Environmental Justice & Public Participation

23 May 2005 – UKELA Conference “Environmental Justice & Public Participation

Environmental Justice & Public Participation

By: Sir Crispin Agnew of Lochnaw Bt QC

Introduction

Historical access to environmental information

For a number of years there has been movement towards the greater provision of environmental information to the public in order to allow the public better participation in environmental decision making process. This has been piece meal.

The Environmental Information Regulations 1992[1] provided for specified environmental information, subject to exceptions, to be made available “to every person who requests it” because “access to information on the environment held by public authorities will improve environmental protection”. Similarly Article 6(3) of the Habitats Directive[2] provided that “Any plan or project” not connected with the management of an SPA or a SAC can only be approved, subject to the strict regime of the directive “after having obtained the opinion of the general public”.

Council Directive 85/337/EEC [Environmental Assessment][3] was an early Directive that required environmental information to be made available to the public. Article 6(2) originally provided:

“2. Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public an opportunity to express an opinion before the development consent is given.”

Even the Court of Human Rights decided in Guerra v Italy[4] that there was an obligation, under Art 8 of the ECHR, on the state to provide essential information about the dangers from a factory that would have enabled the applicant to assess the risks they and their families might run if they continued to live in the area.

WWF Environmental Justice Project Report[5]

The WWF Environmental Justice Project Report found that “the civil law system fails to provide environmental justice” and identified a number of concerns in relation to access to environmental justice in the UK including:

The most significant single barrier was perceived to be the application of the current rules on costs;
a lack of judicial understanding of, and/or sympathy with, environmental issues
the limited scope of judicial review proceedings
the inability to obtain interim (injunctive) relief.
the uncertainty about standing

Scottish Executive

Two current issues being discussed in Scotland are:

third party rights of appeal in planning matters on which the Scottish Executive have consulted and to which the developers are firmly opposed; and
the “leak” that the Scottish Executive were considering nominating strategic planning applications, which could not be challenged as to their merits at any planning inquiry

If the “leak” is correct this would appear to be a further limitation to the right to challenge decisions that may affect the environment.

Aarhus Convention 1998 and the EC

The Aarhus Convention 1998[6] is now the driving force behind the EC and UK’s initiatives towards a wider access to environmental justice. The aim of the Convention is to:

“ …further the accountability of and the transparency in decision-making and to strengthen public support for decisions on the environment.”

The preamble recalls a number of international declarations and resolutions on which the convention is based.[7] The fundamental purpose behind the Convention is recognised in the preamble:

“Recognizing that adequate protection of the environment is essential tohuman well-being and the enjoyment of basic human rights, including the rightto life itself,

Recognizing also that every person has the right to live in anenvironment adequate to his or her health and well-being, and the duty, bothindividually and in association with others, to protect and improve theenvironment 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 indecision-making and have access to justice in environmental matters, andacknowledging in this regard that citizens may need assistance in order toexercise their rights,

Recognizing that, in the field of the environment, improved access toinformation and public participation in decision-making enhance the qualityand the implementation of decisions, contribute to public awareness ofenvironmental issues, give the public the opportunity to express its concernsand enable public authorities to take due account of such concerns”

The three pillars

The Aarhus Convention sets up the “three pillars” for access to environmental justice.

Each signatory “shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters”[8].

This is achieved by the “three pillars”.

1 - a right of access to environmental information (Art 4 & 5);
2 - a right to participate in the decision making process (Art 6)
3 – access to justice for non compliance (Art 9).

Access to information

Environmental information is defined by Article 1.3 as information “in written, visual, aural, electronic or other material form” on:

“(a) The state of elements of the environment, such as air andatmosphere, water, soil, land, landscape and natural sites, biologicaldiversity and its components, including genetically modified organisms, andthe interaction among these elements;

(b) Factors, such as substances, energy, noise and radiation, andactivities or measures, including administrative measures, environmentalagreements, policies, legislation, plans and programmes, affecting or likelyto affect the elements of the environment within the scope of subparagraph (a)above, and cost-benefit and other economic analyses and assumptions used inenvironmental decision-making;

(c) The state of human health and safety, conditions of human life,cultural sites and built structures, inasmuch as they are or may be affectedby the state of the elements of the environment or, through these elements, bythe factors, activities or measures referred to in subparagraph (b) above;”

The public, which includes all natural and legal persons, associations, organizations or groups[9], is entitled to environmental information “without an interest having to be stated”[10]. It should be provided in the form requested unless it is reasonable to provide it in another form or the information is publically available. The information does not have to be provided if:

the public authority does not hold the information, or the request is manifestly unreasonable, or the request concerns material in the course of completion or concerns internal communications where there is an exemption in national law or practice[11];
the disclosure would adversely affect, confidentiality of proceedings of public authorities where that is provided for in national law, international relations, national defence or public security, judicial proceedings, the confidentiality of commercial or industrial information where that confidentiality is protected by law, intellectual property rights, data protection; protection of the person who provided the information, protection of breeding sites or rare species etc.[12]

Article 5 provides that public authorities must possess and up date environmental information, that there is a flow of environmental information to public authorities, that in the event of any imminent threat to human health or the environment that “all information … is disseminated immediately” to the public. Public authorities have to made practical arrangements to provide information to the public about what environmental information is available and to assist the public in obtaining that information. There is an obligation to make sure that environmental information is progressively made available in electronic databases and operators are encouraged to make information available.

Right to participate

Article 6 provides for public participation in the decision making process, but the Article applies only to the “activities listed in annex I”. The activities are wide ranging and cover most of the controversial environmentally sensitive activities. The public have to be informed of:

(a) The proposed activity and the application on which a decision will be taken;

(b) The nature of possible decisions or the draft decision;

(d) The envisaged procedure, including, as and when this information can be provided: …

[eg: commencement of procedure, opportunities to participate, public hearing, where information available, body to which comments should be forwarded, indication of relevant environmental information] …; and

(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.

Provision has to be made for a reasonable time for informing the public and for public participation and public participation has to be allowed “when all options are open and effective public participation can take place”[13]. The authority has to make available “all information relevant to the decision making” subject to the exceptions in Article 4. The information has to include at least:

(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;

(b) A description of the significant effects of the proposed activity on the environment;

(d) A non-technical summary of the above;

(e) An outline of the main alternatives studied by the applicant; and

(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.

Article 7 is important in that it provides for public participation:

“during the preparation of plans and programmes relating to the environment, within a transparent framework, having provided the necessary information to the public”.

Access to justice

Article 9 provides for access to justice in the following circumstances:

where access to information is refused or inadequately answered any person is to have “access to a review procedure before a court of law or other independent and impartial body …” which is “expeditious” and is “free of charge or inexpensive …”;
where a party has “sufficient interest” to have a review procedure before a court or independent and impartial tribunal “to challenge the substantive and procedural legality of any decision, act or omission”.
each party is to ensure, where a member of the public has sufficient interest, that “members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

The phrase “substantive and procedural legality” will probably limit challenges to judicial review or with no challenge on the merits in the courts.

Article 9.4 provides that “the procedures… shall provide adequate andeffective remedies, including injunctive relief as appropriate, and be fair,equitable, timely and not prohibitively expensive.” It should also be noted that parties should consider establishing “appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”.[14]

EC implementation of Aarhus

The EC is in the process of implementing the three pillars of the Aarhus Convention. So far the first two pillars have been implemented.

Access to information

Directive 2003/4/EC on public access to environmental information implements the obligation to provide environmental information. The objectives of the Directive are:

(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

(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. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.

Amongst other things this Directive requires;

Art 3.1 – “that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest”; and

Art 6.1 - for a review of any refusal to provide environmental information and that “Any such procedure shall be expeditious and either free of charge or inexpensive”.

Otherwise the Directive more or less mirrors the Aarhus Convention, providing for exceptions (Art 4), access to a court where information refused (Art 6) and a duty to disseminate environmental information (Art 7).

Right to participate

Directive 2003/35/EC 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.

The Directive does two things. First it provides for public participation in “plans, programmes and policies relating to the environments” (Aarhus Art 7) and then it amends the EIA and the integrated pollution prevention and controlDirectives to bring them into line with the obligation to provide for “public participation in decisions on specific activities” (Aarhus Art 6).

The Directive provides for access to justice in relation to participation in the plans and programmes or in relation to specific activities goes on to provide that:

Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, …,

(b) …

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 subject to the public participation provisions of this Directive.

It also provides that:

“Any such procedure shall be fair, equitable, timely and not prohibitively expensive”[15]

Access to justice

The EC has not yet introduced a Directive to give the public access to environmental proceedings in order “to challenge the substantive and procedural legality of any decision, act or omission”. A “Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters”[16] has been issued.

Points of particular interest are:

Art 3 -Members of the public are to have “access to environmental proceedings in order to challenge acts and omissions of private persons which are in breach of environmental law;

Art 4 -Members of the public with sufficient standing are to have access to environmental proceedings “in order to challenge the procedural and substantive legality of administrative acts and administrative omissions in breach of environmental law …”;

Art 5 – NGOs (“qualified entities”) are to have access to environmental proceedings, without having sufficient interest “if the matter of review in respect of which the action is brought is covered by the statutory activities” of the NGO;

Art 6 -Right to have an internal review

Art 8 – recognition of NGOs (“qualified entities”) – independent and non profit making; adequate organizational structure, must have been established for a minimum period not exceeding 3 years and have annual accounts certified by an auditor.

Art 10 – obligation to provide “for adequate and effective proceedings that are objective, equitable, expeditious and not prohibitively expensive”

UK implementation of EC

The UK is implementing the Aarhus obligations by implementing the EC Directives.

Right to information

The right to information is implemented by:

The EnvironmentalInformation Regulations 2004 [SI 2004/3391]; and

The EnvironmentalInformation(Scotland) Regulations 2004 [SSI 2004/520];

The provisions generally conform to Directive 2003/4/EC and the Aarhus Convention. In so far as the Directive and Convention require access to “a review procedure before a court of law or another independent and impartial body”, the Regulations provide that review is by the Information Commissioners established under the Freedom of Information Act 2000 [Westminster] and the Freedom of Information (Scotland) Act 2002 with a right of appeal on a point of law to the courts.

Right to participate

The main right to participate in decision making is laid out in Directive 2003/35/EC where Article 2 makes provision for participating in decision making about plans and programmes and Article 3 provides for participation in specific decision making by amending Directives 85/337/EEC [EIA Directive] and 96/61/EEC [integrated pollution prevention]. These provisions have not yet been fully implemented in the UK.

The Environmental Assessment of Plans and Programmes Regulations 2004[17] and the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004[18], which provide for consultation on strategic plans and programmes do not yet include a right of public consultation as is required by the Directive.

Access to justice

The two Environmental Information Regulations make provision for access to justice when a request for information is refused by means of application to the Information Commissioners.

No other specific Regulations have been promulgated to implement the Aarhus requirement to allow a party to “challenge the substantive and procedural legality of any decision, act or omission”. This is not surprising as the EC has only issued a proposed directive.

Problems arising from the Aarhus Convention and its implementation

There are a number of issue arising from the Aarhus Convention and its implementation.

1.The right given by Art 6 is only the right to participate in the decision making process and this is given effect to by giving an opportunity for public participation by allowing a member of the public “to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.”

2.The Aarhus Convention and the EC Proposal for a Directive, which requires access to a court “to challenge the substantive and procedural legality of any decision, act or omission”. That is a classic judicial review test.

This means that in the UK the right of “access to justice” has not been improved, because the merits of any decision cannot be challenged in an application to a court. The merits of any decision can only be challenged if provision is made for an appeal to a public inquiry or hearing.

3.Article 9.4 of the Aarhus Convention and the EC Directives require access to a procedure that is “not prohibitively expensive” – there is no clear definition of what is “prohibitively expensive” and by what criteria this is measured. The UK is reputed to have one of the most expensive court systems in Europe, but it is not clear that this will be considered to be prohibitively expensive. Does the phrase fall to be considered in relation to each member of the public, or is it viewed objectively by reference to any possible litigant?

There is an obligation in Article 9.5 to “consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”. If this is legal aid, it will not improve rights of access for many people.