This course was developed in cooperation with the IUCN Academy of Environmental Law THE ROLE OF THE PUBLIC

This course was developed in cooperation with the IUCN Academy of Environmental Law “Environmental issues are best handled with participation of all concerned citizens, at the relevant 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… Effective access to judicial and administrative proceedings should be facilitated, including redress and remedy and the relevant resources.” Principle 10 of the Rio Declaration on Environment and Development (1992) 2

This course was developed in cooperation with the IUCN Academy of Environmental Law Basic Principles  Access to information  Access to public participation  Access to justice  Character of these principles –Rights? –Operational guidance?  For whom? National only? What about sub-national authorities? –Good rhetoric, but not realistic? –Some combination of the above …? 3

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Information  In principle, information held by the Government is public –Information needs to be in government hands; generally, this does not require the government to generate the information –May have a particular focus on access to environmental information  … with some exceptions –National security –Confidential business information –Personal privacy –NOTE: These exceptions are construed narrowly, so that the basic principle of access governs 4

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Information  “Active” v. “passive” access to information –Dissemination –Providing information upon request  Requesting information –Requestor does not need to justify why they are seeking the information, or explain how they will use it –Applying for environmental information is free-of-charge (although there may be a fee for photocopying) 5

This course was developed in cooperation with the IUCN Academy of Environmental Law Ensuring Access to Information  Ensure that people, NGOs and communities have access to adequate and timely information on the environment by: –Ensuring information collection and maintenance  Creating adequate environmental information management systems –Establishing and implementing norms ensuring access –Enforcement: ensuring that requestors have the right to go to court if their request is denied or the information is not provided 6

This course was developed in cooperation with the IUCN Academy of Environmental Law Examples of Access to Information  Freedom of information laws (many countries) –Also provisions in environmental framework laws and national constitutions  State of the Environment (SOE) Reports (most countries)  Pollutant Release and Transfer Registers (PRTR) (e.g., Europe, U.S., Canada, Mexico, Japan, etc.)  Environment Information Disclosure and performance rating (e.g., in China) 7

This course was developed in cooperation with the IUCN Academy of Environmental Law Public Participation  Who does it include? –Usually “everyone” or “anyone”  The right to participate in: –decision-making process on legislation, policies, programs, plans, projects, and permits  Some measures more common than others –Projects and permits (especially through environmental impact assessment) common; –Participation in legislation less common –application of policies and related measures 8

This course was developed in cooperation with the IUCN Academy of Environmental Law Examples of Participation  Public participation in projects and activities –Environmental impact assessment (EIA) is the most common mechanism –Also have public hearings, consultative workshops, permitting processes, zoning decisions, etc.  What about projects with potentially transboundary effects? 9

This course was developed in cooperation with the IUCN Academy of Environmental Law Examples of Participation (cont.)  Public participation in developing programs and plans –Strategic Environmental Assessment (SEA) –National Biodiversity Strategy  Public participation in drafting legislation –Less common provision and tends to be general –Directly relevant to legislation implementing MEAs 10

This course was developed in cooperation with the IUCN Academy of Environmental Law Public Participation in Enforcement  Ways in which the public can participate in enforcement include: –monitoring –reporting violations  E.g., telephone hotlines (USA) –assisting in investigations –bringing suit against violators –bringing suit against government for failure to perform non- discretionary duties 11

This course was developed in cooperation with the IUCN Academy of Environmental Law Additional Mechanisms that Promote Public Participation  Letter boxes to collect opinions, suggestions, or accusations  Publication of regulatory projects  Citizen surveillance committees  Participation in State management of projects or natural resources –Co-management approaches, particularly for natural resources  Other participation mechanisms 12

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Public Participation (1)  Possible implications of public participation –Participation in EIAs and other instruments of environmental management may have binding effects –Financial and transaction costs of participation –Participation may influence processes which define macro policies  Effective public participation needs (and benefits from) a range of various instruments at different levels 13

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Public Participation (2)  Can supplement and enhance enforcement efforts through reporting of violations discovered by the public –Public brings additional resources (eyes and ears) to compliance monitoring 14

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  Access by: –Individual members of the public (citizens or more broadly “anyone”) –NGOs and other organizations –Is there a need to show a legally recognizable interest?  To challenge acts and omissions that violate environmental laws –Acts and omissions by public authorities –Acts and omissions by private actors 15

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  Public access to justice has multiple benefits –Enables people to protect their rights and interests, especially when the government is unable or unwilling to do so –Promotes ultimate legitimacy by peacefully resolving disputes –Supplements scarce governmental resources to enforce environmental laws –Helps to ensure the effectiveness of environmental laws by promoting compliance and enforcement 16

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  In Principle 10 of the Rio Declaration, States agreed to provide their citizens effective access to judicial and administrative proceedings, including redress and remedy  Since the adoption of this Declaration, Principle 10 has found expression in Constitutions and environmental laws around the world  Many consider Principle 10 to be part of customary international law  Principle 10 is the basis for the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  Ways to ensure fast and effective access to environmental justice –Providing clear legal rights and procedures –Access may be to courts, administrative tribunals, and/or complaints mechanisms (such as an ombudsman) –Need to clarify the relationship between citizen complaints and governmental prosecution  E.g. does subsequent governmental prosecution supplement or supplant a citizen suit? 18

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  Important aspects include: –Who may bring a legal action (suit)? –Requirements for standing (locus standi ) of litigants –Scientific and technical considerations (especially in cases of involving pollution and toxicology) –Costs of the process  Possibility of obtaining attorneys’ fees? 19

This course was developed in cooperation with the IUCN Academy of Environmental Law Access to Environmental Justice  Procedures may be –Administrative or legal  Range of courts and tribunals –National courts, or –International courts, including:  International Court of Justice  International Criminal Court  Regional Courts and Commissions –Inter-American Court of Human Rights –African Commission on Human and Peoples’ Rights –European Court of Justice 20