European Environmental Law and Regulation - Essay Example

EUROPEAN ENVIRONMENTAL LAW For the past 35 years1, there have been a wide range of European Union (EU) legislation on environmental protection, covering the main areas of nature and biodiversity; integrated pollution control; waste management; air, noise and water pollution; environmental impact assessment; and genetically modified organisms.2 EU environmental legislation is implemented in much the same way as other EU legislation, with compliance being monitored by the European Commission. Failure to implement directives may cause individual Member States to be brought before the European Court of Justice (ECJ). The EU policy that is currently in place is stated in the Sixth Environment Action Programme of the EU (“Environment 2010: Our Future, Our Choice”) which focuses on four priority areas, namely: Climate change initiatives via reduction of greenhouse gas emission and establishment of an emissions trading scheme, towards achieving the objectives of the Kyoto Protocol; Nature and biodiversity; Environment and health; and Sustainable management of resources and wastes. The European Environmental Agency (EEA) is the body that has been mandated to provide support for sustainable development projects and to assist Member States in improving the environment by providing information to policy makers and the public.3 It is the policy of the EU to disseminate information and encourage public participation in the environmental protection programmes of the Union. Towards this end, Directives 2003/4/EC and 2003/35/EC have been promulgated, to provide individuals the right to access certain environmental information held by public authorities, and to compel Member States to provide mechanisms to facilitate public participation in decisions about the environment, respectively.4 In the intervening years that the EU directives have been enforced, benefits would have had accrued that are attributable to the policy of public participation. It becomes necessary to assess that such benefits have indeed been created, and to what degree, in order to arrive at an opinion concerning the directives’ effectiveness. Absent significant positive results, the directives may be deemed to be little more than empty rhetoric. Is the approach to public participation on European Environmental Law (EEL) more than rhetorical empowerment? The criteria for empowerment In deciding a question on whether true empowerment exists or not, one proceeds from a situation indicative of the absence of power. Simply stated, empowerment is said to be given to those who are subjugated under the power of a dominant force, so as not yet to be “in power”. One may infer from the situation that prior to the empowerment, there was a sense of disempowerment, of victimisation – in the context of environmental law, those suffering from substantive environmental injustice.5 Empowerment is more than just an assignment of rights or distribution of power; the “grassroots perspective” of empowerment is “to challenge the institutional causes of environmental injustice and empower those suffering environmental injustice to be ‘agents for environmental justice.”6 The first requisite towards empowerment is to challenge the institutional framework that perpetuates the substantive injustice. The means by which this is to be achieved is a significant goal in itself, and may be attained by creating the environment by which those who suffer the environmental injustice become directly involved in deciding their future. Called “transformative politics,” it involves the examination of the power dynamics that are brought into play in the decision-making processes. Transformative politics render the power structure “fluid and contestable, cultural assumptions about race and class challengeable, and new opportunities for participation of those aggrieved by environmental injustice possible.”7 The act of being directly involved in deciding the future means that not only are the people consulted or given the chance to air their views, but that the substance of the concerns advanced by them are integrated into the substance of the final decision. A second requisite for empowerment included in this essay is that such rights as are bestowed by law should be recognized and enforced by the very social structures through which the environmental injustices may have been perpetuated in the first place. This requisite springs from the observation that the primary argument for not considering the right to a clean environment as a right is that “proclamations made of such a right are merely aspirational, being primarily embodied in non-binding declaratory documents.” 8 Social empowerment in law would be when institutions uphold the claim by the newly empowered, to rights created and enshrined in law. In order to determine whether empowerment in the EEL is more than mere rhetoric, is it necessary to determine whether or not real, actionable rights have been created as a result of the EEL’s body of laws. By actionable rights is meant additional entitlements of natural or juridical persons, as a party in interest, to file an action in a duly empowered legal tribunal, in pursuit of a rightful claim to access to information and participation in the creation and enforcement of environmental law. The Aarhus Convention In June 25, 1998, as a result of the Fourth Ministerial conference in the “Environment for Europe” process, the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted. The Convention was adopted in the Danish city of Aarhus, for which it has been given the monicker, the Aarhus Convention. The Convention established the right of individuals and their associates to information and participation in environmental matters9. Specifically, the Convention provides for three “pillars” of empowerment, namely: “Access to environmental information”, or the right to receive information on the state of the environment, policies or measures taken, and the state of human health and safety in the occasion they might be affected by the state of the environment. Those who apply for information are entitled to receive it no later than one month from the request, without having to justify the reason for the request or revealing the intended use of the information. More than just responding to requests for information, public authorities are mandated by the Convention to actively disclose and disseminate any information on the environment which they may have in their possession. “Public participation in decision-making”, or the right of the public to comment on projects and programmes proposed to be undertaken in relation to the environment. Under this right, government officials are mandated to arrange for public participation, to take all comments into consideration in decision-making, and to provide information on the final decision to the public together with the reasons for it.10 “Access to justice”, which is the right of everyone to review procedures or challenge public decisions that have been made without respecting the foregoing rights of information and participation with regard to environmental law in general.11 To ensure that the public rights granted by the Convention are observed and the mandates of its provisions complied with, the Convention has provided for its own compliance mechanism.12 This mechanism is unprecedented in international environmental law, in the sense that it allows for individual members of the public to directly express their concerns about an institution’s or other party’s compliance directly to an international committee of legal experts who are charged with examining the merits of the matters presented. This is unusual, because international bodies conventionally deal with states and other organizations of international standing, and individual persons usually have no legal personality in such for a. Furthermore, the mechanism may be set in motion through four events: (1) A Party may voluntarily submit evidence of its own compliance. (2) A Party submits information about another Party’s compliance. (3) The Convention Secretariat issues a referral to the Committee. (4) A member of the public makes a communication concerning the compliance of a party. The Aarhus Convention is an agreement forged under the auspices of the United Nations, which the European Community signed on 25 June 1998. As such, the law of the Community should necessarily be aligned with the tenets of the Convention. It is pursuant to the Convention that the Environmental Impact Assessment (EIA) Directive 2003/35/EC of the European Parliament and of the Council, was promulgated on 24 May 2003. The Directive made in mandatory among the Member States to give effect to the spirit and provisions of the Aarhus Convention, through the enactment of the necessary national legislation by 2005. Assessing the evidence for empowerment To determine whether empowerment is more than rhetoric, it is incumbent now to examine the provisions of the Aarhus Convention, to determine whether the two criteria earlier discussed are provided for. Firstly, does the Convention provide for a means for social empowerment, by assuring that people who formerly were ignored or denied participation, are hereafter directly involved in deciding the future of their environment? Secondly, does the Convention assure that the right of participation, among others, is exercisable and enforceable in the social institutions tasked with its enforcement? The answers to both questions lie in the three pillars upon which the Aarhus Convention stands. The first question may be answered by the first two pillars of the Convention – access to information, and public participation in decision making. It must be noted that the Convention mandates that information be actively disclosed to the public, such disclosure not being conditioned on a request for information, but being a duty of the authorities to publicly disseminate. Likewise, the right to public participation is not conditioned on the public’s initiative to seek participation, but involves a duty of the authorities to develop and encourage public participation through projects and programmes, and other means necessary to involve them in decision-making. This pillar mandates authorities to account to the public the bases of its decisions that impact on the environment, and to directly address their concerns that bear on the decision made. The second question is whether or not the Convention does not merely express abstract “aspirations”, but actually creates rights that are enforceable and actionable. This question is answered by the third pillar, the “access to justice” feature in the Convention. That the pillar is operational is evident in the compliance mechanism provided by it, which explicitly permits individuals to bring their case before the compliance committee or other court or tribunal of proper jurisdiction, against a party seen to be remiss in their obligations under the Convention. One such case is that of Sweetman v An Bord Pleanála, Ireland and the Attorney General [2007] IEHC 153, [2007] 2 ILRM 328. The facts show that plaintiff, Mr. Sweetman, had made a submission regarding an application by Clare County Council to An Bord Pleanála for a road scheme that was to run immediately south of the Ballyallia Lake candidate Special Area of Conservation (cSAC). The application included an environmental impact statement (EIS). Mr. Sweetman raised concerns regarding the need for long-term monitoring and enforcement in order to confirm that no adverse impact would result on the adjacent cSAC. The inspector appointed by An Bord Pleanála concluded that the potential impact of the development were adequately addressed in the EIS submitted with the application. An Bord Pleanála subsequently approved the road scheme, which Mr Sweetman challenged, on the basis that the monitoring of groundwater was “demonstrably inadequate without some additional measure to provide for further mitigation in the event that the monitoring shows some unforeseen consequence.” 13 Mr. Sweetman sought leave to apply for judicial review of the decision of An Bord Pleanála. The case turned on whatever impact Directive 2003/35/EC (the Public Participation Directive) has on Irish law, dealing in particular with judicial review procedure and substance. Article 10a of Directive 85/337/EEC (the EIA) Directive inserted by Article 7 of the Public Participation Directive. The intention of Article 10a is to implement Article 9(2) of the Aarhus Convention on access to justice. This provision states, among others, that Member States shall ensure that, in accordance with the national legal system, members of the public have access to a review procedure before an impartial body established by law, to challenge the substantive or procedural legality of decisions, acts or omissions covered by the public participation provisions of the Directive. Ireland had not as yet adopted any specific measures in order to implement Article 10a, and claimed that that there was no need to do so in these proceedings. Mr.Sweetman questioned the adequacy of the Irish judicial review, since (1) the requirement for leave is tantamount to a barrier to the entitlement to judicial review mandated by the directive; and (2) that the limitations placed upon the scope of inquiry entered into on judicial review also fails to meet those requirements.14 To this the court responded that the Directive did not require a judicial review of the substance of the decision itself, but rather “the substantive legality of the decision”15 which is not “a complete appeal on the merits”16, and therefore may be met by the Irish judicial review law. The Court eventually refused leave on all grounds. The Sweetman case is one of the first tests of Article 9(2) and therefore raises fresh issues relevant to the practice of the Directive and the Convention on which it is based. According to the NGO Resolution on the Public Participation Convention, the Aarhus Convention is regarded as “a necessary and important stimulus to the furtherance of environmental protection and participatory democracy.”17 However, the Sweetman case appears to substantiate the observation that the three pillars of the Aarhus Convention may be unwelcome in Western European democracies because of the threat they pose on established practices, the authority of professional bureaucracies, and the interests of certain prominent private individuals and organisations.18 “The weak obligations of the Convention are only likely to have real impact at the domestic level if they are given teeth by European legislation.” 19, 20 There is thus real concern that while the Convention has made the three pillars in as firm a language as possible, ultimately its effective application will depend upon the degree to which the national legislation and legal systems of the Member States support the spirit and rationale of the Public Participation Convention. This brings the discussion to the second part of this essay, on the effectiveness of public participation as it is applied now, and the degree to which it redounds to successful regulation of the environment. Does the approach to public participation on EEL result in more effective regulation of the environment? As evidenced by the Sweetman case, while the legal framework in international law may have been laid for the realization of public participation, without the enabling statutes and systems in place in the Member States, no real effect will result. The question to be resolved now is whether or not there are tangible effects that have resulted as a consequence of the application of public participation initiatives in European Environmental Law. The Water Framework Directive One of the areas where Aarhus-type systems and practices have been developed is that of the EU Water Framework Directive, more specifically the Directive 2000/60/EC of the European Parliament and the Council incumbent on 23 October 2000. The EU Directive seeks to commit EU Member States to maintain the good quality and sufficient quantity of all water bodies in its jurisdiction (including marine waters extending one kilometre from shore), as well as the preservation of its marine ecosystems, by the year 2015. The Directive recommends that measures be taken to attain the common goal, and does not merely impose limit values. The Directive requires the periodic preparation of River Basin Management Plans for every six years (2009, 2015, and 2021), and covers the surface freshwaters, groundwater, ecosystems (e.g. the wetlands), estuaries and coastal waters. Article 14 of the Directive mandates Member States “to encourage the active involvement of interested parties…in particular in the production, review, updating of the river basin management plans.” The Article imposes upon the Member States the duty to publish and make available to the public for their comment such documents as (1) a timetable and work programme for the production of the plan, including consultation measures, at least three years before the plan’s implementation; (2) an over view of the water management issues identified in the river basin, at least two years before the period of implementation; and (3) copies of the river basin management plan, at least one year prior to the period it refers to.21 The detail to which the measures were worked and the emphasis out is indicative of the commitment to abide by the Aarhus Convention and to ensure the active participation of the public affected by the environmental conditions. In 22 June, 2006, a report was issued concerning the low impact of public participation in the European water policy.22 The report observes that while the EU Water Framework Directive (WFD) gives cognition to the importance of ensuring public participation, the Directive does not provide guidelines on how river basin authorities may open the decision-making process to the stakeholders. In order to fill this gap, the EU-funded research project ADVISOR23 was created to develop an integrated and participatory project evaluation framework for the river basin context. ADVISOR found in its research that: (1) There is uneven distribution of the participatory process throughout the policy- and decision-making process cycle. (2) Usually, the purpose of participation is limited to public information, with little or no true involvement and collaboration of stakeholders in the evaluation process. (3) There is a need for the public and stakeholders to be involved as early as possible in the problem identification and the search for alternatives. (4) The consultation techniques used in the majority of projects evaluated are insufficient to cover the interest, perceptions and values of the affected parties. The study concluded that the overall impact of public participation in the decision-making process is very small, and other measures should be explored such as visioning workshops, participatory modelling, citizens’ juries, or social multi-criterion analysis. A set of guidelines have also been drawn towards the “Integrated Deliberative Decision Process for Water Resources Planning and Evaluation” in order to guide administrators and officials in this matter. 24 On the 18th and 19th of November, 2010, a conference25 was held in Leuven, Belgium on the occasion of the 25th anniversary of the EIA Directive, to assess the success, failures, and prospects for its continued implementation. During the conference, findings on public participation and decision-making were discussed, with the major points summarized as follows: (1) The time frames for public consultation and participation differ from country to country, challenging the uniformity with which the directive is supposed to be implemented; (2) No authority nor convention can as yet provide a clear guidance as to what documents the country of origin has to submit for dissemination among the public in the affected country, translated in their language; (3) Translations must be carefully assessed as implications may be unintentionally conveyed in the course of converting from one language to another. (4) There is a need to avoid restrictive standing imposed upon the public, including NGOs, to ensure compliance with the Aarhus Convention requirements. (5) Also, public concern and awareness is lacking, and it is imperative to raise the level of awareness to encourage effective participation in environmental matters. (6) It was found that reluctance to embark on public participation efforts is caused to some extent by the fact that such programmes are time consuming and costly. (7) Finally, there is a general lack of experience in conducting public participation initiatives in general, and post-project analysis in particular. In toto, the conference of November 2010, insofar as it reflects on the effectiveness of public participation in the implementation of environment laws, points to the lacklustre performance of Member States, agencies and organizations in the pursuit of this direction, to the point that radical change is necessary. Conclusion This essay set out to fulfil a twinfold purpose: to determine whether or not the approach to public participation on European Environmental Law (EEL) is more than rhetorical empowerment, and whether or not the approach to public participation on EEL result in more effective regulation of the environment. As to the first, whether there more than rhetorical empowerment, it is safe to say that mandatory provisions through Conventions and Directives have been promulgated towards enhancing public participation, with real actionable rights created to enforce such participation. Hence, the approach to public participation is more than mere rhetoric or aspirational pronouncements. As to the effectivity of the measures, however, this remains to be seen, as obstacles both social and legal are still to be ferreted out of the system. The empowerment of the public for active participation is not desired by all, particularly those will selfish interests to protect, and these provisions will pass through refinements and tests of application before it will ultimately achieve its intended goal, the mobilization of stakeholder participation in the preservation and conservation of the environment. Like all legal initiatives that aim for social transformation, development will require time, vigilance, and consistency before effectiveness may be clearly perceived and appreciated. Read More