Opole University1 Jerzy Jendrośka The opinions of the Aarhus Compliance Committee as guidance for public participation procedures EIA and SEE transposition and implementation 19 October, Bucharest

Jerzy Jendroska, Ph.D, LL.M Chair, European and Public International Law, Opole University Background –vice-chair of Aarhus negotiations –secretary to Aarhus Convention –vice-chair of SEA Protocol negotiations Current relevant functions –member of Aarhus Compliance Committee –member of Espoo Implementation Committee Opole University2

Introduction – issues addressed Monitoring compliance in EIA/SEA: Aarhus and Espoo compliance mechanisms EIA/SEA and public participation under Aarhus Art. 6 vs art.7 decisions Key legal issues under art.6 Key legal issues under art.7 Aarhus and transboundary procedures Opole University3

4 Aarhus and Espoo Committees Aarhus Convention Compliance Committee –nine independent members elected to serve in personal capacity Espoo Convention Implementation Committee –eight members representing their governments Regional balance Nomination by MOP

Opole University5 Triggers Submission by Party about another Party Submission by Party about itself Referrals by secretariat Communications by the public (Aarhus) Any other source (Espoo)

Cases involving Romania Aarhus –Rosia Montana case ACC 15 Espoo –Bystroe Canal case Romania vs Ukraine –Danube Delta case Ukraine vs Romania Opole University6

Public participation under Aarhus Decisions on individual projects „which may have a significant effect on the environment” – Art. 6 GMO decisions – Art. 6 bis Plans/programs „relating to environment”– Art. 7 Policies „relating to environment” – Art. 7 Normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8 Opole University7

Legal nature of obligations Individual decisions –Art.6 permits – „shall” –Art.6 bis GMO decisions – „shall” Strategic decisions –Art 7 - Plans and programs - „shall” –Art.7 – Policies - „shall endeavor” –Art. 8 - Executive regulations and other legally binding rules - „shall strive to promote” and „should” Opole University8

EIA/SEA and public participation „The Committee in principle shares the views concerning the importance of environmental assessment, whether in form of environmental impact assessment (EIA) or in form of strategic environmental assessment (SEA) for the effectiveness of public participation in taking respectively the permitting decisions under Article 6 of the Convention or decisions concerning plans and programs under Article 7 of the Convention” (ACC/C/24-Spain) Opole University9

EIA/SEA and public participation cd „ However, the Committee wishes to underline that the Aarhus Convention neither makes an environmental assessment a mandatory part of public participation procedures nor regulates situations where an assessment is required.... Thus, public participation is a mandatory part of the environmental assessment but environmental assessment not necessarily is a part of public participation under the Aarhus Convention” (ACC/C/24 -Spain) Opole University10

Art. 6 vs art.7 decisions – why so important Different scope –Strategic decisions any plan or program „relating to the environment” –Individual decisions only permitting decisions only in relation to certain projects Different legal regimes –Level of procedural details –Access to justice Where to draw a line? Opole University11

Art 6 vs art.7 decisions – Compliance Committee observations „ it is possible that more than one decision amounts to a permit decision under article 6 or a decision to adopt a plan under article 7 of the Convention. This must be determined on a contextual basis, taking into account the legal effects of each decision. „ As stated in its previous decision (ECE/MP.PP/C.1/2006/4/Add.2, para. 29), when the Committee determines how to categorise the relevant decisions under the Convention, their labels under domestic law of the Party are not decisive, rather this is determined by the legal functions and effects of the decisions. Also as previously observed by the Committee (ECE/MP.PP/C.1/2006/2/Add.1, para. 28), the Convention does not establish a precise boundary between article 6-type decisions and article 7-type decisions. Opole University12

Art 6 vs art.7 decisions – Compliance Committee observations “public participation requirements for the decision making on the activity covered by article 7 are a subset of the public participation requirements for decisión making on an activity covered by article 6 or article 7, the requirements of paragraphs 3, 4, and 8 of article 6 apply” (ACCC/C/12 Albania) Opole University13

Key legal issues under art.6 – overview Activities covered Decisions covered „Early public participation, when all options are open” Notification Reasonable timeframes Opole University14

Opole University15 Specific decisions – activities covered Art.6.1 a) - list of activities in Annex I –based on EIA Directive Annex I and IPPC Directive –any other activity subject to domestic EIA (point 20) Art. 6.1 b) - other activities „which may have a significant efect on environment” –language to cover EIA Directive Annex II projects –„Parties shall determine...” = screening Changes and extensions

Decisions covered Multiple decisionmaking –Public participation only once? –Public participation with each decision? Criteria –Regulatory vs financing –Regulatory vs agreements –„Whether to permit” –Significance test (ACC/C/17 –EU case) Opole University16

Jendrośka Jerzmański Bar & Partners; 17 Who is responsible for public participation procedure Primary responsibility –„competent public authorities” Practical arrangements –special officers (commissaires enqueters ) –specialised private consultants (sometimes NGOs) –local authorities Role of developers (applicants/project proponents)

Role of developers „direct communication between the developer and the public concerned is important and indeed promoted by the Convention (art. 6, para. 5), placing undue reliance on the developer to provide for public participation would not be in line with the Convention.. „ „it is implicit in certain provisions of article 6 of the Convention that the relevant information should be available directly from the relevant public authority, and that comments should be submitted to the relevant public authority” Report of the Compliance Committee to the III Meeting of the Parties - ECE/MP.PP/2008/5 para 59 and case ACC/C/16 - Lithuania Opole University18

Art notification of the public „The public concerned shall be informed…in an adequate…and effective manner..” Jendrośka Jerzmański Bar & Partners; 19

Notification – basic issues Nor clear requirement in EU and most MS for the public to be informed in an „adequate, timely and effective manner” Legal issues (ACC/C/17 – EC case) –are „specific requirements” in EIA and IPPC Directives enough? –is it needed bearing in mind the character of the Directive direct applicability of the Convention Opole University20

Notification – specific requirements in EIA Directive Timely („sufficient time for informing the public and for the public.. to prepare and participate effectively” – compare with the previous version of EIA Directive!) Adequate („nature of possible decisions”) Effective („bill posting…or publication in local newspapers”) Opole University21

„Adequate” „it has been clearly shown that what the public concerned was informed about were possibilities to participate in a decision-making process concerning “development possibilities of waste management in the Vilnius region” rather than a process concerning a major landfill to be established in their neighbourhood. Such inaccurate notification cannot be considered as “adequate” and properly describing “the nature of possible decisions” as required by the Convention.” (Case CCC/C/16 Lithuania) Jendrośka Jerzmański Bar & Partners; 22

„Effective” - I „The requirement for the public to be informed in an “effective manner” means that public authorities should seek to provide a means of informing the public which ensures that all those who potentially could be concerned would have a reasonable chance to learn about proposed activities and their possibilities to participate” (Case CCC/C/16 Lithuania) Jendrośka Jerzmański Bar & Partners; 23

„Effective” - II Therefore, if the chosen way of informing the public about possibilities to participate in the EIA procedure is via publishing information in local press, much more effective would be publishing a notification in a popular daily local newspaper rather than in a weekly official journal, and if all local newspapers are issued only on a weekly basis, the requirement of being “effective” established by the Convention would be met by choosing rather the one with the circulation of 1,500 copies rather than the one with a circulation of 500 copies. ” (Case CCC/C/16 Lithuania) Jendrośka Jerzmański Bar & Partners; 24

Art „reasonable time-frames „The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making” Jendrośka Jerzmański Bar & Partners; 25

„Reasonable time-frames” - I „The time-frame of only ten working days, set out in the Lithuanian EIA Law, for getting acquainted with the documentation, including EIA report, and for preparing to participate in the decision-making process concerning a major landfill does not meet the requirement of reasonable time-frames” (Case CCC/C/16 Lithuania) Opole University26

„Reasonable time-frames” - II „the announcement of the public inquiry...provided a period of approximately 6 weeks for the public to inspect the documents and prepare itself for the public inquiry...the public inquiry...provided 45 days for public participation and for the public to submit comments, information, analyses or opinions relevant to the proposed activity... The Committee is convinced that the provision of approximately 6 weeks for the public concerned to exercise its rights under article 6, paragraph 6, and approximately the same time relating to the requirements of article 6, paragraph 7.. meet the requirements of these provisions in connection with article 6, paragraph 3, of the Convention”(Case CCC/C/22 France) Jendrośka Jerzmański Bar & Partners; 27

Art „early public participation” „Each Party shall provide for early public participation, when all options are open and effective public participation can take place” Jendrośka Jerzmański Bar & Partners; 28

Early public participation – basic issues Does „early…when all options are open” –relates to sequence of decisions (Delena Wells case)? –relates to particular decision (scoping in EIA)? –both? Can public participation after construction is finished be considered „early” (ACC/C/17 – EC case)? Opole University29

Early public participation - Compliance Committee observations „The requirement for “early public participation when all options are open” should be seen first of all within a concept of tiered decision-making whereby at each stage of decision-making certain options are discussed and selected with the participation of the public and each consecutive stage of decision- making addresses only the issues within the option already selected at the preceding stage.”...each Party has a certain discretion as to which range of options is to be discussed at each stage of the decision-making. Such stages may involve various consecutive strategic decisions under article 7 of the Convention (policies, plans and programs) and various individual decisions under article 6 of the Convention authorizing the basic parameters and location of a specific activity, its technical design, and finally its technological details..” „Within each and every such procedure where public participation is required it should be provided early in the procedure when all options are open and effective public participation can take place.” Opole University30

Jendrośka Jerzmański Bar & Partners; 31 Art making available relevant information Free of charge As soon as available Exemption from general rules on acces to information under art.4 Relation to art 6.2

Jendrośka Jerzmański Bar & Partners; 32 Art content of relevant information All information relevant to decision-making –Description of site, efects and measures –Non-technical summary –Outline of main alternatives –Reports and advice

Findings in case ACC/C/15 - Romania „EIA studies are prepared for the purposes of the public file in administrative procedure.Therefore, the author or developer should not be entitled to keep the information from public disclosure on the grounds of intellectual property law” (para 28) Opole University33

Findings in case ACC/C/15 - Romania „The Committee wishes to stress that in jurisdictions where copyright laws may be applied to EIA studies that are prepared for the purposes of the public file in the administrative procedure and available to authorities when making decisions, it by no means justifies a general exclusion of such studies from public disclosure. This is in particular so in situations where such studies form part of “information relevant to the decision-making” which, according to article 6, paragraph 6, of the Convention, should be made available to the public at the time of the public participation procedure” (para 29) Opole University34

Conclusion in case ACC/C/15 - Romania „The Committee finds that by having introduced a general rule exempting full EIA studies from public disclosure, Romania was not in compliance with... article 6, paragraph 6, in conjunction with article 4,paragraph 4, of the Convention. However, the Committee notes the information from the Party concerned to the effect that this situation has been remedied by the introduction of the new instructions with regard to availability the EIA documentation” (para 33) Opole University35

Key legal issues under art.7 Scope of strategic decisions covered Convoluted legal scheme for plans and programs –who is obliged –cross-reference to Article 6 –unclear relation to art.6.2 Opole University36

Opole University37 Scope of strategic decisions covered by the Convention Art 7 - plans, programs and policies „relating to the environment” –„significance” of „relation” irrelevant! –„relate” = „may have effect on” ? Art. 8 – executive regulations and other legally binding rules that „may have a significant effect on the environment” –„significance” test

Opole University38 Strategic decisions „relating to the environment” Those which „may have a significant effect on the environment” and require SEA Those which „may have a significant effect on the environment” but do not require SEA, for example: –those that do not set framework for development consent Those which „may have effect on the environment” but effect is not „significant”, for example: –those that determine the use of small areas Those aiming to help protecting the environment

Aarhus vs transboundary procedures Transboundary procedures –limited scope based on reciprocity –procedural details - responsibility on both Parties involved Aarhus –no reciprocity –principle of non-discrimination in Art.3.9 Opole University39

Public and public concerned Identification of the public concerned under Art.6 and public under Art.7 –obligation of the competent authorities NGOs –„meeting any requirements under national law” Local authorities? Opole University40

Notification Language of notification –official language –language of affected country –English –any language Means of notification (domestic or used in affected country) Timing of notification (in time to allow for exercise rights under Art.9.2) Opole University41

Access to information under Art.6.6 Obligation to translate documentation? „Access for examination” Place of making documents available –only in country of origin? –also in affected country? Opole University42

Comments under Art.6.7 Language of comments? Hearing –place? –travel? –translation? Opole University43