Enhancing Environmental Decision-Making Through Public Participation

1. Philip KearneyChair of the Task Force on Public Participation in Decision-making Public participation in environmental decision-making & the Aarhus Convention “Implementing the Aarhus Convention today: Paving the way to a better environment and governance tomorrow” UNECE and OSCE joint event, Almaty, 22-23 May 2012

2. This presentation will address: • The Aarhus Convention’s requirements regarding public participation in environmental decision-making • Some practical issues of implementation • Current work of the Convention’s Task Force on Public Participation in Decision-making

3. The Aarhus Convention’s provisions on public participation in environmental decision-making: • Public participation in decisions on specific activities – article 6 and annex I • Public participation in decisions on genetically modified organisms (GMOs) – article 6, para11 and GMO amendment • Public participation concerning plans, programmes and policies relating to the environment – article 7 • Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments – article 8

4. Public participation in decisions on specific activities – article 6 and annex I • Applies to decisions on whether to permit proposed activities listed in annex I • Gives certain rights to the public concerned and some rights to the public generally • Public = one or more natural or legal persons, and in, accordance with national law or practice, their associations, organizations or groups – article 2, paragraph 4 • Public concerned = the public affected or likely to be affected by, or having an interest in, the environmental decision-making. • For the purposes of this definition, NGOs promoting environmental protection and meeting any requirements under national law are deemed to have an interest – article 2, paragraph 5 …cont’d

5. …cont’d • The public concerned to be informed, either by public notice or individually, early and in an adequate, timely and effective manner, of: • The proposed activity • Nature of possible decisions • Public authority responsible for making the decision • The public participation procedure envisaged (including timeframes and opportunities to participate) • If the activity is subject to national or transboundary EIA procedure • Public participation procedures must include reasonable timeframes to allow effective public participation • Early participation when all options are open and effective public participation can take place …cont’d

6. …cont’d • Applicants should be encouraged to identify public concerned, to enter into discussions and to provide information regarding the objectives of their application before applying for a permit • All relevant information to be made accessible to public concerned upon request, free of charge, as soon as it becomes available • The public allowed to submit, in writing or, as appropriate, at a hearing, any comments, information, analyses or opinions that it considers relevant to the proposed activity • Due account of outcome of public participation • The public to be promptly informed of decision and decision (including reasons) to be made accessible • These requirements apply equally to updates or changes to existing article 6 decisions

7. Public participation in decision-making on genetically modified organisms (GMOs) • Currently, Parties must apply the Convention’s public participation requirements on decisions on whether to permit the deliberate release of GMOs into the environment to the extent feasible and appropriate - article 6, para11 However: • In 2005, Parties to the Aarhus Convention adopted an amendment to the Convention on public participation in GMO decisions • Will enter into force when ratified by ¾ of Parties at time amendment was adopted. • Has 22 ratifications, needs 5 more ratifications by States who were Parties at the time the amendment was adopted. …cont’d

8. When in force, the GMO amendment will require: • Each Party to provide for early and effective information and public participation prior to making decisions on whether to permit: • The deliberate release of GMOs into the environment and • The placing on the market of GMOs. • Right to participate for the “public” generally, not just “public concerned” • Each Party to make available to the public a summary of the notification to obtain an authorization for the deliberate release into the environment or the placing on the market of a GMO on its territory, and the assessment report where available ….cont’d

9. …cont’d • Some types of information cannot be kept confidential • Decision-making procedures must be transparent and provide access to the relevant procedural information • Public entitled to submit any comments, information, analyses or opinion it considers relevant • Due account to be taken of outcome of public participation • Text of decision, along with reasons, to be made public

10. Public participation on plans, programmes and policies – article 7 • Plans and programmes: • Each Party must make practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment • Within a transparent and fair framework • The necessary information must be provided to the public • Reasonable timeframes for the public to be informed, to prepare and to participate effectively …cont’d

11. …cont’d • Plans and programmes: • Early public participation, when all options are open and effective public participation can take place • Due account to be taken of the outcome of the public participation • Policies: • Each Party “shall endeavour” to provide opportunities for public participation in the preparation of policies related to the environment

12. Public participation during the preparation of executive regulations – article 8 • Each Party must “strive to promote” effective public participation in the preparation of executive regulations and other legally binding rules that may have a significant effect on the environment • While options are still open • Time-frames sufficient for effective participation should be fixed • Draft rules should be published or otherwise made publicly available • The public should be given the opportunity to comment, directly or through representative bodies • The results of public participation should be taken into account as far as possible

13. II. Some practical issues of implementation • Ensuring adequate, timely and effective notification – article 6, paragraph 2 • Information sufficiently clear and detailed • Notification must actually reach public concerned, including those without easy access (e.g. rural communities without technology, low literacy, women in some communities) • Reasonable timeframes – article 6, paragraph 3 • Sufficient time for the public to prepare and participate effectively • Early public participation, when all options are open – article 6, paragraph 4 • All options must truly be open – too late if public authorities have already committed to certain choices or arrangements …cont’d

14. …cont’d • Access to all information relevant to decision-making – article 6, paragraph 6 • Free of charge • Presumption that EIA documentation to be disclosed in its entirety • Effective access (opening hours, convenient location) • Due account to be taken of the outcome of the public participation – article 6, paragraph 8 • Austria’s 2008 Standards on Public Participation, adopted to assist government officials: “‘Take into account’ means that you review the different arguments brought forward in the consultation from the technical point of view, if necessary discuss them with the participants, evaluate them in a traceable way, and then let them become part of the considerations on the drafting of your policy, your plan, your programme, or your legal instrument” …cont’d

15. …cont’d • Public to have access to the text of the decision, along with reasons and considerations on which it is based – article 6, paragraph 9 • Some countries require the substance of all comments to be addressed in a written document justifying the final decision, sometimes called a "response document". • Delegation of public participation tasks by public authorities • Neither developers (project applicants) nor consultants hired by them specialising in public participation can ensure the impartiality necessary to properly conduct the public participation procedure in compliance with the Convention. • Therefore, giving developers responsibility for organizing the public participation e.g. making available the relevant information to the public and for collecting comments, would not be compatible with the Convention. …cont’d

16. This does not mean that developers, overseen by the competent public authority, must be entirely excluded from the organization of the public participation procedure. For example, the developer may be required to: • Notify the public in line with article 6, paragraph 2, or at least to pay for some of the costs of such notification (e.g. notices in the press or on TV) or • Assist in the organization of public hearings, or • Pay a special fee to cover the costs related to public participation.

17. III. Aarhus Convention’s Task Force on Public Participation in Decision-making • Current work includes: • Draft recommendations on public participation in environmental decision-making - comments on draft welcome • Call for case studies on public participation in environmental decision-making - new case studies welcome • See: http://www.unece.org/env/pp/ppdm.html

18. …cont’d • Upcoming events: • Joint event with Protocol on Water and Health on public participation in environmental decision-making: special focus on water and health, Geneva6-8 June 2012 • Joint event with Protocol on Strategic Environmental Assessment on public participation in strategic decision-making, Geneva, 29-30 October 2012 • Joint event with ANCCLI on public participation in environmental decision-making: special focus on nuclear issues, Luxembourg, 12-14 March 2013 (provisional)

19. Thank you! For further information: Website : http://www.unece.org/env/pp/ppdm.html Email: public.participation@unece.org