Public participation exists in the legislation of these countries as shown in the national reports only in the drafting of laws and regulations, in EIA and in environmental expertise of decisions on activities. It is practically impossible to for the public to participate in decisionmaking on land-use plans, environmental funds or siting and permitting. This is either because all rights have a general character or there are gaps in legislation (i.e. public participation in siting and permitting) or such a practice and traditions is lacking.
Under the constitutions and legislation of the observed countries, the right to initiate legislation belongs only to a limited list of parties: the president; parliament; a group of deputies; or supreme, constitutional and high arbitration courts. There is no special right to initiate laws or regulations granted to citizens or NGOs.
|TABLE 7: Ability to Participate in Preparation of Laws and Regulations|
|Every person/ organizations||Natural/legal persons||NGOs|
1. there is no right to legislative initiative, but there is public participation in preparation and evaluation of laws in Armenia and Ukraine
2. 50.000 eligible voters can initiate lawmaking in Belarus
Citizens of Belarus have the right to a general initiative if supported by not less than 50,000 eligible voters, according to the constitution. This is a rather theoretical possibility.
In Moldova, every citizen or group of citizens (i.e. NGOs) can express its opinion on a draft law and can publish its comments in the mass media or can present them directly to parliament or a public administrative body, which is obliged to consider these comments. Using the Law on Presenting Petitions, any individual or NGO has a right to petition the president, parliament or government of Moldova concerning the rights of a large group of citizens. These petitions can relate to environmental issues.
It is difficult for the public in the NIS countries to participate in lawmaking or regulation drafting because there is no obligation or formal requirement of parliament or government to inform the public about draft laws or regulations or to publish them for public comments. Laws are usually published after their passage.
Only a few draft laws have been published for wide public discussion. For example, the draft Law on the Protection of the Natural Environment of Ukraine was published in newspapers, and discussed and commented upon by the public. The public even proposed an alternative draft, which was taken into account together with public comments and proposals. In another example, a public discussion and hearing was organized in Russia on the draft Law on Protection of the Environment, on the concept of sustainable development and on the draft of Water Code of the Russian Federation.
In several cases the public was able to receive information about draft laws through "green" members of parliament. For example, the Belarus Environmental Party affiliated with the NGO Minsk Ecological Council is regularly informed about new legislation being drafted.
There are no lists of groups regularly informed on law and policymaking in the NIS countries, except Russia, where it is possible for some experts and NGOs that have good contacts with parliament to be put on this exclusive list.
For other groups there is hope. The parliaments of Russia and Ukraine recently began publishing an annual work plan, and this plan may serve as a source of information for interested groups.
In addition, it is possible for NGOs to collaborate with the Parliamentary Commission on Environmental Policy in Ukraine, to get the information about the laws that are drafted and the texts of these drafts as well as to send comments and proposals or to organize common discussions with the committee. For example, the NGO Ecopravo discussed the draft Law on Wastes and the draft Convention on Public Participation. The NGO also plans to organize a public hearing on the draft Concept of Sustainable Development of Ukraine.
In Armenia, four draft laws in the sphere of environmental protection were elaborated with the participation of the Environmental Public Advocacy Center and subsequently approved.
In Belarus, parliamentary committee sessions are accessible to citizens and NGOs only when the members of parliament decide to involve the public. The public is not likely to get direct access to parliamentary sessions on its own initiative. The legislation of Armenia does not allow individuals or NGOs to participate in the sessions of parliament or parliamentary commissions.
In Moldova, Russia and Ukraine, parliamentary sessions and the sessions of parliamentary committees are open and accessible to the public but only if visitors receive special permission or invitation or they are put on a list by the parliament secretary. Citizens sit separately from the deputies.
In practice, parliamentary committees in all observed NIS countries include consultants usually scientists, advisers, politicians, lawyers or experts in specific issues, among them NGO representatives. Consultants can be invited to the committee meetings, where they can speak and express their opinion or the opinion of NGO and make written comments if they are asked and are given a permission to do so. In practice, however, such cases are rare because there is no tradition to invite NGOs, and committee session agendas are not usually available.
There is no parliamentary obligation to take seriously into account comments and proposals made by the public. It is practically impossible to determine if public comments were taken into account during the legislative process because there are no records of this kind, and since the citizens are not entitled to legislative initiative, their proposals can be presented only by deputies.
According to the constitutions of the NIS countries, the most important issues in relations of the society and state functions can be solved by referendum. The most important issues of national significance can be the subject for national referenda, while issues of a great importance for a certain locality and related to the power of the local public administration can be the subject of local referenda. By extension, environmental issues can be the subject of both national and local referenda.
Sessions of local councils (i.e. self-governments) are also open, but the council can decide to have a closed session if necessary. The law does not regulate the accessibility of the council committee meetings. In practice, it is difficult for citizens to attend council session, but it is possible if one can prove the necessity of being present at the session or meeting.
The general tendency in the NIS is that information about environmental decisionmaking at local and regional levels is presented briefly, and information about the projects decided upon are published rarely. The lack of access to information is the main obstacle to public participation at this level.
There are no special lobbyist groups in the observed NIS countries. Lobby mechanisms and lobbying activity is not regulated by law. Although citizens and NGOs do not have the right to legislative initiative, they can participate in the legislative process by appealing to the parties who can initiate legislation (i.e. officials). Some NGOs participate in lobbing from time to time but not consistently, or they participate in this process through their own elected MPs.
In Armenia, the law does not provide for lobbing, but it takes place in an informal way. A draft Law on Ecological Education had been sent to NGOs and this draft was incorporated into the subsequently adopted Law on Education as a result of NGO pressure.
A positive example of international lobbying of environmental interests (within the NIS) is a case that dealt with the destruction to the Dniester River by the Novodnestrovskaya Hydro-Accumulation Electric Power Station (HAEPS), situated in the Mogylev-Podilsk region of Ukraine. In the early 1990s, Ukraine introduced plans to expand the power station and sought USD 400 million in funding from the World Bank. The existing facility had already caused damage to the environment surrounding the Dniester River in Moldova, and the prospect of an expansion prompted Moldovan environmentalists to begin lobbying to protect the environment. The Odessa region of Ukraine also suffered environmental damage from the plant, and local NGOs there supported the initiative.
The plant was not a major governmental priority until lobbying by the ecological society Biotica resulted in a special resolution by the Parliament of Moldova. The resolution acknowledged the bad environmental state of the river, placed priority on the problem and directed the government to negotiate a bilateral convention with Ukraine on preserving the biodiversity of the Dniester River and its surrounding territories.
The permanent links between the MPs of the two countries soon led the Ukrainian Parliamentary Commission on Environmental Policy to adopt several analogous decisions regarding the river. (For more details on this case, see the section on lobby mechanisms in the Moldovan report.)
Legislative procedure inside the executive branch of power is much more closed on both national and local levels. Decisionmaking by the government in the observed NIS countries is not transparent. Information about the process of decisionmaking by the president or the cabinet of ministers and other central executive bodies is not available, except for some brief announcements in the mass media. There is no regular publication of draft regulations or decisions made by executive bodies. This is a large obstacle to public participation in the decisionmaking.
Neither the Law on Government nor the Regulations of parliament contain direct requirements to take into account public opinion when making a decision. Public participation in decisionmaking by executive bodies is a rare phenomenon in the observed countries. However, in some cases the opinion of such groups is taken into consideration as a result of public pressure, mass media activities and political conjuncture. Each year, the Government of Moldova forms 10 to 15 temporary commissions and three to six permanent commissions to prepare various decisions with the participation of public.
Advisory boards at the environmental protection ministries and similar institutions (and their local bodies) were created to include public representatives in all the observed countries except Armenia. It is difficult to judge the efficiency of this form of public participation in environmental decisionmaking in terms of its influence on the decisions. Nevertheless, there are some cases in which a decision was made to prohibit environmentally damaging activities on national and local levels because of public pressure.
In Moldova, in accordance with the governmental decree of 1996, local authorities are obliged to study public opinion when they decide to construct any facilities that would significantly influence the environment. Still, there is no obligation for authorities to make decisions in accordance with public opinion.
Environmental problems on local levels can be effectively solved by local referenda, which can be held in all the NIS countries. An example is the referendum on the allocation of solid wastes, voted on by the residents of Olkhovka Village in the Kharkivska oblast in Ukraine (February 25, 1996). Through the referendum residents abolished storage of solid wastes on the territory of their village.
|TABLE 8: Participation in Land-Use Planning|
|Land-use Planning||Every person/ organizations||Natural/Legal persons||NGOs|
|Review of proposed plan||Russia*|
|No participation allowed|
* participation allowed on local level, but ignored in practice
For example, the General Plan for the Development of the City of Lviv was adopted without EIA or environmental expertise, which are required by legislation, and without public access to information. Part of the plan called for construction of a highway across the city and its parks that would result in cutting down a large number of trees. The NGO Ecopravo-Lviv learned about the plan from the administration of the landscape park Znesinnia, one of the possible "victims" of this project. Ecopravo sent a request for information to the city council and Regional Department of the Ministry of Ecosafety and asked the department to prevent completion of the project because without EIA and environmental expertise the project would be illegal. Ecopravo then proposed a public hearing on the highway construction and on the General Plan for Development for the city. The highway construction was later abandoned as a result of public pressure.
The Law on the Basis of Town Construction and Territorial Planning of Moldova (1996) has provisions for mandatory consultations with the public when decisions are made about construction plans. The test of its implementation took place in Chisinau in 1996, when the mayor's office decided to allow the construction of a chain of McDonald's restaurants. Among the planned restaurants was one store to be built on a small public garden in a highly populated residential part of the city. The decision to allow the restaurants was not publicized.
On the evening of May 12, 1997, city workers attempted to saw down the trees in the public garden to make way for the construction. Local residents, awakened by the buzz of electric saws, rushed to the park and saved most of the trees. The residents moved the trees that were already cut down onto the central main transport line and stopped traffic for half a day. The vice prime minister of Moldova arrived and promised not to allow any further felling. The issue then went before parliament, and the national government immediately adopted a resolution canceling the decision of the city mayor's office. The resolution also ordered the mayor's office to restore the public garden.
A group of MPs who supported the restaurant construction asked the constitutional court for its opinion. In the end, the mayor's office and the company were forced to set up meetings that are still going on with local residents, who refuse to back down. Ideally, these meetings would have taken place in the beginning and the issue would have been settled by now. (For more details about this case, see the section on Adequate Notification of the Public in the Moldovan report).
In some regions of Russia there are local initiatives to publish information on planned activities, however it is not obligatory for public authorities to do so. Only the Regulation on EIA (1994) contains a legal requirement for investors to inform the public in a timely manner about planned activity on a particular territory. The principle of openness and transparency in decisionmaking on planning activity is declared by the Law on Environmental Expertise, but these requirements are often ignored.
Special provisions for public participation in siting do not exist in the legislation of the NIS. Siting is a component of national and/or local policy and regulation. In the NIS countries, the main and most powerful tools for public participation in environmental decisionmaking related to the siting of facilities that can damage the environment are the environmental impact assessment (EIA) and the environmental expertise (EE). These tools have a rather developed legal base and are used in practice in many post-communist countries.
|TABLE 9: Public Participation in Permitting with EIA|
|Every person/ organizations||Only individuals||Only NGOs|
|Permitting with EIA||Belarus
According to the legislation of the NIS, siting of all activities that can have substantial negative impact on environment requires EIA and environmental expertise. This requirement is contained in laws on Protection of the Environment and a special Law on Environmental Expertise (in Moldova, Russia and Belarus) and the Law on State Environmental Impact Assessment (in Belarus).
As a rule, EIA is the first stage of environmental expertise in the NIS. This process is quite specific and different from that in other countries of the world. In the NIS, preparation of EIA is an obligation of the developer. During the EIA procedure, the developer must publish or announce in the mass media a statement about the ecological consequences of the planned activity. The developer must also organize public hearings. The public has right to participate in public hearings and to send comments and proposals. Although the developer can (and ideally would) take public opinion into account, he is not obliged to do so. Usually the developers in the NIS ignore this requirement.
In Belarus, a developer must investigate and document public opinion. The State Environmental Impact Assessment expert committee should take this into account when it decides to allow a proposed activity.
Afterwards, the materials of EIS should be sent by the developer to state bodies to conduct environmental expertise. Usually, ministries of environmental protection (or similar institutions) and their local bodies have the right and obligation to conduct the state environmental expertise. Generally the authorities carry out the expertise on the basis of the EIA materials, with or without special research or investigation. The public has a right to be informed though the mass media about the state environmental expertise and to send comments and proposals on this stage which also could be (or could not be) taken into account. During state environmental expertise, public hearings can be held but are not because there is no regulated procedure and because the hearings cost money. The Environmental Protection Ministry must publish a summary of its conclusion of environmental expertise in the mass media. This also is not done in practice.
In one case, the Russian public-interest environmental NGO Ecojuris filed a lawsuit on behalf of the NGO Russian Socio-Ecological Union in the Vologodski Oblast arbitration court against the decision of the local administration to build a landfill in the middle of the specially protected area of the Russian North National Park. The lawsuit was based on the provisions of the Russian Constitution on the right of citizens to a healthy environment (Articles 32 and 42); on Article 28 of the Land Code, which gives citizens the right to express opinions during siting of a planned facility; and on Articles 40-42 of the Law on the Protection of Natural Environment, which establish the obligation to provide EIA and environmental expertise. The court overruled the decision and stopped the construction.
The public has the right to organize an independent public environmental expertise (i.e. public environmental impact assessment), and its recommendation could (in Belarus, should) be taken into account by the state bodies. The mechanism of public environmental expertise is one of the most powerful tools of public participation in the post-communist countries. Moreover, in a number of cases it has provided a unique opportunity for independent review of the EIA quality. However, this tool is used rarely in practice because of its cost and because NGOs lack necessary resources.
One case dealing with the construction of an oil terminal in Djurdjulesti on the Danube River in Moldova is a positive example of taking into account public interest. The state environmental expertise of the project was undertaken, but later the draft was revised and the size of terminal was increased. This necessitated significant revision of the draft, especially on environmental grounds. The EIA procedure was realized first in accordance with the new Law on Environmental Expertise and EIA (1996). Several environmental NGOs took part in the discussion of the draft of the EIA organized by the drafters, and then they held their own EIA. The NGOs were not able to prevent the construction of the terminal, mainly because the public wanted the economic benefits and energy resource independence the terminal would bring to the area. However, the NGOs contributed to the detailed elaboration of the draft and to the removal of serious environmentally dangerous defects.
The legislation of the NIS does not contain any special provisions on public participation in permitting. The permitting procedure is a part of the general procedure for preparation and approval of national or local regulations and policies and does not have any specific features.
First, there is no obligation for governmental officials or authorities responsible for issuing permits to inform the public or to organize public hearings or to take public opinion into account.
In addition to the lack of regulated procedure, one of the main obstacles to public participation in permitting is poor notification at every stage of the procedure. Citizens do not know when a permit is being issued or was issued. The lack of information makes it impossible for the public to participate in this process, i.e. to make comments, to be heard or to impact the decisionmaking. However, once people do learn about a permit being issued, they can receive information about it according to the Law on Information. Citizens can theoretically participate in the permitting procedure and send comments and proposals, but usually it is possible to learn about a permit before it is granted, and therefore the public can only appeal the permit to a higher authority or directly to the court.
The majority of permits are granted after a positive State Environmental Expertise. In such cases, citizens or NGOs can participate in SEE procedure according to the Law on Environmental Expertise.
Management of Environmental Funds
There are no special environmental funds in Armenia. They have been transformed to a special line in the state budget just as they were in March 1998 in Ukraine. Before that, environmental expenditures were outside of the budget; they came from environmental fees and fines and had to be used for environmental protection only. In fact, they were used without notification of the public and without public participation and often were used for purposes not related to environmental protection.
In all the NIS, the management of environmental funds is characterized by a lack of transparency. Decisions about the management of environmental funds are adopted by a limited number of people. During economic crises, the local environmental funds (which in Moldova are gathered partly from property taxes and environmental fines) are often used for other purposes (e.g. to pay salaries and pensions). The situation could be significantly improved by a requirement to regularly publish information about the management and use of environmental funds.
In short, the legislative framework for public participation in environmental decisionmaking is not perfect in the NIS. However, in the past few years the tendency of democratic changes in new constitutions and laws has begun, and this has opened up the possibilities for public participation in law drafting in EIA and environmental expertise and in public decisionmaking on environmental issues through national and local referendums.
The obstacles to effective public participation continue to include the lack of participatory democracy traditions, the passiveness of the public, the low level of environmental consciousness of citizens and the environmental ignorance and post-communist mentality of decisionmakers, the poor economic conditions and the lack of money and widespread corruption which are the main obstacles for enforcement of democratic provisions.