Synopsis
JOHN BONINE
Doors to Democracy is a report on the current status of transparency and public participation (or the lack thereof) in environmental matters in Europe. Individual country reports prepared by researchers with NGOs in a wide selection of countries throughout Europe - 11 Western, 15 CEE and five NIS - report on both laws and actual practices with respect to access to information, access to environmental decisionmaking (public participation), and access to justice.
Doors to Democracy addresses the many barriers that stand in the way of participatory democracy as well as identifying some good practices.
The country reports were made available to the UN ECE for use in its review of the Sofia Guidelines on Access to Environmental Information and Public Participation in Environmental Decisionmaking.
The Benefits of Participatory Democracy
Transparency and public participation benefit government, the regulated community and all of civil society. Throughout the region, participatory processes have shown that even though they may entail higher costs or delays in the short term, they result in legitimate and informed decisions in the long term.
In some countries, the doors to democracy have been shut a long time. Although groups of citizens in nongovernmental organizations are knocking on the doors, not much seems to be changing. In other countries, the doors are part-way open. Both policymakers inside the government and NGOs outside the government are working to push them further ajar. But substantial work remains to be done. Participatory democracy is a process under development in all countries - both East and West. This is not just relevant for newly democratizing states. Substantial work needs to be done everywhere.
Three key elements of participatory democracy - access to information, public participation and access to justice - are necessary in every country to ensure citizens an effective role in environmental decision-making. These three elements, the "pillars" of the Aarhus Convention, are all mutually reinforcing. One cannot have good participation without information. One cannot have either if persons requesting information or seeking to participate are unable to raise questions of compliance with an independent body, normally the judiciary. Countries that have not granted all of these elements as a bundle have found participation to be less effective and useful than in those where all elements are present.
More than just a technical granting of rights on paper is essential. The institutional capacity of civil society to participate needs to be supported. Countries with a thriving NGO sector find that citizen participation is enhanced and better informed. They also find that the quality of decisionmaking is higher and when government needs to call upon citizens for support, there are civil institutions available and skilled enough to lend that support.
Access to Information
Secrecy Versus Transparency
While some countries, for example in Scandinavia, have a tradition of open information going back hundreds of years, other countries in both East and West have an equally long tradition of "official secrets." It does seem certain that the trend is toward openness. But openness can be illusory if it is only on paper. For example, while NIS and often CEE countries guarantee open access to information in many constitutions, the implementing statutes that make the constitutional guarantees a practical reality are often lacking. In addition to needing implementing legislation, many countries in all regions need training and education to foster a greater spirit of openness among governmental officials.
A large number of countries now apply the right of access to information to any natural or legal person without any requirement to prove an interest, though in practice some still limit access to information to those who can demonstrate they are "interested" or "affected" parties, or to their own citizens or permanent residents.
Broad Exemptions
The list of exemptions in national legislation is extremely broad. Exemptions on grounds loosely defined as state secrets, confidential proceedings of public authorities, commercial confidentiality, matters pending in court, or voluntarily supplied information leave so much discretion in the hands of individual officials that access to information risks being more the exception than the rule. In some countries, this discretion is regularly abused.
Some countries have also introduced the concept of a public interest test which should be applied if the exemptions (or some of them) are to be used. Indeed, all ECE countries have accepted this principle through their endorsement of the Sofia Guidelines.
A few countries have recognized that data on health effects and data on pollution discharges into the air, water and soil of a society should never be classifiable as a confidential business matter because the pollution affects everyone, not just those making money from their activities. But most countries have not yet enacted such public-oriented limitations on their broad commercial secrecy exemptions.
A common problem which arises is when a public authority does not hold information requested. None of the countries studied make it obligatory for the public authority to seek out the information, though CEE/NIS countries tend to require that the request be forwarded to another public authority and Western countries tend to require that the requester be referred to another public authority.
Information on Pollution from the Private Sector
The notion that citizens have a right to be informed that they are being exposed to pollution from private facilities, so that they can seek out ways to control such pollution, is gaining ground rapidly in Europe. "Right-to-Know" laws, establishing pollutant release and transfer "registers" whereby potentially significant polluters are obliged to periodically put into the public domain information on their releases and transfers of certain chemicals, are being considered in a wide range of countries, although Europe still lags well behind the US in this respect.
Barriers of Cost, Time and Form of Information
Even where formal legal barriers do not exist, practical economic barriers usually do. Time can also be a barrier. Keeping people waiting for information until the reason for the original request becomes irrelevant is a simple, but undemocratic, means of frustrating openness. Time limits for government responses to information requests vary from a few days in some countries (mostly in Scandinavia) to two weeks to one month (in most NIS countries if information is readily available) to periods as long as two months in others (such as Germany, Spain and the United Kingdom1 [UK]).
Closely related to the question of costs is the issue of the form in which information is provided. As information is increasingly contained in electronic form, this can dramatically reduce the time and costs of disseminating or providing information or putting it in the public domain. However, right-to-know laws in Europe have not yet adapted to the new technological possibilities. Only a few countries oblige public authorities to provide information in the form requested by the public, and none make it obligatory to put certain types of information on the Internet even though an increasing number do this in practice.
Public Participation
Public Participation Has a Long Way to Go
Public authorities are the actual decisionmakers in many types of environmental decisionmaking, but the sound exercise of judgment benefits from accountability and open participation. There are some excellent models for acceptance and encouragement of public participation in environmental decisionmaking. For example, NGOs in Denmark are regularly consulted on law and policymaking, draft proposals are circulated to NGOs for comments and NGOs are appointed to advisory committees. The Netherlands similarly stresses consultation and consensus. Hungary, also has a well developed mechanism for consultation with NGOs during the preparation of laws and policies.
At the other extreme, the systems in the NIS countries, most of the CEE countries, and some West European countries seem much less congenial to NGO participation. While the CEE and NIS countries do often have general laws allowing for public participation, in many of those countries these provisions are not specific enough to be useful. Nonetheless, there are some good practices as a practical matter in several.
Some countries provide for referenda and the right of legislative initiative to involve the public directly as decisionmakers. In some cases, the rights are more theoretical than real due to high thresholds, but in other cases (e.g. Switzerland) these tools of direct democracy have produced very significant environmental decisions.
Drafting of Laws and Regulations - Usually a Closed Process
There are very limited possibilities for public participation during the parliamentary phase of preparing legislation. In some countries, representative NGOs are invited to participate in parliamentary hearings. Participatory environmental assessment of proposed laws and decrees with potentially harmful impacts on the environment (those in the fields of energy, waste, transport and agriculture) is missing in almost the entire UN ECE region (with the notable exceptions of the Netherlands and the US). In the executive stage of preparing laws and regulations, there is a slightly greater degree of participation allowed for, at least in Western and CEE countries, though still quite limited and, especially in the case of CEE countries, occurring as a matter of practice rather than through a legal requirement. In NIS countries, public participation is virtually non-existent in the drafting of laws and regulations.
Even though the effect of a "regulation" is often to state the standards that an enterprise causing pollution must meet, this phase of lawmaking and policymaking is largely closed to the public. The notion that citizens should be able to participate, even by way of merely inspecting a draft proposal and making comments to the government, in the making of regulations by executive governmental bodies has only barely been accepted in many countries of Europe, West as well as East. For example, draft regulations are not published in the NIS or CEE countries, so the chance to make comments on proposals is nearly non-existent (except in Hungary). The situation is nearly the same in most of Western Europe, except for some of those mentioned.
Participation in Policies, Programs and Plans
Participation in the development of policies, programs and plans is possible in many Western and CEE countries (in the CEE, mainly through NGOs), and in some of these it is a legally secured right. However, few countries apply in a comprehensive way the principles (early involvement, broad standing, due account taken of public input, etc.) which are necessary to make public participation really work in practice. Participatory environmental assessment of proposed policies, programs and plans (those in the fields of energy, waste, transport and agriculture) is missing in most of the UN ECE countries (with the notable exceptions of Canada, Czech Republic, the Netherlands, Norway and Slovakia).
EIA Processes Allow Some Participation - But Too Late
Public participation is accepted in EIA processes in Western Europe and CEE. In the NIS region it only occurs on an informal basis when initiated and organized by NGOs. The major limitation of EIA systems in the whole UN ECE region is the lack of public participation during the scoping of EIA documents (notable examples of good public participation in scoping are provided in Canada, the Netherlands and the US). Public participation in EIA systems in the NIS countries will need to undergo major restructuring and formalization if it is to become effective.
Licenses and Permits
Licenses and permits are essential tools for the protection of the environment. There is considerable regional variation in the extent to which the public may participate in permitting decisions, though in most cases participation is quite limited, especially in the NIS region. The right to participate is usually restricted to the potentially affected public, and often there is no mechanism to ensure that comments are seriously taken into account. Under these circumstances, the issuance of a permit can amount to a "special deal" between a government agency and an enterprise.
Participation Means Consideration
Although just getting the right to participate is the first step needed, the mere recognition of the right to make public comments can be an empty formalism. Some countries have recognized the importance of incorporating public comments into the actual decisionmaking process, but in many others this crucial step has not yet been taken.
Access to Justice
Promoting Truer Consensus
The right of members of the public to enforce the law often leads to more effective ability to participate earlier in the process, rather than to increased litigation. Giving citizens power more comparable to that of corporations enhances their voice at the table. The right of a citizen suit does not necessarily lead to a more combative type of participation, but instead opens the door to truer consensus-building.
Majestic Equality
Anatole France once wrote, "The law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread." It also often forbids corporations as well as individuals and NGOs from filing lawsuits unless they can show a "legal interest" in the matter. But the truth is that many legal systems assume a legal interest in a party whom the government seeks to regulate, while questioning the legal standing of those who benefit from environmental regulation.
In theory, a citizen is the legal equal of any corporation doing business in Europe. In reality, a tremendous imbalance exists. The same is true regarding the exercise of the right to force government to obey the laws. The effect of possessing the technical right of access to justice is usually not that groups will stream into the courthouses, but that their voices will be given serious consideration. Because of their access to courts, enterprises can often pick up the telephone and mention the possibility of a lawsuit to have their concerns be given some serious consideration. But when the wind blows from only one direction, trees will not grow upright. When the winds of citizen enforcement allow the public as well to have some influence on the bureaucracy, civil servants are freer to make proper decisions, consistent with legislation.
Rights, Duties, and a Healthy Environment
In general, the Western European countries have been reluctant to recognize an explicit right to a safe and healthy environment, while the CEE and NIS countries have embraced such rights (at least on paper). There is a similar reluctance, particularly in the West, to include explicit duties on the part of government or individuals to protect the environment.
Public-interest Standing for Citizen Enforcement
Statutory recognition of standing for established, legitimate NGOs is one of Europe's unique contributions to the world in environmental law. Some countries with formally restrictive laws, such as Greece, have opened the doors wide to NGOs in litigation as a matter of court interpretation by the Council of State, whereas others with formally generous laws have seen restrictive interpretations.
An approach of great importance is the explicit recognition in countries from Portugal to the NIS and parts of CEE of a constitutional right to access to justice residing in ordinary citizens, particularly in the environmental field. Some countries, particularly in the north, have granted a sort of "two-step" judicial standing to any person or NGO who took the time to participate at the administrative level in a policymaking process and contends that procedures or substantive legal norms were violated in the final administrative decision.
Yet for every open door to access to justice there is another country with a firmly closed door. In fact, several countries have made very little progress in the broadening of legal standing to sue, potentially imperiling the successful implementation of information, participation and environmental rights. Only when the door to justice is opened will the doors to information and participation be opened as well.
Costs
Throughout Europe costs are another important barrier in the doors to justice. Sometimes NGOs and citizens are exempt from paying court fees in some courts when suing to protect health. In other instances, such as one in Ukraine, thousands of children suffer from water pollution because some courts refuse to waive fees even in public-interest cases.
Remedies
Probably the countries most resistant to the grant of "injunctions" (or mandatory court orders requiring specific action to be taken, directed against polluters or the government) are some of the NIS countries. Even where injunctions are possible, such as in Russia and Moldova, the fact that an environmental plaintiff can be required to post a high financial bond makes the remedy more theoretical than real.
Conclusions
Whether one looks at access to information, opportunities for public participation or the possibility of enforcing rights in court, it is clear that in many countries there are not just closed doors but stone walls as well.
Perhaps the adoption of the Aarhus Convention will start a similar massive movement toward opening the doors to participatory democracy. Citizens and NGOs are waiting to learn whether doors can actually be opened and whether they will be allowed to exercise the full rights of free people to participate in government, not merely observe it.
NOTES
1. Throughout this assessment United Kingdom refers to England and Wales only.
Input into this Synopsis was provided by Susan Casey-Lefkowitz and Jeremy Wates.
REC * PUBLICATIONS * DOORS TO DEMOCRACY - EUROPE * SYNOPSIS
