Part III

Assessment of Good Practices on Access to Information and Public Participation in Decision-making in the NEHAP and LEHAP Processes

Marianna Bolshakova
with input from Grazyna Krzywkowska, and Magda Toth Nagy

I. The NEHAP Process: Successful Public Participation Practices

The National Environmental and Health Action Plan (NEHAP) process is at different stages in countries throughout Europe. Several countries have taken it upon themselves to complete the project of building a NEHAP before the general deadline and presenting it as a model for the rest. In most of these ěmodelî countries, the plan has been prepared and is either at the final stage of adoption or has already been adopted and entered into the implementation phase.

As the countries and their legislative frameworks vary, so does the practice of public involvement in all phases of the NEHAP process. After the assessment of the Task Force countries' experience, the World Health Organization (WHO) Guidance (June 1997) notes there were different attempts to involve the public in the different stages of NEHAP development. However, such attempts lacked a developed strategy of public participation. The WHO Guidance also mentions the need for better use of the Sofia Guidelines on Access to Information and Public Participation. This has become even more relevant with the June adoption of the Aarhus Convention.

Many of the countries assessed in this study have followed the suggestion of the WHO Guidance and provided wide possibilities for public participation in the NEHAP process. However, the level of success is not the same in all of the states involved. In some countries there was no opportunity for public access to information in the NEHAP preparation and no opportunity to comment or to assure that comments were given due account by the responsible authorities. The public officials interviewed within this project have attested to an absolute absence or minimal level of public involvement due to additional expenses which would be incurred by the government, as well as a desire to not ěconfuseî the public by revealing the policy document in its draft stage. Under such conditions, and contrary to the WHO Guidance, the NEHAP text is usually prepared solely by governmental officials and hired professionals, without any participation of any other stakeholders, and the text is published only after it has been adopted by the parliament or government.

In other countries, though some cooperation with NGOs was evident, it was limited to the groups selected by the ministry itself, and therefore it is difficult to assess how much of the public opinion they represent. Finally, the study shows a tendency in most of the Central and Eastern European (CEE) countries and Newly Independent States (NIS) to limit the possibility of access to information and participation to certain non-governmental groups, excluding the general public from this process.

In the countries where participation and involvement were successful there were, of course, different means and ways of achieving it. However, the major ones are as follows:

• In all the countries where the public received the draft NEHAP for comments, it was distributed when it reached the stage of the penultimate draft prepared by the government. The only information available to the public before this was that which was presented through mass-media, which usually revealed only that such a document was being prepared. In some countries (such as Switzerland), however, NGOs were able to participate in the elaborating and priority-setting process.

• The transparency of the process in many countries can be assessed only from the moment of the first distribution of the draft. From that moment on, the groups involved, at least, knew about the process of NEHAP preparation and further implementation. In most of the countries where public involvement existed, the first draft was distributed to different NGOs at a workshop organised by the ministry, sometimes with financial support from different foundations (for example, the Regional Environmental Center for Central and Eastern Europe (REC) in Bulgaria). The meetings were organised on the national or regional level, and people were given the possibility to comment on the draft. The problem of such organisation is that some of the participants have extremely limited time for studying the material if they are given the text at the meeting. In all the countries, such text has also been distributed to NGOs, but only those selected by the ministries. However, some tendency to acknowledge and respect the need for substantial time to make comments is apparent. For example, the Slovenian government is planning to provide the public two to three months for submitting comments on the draft.

• According to those interviewed, the issues of public participation which are incorporated into the text of NEHAPs received very close attention by the NGO representatives and other public members (along with such issues as policy priorities and implementation actions). However, it is interesting to note that even though comments provided by the public received very close attention and most of them were incorporated into the text of the final documents, most of the NEHAPs (at least those available from the WHO web-page) include only small chapters acknowledging a need to inform and involve the public.

• The WHO Guidelines define the scope of "public" involvement as follows: general population, including special interest groups and NGOs, the media, expert and professional bodies and unions and trade associations. In practice, the information on the drafts that was distributed to the NGOs was either selected by the government or identified by other NGOs upon governmental request. In many cases, ministries distributed the information only to the groups known to them. Only in a few countries was the information about the meetings or workshops where the discussion of the draft took place widely publicised for the general public (in Hungary, for example). Professional organisations (usually governmental institutions or contracted professionals) were generally informed and consulted even in the preparation stage.

• Public involvement started at the stage of the pre-final draft distributed to the NGOs and local authorities for comments in all the countries. Only in a few of them were public (NGO) representatives involved in the work of working groups or steering committees writing the text and working on implementation (e.g. Bulgaria, Latvia, Hungary). In such situations these were limited to one or two representatives selected by the governmental agency or official responsible for the draft preparation.

• As mentioned above, in most of the countries the NEHAP process has not entered into the implementation phase, or at most is in the very beginning of it. However, despite limited provisions of public participation in the texts of the NEHAPs themselves, it is evident that the public is more active in the process of local implementation. This is particularly true in the preparation and implementation of the Local Environmental Action Plans (LEHAPs). In some countries, it is done by including NGO representatives into the local LEHAP Committees (e.g. Bulgaria). In others, it is by providing the possibility for wider public discussion of the LEHAP drafts and giving a significant role to the public organisations in the implementation process. Some public involvement through participation in the working groups dealing with final elaboration of the draft NEHAP or on the steering committees on implementation is also possible (e.g. Bulgaria).

• The openness of the NEHAP preparation process differs from country to country. In countries where the public has been involved by making comments, such possibility has not usually been limited to particular NGOs. However, the fact that only some NGOs were notified about the discussion workshops and given the text of the draft makes it difficult to consider such process as open-ended. In any case, most of the countries, at least formally, do not limit the circle of those allowed to submit comments, and some countries (Hungary, for example) do publicise the public discussion to be organised. Other countries, besides distributing the draft among some NGOs, also provide a copy to anyone who requests it. In general, the whole process in many countries is considered to be very open and progressive compared to previous policy-making systems.

• There is little practice of creating the lists of the public involved and supplying everyone on such list with regular update information. Usually the NGOs involved in the workshop and later in the conference get the information regarding the process. The regularity of such information sharing is not established. In addition to these, the NGOs involved in the working groups which add comments to the draft and the NGOs present at the steering or similar committees should have had regular access to the information necessary for these activities. But in most of the countries the process of public involvement with regard to NEHAP drafting is limited to commenting on the pre-final draft. In some countries there is also feed-back on the comments provided by the working groups. Therefore, there is usually no regular informing or an established follow-up process. Usually NGOs participate in implementation through involvement in the preparation and implementation of the LEHAPs.

• As a rule, if there is public involvement, the government agency responsible tries to involve most of the stakeholders. In many cases the ministries delegate the process of identification of the interested public to the NGOs themselves. The practice of involving businesses, local authorities and consumer organisations also exists (e.g. Switzerland).

• All those who participate in the workshops on the draft discussion or are given a copy of the draft for consideration have a possibility to submit either oral comments during the meeting or written comments during the time-limit determined by the government. Such comments are collected, and as a rule working groups are established to assess them and include them into the draft (in some countries such working groups include NGO representatives). Unfortunately, in most of the CEE countries, no feed-back on comments is required, and therefore there is no need for decision-makers to defend their decisions. However, as practice shows, the comments are given due account and the text is usually changed to bring it in accordance with public opinion. In the UK NEHAP, the whole chapter on noise pollution was added based on public comments. Sometimes those who incorporated comments into the text of the next-to-final draft went back to the commentators more than once. In most countries, there is a positive experience of communicating the final version of the comments not only to the relevant officials, but also to the commentators.

• Generally, the public does not have representation in decision-making bodies. Even if they are present, public representatives often participate only as observers. In some countries, NGO representatives are invited to be on the steering committees on implementation and working groups on drafting and incorporating comments. Such representatives are usually invited by the governmental agency or are appointed by the NGOs. Although they may hardly be said to represent the whole community, they still might bring the opinion of the public into the decision-making process.

• Due to the political character of the plan, there is a very limited possibility of challenging the decisions made within NEHAP preparation, implementation or monitoring, unless it is specifically provided by the country's legislation.

II. The LEHAP Process -- Successful Practices of Public Participation

The LEHAP process originated as an implementation strategy for the NEHAPs. The priorities and actions set up at the national level are thought to be best implemented on the local and regional levels. Therefore, local authorities were given the task of preparing, developing and implementing the Local Environmental Health Action Plans on the basis of the strategies developed in the national plans.

As in the case of the NEHAPs, the LEHAP process also depends on the development of the NEHAP in a particular country. Though there are usually different regional and local health programmes being developed, the process is usually started through a bottom-up approach, where the initiative comes from the local communities.

Additionally, the success of public participation and public involvement in the LEHAP process can be directly dependent on the practice of public participation in the NEHAP preparation and the influence of public comments on the final version of the text, especially in the part that determines public participation and access to information.

Another specific feature of the LEHAP process is that, in most of the countries, it is associated with the Healthy Cities Project, and coordination of the two projects helps to facilitate the whole process.

From the feedback on local implementation that was received from several countries in the region, it is possible to make the following generalisations about successful public involvement in the LEHAP process:

• Unlike the NEHAP process, which can be ěhiddenî from the public by the governmental policy concerns, the information about the LEHAP preparation can be first obtained within the NEHAP process itself. This is especially true if the public has substantial participatory rights reserved in the NEHAP.

  Otherwise, practice shows that local authorities have rather close links with the public, and notification and involvement begin at a much earlier stage than in the NEHAP process. In fact, in some of the countries (such as Hungary or Macedonia) regional or local groups are often asked to participate in the drafting and research as experts or members of organising committees, or they are even contracted as working groups on LEHAP development (city of Veles, Macedonia). The fact that the process is usually linked with the Healthy Cities projects adds to public access to information in early stages, through public involvement into the latter.

  Another interesting point to note is that the whole LEHAP preparation campaign is highly advertised not only through mass-media but also by publishing special posters, leaflets, brochures and publications.

• Due to the public involvement into the LEHAP process in its early stages, the whole process becomes more transparent, and more citizens get involved in its preparation, implementation and monitoring. However, the materials developed within a study conducted for the LEHAP preparation purposes, though available to the NGOs involved in the process, are usually not disseminated actively to the general public. On the other hand, in some LEHAPs (like in the city of Gyor, Hungary), all the materials, including the database on existing environment and health programmes, applicable methods, experts involved and other relevant information, is available to anyone.

  Another interesting difference of the LEHAP preparation process is that, on the local level, both the authorities and all those involved in the work on elaboration of the draft cooperate closely with the media, and the latter usually covers the whole process, providing regular reports on development and, therefore, contributing to the overall transparency of the process.

• Public involvement through the possibility of designing the plan or contributing to it substantially through comments, evaluations and surveys provided the public with the opportunity to design plans in a way that further participation in implementation and monitoring phases is possible.

• Also unlike in the NEHAP process, the public involved in the LEHAP preparation usually was not limited to the most active NGOs; consequently, the whole process became more open. Basically anyone active in the community and interested in the issue was able to participate and make comments. In fact, the general tendency on the local level seems to give a rather great significance to the issues of public involvement, encouragement of participation and awareness. Therefore, a lot of programmes within and outside the LEHAPs and Local Environmental Action Plans (LEAPs) are targeted at public education on environmental and environment and health issues.

  Another way of achieving broader public participation is by conducting surveys for determining the priorities for the LEHAP. Such a method provides the possibility of notifying a broad public at an early stage before the priorities of the plan are set, getting substantial feedback from a very large circle of the population, achieving greater public awareness, and receiving significant support for the project from the majority of people living in the area. Organisation of the forums and public discussion of the whole project or some of its parts contribute to these goals as well. Such discussions are usually organised from the beginning of the process, in order to get some ideas from the broad public.

  Even if not at this stage, there is usually still broad public involvement in the later stages, starting with commenting on the pre-final draft of the text. In some of the countries, members of the NGOs and public are involved in working groups dealing with different fields of the plan, or in task force groups dealing with each priority of the plan (as in the LEHAP process in Banska Bystrica, Slovakia).

• As stated above, the development of the LEHAP process depends a lot on the NEHAP process in a particular country. Due to the fact that in most of the countries the NEHAPs have themselves been just recently adopted or are being adopted this year, it is early to talk about the practice of public involvement into the process of LEHAP implementation and monitoring. However, taking into account the rather significant level of public participation and influence on the decision-making process in preparation of LEAPs, it is possible to assume that such practice will provide a solid background for public involvement in all the stages of the LEHAP. This is especially so because of the greater role the public and NGOs are playing on the local level, including better relations with the local government.

• Usually there are some lists of organisations dealing with the issues. The lists are put together either by the local authority itself or by different foundations (e.g. the REC), and the NGOs listed are usually invited to participate in the meetings and are given the pre-final draft for comments. Such a method might exclude some groups, and it does not involve interested citizens. However, the method is still more inclusive than the one used most in the NEHAP process, in which one of several major groups is contacted and then they themselves decide who else should be involved, or how a minister or other official selects a particular NGO or representative. Usually, those groups and citizens involved in the process of preparation receive all the relevant information. Though others can receive it through public meetings, workshops, discussions and mass-media, they are usually not given any particular documentation.

• Although the groups dealing with the preparation of the LEHAP try to involve as many stakeholders as possible, the success of such involvement remains questionable. There are different methods of public involvement. In LEHAP preparation in Gyor (Hungary) the organisers, besides conducting surveys, working with media and distributing publications to achieve broad public involvement, are also going to ask local government representatives to have discussions on the concrete proposals, problems and priorities with their electorate. This practice will enable the representatives to meet with their electorate and discuss substantial proposals and at the same time will enable organisers of the LEHAP to reach a greater number of people and learn about the concrete problems in different districts.

  The business sector is also involved to a greater extent than in the NEHAP process, and since the businesses will also be greatly influenced by implementation of the plan, they are usually extremely participatory and mostly cooperative. Though not always directly involved in the drafting process, they are usually given the pre-final draft and asked for comments and suggestions. Besides this, they are usually unavoidably involved in the studies conducted during the preparation period. In Hungary, there was a positive experience of raising interest in the project among businesses by providing them with tender opportunities that would help them in obtaining subventions for environmental protection investments.

• As described above, the public usually has different opportunities to submit comments on the draft plan at different stages of the preparation process. The most active stage for this is through meetings and discussions, as well as distribution of the pre-final draft for comments. As mentioned, in many countries those involved on this stage include different parts of the community and, on average, wide representation is achieved. However, in some countries such a process is still limited to only those who are potentially interested or those who would be dealing with implementation of concrete activities in the future.

  The comments are usually taken into account and some feedback is given to commentators. It is difficult to tell how well-reasoned the decisions are, but the fact that there is a significant public interest representation in the process as well as closer cooperation among local authorities and the public on the local level allows us to assume that most important and landmark comments, suggestions and ideas are incorporated.

• In most of the projects surveyed, there was significant representation of the public through NGO representatives as well as direct citizen involvement in the committees and work-groups dealing with preparation and drafting. (For example, in Veles, a town in Macedonia, a special Public Committee which included anyone who wanted to participate in its work and some respected community citizens who were able to contribute from their experience to the process - such as lawyers, doctors, teachers and scientists -- were invited to participate in the plan preparation). There is, however, usually no public representation in the bodies dealing with the final decision on adoption of the plan.

• As in the case of NEHAPs, there is practically no possibility to challenge the final decision on a LEHAP. However, the process of preparation seems to be more flexible, though officially the opportunities to challenge the decision are very limited. Greater public involvement, as well as media involvement, allows for such possibilities in an unofficial way.

Applicability of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

The Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, though not specifically focused on the health issues, is very significant for the citizens' rights in environment and health matters. In addition to covering the citizens' rights of access to information, public participation and access to justice in environmental matters, the Aarhus Convention also has direct references to adequate health, conditions of human life and well-being.

In light of such significance, it is especially important to give appropriate attention to the implementation of the requirements set in the convention within the NEHAP/LEHAP process.

Many of the criteria used in this study clearly reflect some of the Aarhus Convention's provisions as being applicable for the NEHAP/LEHAP process. Art. 5.3(c) of the convention establishes the requirement of the active dissemination of "policies, plans and programmes on or relating to the environment," therefore providing for easy accessibility to the text of the document. Art. 7 regulates public participation concerning plans, programmes and policies relating to the environment. In light of the relevance of environment and health issues to environmental issues in general, this article is also very relevant for the NEHAP/LEHAP process. With Article 7 referring directly to Art. 6.3, 6.4 and 6.8, this article sets the requirements of guaranteeing a reasonable time-frame for the different phases and early notice (through Art. 6.3 with reference to Art. 6.2) and reasonable time-frames, as well as early involvement in general. Art. 6.8 demands ensuring "that in the decision due account is taken of the outcome of the public participation".

The NEHAP/LEHAP process is a specific and unique decision-making process which is connected to both environment and health, and it is also community-oriented. Therefore, it requires also specific and more detailed regulations with regard to public involvement. Though the Aarhus Convention provides a useful basic legal framework for the development of public participation strategies, certain aspects of public participation in the NEHAP/LEHAP process should be further developed in the guidelines prepared by government authorities. These should incorporate also other existing public participation mechanisms into the decision-making process. For example, involvement of the general public into the process through active dissemination of information and broad publicity would ensure involvement of all the stakeholders and contribute to the credibility of the process among the general public.

The process should be open-ended, allowing anyone interested to be informed and to participate. Requirements of public involvement, due account of public comments and reasoned decisions on the later stages of NEAP/LEAP implementation and monitoring as they are provided in Art. 6.7, 6.8 and 6.9 of the Aarhus Convention, should also be applicable to the NEHAP/LEHAP process. Government authorities should also be required to identify and notify all potential stakeholders. The LEHAP process, which is more community oriented and necessarily involves a significant part of the local communities into its implementation, could provide for an even greater degree of citizen participation. Such public involvement could even include methods of direct democracy (such as referenda or joint decision-making). Such a broad participation would allow true reflection of the local community's opinions and concerns in the priority setting of the LEHAP as well as giving greater credibility to the action plan within the community.

Article 9 of the Aarhus Convention provides for access to justice if access to information or public participation rights guaranteed by the provisions of Article 4, Article 6 and, within certain circumstances, national law related to the environment is breached. These provisions only guarantee access to justice for access to information provided upon request and public participation in decisions on specific activities. They do not cover active dissemination of information and public participation concerning plans, programmes and policies. The NEHAP/LEHAP processes are decision-making processes which belong to the category of plans, programmes or policies, and active dissemination of information is also crucial for the successful public involvement. Therefore, some guarantees and mechanisms for challenging the decisions on different grounds should be also available for the public, especially in the LEHAP process (for example, if public participation is not provided or not properly provided; procedures for public involvement, if any, are violated; etc.).

Although, the Aarhus Convention provides for the Environmental Health Action Plans process and for several instruments for improving access to information and public participation, the specific features of NEHAP/LEHAP process require inclusion of some additional public participation mechanisms. For this purpose, the guidelines below, developed by the REC and based on the criteria for good practices, should be considered for future implementation.

III. Guidelines for Public Involvement in Decision-Making on Environmental Health Related Projects, Programmes and Plans

The numbering below follows the numbering of the list of Criteria for Good Practices of Access to Information and Public Participation in NEHAP or LEHAP process. (See box 3).

BOX 3: Criteria for Good Practice of Access to Information and Public Participation in the NEHAP/LEHAP Process 1. Early information is provided to the public about the decision-making process. 2. Decision-making process is transparent: All information/documents, materials are accessible as soon as they become available, including the full minutes of consultations, hearings, reports of expert meetings. Progress reports are disseminated regularly. 3. There is public participation in designing the public participation strategy and procedure. 4. There is identification and early notification of the ěpublic.î 5. There is early involvement in decision-making. 6. There are opportunities for the public to participate throughout the whole decision-making process in the different phases (developing, prior to adopting, implementing of the NEHAP/LEHAP and monitoring and reviewing the process). 7. It is an open-ended participation process. (Everyone who is interested can get on the list, participate and contribute.) 8. There is active notification. (Those who are on the list get all information automatically, and those who should know about the process also get information.) 9. There is a broad definition concerning stakeholders. All stakeholders should be invited to participate. 10. There are opportunities to submit comments which are seriously considered and documented, and substantive arguments are addressed in the decision-making process. 11. There is public involvement in the decision-making bodies in the LEHAP process, and the representatives of the public/NGOs are treated fairly. 12. The decisions are reasoned. 13.There is a possibility to review and challenge the decisions.

1. Information about the project should be actively disseminated to all stakeholders and relevant NGOs dealing with the issue, and provided to anyone upon request at the earliest stage possible. Anyone willing to participate should be involved in the draft preparation process by having a possibility to set the priorities and propose his or her ideas on solutions and actions within the project.

2. (a) Transparency of the project, as a prerequisite for successful public participation, can be achieved by making public the information on the whole process. Information about project stages and persons responsible for their development and decision-making, sources of information, ways and methods of contribution to and involvement in preparation, realisation, monitoring or evaluation phases, as well as clear procedures for challenging the decisions made within the project, should be communicated and clearly explained to all the stakeholders as well as to the broad public. (b) The public should also be able to regularly access all the information, background materials, minutes and protocols of meetings, hearings, expert reports and regular progress reports.

3. The best way to ensure efficient mechanisms of public participation in the later stages of projects is to involve the public with the development of a public participation strategy and methods.

4. Besides the NGOs known to the organisers, the whole general public should be addressed and specific attention paid to special interest groups, the media, independent experts, as well as professional bodies and all those whose interests will be potentially influenced by the project (stakeholders).

5. Early involvement of the public in the drafting process should be achieved by means of early notification, transparency of the process and the possibility to comment on all stages starting from priority-setting.

6. The project or plan adopted should ensure the possibility of public involvement in all of the later stages: implementation, amendments, monitoring and evaluation. Principles of early notification and involvement, due account of public comments, reasoned decisions and the possibility to challenge the decisions should be applicable at these stages as well.

7. The process should be open-ended. Anyone interested should be informed, and be able to participate and contribute. This can be achieved by wide advertising, work with mass-media, regular reporting on progress, special notification of everyone potentially interested or affected and communication of the project to the public through elected governmental officials.

8-9. A list of all the stakeholders, as well as those who expressed interest in participation, should be compiled. Everyone on the list should be notified immediately and kept regularly informed about any progress, new materials and conclusions, meetings and discussions to be held, actions to be taken, and opportunities to monitor and take part in the evaluation process.

10, 12. Anyone should be able to submit comments, orally during the discussion meetings or in writing to the project organisers. All the comments should be documented, assessed and publicised. The comments should be given due account by incorporation into the draft decision or otherwise by reasonable explanation on why the comment cannot be incorporated. Commentators should be given substantial feed-back on their comments.

11. For the greater credibility of the NEHAPs/LEHAPs, some participation of NGO representatives and citizens in working groups developing the project and in committees on its implementation is very desirable. In the LEHAP process, decision making by the public itself through mechanisms of direct democracy (e.g. referenda or joint decision-making) results in even greater credibility of the project.

13. Anyone should be able to complain about and challenge the decisions taken, upon their approval or throughout the life of the project, on different grounds (e.g. if public participation is not provided or not properly provided, procedures for public involvement, if any, are violated, etc.).

List of Contributors

Dr. Ivan Ivanov, Senior Expert in Occupational Health, Ministry of Health, Bulgaria

Dr. Velich, Institute for Health Organization and Economics, WHO Collaborating Center for Health Development, Croatia

Maria Miklosy Bertalanfy, Mayor's Office, Gyor, Hungary

Alan Pinter, Deputy General Director, B. Johan National Institute of Public Health, Hungary

Signe Velina, Deputy Director, Department of Environmental Health, Ministry of Welfare, Latvia

Biljana Surkova-Manaskova, Ecological Association Vila Zora, Veles, Macedonia

Stanislaw Tarkowski, Head, Department of Environmental Health Hazards, Poland

Eleonora Fabianova, Specialized State Health Institute, Slovakia

Dr. Peter Otorepec, Institute of Public Health, Slovenia

Kia Regner, Chairperson, International Federation of Environment and Health, Sweden

Sibylle Velisek, Scientific Officer, International Affairs Department, Federal Office of Environment, Forests and Landscape, Switzerland

Gaudenz Silberschmidt, International Society of Doctors for the Environment, Switzerland

Anna Onisimova-Syomina, MAMA-86, Ukraine

Dr. Peter Hinchcliffe, Head of Chemicals and Biotechnology Division, Department of the Environment, Transport and the Regions, the United Kingdom

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REC * PUBLICATIONS * HEALTHY DECISIONS

 Regional Environmental Center for Central and Eastern Europe