ACCESS TO ENVIRONMENTAL INFORMATION HELD BY THE PRIVATE SECTOR

1. ACCESS TO ENVIRONMENTAL INFORMATION HELD BY THE PRIVATE SECTOR Juliana Zuluaga Madrid KULeuven

2. Why is it important? • The quality of the environmental information is key for effective public participation • Effective public participation feeds into better decisions and legitimize state action • Environmental information and participation make possible the right to a healthy environment for people • Private companies are likely to engage in activities with high environmental impact and affect third parties’ interests.

3. Access to Environmental Information (Aarhus Convention) Passive Access: Disclosure upon request. No need to state an interest. Exceptions apply. Active Access: Recollection and dissemination of information by authorities. i.e. Pollutant Release and Transfer Registers (Kiev Protocol)

4. What Environmental Information? (a) The state of elements of the environment (…) and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment (…) and cost-benefit and other economic analyses and assumptions used in environmentaldecision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;

5. ‘Public Authorities’ • Government at national, regional and other level; (b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; (c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;

6. How is private environmental information being accessed? • Active Access Mechanisms: Information submitted by private industries on pollution and emissions becomes “public” by the active disseminating actions of public authorities. • Passive Access Mechanisms: • Under Aarhus provisions, when the private entity performs public functions or provides public services (utilities), directly from the private entity holding the information • Under general transparency regulations, when the information is held by public authorities (indirectly) • Voluntary-based initiatives

7. Exceptions • Commercially sensitive information • Intellectual Property Rights • Property of the information i.e. Data and information from companies and bodies that are involved in biotechnology, nanotechnology and the chemicals industry for example will many a times be deemed confidential or protected by intellectual property and without this it can become difficult to ascertain the full impact of a product.

8. Why shift the approach towards wider access? • Effective Public Participation • Transparency and publicity of the public function • Protection of the environment – to balance sustainable development aims • Protection of the human right to a healthy environment • The role of private corporations in environmental governance

9. Raising Questions • Are the exceptions for disclosure of privately held environmental information hindering the exercise of environmental rights? • Where is the threshold to determine when information must be disclosed despite the private interests that may be affected? • How should we approach the issue from a regulatory perspective? • Is there a need for new legislation?