Green Democracy: Access to Justice, Capacity Building, and EIA

1. Greendemocracy Dr. KECSKÉS, Gábor PhD. Seniorlecturer (Széchenyi István University) Research fellow (HungarianAcademy of Sciences) February 2015

2. My focus Otherpillars and derivatives of greendemocracy • Access tojustice • Capacity building • EIA (env’l impactassessment) • „Greenrights” in Strasbourg • Nuclear energy and the protection of the environment

3. Access to justice Aarhus Convention (greendemocracyconvention) – italics and underliningsaremine • Article 4 – accesstoenvironmentalinformation (1)EachPartyshallensurethat (…) publicauthorities, in responseto a request for environmentalinformation, makesuchinformationavailableto the public, withintheframework of nationallegislation, including(…) copiesof the actualdocumentation(…) • Article 9 – accesstojustice • EachPartyshall, within the framework of itsnationallegislation, ensurethatanypersonwhoconsidersthathis or herrequest for informationunderarticle 4 has beenignored, wrongfullyrefused, whether in part or in full, inadequatelyanswered, or otherwisenotdealtwith in accordancewith the provisions of thatarticle, has accessto a reviewprocedurebeforeacourt of law or anotherindependent and impartial body established by law.

4. Access to justice Otherrequirements: • suchrequestshall be free of chargeor inexpensive for reconsideration by a publicauthority or review • Finaldecisions(…) shallbe binding on the publicauthorityholding the information. Reasonsshall be stated in writing, atleastwhereaccesstoinformation is refusedunderthis paragraph. 2. EachPartyshall, within the framework of itsnationallegislation, ensurethatmembersof the publicconcerned (a) Havingasufficient interest or, alternatively, (b) Maintainingimpairment of a right, where the administrativeprocedural law of a Partyrequiresthisasaprecondition, haveaccessto a reviewprocedurebeforeacourt of law and/or anotherindependent and impartial body established by law, tochallenge the substantive and procedurallegality of anydecision, act or omission

5. Access to justice • What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law • the provisions shall include the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. • Para. 3: each Party shall ensure that, where they meet the criteria (upon the convention and national law), if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. • Para. 4: the procedure shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

6. Capacity building 4th pillar of green, environmentaldemocracy(not a declaredbut an interlinkingpillar – implicit in Aarhus?) • in order to increase the role and efficiency of public participation within the processes mentioned before • capacity building shall be introduced by means of manpower(education, personal and professional skills) and financial resources towards institutions, think tanks, NGOs, etc. (key activities: promotion & monitoring of access to information, public participation and access to justice) • role of ombudsperson (green ombudsman) – Hungary (deputycommissioner for fundamentalrightsin-charge of the interests of the futuregenerations) • information, cooperation and campaigning for such achievements (strengthening their capacity to act or highlight the problems) • green lobby (limited possibilities in comparison with the business lobby) - how to handle and cope with persons and institutions (experience, differing interests, tradition of lobbying, for profit-non-profit, number of actors from the lobbyist side) • allies on the side of the EU Commission – problem: the affected parties can over-dramatize the issue in order to get attention (and lobby power) from the media, policymakers, stakeholders, etc. It is a process of education, training, financing and the self-identification of greenNGOs (empowerment) – tofindtheirvoice and skills – tolet the people be informed and interested – hence, CB is a crucialissue for thiscentury

7. EIA 1991 Espoo Convention on EIA Article 1 (vi) "Environmental impact assessment" means a national procedure for evaluating the likely impact of a proposed activity on the environment (vii) "Impact" means any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors,it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors (viii) "Transboundary impact" means any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party Process cycle (7 elements): notification – preparation of EIA documents – consultation on this document – final decision – post-project-analysis – cooperation – research programmes APPENDIX I LIST OF ACTIVITIES 2. Thermal power stations and other combustion installations with a heat output of 300 megawatts or more and nuclear power stations and other nuclear reactors (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load). 3. Installations solely designed for the production or enrichment of nuclear fuels, for the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing of radioactive waste.

8. Green rights in Strasbourg No clearrecognition of greenrights (expressis verbis), neither the 1950 Convention, nor the protocolsreferto explicit regulation on thisissue But: the practice and precedentsof the ECtHR (environmentalissuesaredrawnfrom the rightto respect for private and family life – Article 8) – inherentcontent • LópezOstra c. Spain (1994) – air pollution, Fadeyeva c. Russia(2005) – air pollution, Deés c. Hungary (2010) – noise „pollution” • EctHR’s veryactive and has innovativeinterpretation

9. Nuclear energy and the protection of the environment Nuclear safety(safetyreferstoenvironmental and technicalissues, securityreferstoissuesattachedtoarms, nuclearweapons and the usage of nuclearenergy by dangerousentities) • Paris Convention on Third PartyLiability in the Field of Nuclear Energy,Paris, 1960 • Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 1963 • Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, 1963 • Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention), Vienna, 1986 • Convention on Early Notification of a Nuclear Accident (Notification Convention), Vienna, 1986 • Convention on Nuclear Safety, Vienna, 1994 • Comprehensive Test Ban Treaty, 1996 Nuclear treaties– no clear and concretereferencetoenvironment (justgeneralpreventionandprecautionrequirements)

10. Case study Facts • fictionalEU-memberstate: Utopistan(a contractingpartytoAarhus Convention, EspooConvention) • the Utopistgovernmentdesirestolaunchthenuclearenergy project in the country (nuclearnewbuild – tillnow, Utopistan is a nuclear-free country) • Plans for the place of the powerplant: Debate City (located 5 km from the border of Utopistan and Greenland) • Simulation of negotiationsamong the affectedparties • CentralGovernment of Utopistan • Local Government of Debate City • GreenNGOs • Local public • Representative of Greenland • Aim and goal: a solutionwhich is acceptable for allinterestedparties (ifsolutioncan be drawn) • be creative, ready for compromise and agreementbutnevergiveupyourspecial interest and principles • alltools and forms of peacefulnegotiationscan be used (usage of language of diplomacy, etc.)

11. Thank You (on behalf of the affected parties)! Comments are warmly welcome at horvg@sze.hu kecskesg@sze.hu