p. I-1255.

Opinion of Advocate General Sharpston (Case C‑263/08) Advocate General Sharpston, Case C‑263/08 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd, Opinion, 2 July 2009, European Court Reports 2009, p. I-9967. 379

environmental democracy and law

Opinion of Advocate General Sharpston (Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09) Advocate General Sharpston, Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Antoine Boxus and others v Région Wallonne, Opinion, 19 May 2011, European Court Reports 2011, p. I-9711.

Opinion of Advocate General Stix-Hackl (Case C- 216/05) Advocate General Stix-Hackl, Case C- 216/05 Commission v Ireland, Opinion, 22 June 2006, European Court Reports 2006, p. I-10787.

Robinson v Chariot Inns Ltd Robinson v Chariot Inns Ltd, 1986, ILRM 21.

Separate Opinion of Judge Weeremantry, C.G (Gabcíkovo-Nagymaros Project) Judge Weeremantry, C.G., Gabcíkovo-Nagymaros Project Judgment, Separate Opinion, 25 September 1997, available at: http://www.icj-cij.org/docket/files/92/7383.pdf.

Smith v East Elloe Rural District Council (1956) House of Lords, Smith v East Elloe Rural District Council,1956, AC 736.

Springview Management Company Limited High Court of Ireland, Springview Management Company Limited v Cavan Developments Ltd and South Dublin County Council, 29 September 1999.

Stafford v Roadstone Ltd Stafford v Roadstone Ltd, 1980, 1 Irish Law Reports Monthly 1.

State (Keegan) v Stardust Tribunal State (Keegan) v Stardust Tribunal, 1984, Irish Reports 642; 1987, Irish Law Reports Monthly 202.

The Cockerill Sambre Case District Court of Maastricht, The Cockerill Sambre Case, Judgment, 3 February 1993.

Trail Smelter Case Trail Smelter Arbitral Tribunal, Trail Smelter Case, United States v Canada, Arbitration, 16 April 1938 and 11 March 1941, VOLUME III, pp. 1905-1982.

Treacy v An Bord Pleanála Treacy v An Bord Pleanála, 2010, IEHC 13.

Village Residents Association Ltd v An Bord Pleanala High Court of Ireland, Village Residents Association Ltd v An Bord Pleanala, Decision, 5 November 1999, 2 Irish Law Reports Monthly 59.

Village Residents Association v An Bord Pleanala and Mc Donalds Restaurants Ltd High Court of Ireland, Village Residents Association v An Bord Pleanala and Mc Donalds Restaurants Ltd, Decision, 23 March 2000, 2 Irish Reports 321.

White v McInerney Construction Ltd White v McInerney Construction Ltd, 1995, 1, Irish Law Reports Monthly 1.

380

Table of Legislation and Other Regulatory Instruments

environmental democracy and law

Directives, Regulations, Decisions Amendments on the Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/92/EU Amendments adopted by the European Parliament on 9 October 2013 on the Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/92/EU of the Assessment of the Effects of Certain Public and Private Projects on the Environment, COM(2012)0628 – C7-0367/2012 – 2012/0297(COD), available at: http://www.europarl. europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2013-413 (accessed 7 November 2013).

Commission Decision 2000/479/EC Commission Decision 2000/479/EC on the Implementation of a European Pollutant Emission Register (EPER) According to Article 15 of Council Directive 96/61/EC Concerning Integrated Pollution Prevention and Control (IPPC), European Commission, 28 July 2000, Official Journal L 192.

Council Decision 2005/370/EC Council Decision 2005/370/EC of 17 February 2005 on the Conclusion, on Behalf of the European Community, of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Council, 17 May 2005, Official Journal L 124.

Council Directive 85/337/EEC (EIA Directive) Council Directive 85/337/EEC of 27 June 1985 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, Official Journal No. L 175, 5 July 1985, p. 40-48, later on amended several times and codified by Directive 2011/92/EU.

Council Directive 89/369/EEC Council Directive 89/369/EEC of 8 June 1989 on the Prevention of Air Pollution from New Municipal Waste Incineration Plants, Council of the European Communities, Official Journal L 163 , 14 June 1989, p. 32-36.

Council Directive 89/429/EEC Council Directive 89/429/EEC of 21 June 1989 on the Reduction of Air Pollution from Existing Municipal Waste-Incineration Plants, Council of the European Communities, Official Journal L 203, 15 July 1989, pp. 50-54.

Council Directive 90/313/EEC Council Directive 90/313/EEC of 7 June 1997 on the Freedom of Access to Information on the Environment, Council of the European Communities, Official Journal L 158 , 23 June 1990, p. 56-58.

Council Directive 94/67/EC Council Directive 94/67/EC of 16 December 1994 on the Incineration of Hazardous Waste, Council of the European Union, Official Journal L 365 , 31 December 1994 p. 34-45.

Council Directive 96/61/EC (IPPC Directive) Council Directive 96/61/EC of 24 September 1996 Concerning Integrated Pollution Prevention and Control, Official Journal No. L 257, 10 October 1996, pp. 26-40, superseded by Directive 2010/75/EU

Council Directive 1999/31/EC Council Directive 1999/31/EC of 26 April 1999 on the Landfill of Waste, Council of the European Union, Official Journal L 182, 16 July 1999, p. 1-19. 382

table of legislation and other regulatory instruments

Decision BS-II/13 Convention on Biological Diversity-Meeting of the Parties, Decision BS-II/13 Public Awareness and Participation, Second Meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, available at: http://bch.cbd. int/protocol/decisions/decision.shtml?decisionID=10791.

Decision BS-V/13 Convention on Biological Diversity-Meeting of the Parties, Decision BS-V/13 Public Awareness, Education and Participation, Fifth Meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, available at: http://bch.cbd.int/protocol/decisions/decision.shtml?decisionID=12326.

Decision No 1600/2002/EC Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme, 10 September 2002, Official Journal L 242, p. 1-15.

Decision on the Adoption of the Charter of Fundamental Rights of the EU Decision on the Adoption of the Charter of Fundamental Rights of the EU, European Parliament, 29 November 2007, Official Journal 2010/C 83/02.

Decision Proposal on a General Union Environment Action Programme to 2020 Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet” {COM(2012) 710 final} {SWD(2012) 397 final}, European Commission, Brussels, 29 November 2012, SWD(2012) 398 final, Annex 6.

Directive 97/11/EC Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment, Council of the European Union, Official Journal L 73, 14 March 1997, pp. 5-15.

Directive 2000/53/EC (ELV Directive) Directive 2000/53/EC of 18 September 2000 on End-of Life Vehicles, European Parliament and Council, Official Journal L 269, 21 October 2000, pp. 34-43.

Directive 2000/76/EC (WID) Directive 2000/76/EC of 4 December 2000 on the Incineration of Waste, European Parliament and Council, Official Journal L332, 28 December 2000, pp.91.

Directive 2001/18/EC Directive 2001/18/EC of 12 March 2001on the Deliberate Release into the Environment of Genetically Modified Organisms and Repealing Council Directive 90/220/EEC, European Parliament and Council, 17 April 2001,Official Journal L 106/1.

Directive 2001/42/EC Directive 2001/42/EC of 27 June 2001 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, European Parliament and Council, Official Journal L 197, 21 July 2001, pp. 30-37.

Directive 2003/4 EC Directive 2003/4 EC on Public Access to Environmental Information, and Repealing Council Directive 90/313/EEC, European Parliament and Council, Official Journal L 41, 13 February 2003, p. 26-32. 383

environmental democracy and law

Directive 2003/4/EC Directive 2003/4/EC of 28 January 2003 on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC, European Parliament and Council, Official Journal L 158, 23 June 1990.

Directive 2003/35/EC 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 - Statement by the Commission, Official Journal L 156, 25 June 2003, pp. 17-25.

Directive 2006/21/EC (Mining Waste Directive) Directive 2006/21/EC of 15 March 2006 on the Management of Waste from Extractive Industries and Amending Directive 2004/35/EC - Statement by the European Parliament, the Council and the Commission, European Parliament and Council, Official Journal L 102, 11 April 2006, pp. 15-34.

Directive 2006/66/EC Directive 2006/66/EC of 6 September 2006 on Batteries and Accumulators and Waste Batteries and Accumulators and Repealing Directive 91/157/EEC, European Parliament and Council, Official Journal L 266, 26 September 2006, pp. 1-14.

Directive 2008/1/EC Directive 2008/1/EC of 15 January 2008 Concerning Integrated Pollution Prevention and Control, European Parliament and Council, Official Journal L 24, 29 January 2008, pp. 8-29.

Directive 2008/98/EC Directive 2008/98/EC of 19 November 2008 on Waste and Repealing Certain Directives Text with EEA Relevance, European Parliament and Council, 22 November 2008, Official Journal L 312, p. 3-30.

Directive 2010/75/EU (IED Directive) Directive 2010/75/EU of 24 November 2010 on Industrial Emissions (Integrated pollution Prevention and Control), European Parliament and Council, Official Journal L 334, 17 December 2010, p. 17-119.

Directive 2011/92/EU Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment, European Parliament and Council, Official Journal of the European Union, L 26/1, 13 December 2011.

Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora, Official Journal of the European Union, L 206, 21 May 1992, pp. 7-50.

Packaging Directive Directive 94/62/EC of 20 December 1994 on Packaging and Packaging Waste, Official Journal L 365, 31 December 1994, pp. 10-23. Packaging Directive

Proposal for a Directive amending Directive 2011/92/EU Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (Text with EEA relevance) {SWD(2012) 354 final} {SWD(2012) 355 final}, European Commission, Brussels, 26 October 2012, COM(2012) 628 final 2012/0297 (COD). 384

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Proposal for a Directive on Access to Justice in Environmental Matters (2003) Proposal for a Directive of the European Parliament and of the Council on Access to Justice in Environmental Matters, European Commission, 24 October 2003, /* COM/2003/0624 final - COD 2003/0246 */.

Regulation (EC) No 166/2006 Regulation (EC) No 166/2006 Concerning the Establishment of a European Pollutant Release and Transfer Register and Amending Council Directives 91/689/EEC and 96/61/ EC Text with EEA relevance., European Parliament and Council, Official Journal L 033 , 04 February 2006, p. 1-17.

Regulation No 1013/2006 Regulation (EC) No 1013/2006 of 14 June 2006 on Shipments of Waste, European Parliament and Council, Official Journal L 190, 12 July 2006, p. 1-98.

Regulation (EC) No 1367/2006 Regulation (EC) No 1367/2006 on the Application of the Provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies, European Parliament and Council, Official Journal L 264 , 25 September 2006, p. 13-19.

Regulation (EC) No 1829/2003 Regulation (EC) No 1829/2003 of 22 September 2003 on Genetically Modified Food and Feed, European Parliament and Council, 18 October 2003, Official Journal L 268/1.

WEEE Directive Directive 2012/19/EU of 4 July 2012 on Waste Electrical and Electronic Equipment (WEEE) -Text with EEA Relevance, European Parliament and Council, Official Journal L 197, 24 July 2012, pp. 38-71.

Conventions, Declarations, Resolutions, Communications 1994 Draft Principles on Human Rights and the Environment 1994 Draft Principles on Human Rights and the Environment, United Nations, 16 May 1994, E/CN.4/Sub.2/1994/9, Annex I.

A Universal Declaration of Human Responsibilities (Proposal) A Universal Declaration of Human Responsibilities (Proposal), InterAction Council, 1 September 1997, available at: http://www.interactioncouncil.org/universal-declarationhuman-responsibilities.

Accompanying Document to the review of the Sixth Community Environment Action Programme Impact Assessment (2007) Commission Staff Working Document, Accompanying Document to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-term review of the Sixth Community Environment Action Programme Impact Assessment, European Commission, 2007, Brussels, {COM(2007)225 final} {SEC(2007)547} Brussels, SEC(2007)546/2.

Banjul Charter African Charter on Human and Peoples’ Rights (“Banjul Charter”), Organization of African Unity (OAU), 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). 385

environmental democracy and law

Basel Convention Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, United Nations (UNEP), 22 March 1989.

ChFR Charter of Fundamental Rights of the European Union (2012/C 326/02), European Commission/European Council/Council of Ministers, 2000, Official Journal of the European Union.

CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora, International Union for Conversation of Nature, 1963.

Climate Change Convention United Nations Framework Convention on Climate Change, United Nations, 9 May 1992, 31 I.L.M. 849.

Commission on Human Rights Resolution 2003/71 Commission on Human Rights Resolution 2003/71: Human Rights and the Environment as Part of Sustainable Development, UN Commission on Human Rights, 25 April 2003.

Commission on Human Rights Resolution 2005/60 Commission on Human Rights Resolution 2005/60: Human Rights and the Environment as Part of Sustainable Development, UN Commission on Human Rights, 20 April 2005, available at: http://www.interactioncouncil.org/universal-declaration-humanresponsibilities.

Communication from the Commission “Taking Sustainable Use of Resources Forward” Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and The Committee of the Regions - Taking Sustainable Use of Resources Forward - A Thematic Strategy on the Prevention and Recycling of Waste, European Commission, 21 December 2005, Brussels,{SEC(2005) 1681} {SEC(2005) 1682}, COM/2005/0666 final.

Communication on the Mid-term review of the Sixth Community Environment Action Programme (2007) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-term review of the Sixth Community Environment Action Programme, European Commission, 30 April 2007, Brussels, {SEC(2007)546} {SEC(2007) 547} COM(2007) 225 final.

Consolidated Version of the Treaty on European Union (TEU) Consolidated Version of the Treaty on European Union, European Union, 2010, Official Journal of the European Union, C 83/13.

Convention Concerning the Protection of the World Cultural and Natural Heritage Convention Concerning the Protection of the World Cultural and Natural Heritage, UNESCO, Paris, 16 November 1972, accessible at http://whc.unesco.org/archive/ convention-en.pdf.

386

table of legislation and other regulatory instruments

Convention on International Civil Aviation Convention on International Civil Aviation, International Civil Aviation Organization, 2006, available at: http://www.icao.int.

Declaration of the UN Conference on the Human Environment Declaration of the United Nations Conference on the Human Environment, United Nations Conference on the Human Environment, 1972, available at: http://www.unep.org/ Documents.Multilingual/Default.asp?documentID=97&ArticleID=1503.

Declaration on the Programme of Action of the European Communities on the Environment (1973) Declaration of the Council of the European Communities and of the Representatives of the Governments of the Member States Meeting in the Council of 22 November 1973 on the Programme of Action of the European Communities on the Environment, 20 December 1973, Official Journal C 112.

Desertification Convention United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, United Nations, 17 June 1994, 33 I.L.M. 1328.

Espoo Convention Convention on Environmental Impact Assessment in a Transboundary Context, United Nations Economic Commission for Europe, Espoo, Finland,25 February 1991.

European Charter on Environment and Health European Charter on Environment and Health, World Health Organisation, Frankfurt am Main, 7 and 8 December 1989, available at: http://www.euro.who.int/__data/assets/pdf_ file/0019/114085/ICP_RUD_113.pdf.

European Commission Communication (2012) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness, European Commission, 7 March 2012, Brussels, COM(2012)95 final.

European Convention on Human Rights Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, 4 November 1950, available at: http://www.echr.coe.int/Documents/Convention_ ENG.pdf.

European Landscape Convention European Landscape Convention, Council of Europe, 20 October 2000, available at: http:// conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=176&CL=ENG.

International Bank for Reconstruction and Development Agreement International Bank for Reconstruction and Development Agreement, International Bank for Reconstruction and Development, 7 June 2012, available at: http://siteresources.worldbank. org.

International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, UN General Assembly, 16 December 1966, General Assembly resolution 2200A (XXI).

387

environmental democracy and law

International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights, UN General Assembly, 16 December 1976, General Assembly Resolution 2200A (XXI) of 16 December 1966.

IUCN Draft International Covenant on Environment and Development IUCN Draft International Covenant on Environment and Development, IUCN Commission on Environmental Law (CEL) and International Council of Environmental Law (ICEL), 13-17 March 1995.

New Delhi Declaration of Principles of International Law Relating to Sustainable Development New Delhi Declaration of Principles of International Law Relating to Sustainable Development, International Law Association, 2 April 2002, available at: http://cisdl.org/ tribunals/pdf/NewDelhiDeclaration.pdf.

North American Agreement on Environmental Cooperation (NAAEC) North American Agreement on Environmental Cooperation, Canada/Mexico/USA, 24 September 1993, 32 I.L.M. 1480.

Presidency Conclusions (1990) Presidency Conclusions, European Parliament/European Council/European Commission, 25 and 26 June 1990, available at: http://www.europarl.europa.eu/summits/dublin/du1_ en.pdf.

Protocol of San Salvador Additional Protocol to the American Convention on Human Rights (San José, Costa Rica, 1969) in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, Organization of American States, 17 November 1988.

Resolution 4 (EC-XL) Resolution 4 (EC-XL), WMO Executive Council (EC-XL), 40th Session, 1988, available at: http://www.ipcc.ch/docs/WMO_resolution4_on_IPCC_1988.pdf.

Resolution on a Community Programme of Policy and Action in Relation to the Environment and Sustainable Development (1993) Resolution of the Council and the Representatives of the Governments of the Member States Meeting within the Council of 1 February 1993 on a Community Programme of Policy and Action in Relation to the Environment and Sustainable Development, 17 May 1993, Official Journal C. 138.

Resolution on Environmental Education (1988) Resolution of the Council and the Ministers of Education Meeting within the Council on Environmental Education of 24 May 1988, 6 July 1988, Official Journal C 177.

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1977) Resolution of the Council of the European Communities and of the Representatives of the Governments of the Member States Meeting within the Council of 17 May 1977 on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment, 13 June 1977, Official Journal C 139.

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1983) Resolution of the Council of the European Communities and of the Representatives of the Governments of the Member States Meeting within the Council of 7 February 1983 on the 388

table of legislation and other regulatory instruments

Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1982 to 1986), 17 February 1983, Official Journal C 46.

Resolution on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1987) Resolution of the Council of the European Communities and of the representatives of the Governments of the Member States Meeting within the Council of 19 October 1987 on the Continuation and Implementation of a European Community Policy and Action Programme on the Environment (1987-1992), 7 December 1987, Official Journal C 328, p. 1-44.

Rio Declaration on Environment and Development Rio Declaration on Environment and Development, United Nations Environment and Development, 1992, available at: http://www.unep.org/Documents.Multilingual/Default.asp ?documentID=78&articleID=1163.

The Aarhus Convention Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters, United Nations Economic Commission for Europe, 25 June 1998, available at: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e. pdf (the Aarhus Convention).

The Principles of Environmental Justice The Principles of Environmental Justice, Delegates to the First National People of Color Environmental Leadership Summit, 24-27 October 1991, Washington DC, available at http:// www.ejnet.org/ej/principles.html.

UN Convention on Biological Diversity United Nations Convention on Biological Diversity, United Nations Intergovernmental Negotiating Committee for a Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. 822.

UN Declaration on the Rights of Indigenous People United Nations Declaration on the Rights of Indigenous People, United Nations General Assembly, 13 September 2007, available at: http://www.un.org/esa/socdev/unpfii/ documents/DRIPS_en.pdf.

Universal Declaration of Human Rights The Universal Declaration of Human Rights, United Nations, 10 December 1948, available at: http://www.un.org/en/documents/udhr/.

World Charter for Nature World Charter for Nature, UN General Assembly, 28 October 1982, available at: http://www. un.org/documents/ga/res/37/a37r007.htm. 

World Heritage Convention Convention for the Protection of World Cultural and Natural Heritage, United Nations (UNESCO), 23 November 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151.

National Legislation/ Proposals A Sustainable Wales: Better Choices for a Better Future (No. WG 17030) A Sustainable Wales: Better Choices for a Better Future (No. WG 17030), Consultation on Proposals for a Sustainable Development Bill, Welsh Government, 3 December 2012, available at: www.cymru.gov.uk.

389

environmental democracy and law

Act LIII of 1995 on the General Rules of Environmental Protection Act LIII of 1995 on the General Rules of Environmental Protection, Parliament of the Republic of Hungary, 1995.

Act LIX of 1993 Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman), 1993, Hungary.

Act on Nature Conservation in Hungary Act No. LIII of 1996 on Nature Conservation in Hungary, Parliament of the Republic of Hungary, 1996.

Reports Aarhus Convention’s Compliance Committee (Armenia) Report of the Eleventh Meeting: Findings and Recommendations with Regard to Compliance by Armenia with its Obligations under the Aarhus Convention in Relation to the Development of the Dalma Orchards Area, Aarhus Convention’s Compliance Committee, 31 March 2006, ACCC/C/8/Armenia - ECE/MP.PP/C.1/2006/2/Add.1.

Aarhus Convention’s Compliance Committee (Belgium) Report of the Meeting: Findings and Recommendations with Regard to Compliance by Belgium with its Obligations under the Aarhus Convention in Relation to the Rights of Environmental Organizations to Have Access to Justice, Aarhus Convention’s Compliance Committee, 16 June 2006, ACCC/C/11/ Belgium -ECE/MP.PP/C.1/2006/4/Add.2.

An Bord Pleanala Annual Report (2010) An Bord Pleanala Annual Report, An Bord Pleanála, 2010.

Darpö, J. (2012) Darpö, J., Effective Justice? Synthesis Report of the Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in Seventeen of the Member States of the European Union, 11 November 2012, available at: http://ec.europa.eu/environment/aarhus/pdf/2012_ access_justice_report.pdf.

ECE/MP.EIA/2011/5 Background Note on the Application of the Convention to Nuclear Energy-related Activities, Secretariat Economic and Social Council, 2 April 2011, ECE/MP.EIA/2011/5.

ECE/MP.PP/C.1/2007/4/Add.1 Report of the Compliance Committee on its Sixteenth Meeting: Findings and Recommendations with regard to Compliance by Albania, Aarhus Convention’s Compliance Committee, 31 July 2007, ACCC/C/11, ECE/MP.PP/C.1/2007/4/Add.1.

ECE/MP.PP/2008/5 Report by the Compliance Committee, Aarhus Convention’s Compliance Committee, 22 May 2008, ECE/MP.PP/2008/5.

ECE/MP.PP/2008/5/Add.6 Report by the Compliance Committee: Compliance by Lithuania with its Obligations under the Convention, Aarhus Convention’s Compliance Committee, 7 March 2008, ACCC/C/16, ECE/MP.PP/2008/5/Add.6.

390

table of legislation and other regulatory instruments

ECE/MP.PP/2008/5/Add.10 Report by the Compliance Committee: Compliance by the European Community with its Obligations under the Convention, Aarhus Convention’s Compliance Committee, 2 May 2008, ECE/MP.PP/2008/5/Add.10.

ECE/MP.PP/C.1/2009/8/Add.1 Report of the Compliance Committee on its Twenty-sixth meeting-Findings and Recommendations with regard to Communication ACCC/C/2008/24 concerning compliance by Spain, Aarhus Convention’s Compliance Committee, 8 February 2011, ECE/ MP.PP/C.1/2009/8/Add.1.

ECE/MP.PP/C.1/2010/8/Add.1 Findings and Recommendations with regard to Communication ACCC/C/2009/41 Concerning Compliance by Slovakia, Aarhus Convention’s Compliance Committee, 17 December 2010, ECE/MP.PP/C.1/2010/8/Add.1.

ECE/MP.PP/2011/11/Add.3 Report of the Compliance Committee: Findings and Recommendations with Regard to Communication ACCC/C/2009/41 Concerning Compliance by Slovakia (adopted by the Compliance Committee on 17 December 2010, 12 May 2011, ECE/MP.PP/2011/11/Add.3.

ECE/MP.PP/C.1/2012/11 Findings and Recommendations with regard to Communication ACCC/C/2010/50 Concerning Compliance by the Czech Republic, Aarhus Convention’s Compliance Committee, 29 June 2012 ECE/MP.PP/C.1/2012/11.

ECE/MP.PP/C.1/2012/12 Findings and Recommendations with Regard to Communication ACCC/2010/54 Concerning Compliance by the European Union, Aarhus Convention’s Compliance Committee, 2 October 2012, ECE/MP.PP/C.1/2012/12, available at: http://www.unece.org/ fileadmin/DAM/env/pp/compliance/C2010-54/Findings/ece_mp.pp_c.1_2012_12_eng.pdf (accessed 02 November 2013).

Enforcement of Environmental Law: The Case for Reform Enforcement of Environmental Law: The Case for Reform, Law Society of Ireland, Dublin, 2008. Enforcement of Environmental Law: The Case for Reform

EPA Annual Report and Accounts 2008 Annual Report and Accounts, 2008, Environmental Protection Agency.

European Communities – Measures Affecting Asbestos and AsbestosContaining Products European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (Appellate Body Report), World Trade Organization, 2001, WTO Docs.WT/DS135/AB/R, WT/ DS135/R (Panel Report).

Evaluation of the State of Right to a Healthy Environment Evaluation of the State of Right to a Healthy Environment, Office of the Parliamentay Commissioner for Future Generations, available at: http://jno.hu/report2011/jno_ report_2011.pdf.

In ‘t Veld, R. et al. (2011) In ‘t Veld, R. et al., Transgovernance: the Quest for Governance of Sustainable Development, IASS Institute for Advanced Sustainability Studies, Potsdam, 2011.

391

environmental democracy and law

Joint Committee on Human Rights- 29th Report (2008) Joint Committee on Human Rights- 29th Report, House of Lords/ House of Commons, 10 August 2008, available at: www.parliament.uk. Kiegészít Jelentés a Magyar Légtérellen Rzést Biztosító Lokátorállomás Telepítési Lehet Ségeit Vizsgáló Bizottság Közbüls Jelentéséhez, Honvédelmi Minisztérium és a Környezetvédelmi és Vízügyi Minisztérium, 8 December 2004, Budapest, available at: http://misc.meh.hu/binary/6603_zengobizottsag_jelentese_041208.pdf.--> The document to which I referred to above.

Maastricht University (2013) Maastricht University Faculty of Law METRO, Possible Initiatives on Access to Justice in Environmental Matters and Their Socio-economic Implications DG ENV.A.2/ ETU/2012/0009rl Final Report, Maastricht, 9 January 2013, available at: http://ec.europa.eu/ environment/aarhus/pdf/access to justice - economic implications – study 2013.pdf.

On the Future of Carbon Capture and Storage in Europe Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions, On the Future of Carbon Capture and Storage in Europe, COM(2013)180, available at: http://ec.europa.eu/energy/coal/doc/ com_2013_0180_ccs_en.pdf.

Pallemaerts, M. (2009) Pallemaerts, M., Compliance by the European Community with its Obligations on Access to Justice as a Party to the Aarhus Convention: An IEEP report for WWF-UK, Institute for European Environmental Policy, 2009, available at http://www.ieep.eu/publications/ pdfs/2009/aarhus_report.pdf.

Regulatory Provisions Governing Key Aspects of Unconventional Gas Extraction in Selected Member States Milieu Ltd., Regulatory Provisions Governing Key Aspects of Unconventional Gas Extraction in Selected Member States, Brussels, 2013, available at: http://ec.europa.eu/environment/ integration/energy/pdf/Final Report 24072013.pdf (accessed 7 November 2013).

Renewable Energy: a Major Player in the European Energy Market Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions, Renewable Energy: a Major Player in the European Energy Market, COM(2012)271, available at: http://ec.europa.eu/ energy/renewables/doc/communication/2012/comm_en.pdf (accessed 02 November 2013). Report from Division for Sustainable Development for the Commission on Sustainable Development Fourth Session, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, Switzerland, 26-28 September 1995, Prepared by the 18 April - 3 May 1996, New York, available at: http://www. un.org/documents/ecosoc/cn17/1996/background/ecn171996-bp3.htm-

Report of the Office of the Parliamentary Commissioners of Hungary (2008-2009) Comprehensive Summary of the Report of the Parliamentary Commissioner for Future Generations of Hungary 2008-2009, Office of the Parliamentary Commissioners of Hungary, Fülüp, S., Budapest, 2010, available at: http://jno.hu/en/pdf/Comprehensive_ Summary_2009.pdf.

392

table of legislation and other regulatory instruments

Report of the Office of the Parliamentary Commissioners of Hungary (2010) Comprehensive Summary of the Report of the Parliamentary Commissioner for Future Generations of Hungary2010, Office of the Parliamentary Commissioners of Hungary, Fülüp, S., Budapest, 2011, available at: http://jno.hu/report2010/jno_report_2010.pdf.

Report of the United Nations Conference on Environment and Development (1992) Report of the United Nations Conference on Environment and Development, United Nations General Assembly, Rio de Janeiro, 3-14 June 1992, Annex I. Rio Declaration on Environment and Development, available at: http://www.un.org/documents/ga/conf151/aconf151261annex1.htm.

Report on Access to Justice in Environmental Matters European Network of Environmental Law Organizations, Report on Access to Justice in Environmental Matters, available at: http://www.justiceandenvironment.org/_files/ file/2010/05/JE-Aarhus-AtJ_Report_10-05-24.pdf.

Report on Access to Justice in Europe: an Overview of Challenges and Opportunities European Union Agency for Fundamental Rights, Report on Access to Justice in Europe: an Overview of Challenges and Opportunities, 2010, available at: http://fra.europa.eu/sites/ default/files/fra_uploads/1520-report-access-to-justice_EN.pdf.

Report on Sustainable Development Fourth Session Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Report from Division for Sustainable Development for the Commission on Sustainable Development Fourth Session, Geneva, Switzerland, 26-28 September 1995, Prepared by the 18 April - 3 May 1996, New York, available at: http://www. un.org/documents/ecosoc/cn17/1996/background/ecn171996-bp3.htm-

Shale Gas: a Provisional Assessment of Climate Change and Environmental Impacts Tyndall Centre, Shale Gas: a Provisional Assessment of Climate Change and Environmental Impacts, University of Manchester, Manchester, 2011, available at: http://www.tyndall.ac.uk/ sites/default/files/tyndall-coop_shale_gas_report_final.pdf (accessed 7 November 2013).

Situation Report Situation Report 2012, European Carbon Capture and Storage Demonstration Project Network, 2013. (FN 31, Link cannot be found)

Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters, Milieu Ltd, Executive Summary 10, Brussels, 2007. United States – Import Prohibition of Certain Shrimp and Shrimp Products United States – Import Prohibition of Certain Shrimp and Shrimp Products (Appellate Body Report), World Trade Organization, 1998, WTO Doc. WT/DS58/AB/R, WT/DS58/R (Panel Report), (Recourse to Article 21.5 of the DSU by Malaysia (2001), WTO Docs. WT/DS58/AB/ RW (Appellate Body Report), WT/DS58/RW (Panel Report).

393

environmental democracy and law

Websites Access to Information: Al Appeals Board Access to Information: Al Appeals Board, The World Bank, available at: http://go.worldbank. org/ RT81EAUOZ0.

Annual Planning Statistics 2010 Annual Planning Statistics 2010, Department of the Environment, Community and Local Government, available at: http://www.environ.ie/en/Publications/ StatisticsandRegularPublications/PlanningStatistics/. Background & Objectives, Conference on Environmental Governance and Democracy, available at: http://envirocenter.yale.edu.

CPHRFF: What do you want to know about this treaty? Convention for the Protection of Human Rights and Fundamental Freedoms: What do you want to know about this treaty?, European Commission, available at: http://conventions.coe. int/treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG. Environmental Justice: Basic Information, United States Environmental Protection Agency, available at: http://www.epa.gov/environmentaljustice/basics/index.htm.

Fracking and Local Responsibility Prof. Convery, F. and Scannell, Y., Fracking and Local Responsibility, available at http:// www.publicpolicy.ie/fracking-and-local-credibility-in-ireland/. Mining, Minerals and Sustainable Development (MMSD): Background and Publications, International Institute for Environment and Development, available at: , http://www.iied. org/mining-minerals-sustainable-development-mmsd-background-publications (accessed 5 November 2013). Natura 2000: Habitats Directive Sites according to Biogeographical Regions, European Commission, available at: http://ec.europa.eu/environment/nature/natura2000/sites_hab/ biogeog_regions/index_en.htm. Protecting Environmental Democracy, available at: http://www.wildcalifornia.org/actionissues/environmental-democracy/.

RIO+20: United Nations Conference on Sustainable Development RIO+20: United Nations Conference on Sustainable Development, United Nations, available at: http://www.uncsd2012.org/.

The Aarhus Convention in a Map Parties and Signatories to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), available at: http://www.unece.org/fileadmin/DAM/env/pp/AarhusMap.html. The Aarhus Convention: Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters The Aarhus Convention: Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters, European Commission, available at: http://ec.europa.eu/ environment/aarhus/study_access.htm.

The Aarhus Convention: What is the Aarhus Convention? The Aarhus Convention: What is the Aarhus Convention?, European Commission, available at: http://ec.europa.eu/environment/aarhus/.

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table of legislation and other regulatory instruments

The Balaton Group The Balaton Group: A Global Network for Collaboration on Systems and Sustainability, Balaton Group, available at: www.balatongroup.org

The Waste Incineration Directive: Summary of Directive 2000/76/EC The Waste Incineration Directive: Summary of Directive 2000/76/EC on the Incineration of Waste (the WI Directive), European Commission, available at: http://ec.europa.eu/ environment/air/pollutants/stationary/wid/legislation.htm.

Waste Statistics Waste Statistics, European Commission, July 2013, available at: http://epp.eurostat. ec.europa.eu/statistics_explained/index.php/Waste_statistics.

What Has Been Done on Awareness and Participation Biosafety Clearing House: What Has Been Done on Awareness and Participation, Convention on Biological Diversity, http://bch.cbd.int/protocol/cpb_art23_info.shtml (accessed 16 May 2012).

Other Sources 14/20 Global Climate Change 14/20 Global Climate Change, United Nations Environment Programme Governing Council, 15th Meeting, 18 June 1987, available at: http://www.unep.org/Documents. Multilingual/Default.Print.asp?DocumentID=100&ArticleID=1653&l=en.

Anton, D.K. (2008) Anton, D.K., Observations about Expanding Public Participation in the International Environmental Law-Making Process, University of Michigan Public Law Working Paper No. 112, 12 June 2008, available at SSRN: http://ssrn.com/abstract=1145066.

Commission Staff Working Document Impact Assessment (2012) Commission Staff Working Document Impact Assessment Accompanying the document: Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet” {COM(2012) 710 final} {SWD(2012) 397 final}, Brussels, 29 November 2012 SWD(2012) 398 final.

Communication on the Collection and Use of Expertise by the Comission: Priciples and Guidelines Commission of the European Communities, Communication on the Collection and Use of Expertise by the Commission: Principles and Guidelines, 11 December 2002, Brussels, COM(2002) 713 final.

Determination Pursuant to Article 14(1) of the NAAEC (1998) Secreteriat of the Commission for Environmental Cooperation, Determination Pursuant to Article 14(1) of the NAAEC, 26 May 1998, SEM-97-005.

DG Commission’s Initiative European Nuclear Energy Forum and the Recommendations of Working Group Transparency DG Commission’s Initiative European Nuclear Energy Forum and the Recommendations of Working Group Transparency, ENEF Working Group “Information and Transparency”, available at: http://ec.europa.eu/energy/nuclear/forum/transparency/doc/ recommendations_and_definitions.pdf (accessed 10 September 2013).

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environmental democracy and law

ECE/MP.EIA/WG.2/2013/INF.5 Draft Guidance on Enhancing Consistency Between the Espoo Convention and the Environmental Assessment within the Framework of State Ecological Expertise in Countries of Eastern Europe, the Caucasus and Central Asia, Working Group on Environmental Impact Assessment and Strategic Environmental Assessment, 17 October 2013, ECE/ MP.EIA/WG.2/2013/INF.5.

Environmental Statistics and Accounts in Europe Environmental Statistics and Accounts in Europe, Publications Office of the European Union, Luxembourg, 2010. Executive Order 12898 on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, President Bill Clinton, 11 February 1994, available at: http://www.epa.gov.

Feichtner, I. (2012) Feichtner, I., Community Interest in: Max Planck Encyclopedia of Public International Law, Heidelberg and Oxford University Press, 2012, available at: www.mpepil.com. Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo (1997) Secreteriat of the Commission for Environmental Cooperation, Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo, Factual Record No. 1, 1997, SEM-96-001.

Marquet, B. (2008) Marquet, B., Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment (Doc. 11729), Motion for a Recommendation, 1 October 2008. Reference 3497 of 28 November 2008, Draft recommendation adopted unanimously by the committee on 4 September 2009. Doc. 12003 Parliamentary Assembly, 11 September 2009, Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment, Report Doc. 11729, Reference 3497 of 28 November 2008, Draft recommendation adopted unanimously by the committee on 4 September 2009

Meeting of Experts on Human Rights and the Environment (2002) Office of the United Nations High Commissioner for Human Rights, Final text (16 January 2002) Meeting of Experts on Human Rights and the Environment, 14-15 January 2002.

Mendes Bota, J. (2009) Mendes Bota, J., Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment (Doc. 12003, Report Doc. 11729, Reference 3497 of 28 November 2008), Report, Parliamentary Assembly of the Council of Europe, 11 September 2009.

Pontifical Council for Justice and Peace (2004) Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church to his Holiness Pope John Paul II Master of Social Doctrine and Evangelical Witness to Justice and Peace, Vatican, 2004, available at: http://www.vatican.va/roman_curia/ pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendiodott-soc_en.html

Pope John Paul II (1991) Pope John Paul II, Centesimus Annus, Vatican, 1991.

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Pope John XXIII (1961) Pope John XXIII, Mater et Magistra, Encyclical on Christianity and Social Progress, Vatican, 15 May 1961.

Pope Pius XI (1931) Pope Pius XI, Quadragesimo Anno Encyclical on Reconstruction of the Social Order, Vatican, 15 May 1931.

Presentation: Important Stakeholder Interactions in 1 and Phase 2 of the Nuclear Power Programme in Hungary Dobi, B., Presentation: Important Stakeholder Interactions in 1 and Phase 2 of the Nuclear Power Programme in Hungary, Ministry of Rural Development, available at: http://www. iaea.org/NuclearPower/Downloads/Infrastructure/meetings/2012-03-20-23-TM-Vienna/8. pdf (accessed 21 October 2013).

Public Participation in Waste Management Related Decision-Making Public Participation in Waste Management Related Decision-Making: Waste ManagementPublic Toolkit, Justice and Environment, 2011.

Recommendation 1885 (2009) Recommendation 1885 (2009): Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment, Parliamentary Assembly, Council of Europe, available at: http://assembly.coe.int/ASP/XRef/X2H-DW-XSL. asp?fileid=17777&lang=EN.

White Paper on Reforming the Commission Commission of the European Communities, Reforming the Commission - A White Paper, 1 March 2000, Brussels, COM (2000) 200 final.

Schedule of IPPC Licensing Fees Schedule of IPPC Licensing Fees, available at: http://www.epa.ie/pubs/advice/process/EPA_ IPPC_licence_fees_schedule.pdf.

Simons, G (Intensive Course on Planning Law) Simons, G., SC Intensive Course on Planning Law, Trinity College, Dublin, 2011.

UNFCCC Subsidiary Body for Implementation (2004) UNFCCC Subsidiary Body for Implementation, Promoting Effective Participation the Convention Process, 16 April 2004, Twentieth Session, FCCC/SBI/2004/5.

White Paper on European Governance European Commission, European Governance - A White Paper, 25 July 2001, Brussels, COM (2001) 428 final.

Wolfrum, R. (2012) Wolfrum, R., Common Heritage of Mankind in: Max Planck Encyclopedia of Public International Law, Heidelberg and Oxford University Press, 2012, available at: www.mpepil. com.

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