Chapter 2: Public Participation in Environmental Decisionmaking

• various constitutional rights;
• specific environmental or nature protection laws, including EIA, licensing, permitting, land-use planning, etc.;
• administrative laws or codes.

The constitutional rights are either explicitly or indirectly stated and serve as a basis for participation. These include the rights to association, to free assembly, to free expression, to petition the government, etc. In four countries of the NIS region (Belarus, Moldova, Russia, Ukraine) the right of citizens and public associations to participate in decisionmaking, including environmental related issues, is declared in their constitutions. Only a few CEE and Western countries mention explicitly the right to public participation (Portugal and Spain) or to participation in the administration of public affairs directly or through elected representative bodies (Lithuania, Slovakia, Slovenia).

With the exception of the right to referendum and to legislative initiative, most of the rights guaranteed in constitutional provisions are basic rights. They give a general basis for participation, although without further specification of concrete procedures for participation in decisionmaking with regard to different laws and regulations, their impact and use is mainly declarative.

The two institutions of popular legislative power can, however, represent a strong tool for participation, allowing citizens to practice direct legislative power themselves and to take decisions under their direct control. These, especially the local referendum, have been used for environmental issues in some Western countries for some time, but also have become very popular recently in some CEE and NIS countries.

In all three regions, participation rights in decisionmaking are specified in general environmental protection acts or more specific environmental laws, as well as in administrative laws or codes. General environment protection laws usually only include general provisions for participation; due to the lack of further implementing regulations these laws only provide vague and ambiguous possibilities. There tend to be more detailed procedures in the specific laws or in the administrative codes.

Why is Participation Possible in Some Decisions and not in Others?

In most countries the public or NGOs have the right to participate in decisionmaking on some concrete activities or projects linked with environmental impact assessment, authorization or permitting for installations and the performance of certain activities, development projects, and land-use planning/physical planning, territorial or urban planning. Public participation in permitting is rather limited (see below).

In the West, and in most NIS and CEE countries, it is possible to participate in the elaboration of laws and regulations concerning environmental matters, as well as the approval of plans, programs and policies which affect the environment. However, the extent to which it is possible to participate and the timing of the possible involvement during the decisionmaking process in lawmaking and rulemaking, policies, programs and plans, especially on the national level, is rather varied. Only a handful of countries have legally guaranteed opportunities, whilst in many others there are no legally binding procedures for participation. There is, however, an increasing willingness on the part of public authorities to include NGOs in these processes, albeit in an institutionally arranged or ad hoc way.

The Aarhus Convention will serve as a useful tool to approximate legislation in the ECE region, but probably will not solve the problem of involvement of the public and NGOs - in the absence of national legislation - in activities which have a less than significant impact on the environment. Decisions which have a significant indirect impact on the environment need to be covered in the future by a similar level of public involvement (i.e. decisions on GMOs, transportation of hazardous and toxic waste, environmental health decisions, etc.).

Public Participation in Lawmaking and Regulations

What Form of Participation is Possible?

Participation in the preparation and adoption of laws and regulations is only possible before the draft law gets into the parliamentary phase. There is no country in Europe where there is a legal requirement to include public involvement once the draft gets into this phase. The public and NGOs in many countries have the right to referendum and legislative initiative by which they can propose legislation, or invalidation of laws, rules or regulations to parliament or local/regional government.

National and local referenda are possible in every CEE and NIS country (except for the Czech Republic). However, referenda can only be initiated directly by citizens in a number of countries in the CEE region. In other countries, only the president or parliament can initiate referenda. Although there have been examples of national level referenda on environmental issues (Hungary, Slovenia), they are relatively rare in the CEE and NIS region and have not been used for legislative issues. Local referenda are increasingly used in some CEE countries (e.g. Hungary, Poland, Slovakia and Slovenia) for decisions on concrete environmental issues such as waste or hazardous waste management, dams, nuclear storage facilities, etc. In a number of other countries however, it does not exist, or can only be called by a motion of the mayor.

Among the Western European countries, referenda are possible in Austria, Germany, Switzerland, Netherlands, Norway, Portugal, Greece and Spain, although they have been used for environmental issues only in the first three countries.

Legislative initiatives are not provided for in the Czech Republic, and cannot be exercised directly in a number of CEE countries. On a local level every country has this possibility directly or indirectly, except for Lithuania. In some countries, the right of initiative must be exercised through a member of parliament or through the state or local government. Only one initiative has occurred on the national level so far, in Poland.

In the NIS the right to initiate lawmaking/legislation belongs to the president, parliament, a group of MPs, or the supreme, constitutional or high arbitration court. Citizens of Belarus hold the right to a general initiative (by not less than 50,000 voters) but this is a rather theoretical right. In Moldova citizens can present comments in the mass media or directly to the parliament, which is obliged to consider them.

In the West, the right to legislative initiative exists only in Denmark, Switzerland and Spain. In Switzerland, all environmental issues can be subject to the right to initiative, which is often used. It is also possible on the local level where the number of signatures is lower and depends on the number of inhabitants. In Spain, however, the initiative is not legally binding and the number of signatures to be collected is rather high.

All in all, in the parliamentary phase it is difficult to participate due to the lack of legal procedures. In most CEE and NIS countries there is no formal obligation for the parliament or government to inform the public about draft laws or regulations, and usually the laws are published only after they have been passed. A few CEE countries inform NGOs regularly about the drafts laws or make such information accessible through electronic or other databases (i.e. Czech Republic, Hungary, Poland).

Nevertheless, there are also a few positive examples from Ukraine and Russia where public discussions or hearings were organized, and alternative drafts were suggested and comments were taken into consideration. However, since no records are taken about suggestions made, it is impossible to know whether public comments were actually taken into account.

At the same time, it is quite common in many CEE, NIS and West European countries that selected NGOs are invited to parliamentary hearings or consultations on legislative drafts. However, this is done on an ad hoc basis. Also, there have been legislative initiatives by NGOs through other non-formal methods in many CEE countries. It is a regular practice in many CEE and NIS countries for NGOs to submit comments or even elaborate alternative drafts (e.g. Albania, Czech Republic, Hungary, Poland, Slovakia, Ukraine, etc.).

Conclusion: More openness and transparency is required in lawmaking in the parliamentary phase. Although the parliaments have democratically elected representatives, they still need to be accountable to the public in various ways. For example, they should inform the general public and NGOs about upcoming legislative plans and make draft laws accessible to those who are interested. Also, NGOs with relevant expertise should be invited to participate in these issues in order to ensure that their voice can be heard as much as the main lobbies of industry or business.

Referenda and the right of legislative initiative, both at a national and especially at local level, have proven to be powerful tools for influencing environmental decisionmaking through direct democracy, particularly in countries where citizens have the right to initiate the referenda and the relevant threshold for triggering the process or producing a valid result are not excessively high.

The Executive Phase

In the executive phase, there is more opportunity for public/NGO input in lawmaking. In West European countries, this happens mainly through consultation procedures in the phase prior to the approval of the draft laws or regulations.

The good practice models are based on the culture of consensus building and come from Denmark, the Netherlands and Norway in the West, Hungary and Poland in CEE. Within the CEE and NIS regions, only in Hungary are public participation rights guaranteed by law in the process of elaboration and adoption. In several other CEE countries, however, good practices have led to the regular involvement of NGOs in lawmaking on a national level through different institutional arrangements. There is little practice, however, that can be traced in the NIS countries although formally there is a right to participate. Here the process is even more closed than that of the parliamentary phase. Decisionmaking is not transparent at all, the drafts are not published or the public is not informed about them; there are no legal provisions which would ensure that the comments of NGOs or the public are taken into account. The opinion of NGOs is only being taken into account thanks to public pressure, if at all.

In several West European countries, at all levels of government, public participation is a part of the normal decisionmaking process. In Denmark and the Netherlands, good practice is based on a regular consultation with the largest NGOs. NGOs have a right to comment and their comments/proposals are seriously taken into account. The forms of consultation can be different, e.g. hearings for potentially interested or concerned parties, participation in advisory committees, etc. Environmental NGOs may also be informally involved in preparing a decision. In the Netherlands, the invitation to participate comes from the public authorities.

In Norway, there is a formal process in place whereby the unfinished draft law is sent out for public consultation to all interested groups. The time limit for this is three months, and it is possible to submit written comments. According to the Swiss system, draft laws are also sent to all interested groups for written comments. In Spain the public input is through participation in different consultative bodies where they can express their opinion.

In Hungary, besides the legally provided opportunity, the Ministry of Environment actively notifies interested NGOs, and uses a so called "lobby list" (i.e. a notification list). This list of notification is open ended, and every NGO which is interested can be included on it. Besides Hungary, in the Czech Republic there has recently been notification of legislative drafts through e-mail networks and both NGOs and members of the public could submit comments.

An interesting development is the initiative of the environmental NGOs in some CEE countries to negotiate an informal cooperation agreement with their ministries of environment to create a framework for informing NGOs about legislative drafts and major policy documents, and to provide them with the opportunity for comment (e.g. Poland, Slovenia, Albania, Romania).

In some other countries there is no formalized procedure, but NGOs can provide input on an informal basis (for example, in Ireland through the EPA advisory committee, or in Austria, where authorities invite NGOs to comment on law initiatives).

Such a partnership also exists in the CEE countries, but not so much in the NIS region. In several CEE countries good practices of NGO involvement have developed and NGOs are invited to comment or participate in various expert groups or drafting committees (Albania, Poland, Czech Republic, Slovenia).

The partnership has not been introduced in Germany, Greece or Portugal as yet. NGOs in Germany only have the right to observe and inspect expert reports in connection with the preparation of by-laws by authorities for environmental affairs. There are no rights concerning public participation in the UK either. There are some provisions for consultations which depend on the invitation of the public authorities.

As already mentioned above, the partnership is also non-existent in the NIS countries where the executive legislative procedure is even more closed than in the parliamentary phase. Information regarding such decisionmaking processes is often not available except for brief announcements in the media. The legislative drafts or regulations are not published. There are a few exceptions, for example advisory bodies which include some representatives of NGOs (as in Moldova and Armenia).

In the CEE region the problems are of a different character. Although since 1995 such partnership has become a regular practice, several countries still do not give such opportunities to NGOs. Also, in some countries the circle of invited NGOs might vary and although NGOs can ask to be included on the list of invitees, the ministries decide at their discretion.

One of the main problems is that there is no clear definition of what constitutes an "environmental" decision, and therefore there is no participation invited when legislative drafts are not directly related to the environment but have serious impacts on the environment (public health, energy, transport, industry, etc.). Another problem is that information of the drafting comes at the last minute, thus leaving insufficient time for well-prepared participation.

Usually the drafting of regulations happens in a "closed" manner.

Conclusion: An important improvement for public participation in lawmaking would be to have legally guaranteed rights allowing interested NGOs to participate at an early stage (i.e. when options are still open and NGOs can still influence the outcome of the decision). The improvement could also include an open-ended notification procedure and identification of those NGOs who can make comments. From this point of view, the provisions of the Aarhus Convention will definitely present a framework for harmonizing participation rights across Europe, especially for those countries which have no such possibility at present.

However, the good practices already go farther than that. For these examples, improvements could include gaining more influence concerning the final outcome in the decisionmaking process and more support to enable NGOs to meet the technical and quality standards required to represent public opinion in an appropriate way.

Strategic Environmental Assessment of Draft Laws

Among the few countries of the ECE region that have established an adequate legal basis for the environmental assessment of draft laws are Denmark, the Netherlands, Slovakia and the USA. While Danish and US procedures are practiced adequately and provide a sufficient level of public participation, the Dutch procedure is far less participatory and transparent. To date, Slovakia has not undertaken this type of assessment.

Conclusion: Countries (governments and legislative bodies) in the ECE region should progressively establish national systems for environmental assessment of draft laws and regulations with potentially harmful environmental impacts. Environmental administration at a central level should also undertake pilot projects to assess environmental impacts of laws/decrees regulating energy, agriculture, transport and the waste sector. Such pilot applications can provide useful practical experience for such undertakings and assist in the gradual development of formal procedures for the participatory environmental assessment of draft laws and regulations.

Public Participation in Policymaking on National, Regional and Local Levels

The forms of participation show a rich variety. They include: requirements for early involvement; public debate; notification of persons and NGOs who have the right to appeal (Denmark); possibilities to comment on draft plans and programs; regular consultations (Switzerland); participation in consultative and advisory bodies (Spain, Ireland); public display of draft development and environmental plans; specific rights for NGOs to consultation and information concerning the plans, proposals and studies of central, regional and local administration.

In Hungary, environmental NGOs as well as the public are given the right to be heard concerning draft policies, regional development plans, environmental protection programs, state bills and local government by-laws. However, in practice, when it comes to national level strategies, plans etc., this means the participation of NGOs who are interested in contributing. The system of notification and involvement is open-ended, similar to the legislative drafting.

In some cases, when participation is restricted to interested parties, standing is given a broad interpretation so NGOs who have similar statutory goals can also be included (e.g. Netherlands, Hungary, Poland, Estonia).

The partnership of NGOs is accepted in several countries where different practical or institutional arrangements have been developed. For example, public authorities involve NGOs in the following ways:

• working groups (Austria, Estonia, Hungary, Poland, Lithuania);
• institutions such as national environmental councils (Hungary, Poland, Slovenia);
• national or local environmental funds (Bulgaria, Hungary, Poland);
• steering boards of product charges (Hungary).

In these bodies, NGOs participate as equal partners, and have the same rights as other members of the bodies.

Similar involvement is given to NGOs in several CEE countries (e.g. Poland, Estonia, Slovenia), based on ad hoc practice in the elaboration of national environmental strategies, such as NEAPs, although participation is not always guaranteed and comments are not always taken seriously into consideration.

To take a good example, Ireland promotes public involvement in decisions concerning the environment (including hazardous waste plans, water and air quality management) and plans are put on public display; the public are also given the opportunity to submit written comments on these issues, which have to be taken into account by the authorities before a final decision is made.

Such participation is rather rare in the CEE countries and even less common in the NIS countries. However, in several CEE countries a participatory planning procedure has been adopted at a local level which is concerned with the development and adoption of local environmental action plans (such is the case in Bulgaria, Czech Republic, Hungary, FYR Macedonia, Slovakia, Poland and Slovenia). In these cases, initiatives often come from the grassroots level.

In some countries participation in formal and development planning procedures is possible, although these participation rights have been reduced (e.g. Germany's transport planning), and many of the decisions are of a non-public character. However, German environmental NGOs with legal status hold the right to observe and inspect expert reports in connection with the preparation of district and regional landscape plans and formal public planning procedures.

In the UK, there are no participation rights outlined in any legislation, except for some provisions for consultation in planning procedures. Also, it is striking that the public and NGOs of most of the NIS countries do not have the opportunity of involvement in any of these decisions except for provisions concerning guarantees for environmental safety during project and planning activities (mainly during city, town and village planning [see below]).

Conclusion: Countries should introduce legal requirements for public participation procedures in those countries where it does not already exist. The participation rights should be as broad as possible, and should include the right to be informed, the right to be involved at an early stage and the right to be heard. At a minimum, this broad standing should include interested environmental NGOs and the affected/interested public.

Although the Aarhus Convention only provides "practical and/or other provisions" for participation "within a transparent and fair framework," good practices of many countries show that it is possible to go one step further and provide for broad consultation or public feedback in the different sectors of environmental policies, plans and programs with a right to have views expressed taken into account.

Strategic Environmental Assessment of Draft Governmental Policies

SEA is still in an early stage of application in the ECE region. To date only Bulgaria, Canada, Denmark, Czech Republic, Netherlands, Norway, Slovakia, Sweden and the US have established an adequate legal framework for the application of SEA in national policymaking. Finland, Hungary, Poland and the United Kingdom have started to practice SEAs on an informal basis. The best practices of SEA application in Western Europe have been identified in the Netherlands, where numerous examples of participatory strategic environmental assessment occur. The best practice of participatory SEA in Central Eastern Europe to date occurred in the Czech Republic, which undertook an environmental assessment of its draft energy policy up to 2010, entailing a thorough public scoping process and public review of the draft SEA report.

Conclusion: Countries should, as a matter of priority, establish a sound legal framework for SEA application in national policymaking. Introduction of SEA should be stimulated in Western Europe by the rapid approval of the draft EC SEA Directive and its further extension to national sectoral policies. SEA application in the CEE/NIS regions can be stimulated by the development of a legal framework and the undertaking of pilot participatory SEA applications to prove the effectiveness of this process. SEA development in the CEE/NIS region can be effectively stimulated by SEA-related activities of the multi-lateral development banks and by activities within the EAP and EHAP processes generally.

Public Participation in Preparation of Regional and Local Spatial Development Plans

Public participation in spatial planning is well developed in most Western and CEE countries. It is much weaker in the NIS. The best practices of public participation in spatial planning in Western Europe have been identified in the Netherlands and Sweden, whilst in the CEE region Hungary and Poland take the lead, where participatory elaboration of land-use plans is accompanied by their thorough environmental assessment and social impact assessment.

Conclusion: Countries should further develop practical procedures for early and effective involvement of the public in the formulation of land-use plans, in order to reverse the prevailing top-down approaches in favor of bottom-up processes. It is also recommended that final alternatives of the land-use plans are selected on the basis of thorough environmental assessment processes, which will also incorporate social impact assessment.

Public Participation in Environmental Impact Assessment

Most of the Western and NIS countries (as well as a majority of CEE countries, with the exception of Albania, FYR Macedonia, Bosnia and Herzegovina and Yugoslavia) have passed national EIA laws/decrees that allow for a certain level of public participation. EIA procedures in Western Europe (with the exception of the Netherlands and Scandinavia) and in CEE have been modeled on the EC Directive on EIA (85/337/EEC). However, even when this directive was passed in 1985, it still fell short of the good EIA practices already occurring in other non-European OECD countries. Also, the amended EC Directive (97/11/EEC) failed to adequately stimulate public participation, especially in failing to request public scoping.

As regards public review of EIA documents, this is carried out in a satisfactory manner in most West European countries (with the reported exception of France, Portugal and Greece), and in most CEE countries. Public review of EIA documents occurs in the NIS only on an informal basis when initiated and organized by NGOs.

As regards due account being taken of public comments, it should be noted that most of the ECE countries (with the exception of Canada, the Netherlands and Poland) fell short of establishing adequate mechanisms for independent evaluation of public comments within the EIA process.

Conclusion: In order to remedy substantial deficiencies in public participation in EIA procedures in almost the entire ECE region, the ECE countries should as a matter of priority establish formal requirements for the proper application of public scoping processes in EIA. Countries should also progressively develop EIA review bodies that will - independently of governmental institutions and developers - facilitate public participation, as well as assess the relevance of public comments. In the NIS region in particular, major reform of the state environmental review system will be needed in order to achieve more transparency and participation.

TABLE 4: The Environmental Impact Assessment and Strategic Environmental Assessment Processes
Country	EIA				SEA
	A	B	C	D	E	F	G	H
WESTERN EUROPE
Austria		-		x	-	-	-	-
Denmark				x				-
Germany		-		x	-	-	-	-
Greece	x	-		x	-	-	-	-
Ireland		-		x	-	-	-	-
the Netherlands
Norway		-		x		-		-
Portugal	-	-	x	-	-	-	-	-
Spain	x	-		x	-	-	-	-
Switzerland				x	-	-	-	-
United Kingdom				x				-
CENTRAL AND EASTERN EUROPE
Albania*	-	-	-	-	-	-	-	-
Fed. of Bosnia and Herzegovina	-	-		-	-	-	-	-
Bulgaria	x	-		x	-	-	x	-
Croatia	-	-		x	-	-	-	-
Czech Republic	x	-		x	x		x	-
Estonia	x	-	x	x	-	-	-	-
Hungary*	x	-		x	x	-	x
Latvia	-	-		-	-	-	-	-
Lithuania	-	-		x	-	-	-	-
FYR Macedonia	-	-		-	-	-	-	-
Poland	x	-			-	-		-
Romania		-		x	-	-	-	-
Slovakia*	x	x		x	x	-	x	-
Slovenia	x	-		x	-	-	-	-
Yugoslavia - Montenegro	-		-	-	-	-	-	-
Yugoslavia - Serbia	-		-	-	-	-	-	-
NEWLY INDEPENDENT STATES
Armenia	x	x	x	-	-	-	-	-
Belarus	-			-	-	-	-	-
Moldova	-			-	-	-	-	-
Russia	-			-	-	-	-	-
Ukraine	-			-	-	-	-	-

Formal system, adequately implemented in practice
x Formal system, partially implemented in practice
Inadequate formal system, some practice reported
- No known formal system or practice

1. Early and adequate notification
2. Public participation in identification of scope of EIA
3. Public participation in the EIS review
4. Independent evaluation of public comments
5. Early and adequate notification
6. Public participation in identification of scope of SEA
7. Public participation in the SEA review
8. Independent evaluation of public comments

* Please see tables in individual regional overviews in Doors to Democracy, vol. 1, 2, 3 for more information.

Public Participation in Permitting

The amount of public participation in permitting procedures varies greatly from region to region, but remains similar within them. It is common to all three regions that participation is very limited. In most Western European countries and the CEE region only those potentially affected by the project may receive the status of a "party to the procedure," and consequently participate in the decisionmaking process. In some countries, such as the Czech Republic, Hungary, Poland and the Netherlands, the definition of "interested party" is rather broad, and allows the various NGOs in the region concerned to participate in the decisionmaking process. In Slovakia and the Czech Republic those NGOs which have been created specifically for the purpose of the EIA process may take part in the permitting procedure. Public participation in permitting in the NIS countries is extremely limited and is mostly based on the general administrative norms applicable to any decisionmaking process.

The notification requirement exists in almost all of the countries in CEE region, but mainly applies to the relevant parties in the procedure. In the NIS countries, unless the permitting is done within the EIA procedure, there is no notification requirement. Permitting without EIA in most of the countries provides the right to comment only to affected citizens and NGOs involved.

The right to comment is similar throughout Europe: everyone who is recognized as a party to the procedure holds various rights, including those to comment and propose alternatives where feasible. In Ireland and Latvia (in Latvia every person or organization may also propose alternatives where feasible, though only in permitting with EIA) the right to inspect proposals and to comment belongs to everyone without "interest" having to be proved. Also, the following countries allow all of their citizens and NGOs to take part in commenting on permits in the EIA review stage: Czech Republic and Lithuania (only in practice); Slovakia (only selected nongovernmental institutions); and Montenegro (depending solely on the discretion of the minister).

No participation in commenting on the scoping stage is available even to affected citizens in Bosnia and Herzegovina, Albania and Serbia; or on the pre-issuance of the permit stage of non-EIA permitting to the citizens of Bosnia and Herzegovina, Albania, Lithuania and Slovenia.

The amount of weight given to public comment varies from country to country. In most cases there is no obligation on the part of the state to seriously consider such comments. There are usually certain requirements to take account of public comments, but they are difficult to interpret and the interpretation in mostly left up to the permitting authority. Greater attention is usually paid to the opinion or comments of NGOs or groups as opposed to those of private individuals (this is especially true for Spain and most CEE and NIS countries). However, there are some good practices. For example, thousands of comments and protests against the construction project of the Madrid-Valladolid high-speed railway through Lozoya valley in Spain led to the rejection of the project by the ministry of development. In Austria, affected citizens' organizations may comment on projects and their comments have to be taken into account. The requirement to seriously take public comments into account also exists in Hungary, Slovenia and the Netherlands.

Both the Sofia Guidelines and the new convention refer to reasonable timeframes as one of the conditions for public participation. Except for the NIS countries, where time-frames are not regulated by legislation and post-facto notification takes place most of the time, the countries which do allow for the consideration of comments also provide sufficient time for filing them. The term varies from several weeks to several months.

All the parties to a decisionmaking procedure may as a rule appeal the decision and permit to the higher authority or court. (Germany is an exception, where access to the courts is dependent on demonstrating a violation of an individual right.) In some countries, such as Poland, the right to appeal also belongs to the NGOs with relevant statutory goals.

Conclusion: Participation in permitting procedures should be available to a broader circle of subjects, and explicitly to environmental NGOs. For all countries, early notification is needed as a necessary pre-condition of efficient public participation in all stages of permitting. The NIS countries in particular need to recognize public participation rights in permitting procedures as an important guarantee, which should be provided specifically in the legislation on permitting. In all countries, public authorities should not merely "pay attention" to public comments but also take them seriously into account. Some criteria for determining exactly what constitutes "serious consideration" should be developed.