PUBLICATION PARTICIPATION IN ENVIRONMENTAL DECISION MAKING

In dealing with environmental problems, participation has emerged as a central theme. There has, for some time, been a growing recognition within the government and society at large that the future of environmental protection depends on more effective participation of public stakeholders. Over recent years, there have been significant moves towards increasing both quantity and quality of public participation in many different areas of environmental decision making. The general public is involved in environmental law and decision making in a number of different ways. These include democratic accountability, through the election of politicians who make environmental law and policy, to more direct participation, such as local consultation on individual planning or pollution control applications, or the availability of judicial review remedies for people with sufficient interest.1 The "voice of the people" has always been important in the political decision-making process in a democratic society. Freedom of speech is one of the basic elements of a democratic society. In this respect, "public participation" is not specifically bound by laws, regulations, or forms of expression. The possibilities of voicing one's opinion are in fact unlimited, provided that the opinion of others is respected.2 The use of physical violence is, of course, out of the question in this context. There is, however, a whole range of peaceful possibilities, including:

demonstrations; protest meetings; letters to the editors of newspapers and magazines; letters to politicians; establishment of organizations; and circulating newsletters, pamphlets, brochures, etc.

At the root of most discussions about public participation in environmental decision-making are philosophical questions about the nature of democracy. Whilst there are dozens, perhaps
1 2

Stuart Bell & Donald McGillivray, Environmental Law, Oxford University Press, 2008 p.294 Manual on Public Participation in Environmental Decision-making, Available at http://www.rec.org/REC/Publications/PPManual/FeeBased/ch12.html (Visited on 30/03/2009)

hundreds of theories as to what democracy means, two particular theories are dominant. These are "elite democracy" on the one hand and "participatory democracy" on the other. The elite theory has also be been described as "bureaucratic" or "technical" and the "participatory" theory as the "pluralist" or "social democratic" approach. In between these two theories lies a range of compromise theories seeking to reconcile some of the inherent inconsistencies in our aspirations such as a desire for increased public participation and a desire for greater expertise and efficiency in decision-making.3 One outcome of elite or bureaucratic theories of democracy in relation to environmental decision-making is that public participation is discouraged or denied. The assumption is that governments know best and that public participation would simply lead to inefficiencies in the decision-making process and not add substantially to the quality of the decisions that are made. Since most environmental decisions are concerned with establishing rights and responsibilities over the use of common natural resources (such as water, land, air and biodiversity), therefore environmental laws should enshrine substantial rights of public participation to provide checks and balances on administrative government and to improve the quality of decisions. Public participation can also enable advocacy on behalf of interests not normally represented (such as a conservation group advocating for the protection of biodiversity). Public participation in environmental decision-making often involves members of the public being entitled to make submissions or representations to the decision-making body. Ideally, this right should be exercisable in writing and/or in person. Of course it follows that the decisionmaker must also be legally obliged to take submissions into account before making a decision. If citizens are to have confidence in administrative decisions affecting the environment, then they need to know that these decisions are based on sound information, have canvassed all the relevant issues and have been subjected to a methodical, transparent and accountable decisionmaking process. One of the best ways of instilling this confidence in the community is for decision-makers to be required to give reasons for their decisions.

Mark Parnell, Public Participation in Environmental Decision-Making Available at http://www.edo.org.au/edosa/research/aialpaper.htm (Visited on 15-03-2009)

Access to information is the key to public participation. In general, openness should be the rule in a democracy, and secrecy an exemption. Actually, this implies that whoever wishes to engage in an activity has to take the initiative to give sufficient and relevant information. Mostly this concerns the government and industry. The costs of the information should not be so high as to be accessible only to a small group. This is one of the reasons why many countries focus on development and regulation of effective information systems. In this context it would be relevant to think of the possibility of demanding that the government and/or industry prepare and distribute environmental information among the public, and not wait for the public to ask for this information. For example, some countries demand reports on the annual state of the environment from industry. The United States demands that industry store data on their toxic releases (Toxic Release Inventory), the EU has a similar regulation (Pollution Emissions Register). In India the introduction of the Right to Information (RTI) Act has critically transformed the way citizens can seek transparency in decision making and implementation of policies, programmes, legislations in any given sector or particular project. At the same time the Act allows one to demand for disclosure of information which an authority or department has failed to suo moto put in the public domain. When it comes to environmental governance, RTI undoubtedly is a key advocacy tool. Groups all across the country have been using it to seek information related to clearances of development projects, government expenditure on programmes as well as development of legislations.4

UN Conference on Environment and Development (UNCED or The Earth Summit) Amongst its many achievements, the two most relevant here are, Agenda 21, and Principle 10, of the Rio Declaration on Environment and Development.

Agenda 21, in its 40 chapters, lays a solid foundation for the promotion of sustainable development. Chapter 8, Section 1, calls on governments to seek broader public participation in policy making and decision making for sustainable development. Section 3 is devoted to the
4

Kanchi Kohli, A Boost to Transparency in Environment Regulation, Available at http://www.indiatogether.org/2009/jan/env-transpenv.htm (Visited on !5-04-2009)

strengthening of the roles played by the principal social groups: women, children and young people, indigenous populations; NGOs; local government; workers associations and unions; business and industry; and the scientific and technological community.5 Chapter 40 establishes two programme areas to ensure that decision making is based on sound information: namely, bridging the gap in availability, quality, coherence, standardization and accessibility that exists between developed and developing countries; and improving availability of information. Principle 10 states: 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 22 of the Declaration explicitly highlights the need for involving local communities in environmental decision-making: "Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development."

N.C.E.D.R. Tools-Information Gathering and Analysis. National Centre for Environmental Decision-Making Research, 2003, Available at, www.ncedr.org/tools (Visited on 02-04-2009)

THE AARHUS CONVENTION The most important initiative evolving from P.10 is the 1998 UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental matters. The ECE (Economic Commission for Europe) is a regional body of the United Nations and includes 56 countries The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference in the 'Environment for Europe' process. The Aarhus Convention is a new kind of environmental agreement. The Convention:

Links environmental rights and human rights Acknowledges that we owe an obligation to future generations Establishes that sustainable development can be achieved only through the involvement of all stakeholders

Links government accountability and environmental protection Focuses on interactions between the public and public authorities in a democratic context.

The subject of the Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness. The Aarhus Convention grants the public rights and imposes on Parties and public authorities obligations regarding access to information and public participation and access to justice.

The Aarhus Convention is also forging a new process for public participation in the negotiation and implementation of international agreements.

The Aarhus Convention is based on the three pillars, ensconced in P.10 and elaborated in Agenda 21. The pillars are; access to information; public participation in decision-making; and access to justice. PILLAR I Access to Information Article 4 of Aarhus sets out the general right of persons to gain access to existing information, on request. PILLAR II Public Participation in Decision-Making Article 6 covers public participation (PP) in decisions on specific activities, e.g. on the proposed location, construction and operation of large facilities. Article 7 deals with PP in the development of plans, programmes and policies relating to the environment, which includes sectional or land use plans, environmental action plans, and environmental policies at all levels. Article 8, covers public involvement in the preparation by public authorities of laws and regulations. In each of the Articles, 6, 7 and 8, early involvement of the public is encouraged. Articles 7 and 8 are less precise than Article 6. Article 6 provides for a high level of involvement adequately guaranteed by law.6 PILLAR III Access to Justice Article 9 allows the public to challenge acts and omissions by either public authorities or private persons, as applied to articles 4 and 6, as well as allowing them a review of violations of
6

S.Stec, and S. Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide , United Nations, New York and Geneva, 2000, p.86.

domestic environmental laws. In relation to Article 6, members of the public must have a significant interest 7 or maintain impairment of a right. 8 A level of standing is given to both individuals and NGOs. The provisions of an expeditious, free or very cheap, alternative review mechanism established by the courts are to be made available. Publicity about these procedures and removal of barriers to access are also stressed. It is clear that in order for Pillar II to operate, Pillars I and III must also be well established, i.e. access to decision making cannot be effective without good information resources and the possibility of enforcement through access to justice. It should be noted that Article 3 reminds the parties that the provisions of the convention are only minimum requirements. THE ROLE OF NGOs The "public" - people or organizations who do not represent the government, is one of a nation's greatest resources for developing and implementing environmental laws and policies. Citizens, non-governmental organizations, and industry are all members of the public. Individually, each member of the public brings a unique perspective to an environmental issue. Together, members of the public have more knowledge about their country's natural resources and pollution problems than the government ever will. Their number alone makes them more pervasive than the largest government agency. Therefore, to ensure that sound environment decisions and laws are made, all members of the public should have the opportunity to make their positions known and to challenge those decisions, laws, and policies which fail to consider their views. The rise and development of NGOs shows that citizens are greatly concerned about environmental problems. By structuring and organizing this concern, as is being done in many countries, the governments are forced to take it into account in one way or another. The strategy followed by an NGO does not make any difference. The aim pursued is the same: a healthy environment. The other party in the public participation process, individual citizens and their representative organizations (NGOs), is faced with complex issues. In fact, they are so complicated that citizens are hardly able to respond independently to decisions, plans, or laws. Organization and
7 8

Article, 9 Section 2(a) Article 9 section 2 (b)

cooperation are therefore prerequisites to successful public participation. Therefore, we can simply state that public participation does not mean anything without some form of organization and cooperation, even if it is laid down by law. It is even to be expected that without an organization and without any cooperation among the NGOs themselves, citizens and groups of citizens will be played off against one another. The instrument of public participation then turns against the citizens. Policymakers can sail under false colors: enforce decisions without taking the opinions and the arguments of the citizens into account because there isn't a collective, representative voice with whom they can communicate and negotiate. For public participation to be successful and effective, a sound and clear organization can be considered a precondition. This can consist of a simple pressure group of local residents, or of a more official body, association, or foundation, and everything in between, provided that it is clear what aim is pursued and who is responsible. In this way, fragmentation of knowledge, energy and funds can be prevented. Besides, when special environmental matters are at issue, coalitions can be formed with other interest groups, for example, agricultural organizations, consumer organizations, or organizations of employers and employees. Public participation, therefore, is not only the responsibility of the government the citizens and their organizations also must take initiatives. NGOs are playing crucial role in Environmental Protection, conservation and development. Government, NGO and people collaboration is the imminent need of the hour. NGOs are the watchdogs of the environmental issues Multi-sectoral coordination and convergence and holistic and sustainable development can be achieved with participation of NGOs.9

PRE-REQUISITES FOR MEANINGFUL PARTICIPATION

Sundar Vadaon, Role of NGOs in Environmental Conservation and Development Available at http://www.karmayog.org/startanngo/startanngo_16320.htm

Meaningful participation in the processes by different sections of society requires at least the following: Timely and adequate information, in suitable languages and forms (e.g. EIA reports in languages relevant to the affected populations) Timely and appropriately widespread intimation about events at which citizens can participate Adequate time for the participatory process, eliminating or minimizing the use of artificial urgency excuses (the length of time would depend on the nature of the event, e.g. a new policy/law or a 5-year plan process may require much greater time period than a minor change in an existing notification) Call for participation from the beginning of process (e.g. at time of conceptualization of a policy or law, not only at the final stages once placed in parliament) Special attention to those most likely to be affected (e.g. poorest or most marginalized people in area to be impacted by a project), or who may find it the hardest to make their voice and interests represented Mechanisms by which full community participation is possible at least in key decisions affecting their lives, such that a few powerful representatives are not taking decisions on their behalf Adequate feedback mechanism, providing participants with information on how their inputs have been considered, and reasons for changes/rejection if any Adequate and approachable redressal mechanism (necessarily having to be decentralized so as to be within reach of people across the country) Adequate knowledge of the powers and rights that people have relating to participation in environment processes, so that they can fully use the spaces available to them

BENEFITS OF PUBLIC PARTICIPATION The protection and enhancement of the environment is the main aim of most environment decision-making (EDM) processes, and public participation can improve the quality of both the

process and the end decision. The participation process is also a learning one for all the stakeholders involved, especially if there is a free flow of information between the parties. For the public it can often be the first experience of taking an active part in the democratic process. EDM processes benefit from the direct and immediate knowledge held by citizens and business, concerning environmental conditions in their communities and industries. Encouraging the public and other stakeholders to share their knowledge, with the regulatory authorities, fosters better-informed decisions and decreases the likelihood of environmental harm, whilst increasing project viability. Of 25 overseas projects sponsored and evaluated by the World Bank, 13 failed mainly through lack of local input.10 It should be realized that wisdom is not limited to scientific specialists and government officials, and that rational analysis, carried on in ignorance of political reality, may well end up so divorced form social reality, as to be of little use to anyone. Public participation gives broader perspectives on a particular process, and early involvement gives: added time to study issues and develop the process; enhanced credibility of the decision making process; early identification of the diverse perspectives on the issues of concern; and the generation of solution options.11 Better designed projects, which avoid costly delays in appraisal and implementation, can also result from early and planned consultations and public participation. For the proponent, early participation can have the added benefit of diffusing opposition to a project. If a broad based consensus is built, it can also lead to a public sense of ownership. The publics enthusiasm is potentially a powerful motivating force for the EDM process. Public input can also supplement scarce government monitoring, inspection, and enforcement, resources. Involvement in EDM is a learning experience giving the public insight into the governance process. If the experience is good, it powers the way for future co-operation. The converse can also be true! Experience has also shown that environmental issues are powerful catalysts of civic participation and serve as a good incentive for citizens action and responsible democracy.

10

Transparency and Responsiveness: Building a Participatory Process for Activities Implemented Jointly Under the Climate Change Convention, E.L.I. Research Report, Environmental Law Institute, 1997
11

Ibid