Instruments of Public Participation
Rules of the Game
As shown in the previous chapters certain conditions have to be fulfilled for a system of public participation to be effective. Public participation in important decisions concerning the environment may not be dependent on an accidental occurrence or an arbitrary decision of certain parties or organizations. If the right of public participation really exists, there will have to be guarantees that this right can be exercised effectively. General statutory rules are required for this purpose, which mainly originate from the three basic principles of public participation: 1) access to relevant information, 2) the right to participate, and 3) the right to complain, appeal, and sue. We have already dealt with these basic elements of public participation above. Apart from these, there are of course, other, more informal ways of public participation, such as writing letters to newspapers, demonstrations, and protest meetings. The "democratic forms of public participation" can also be used, for example, voting for political parties and/or politicians who feel very strongly about the environmental issue, writing and calling chosen representatives, or participating in a referendum. In the following paragraphs we will discuss the power citizens have to shape the three legal instruments mentioned above.
In the pages above, we established that information is essential for public participation. The public must know the details of the issue to be addressed. But then questions and problems arise: What kind of information must be given? What information is secret or confidential? Who is to give the information and to whom? What terms have to be taken into account? In what form must the information be presented and in what language? Countries where public participation is more or less accepted as an important element in the decisionmaking process have established rules which are laid down in separate environmental laws, or in a more general law, e.g., a Freedom of Information Act, a General Environmental Act, or a General Act on Administrative Law (see Box 10). A more general set of rules has the advantage of covering the whole legal field, not only part of it. An illustrative example in this context is the law (in this case called a Directive) of the European Union on Freedom of Access to Information on the Environment. This law applies to all (12) member states of the European Union. Articles 1 and 2 state:
- The object of this Directive is to ensure freedom of access to, and dissemination of, information on the environment held by public authorities, and to set out the basic terms and conditions on which such information should be made available.
- "Information relating to the environment" shall mean any available information in written, visual, oral, or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities, including those which cause nuisance, such as noise, or measures adversely affecting or likely to affect these, and on activities or measures designed to protect these, including measures and environmental management programmes.
- "Public authorities" shall mean any public administration on a national, regional, or local level with responsibilities and information with respect to the environment, with the exception of bodies acting in a judicial or legislative capacity.
This law also establishes that this information has to be available "... to any natural or legal person at his request and without having to prove an interest. And further rules are given how to act with secret and/or confidential information."
In this respect one can also distinguish active and passive information laws. Passive information laws are those that allow the public to gain access to information on the government's action concerning a specific request (e.g., a Freedom of Information Act). An active law is one that requires government or industry to actively disseminate information to the public (e.g., an annual state of the environment report, or a toxic release inventory). Both active and passive information laws are needed to provide the public with sufficient information about environmental matters (see Box 11).
|Box 10: ACTIVELY INFORMING THE PUBLIC
Every year the Dutch National Ombudsman receives numerous complaints about the government failing to provide prompt and adequate information. Similar complaints topped the list in 1992 when 23.9 percent of all cases concerned an assessment criterion and in 76.6 percent of the cases the complaint was considered justified. The criterion implies that the government appropriately respond to letters from the public. If a matter cannot be dealt with immediately, the government agency should send a notification confirming receipt, saying that the matter is being dealt with, and informing the person concerned in which department the letter is being dealt with and approximately how long it will take to reply.
The Netherlands, 1992.
|Box 11: TYPES OF INFORMATION LAWS
I. PASSIVE LAW
- General Right to Information
- Constitution, General Laws etc.
- General Obligation to Provide Information
- Specific information
- General information
- Right to Participate as a Party
(and receive information)
- in administrative proceedings
- in civil proceedings
- as an affected citizen
- as an NGO
- Access to Environmental Information Law
- Access to Information Law
II. ACTIVE LAWS
- Environmental Impact Assessment Act
- Emergency Reports of Accidents, Health, Threats, etc.
- Publish Proposed Decisions
- Publish Annual Summary
- On the state of environment
- On data collected
- Analysis of collected information
- By government
- By industry
- Environmental Council
- Product Labelling
- Industry Self-Monitoring
- Industry Inventory of Toxics
- Technical Assistance Grants
- Permit Hearing
- Environmental Data Catalogue
Public participation can be realized in various ways. By means of a simple letter, an article in the newspaper, or by arranging special meetings, congresses, or making a detailed counter assessment. Two factors are always important: when and where, which means that the right authority has to be addressed at the right time. In this respect there are also some rules which may structure public participation, more or less. In many countries, these rules are laid down in the above-mentioned general laws (Freedom of Information Act, General Environmental Act, General Act on Administrative Law), or in special laws. The following instruments may be used:
|Box 12: NOTICE & COMMENT
In the United States, before proposed government regulations can be made final, they must be published in an official register for review by the public. The public is given a certain period of time to review the proposed regulation and any supporting documentation, and to provide written comments to the government. Sometimes a public hearing is also held on the proposed regulation. The government agency preparing the regulation must review all comments received. The final regulation must be published in an official register, along with a memorandum summarizing the public comments received. If all recommended changes were not made to the regulation, this memorandum must explain why not. To facilitate this process, the government agency writing a regulation establishes a public docket of comments on the regulation. This docket contains all written comments and documentary information received during the comment period, as well as drafts of the proposed regulation and transcripts of any public hearings held on the regulation. By collecting in one place all information and commentary about a regulation, the docket enables interested parties to respond to arguments and data submitted by others and to avoid wasting time repeating comments already made.
1) Notice & Comment Procedures
To make the process of public participation work effectively in a satisfactory way for the public, whatever instrument is being used, a sufficient preparation is more or less a prerequisite. This requires for instance the government (or other official authorities) to provide broad public notice of proposed decisions and adequate time for the public to educate themselves about the issue before "the floor is open" for discussion, either orally or in writing. In addition, the government should be required to respond in writing to the comments, explaining their final decisions and, if they did not adopt all of the changes recommended during, e.g., a hearing, they have to explain why. As stated several times before, these are very important and effective procedures. They indicate that the government has actually listened to written and oral comments and help the public to better understand the final decision and to feel they have been listened to (see Box 12).
2) Public Hearings
Whenever a measure has to be taken, a public hearing can be organized before the final decision is made. During the hearing the initiators (usually the government) give information on the plans, after which the participating citizens can give their opinion. These hearings can be exclusively informative, which means that information is only given. There are also hearings in which the participating citizens can express their complaints and opinions. The most successful hearings, however, are those where both parties have their say, and where a discussion takes place between the initiators and the participating citizens.
As said before, the hearings are generally organized by the authority who wants to take the measure. This can be a national government, but also regional or local authorities. In many cases the authorities are legally obliged to organize a hearing before making a final decision. The report of the hearing is an important document in the decisionmaking process.
3) Advisory Committees
An increasingly occurring phenomenon is the establishment of advisory committees. Usually this is done on a national level and these bodies give advice to the government on (environmental) measures or laws. The government is obliged to ask for advice before making final decisions. In such advisory committees, seats are made available for all sorts of social groups, such as those from the environmental movement. Therefore, the environmental movement has to be well-organized so as to be able to send a representative delegation to these advisory committees. Of course, we have to consider that before accepting a seat on advisory committees or the like, two basic conditions must be met: 1) the public nature of the sessions, and 2) compulsory recording of minority opinions. These conditions are to prevent matters from being settled and engineered behind closed doors, and/or a group from being overruled by a majority. That is exactly why it is of major importance in situations where citizens are involved in the decisionmaking process by representatives that every group can see or check what is being done on behalf of them (see Box 13).
|Box 13: PETITION
"Any person has the right of petitioning the ombudsman in writing to investigate how an administrative body has acted towards a natural person or legal entity in a particular matter, before more than a year has elapsed. Before submitting the petition, the petitioner must inform the appropriate administrative body or the civil servant about his complaint regarding this body or civil servant. The administrative body or civil servant is given the opportunity to explain or rectify."
National Ombudsman Act,
The Netherlands, 1981.
|Box 14: RAMSAR CONVENTION AND NGOS
"The Conference of the Contracting Parties to the Ramsar Convention:
aware that national environmental NGOs can represent influential movements in society and that - through their expertise - can play an important role in the promotion of wise use, management and conservation of wetlands;
conscious that in some countries environmental NGOs require further strengthening and development;
recommends that the Contracting Parties strongly support and give particular attention to the development and functioning of national and international NGOs that aim for conservation of wetlands;
encourages Contracting Parties to consult NGOs, provide them with relevant information and offer them ample opportunities to contribute to the formulation and implementation of governmental wetlands policy."
Recommendation 5.6 of the Fifth Meeting of the Contracting Parties to the Convention of Wetlands of International importance (Ramsar Convention).
Kushiro, Japan; June 1993.
4) International Treaties
A special form of public participation is the international treaty. This is an agreement worked out between two or more States, i.e., an agreement between governments. Regarding nature and the environment, many international agreements were adopted during the past twenty years. As pollution disregards boundaries, many environmental problems can actually only be solved at an international level. This applies especially for water and air pollution, radioactivity, indigenous animal trading, protection of vast transboundary conservation areas, and wildlife.
As treaties are agreements between governments in the first place, individual citizens cannot directly appeal to them. Nevertheless, they can be involved in a few ways. Once an international treaty is concluded and signed by a government, it has to be ratified by the Parliament. Only then does it become effective and is the government liable to observe the agreement. When the treaty is discussed in the parliament, the opportunity is open for public discussion.
The public may also become directly involved in the conclusion of a treaty through the secretariat of the treaty. Every treaty has its own secretariat, which checks the observance with the rules and in this quality organizes regular meetings of the countries joining the agreement. At these meetings citizens and/or organizations can make their voices heard. More and more treaties include a provision that NGOs may be admitted as observers to these meetings. On the principle that speaking, writing and asking is free, the citizen can directly appeal to these secretariats and the periodical conferences with questions and comments.
The treaties which usually contain all information about the secretariats and the data of the periodical meetings are freely accessible to the public, like other laws and policy documents. There is a growing tendency to order governments to involve their citizens in the implementation of the international agreements (see Box 14).
5) Environmental Impact Assessments
More and more countries are legally bound to make so-called Environmental Impact Assessments (EIAs). This is a statutorily required analysis of the effects of a certain activity on the environment. Final decisions may only be made after a thorough study of the facts. This kind of study is not always required. The EIA laws indicate exactly for which activities a study is required, who has to conduct it, when it has to be conducted and within what period of time, and which aspects have to be given special attention. The set-up of an EIA, the draft and final reports can then be discussed in public.
|Box 15: THE OMBUDSMAN INSTITUTION
Over the past twenty years, the ombudsman institution, originating in Scandinavia, spread over some fifty countries all over the world. Besides the Scandinavian countries (Sweden, Finland, Denmark, Norway and Iceland), the following European countries have national ombudsmen sometimes under a different name: the United Kingdom (Parliamentary Commissioner for Administration, who can only be approached through Members of Parliament), Ireland, France (Mdiateur de la Rpublique), the Netherlands, Spain (Defensor del Pueblo), Portugal (Provedor de Justicia), Austria (Volksanwalt-schaft), and Poland. In some cases the post has more than one incumbent. Some countries have also empowered their national ombudsman to deal with complaints against regional and local authorities. The ombudsman institution has spread over many countries beyond Europe, including those of the Commonwealth (Australia, Canada and New Zealand), Israel, and countries in the Carribean, Africa and Asia.
Some countries have an independent complaint committee: the ombudsman. Citizens can lodge their complaints there whenever they disagree with any measure taken by the government. The institution is independent of the government and is competent to deal with complaints on the basis of statutory rules. The law requiring an ombudsman, also regulates what kinds of complaints are included. In general, these are not matters that can be taken to court. If one, nevertheless, decides to go to the ombudsman, the ombudsman will explain the available options. In this respect the ombudsman has an important informative function. Specific complaints in a certain field of policy can be dealt with by a special ombudsman. Thus, a social ombudsman may be appointed for social matters, a consumer ombudsman for consumer affairs, or an environmental ombudsman for environmental affairs (see Box 15).
7) Other Instruments
Often it is not easy to give a well-founded opinion, especially in matters concerning the environment, because many complex technical and chemical processes are often involved. Moreover, all governmental organizations at all levels are a complex maze of laws and rules. It is not easy to find one's way through it. The average citizen is usually not an expert in all fields. On the other hand, often the important advice given by citizens does not require special expertise; their personal knowledge of local conditions can be significant.
The expertise, however, can be found at universities and scientific institutes. Some countries have active information sharing initiatives leading to a far-reaching educational democratization. For example, in the Netherlands, students advanced in certain disciplines share their knowledge with society by giving direct advice to citizens who need it or ask for it. In this way they can put their knowledge to practice during their studies and vice versa the experiences they gain are of importance to their education. These initiatives gave rise to legal advice centers, chemical advice centers and environmental advice centers. These are simple walk-in centers where, for a small fee, citizens and groups can ask for advice on very diverse matters. This process yields effective results for public participation activities.
The effect of public participation on the final decisionmaking process cannot be easily assessed. It is not always clear whether a decision has essentially been changed or adjusted as a consequence of public participation. However, it can be checked. The question can be put whether the body making the decision was right in putting aside the results of public participation. And if so, what the arguments and motives were that led to this action. The answers can be obtained by using the rights to object and appeal to the legal authorities. These rights are critical in that they give citizens the power to check whether the policy-makers take public participation seriously, or only consider it a kind of democratic gimmick to keep the citizens happy. Without this right, public participation is as useless as a refrigerator on the North Pole. Most countries with a more or less extensive system of public participation established this right by law. In general, this means that objections can be lodged with the authority that makes the decision. If this authority deals incorrectly or inadequately with the objection, the citizen has a right of appeal to be lodged with the authority next in line. Not seldom is an independent legal authority called in. The course of proceedings varies from country to country.
There are also various answers to the question who can employ this right. In many cases it is limited to the citizens whose interests are directly prejudiced and might be harmed as a result of a decision, for example, when a highway is constructed beside a house, or an industrial site near a residential area. The citizens also often have to prove the harm inflicted on them.
There is also sometimes a distinction between natural persons (individuals) and legal persons (pressure groups, associations, foundations, etc.). The legal persons do not have these rights, or only limited rights. However, there is a strong tendency towards giving these legal persons, the NGOs, all the rights of objection and appeal, especially in matters where the environment is involved. This is understandable because often real participation can only be realized by an organization, which means an NGO. Besides, the strict rules of "only natural persons with a direct interest having the rights of objection and appeal" can be easily scrubbed round. An NGO then acts on behalf of the citizens.
General rights of objection and appeal for "everyone" therefore act as a check. Moreover, they have a great influence on the harmonization of rules and their observance. On the basis of these extensive rights of objection and appeal it can be determined whether similar cases are dealt with in a similar way everywhere. In this way equality of rights for all can be advanced. Generally, this is expressed in jurisprudence, and finally in new and improved laws.
The rights of objection, appeal and complaint to legal authorities is, therefore, not only a necessary tailpiece in the process of public participation, it also advances the quality of the decisionmaking process. In many countries these rights of objection and appeal have forced the authorities to make sound rules on behalf of the environment.
In a democratic society openness, and therefore, public participation are of major importance. They guarantee that the decisionmaking process of the government is checked and thus prevent arbitrary rule. On the other hand, these basic democratic principles open opportunities for "conflict management". Every governmental decision in which large groups of people are involved in one way or another results in social unrest. The following questions are put: What does the decision mean for the individual citizen or profession? What will the consequences be? What financial consequences are to be expected? etc. Conflicting interests may also be involved, which certainly applies for decisions concerning the environment.
A regulation restricting the use of fertilizers affects farmers' income but helps the environment and guarantees clean and sufficient drinking water. The construction of a road may be profitable for industry, transport, and economic development of a certain region, but may adversely affect the noise level, safety and clean air of a residential area. Similar conflicting interests are at issue on all administrative levels, nationally, regionally, and locally.
|Box 16: NATURE, FARMERS, FISHERMEN, INDUSTRY
In the early eighties the German city of Emden (Lower Saxony) decided to construct a new harbour with an adjoining industrial area: the Dollart Harbour at the Wadden/North Sea. This project required an investment of 1.7 billion Deutsch Marks. Construction of this harbour, however, meant that 600 hectares of very valuable wetland would be sacrificed. The project would also leave a number of fishermen in the region without means of support.
The fishermen and the environmentalists opposed the plan. The industry and a large part of the local and regional population supported the project because of the employment that was expected to result from it. The federal government of Germany decided to compensate for the loss of conservation area by converting 2000 hectares of farmland into marshland. And, of course, the farmers then rebelled against this plan.
The whole project was subject to a complexity of opposing interests. This resulted in a lively and often emotional discussion, in which local, regional, and national politicians participated. As a result of this discussion much information emerged on the consequences for the environment, employment, and local and regional economic development. Every party involved made its contribution: the authorities, the policymakers, the politicians, the individual citizens, scientific institutions, the media, farmers, fishermen and environmental organizations. The debate continued for about ten years. In the early nineties, the various interested groups aligned themselves in an alternative harbour plan that did not affect the environment, did not take the land from the farmers, and did not deprive the fishermen from their means of support and even opened new prospects for employment.
When similar contrasts play a part, a good form of public participation may act as a catalyst and end in a decision more or less satisfactory for every party involved. A public debate in which everyone may give his opinion, make remarks, put forward the pros and cons, and is convinced that his arguments will be taken into account, may take away the social unrest to a certain extent, or even prevent it from arising. Moreover, it is only an advantage if a government knows there is some kind of agreement reached when planning to implement the decision.
In some countries (including the USA) special structures have been designed for this kind of "conflict management". All sorts of interested groups are invited in a very early stage of planning to investigate and discuss all aspects of a project. The discussion continues until all parties have reached an agreement on the main points. Other countries let the public debate more or less take its own course. All interested groups are provided with the plans and decisions to be implemented in a very early stage and they are guaranteed the possibilities of being heard and taken seriously (see Box 16).
REC * PUBLICATIONS * MANUAL ON PUBLIC PARTICIPATION * PUBLIC PARTICIPATION AS AN INSTRUMENT FOR ENVIRONMENTAL PROTECTION