Public Participation, a way to be at the heart of environmental democratic governance

Author: Agnes Gkoutziamani

Following the article on climate litigation follow-up and the discussion on the effects and impact it might have in the climate movement, as my colleague Laura Hildt mentioned: “it is crucial to ensure that the obligations coming out of climate litigation are properly implemented from the start. One way to do so is to make use of the available tools to participate in planning processes at all governance levels, reminding decision-makers of these obligations wherever possible.”

Why is Public Participation so important?

Public participation is a way to empower citizens to be at the heart of environmental democratic governance. Through this tool, there is an opportunity for communities to take action and try to influence decisions from which they are affected by shaping the policies and the plans that concern the environment they are living in. Finally, through public participation, the transparency of the decision making increases, the different needs of each community are being better communicated, different perspectives are being heard which leads to a more holistic and complete approach to handling environmental issues which are often complex, and finally, problems are flagged in early stages which leads to better compliance with obligations and higher acceptance by the community.

The role of youth is very important in public participation as they cover 30% of the world’s population. Through their engagement in these processes, they become more aware of their rights and this leads to building a strong foundation of active citizenship. More specifically, youth’s public participation in environmental matters is considered a matter of high importance as climate change is an issue of intergenerational equity that will affect future generations. This creates a need for active youth public participation in environmental decision-making processes which can be met through the support of young people’s initiatives on civic engagement.

What is public participation & how is this related to environmental law?

“Environmental issues are best handled with the participation of all concerned citizens at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” Principle 10, Rio Declaration (1992).

Principle 10 of the Rio Declaration introduced the three main pillars of environmental democracy: the right to access environmental information, the right to participate in the decision-making process on environmental matters, and a right to judicial recourse. Then, these pillars were enshrined in specific articles of the Aarhus Convention, notably in Articles 4–5 (access to information), 6–8 (decision-making), and 9 (access to justice).

Public participation is open to natural or legal persons, as well as associations. It concerns the preparation, modification, or review of plans or programs relating to the environment. Public participation has been characterised as an instrument of prevention, as it contributes to the democratic control of decision-making in environmental matters. It contributes to the advancement of the democratic legitimacy of environmental decisions and therefore facilitates proper implementation and enforcement. Public participation has been recognized as a fundamental international environmental law principle, as enshrined in principle 10 of the Rio Declaration (1992) and reaffirmed as well as fleshed out through the adoption of the Aarhus Convention (1998), which has strongly influenced issues of participation in environmental matters.

In the Aarhus Convention, public participation requirements apply to the decision-making, adoption of plans and projects, and legislative processes. European institutions and national authorities have the duty to inform the public of opportunities of participation in project proposal procedures and they also have the duty to take into account the public’s consultation.

To dive more into the particular provisions on public participation of EU Environmental Law, we can distinguish two categories.

1. General legislation which sets out participation requirements in decision making at Member States’ level prior to the approval of a project/plan:

An Environmental Impact Assessment (EIA) is a technical tool that is used mostly at the early stages of the decision-making process in order to identify specific impacts that a project may have on the environment and find alternative ways of implementing it. Public participation is considered an integral part of EIAD as it takes place in every stage of the environmental impact assessment. Its goal is to foster democratic policy-making and ensure that the Member States involve the public, namely stakeholders, project beneficiaries, NGOs, experts to the procedures at a reasonable time to review them before a court of law.

A strategic Environmental Assessment is a more political instrument that is more present at the beginning of the decision-making processes and it focuses more on the concept of sustainable development. It does not contain a specific list of projects, as the EIAD, but for more general projects (government’s plans, policies) Member States have to follow a screening procedure in order to evaluate each plan’s significant environmental effects. If they are considered impactful and at a significant level, then they have to carry out a Strategic Environmental Assessment. Public participation is considered a milestone for SEA. Through public participation, the public can comment on draft plans and programs mentioned above. This way transparency and credibility of decision-making are ensured when the application of SEA is properly done.

The key contrast between these two directives is that the second one applies to public programs in a more general context with fewer details and it is being operated at an earlier phase. Therefore it can influence a public strategy from the beginning. On the other hand, EIA is taking place at a later phase for an individual project (dam, motorway, airport, or factory) which is part of a bigger plan and the evaluation of the environmental effects is more detailed. The aim of both of them is to ensure that these projects that will have a great impact on the environmental level will be subject to environmental assessment before receiving authorization.

How to achieve effective participation in the EIA Process? 

  • It is important to spot authorities that have decision-making powers over the proposed project and then identify the people who will be responsible for the decisions that will affect you.
  • Search and create synergies with organizations or associations that share similar interests on the specific issue with you.
  • Follow the local news in order to identify any official announcements regarding the project about opportunities to be involved through comments or through the chance of being part of hearings.
  • Do not miss any opportunity that may arise from the government or the project team for submitting comments or attending public hearings.

In addition to the general rules, there is sectoral legislation that contains public participation provisions targeted to more specific plans.

2. Directives that require participation in specific sectors

The procedure of public participation for sectoral legislation:

  1. Informing the public about the proposals and the possibility of participation (Article 2(2)(a) of Directive 2003/35/EC).
  2. There must be given the possibility for effective participation, which refers to the stage in the decision-making process when the options are still open. The main obligation according to Article 2(2)(c) of Directive 2003/35/EC is to take into consideration the views of the results of the public consultation. The public must be informed of the final decision and public participation process (Article 2(2)(d) of Directive 2003/35/EC).

Public participation is a right for young people

As mentioned at the beginning of the article, the role of youth in public participation is a very important factor in the fight against the climate crisis as it is a way to facilitate intergenerational equity. By this, I mean that public participation is a well structured legal tool/right for young people to be heard and to flag the needs of the future generations in order to contribute to more tailor-made environmental policies that will take into account the reality as experienced from those who are affected the most.

Sources

https://ec.europa.eu/environment/legal/law/3/module_3_7.htm#:~:text=Public%20 participation%20is%20open%20to,)

https://ec.europa.eu/environment/legal/law/3/module_3_6.htm

International Environmental Law, Pierre Marie Dupuy, Jorge E. Viñuales pp. 86-88

Public Participation in Environmental decision-making (ERA)

Participatory Mapping, E-Participation, and E-Governance: Applications in Environmental Policy; Pragati Rawat (Slippery Rock University, USA) and Juita-Elena (Wie) Yusuf (Old Dominion University, USA)

Climate Change and Reversed Intergenerational Equity: the Problem of Costs Now, for Benefits Late; Gareth Davies

https://ec.europa.eu/environment/legal/law/2/module_3_11.htm

Anne N. Glucker, Peter P.J. Driessen, Arend Kolhoff, Hens A.C. Runhaar, Public participation in environmental impact assessment: why, who and how?, Environmental Impact Assessment Review, Volume 43,2013, Pages 104-111

https://www.grida.no/resources/6287

https://www.elaw.org/files/mining-eia-guidebook/Chapter4.pdf

https://www.iaia.org/pdf/south-eastern-europe/Sec_E_Topic_10.PDF

http://granthaalayah.com/Articles/Vol5Iss5/26_IJRG17_A05_316.pdf

https://www.iaia.org/pdf/south-eastern-europe/Sec_E_Topic_3.PDF