Building Effective Environmental
Advocacy Organizations and the Guta Process |
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Karin Krchnak, Director, Environmental Law Program, ABA/CEELI
Over sixty public interest environmental lawyers and
professionals attended the Fourth Annual Environmental
Advocacy Conference held on June 11-13, 1998 in Wroclaw,
Poland. The theme of Guta IV, named after the
location of the first-ever conference in Guta, Ukraine
in 1995, was "Building Effective Environmental Advocacy
Organizations." The Conference was hosted by the
Polish Environmental Law Association (PELA) and the
American Bar Association Central and East European Law
Initiative (ABA/CEELI) with support from the U.S. Agency
for International Development (USAID), East East Program
of the Stefan Batory Foundation (Soros Foundation) and
the Regional Environmental Center (REC). The only
event of its kind, Guta IV included participants from:
Armenia, Belgium, Bulgaria, Czech Republic, Estonia,
Georgia, Hungary, Kazhakstan, Latvia, Moldova, Netherlands,
Poland, Romania, Russia, Slovak Republic, Ukraine, and
the United States.
One of the principal issues discussed at the Conference
was the then upcoming adoption of the Convention on
Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters (adopted
in Arhus, Denmark on June 23-25, 1998). Jerzy
Jendroska of PELA led a presentation of country reports
by several attendees that contributed to the PELA-coordinated
"Project on Cooperation Between Environmental Authorities
and Ecological NGOs." Participants also discussed
the lessons learned from the negotiation process, emphasizing
the need for working on implementation of the Convention
in their respective countries. Moreover, a group
of participants worked throughout the Conference to
develop a Guta Statement for presentation at Arhus,
recognizing the common interest among all stakeholders
in protecting the environment and working toward sustainable
development.
An important element raised by many
participants in working not only to implement the Convention
but also to address environmental law reform generally
is greater cooperation. Sandor Fulop of the Environmental
Management Law Association (Hungary) emphasized: "Common
need for a common language taught by good teachers."
In support of this, Aida Iskoyan of the Environmental
Public Advocacy Center (Armenia) pointed out that non-governmental
organizations (NGOs) must be professional; organizations
need to understand that NGOs are not extremists so that
there will be greater cooperation. In cooperating
with the Ministry of Environment in Armenia, the EPAC
worked to surpass the psychological barriers and now
the Ministry requests assistance and participates in
the monthly Environmental NGO Roundtables hosted by
the EPAC. Other participants, such as Merab Barbakadze
of the Environmental Law Club (Georgia), noted progress
in governmental cooperation with NGOs, although enforcement
still remains extremely weak in most countries in the
region. Barna Bartha of Focus Eco-Center (Romania)
pointed out that cooperation between NGOs, government
and industry does not receive enough attention....
In a session on "Creative Litigation Strategies," participants
discussed various mechanisms such as using the European
Court of Human Rights, and such strategies as requesting
compensation for moral damages rather than for material
damages. A group discussion on "Problems in the Case
Development Process-Causation, Lack of Scientific
Information" resulted in such recommendations as developing
a list of experts for use in expertises, initiating
internships at regional NGOs, focusing on legal violations
if causation is too difficult to prove, and the creative
use of the rights of consumers. Breakout groups
allowed participants to share ideas on "Legislative
Lobbying and Influencing the Legislative Drafting Process"
and "Outreach and Information Tools-Public Relations,
Media Relations, Use of the Media and the Internet."
Although the Guta process allows
environmental lawyers and professionals in the region
to share their experiences and to draw on lessons learned,
many participants voiced their support for a vehicle
for institutionalizing regular cooperation among environmental
lawyers and professionals. In building upon a
decision made at Guta III, participants moved forward
with the establishment of the Association of Ecological
Lawyers of Central and Eastern Europe (CEE) and the
Newly Independent States (NIS) as a networking mechanism.
Through breakout groups, conference participants began
to address such issues as the strategic focus of the
Association, governance issues, and human and financial
resources. Conference participants agreed that
potential directions of Association activities include
publishing the Environmental Advocacy newsletter (to
date published by ABA/CEELI), planning the Guta conferences,
working on implementing the Convention on Public Participation,
and networking among members. Significant steps
were taken at Guta IV in developing the Association,
particularly through agreement that the Environmental
Management Law Association (EMLA), located in Budapest,
Hungary, serve as the base for planning activities during
the upcoming year.
By Guta V, to be hosted by Ecopravo
Lviv in the Carpathian Mountains in Ukraine in June
1999, the plan is to have a charter ready for adoption
and a strategy for the Association. The REC and
CEELI created a listserve (CEELAW) that will allow conference
participants and other regional environmental lawyers
and professionals to communicate on a broad range of
issues related to environmental law reform in the region
and to apprise each other of upcoming events.
In this way, the Guta process will continue to provide
public interest environmental lawyers and professionals
with forums to exchange ideas, forge cooperative links,
and receive information that enhances their abilities
to be successful public advocates for environmental change and respect for the rule of law.
For a list of conference participants and a summary of the
conference, please contact Karin Krchnak, Director, Environmental Law Program,
ABA/CEELI, via email at Kkrchnak@abaceeli.org or via facsimile at 1-202-662-1597
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Organising Committee Meeting 24 November, 1998
Csaba Sándor, coordinator, EMLA
The Organising Committee of the
"ENVIRONMENTAL LAW ASSOCIATION OF CENTRAL AND EASTERN
EUROPE AND THE NEWLY INDEPENDENT STATES" sat together
on 24 November, 1998 to discuss the formation of the
Association. The meeting took place at the Environmental
Management and Law Association (EMLA) in Budapest as
it is the first secretariat of the Association as decided
on the Guta 4 conference in Wroclaw.
The status of this meeting was not clear to the whole
Guta network. Maybe this resulted in several misunderstandings
during the organisation process. The participants highlighted
that this committee is not formed to take crucial live-or-die
decisions, but for having a certain group of people
thinking together on the purpose, organisation and development
of the new Associations and for making proposals to
the next year's conference Guta 5. Unfortunately it
is not feasible to organise small Guta conferences during
the year and invite everyone who is interested therefore
we have chosen this approach to involve fewer people
in the organisation committee and make their task to
disseminate and discuss the information emerged on such
meetings in their region and provide feedback on the
next meeting or on the discussion list.
Maybe the title of this article is
also an achievement. Calling this meeting "Organising
Committee Meeting" and the participants Organising Committee
was the compromise everybody accepted, and hopefully
clears up all the misunderstandings mentioned before.
There were more textual and wording issues to be cleared.
Perhaps the most important is the name of the Association.
The Organising Committee agreed to propose "ENVIRONMENTAL
LAW ASSOCIATION OF CENTRAL AND EASTERN EUROPE AND THE
NEWLY INDEPENDENT STATES".
After the introduction participants
discussed communications issues and agreed that the
main means of information exchange and distribution
should be the email and the CEELAW-L discussion list
(not forgetting conventional ways in case of emergency).
The mailing ideally appear both in Russian and in English.
Unfortunately there's still no permanent solution for
doing the translations. So far we relied heavily on
CEELI's translator in dealing with this issue.
The Charter of an Association is
the basic and most important document that governs the
functioning of it and needs to be put together for the
legal registration as well. It's never easy to lay down
the purpose, the rules, bylaws for such an Association,
but as this is an association of lawyers everyone can
be sure that every sentence has been discussed in detail.
The committee had the draft charter coming from Guta
4. and produced the text that you find in the next article.
As a next Agenda item the structure
of the newsletter was agreed. Sándor Fülöp
(EMLA Executive Director) prepared a detailed plan that
needs to be filled in with content. The result you hopefully
read now. The committee especially liked the case study
structure presented by Sándor the can be the
basis of a legal database to make life of public interest
lawyers easier. In this newsletter the first three cases
are presented in this structure.
The Association received funding
for the newsletter and for the meetings of the organising
committee from the Open Society Institute. The OSI grant
includes support for the Guta 5 conference as well.
CEELI helped by providing funding for travelling and
accommodation for some of the participants and by doing
the most of the English-Russian translations. The current
funds seem to cover the costs for the first year of
the secretariat.
The last item on the Agenda was the
coming Guta 5 conference. The invitation list turned
out to be the biggest issue. The committee agreed not
exclude anyone who has interest and funding for attending
the conference. The opinion was that it's better to
have a big conference, and organising small group meetings
maybe with not outstanding professional level, but good
personal atmosphere than to have a small but very professional
discussion. At this point the famous Guta Atmosphere
was cited that helped to bring and keep these people
together. By the time reading this newsletter the Guta
announcement is out and the invitations are sent.
And finally some thoughts about the
next meeting. Hopefully the Charter in its current form
will be approved to be presented at Guta 5. Then after
taking the most of the textual and wording obstacles
this meeting can focus on the workplan of the Association
for the 2nd Millennium. 1 and for the coming Guta 5
conference.
Csaba Sándor, coordinator, EMLA
c.sandor@emla.hu
1076 Budapes, Garay u. 29-31.
Hungary
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Daniel Ryan, FARN Sustenar
The following case, Fundación
Fauna Marina c. Ministerio de la Producción de
la Provincia de Buenos Aires, is an interesting example
of a court, overcoming possible dogmatic strictness,
made an integral interpretation of the argentine legal
order, and assume his roll in the defence of the environment,
as a complex of cultural and natural assets from which
the quality of human life depends on.
The Production Minister of the Buenos
Aires Province issued a resolution which exceptionally
authorises a company to capture a number of dolphins
and killer whales in the maritime shore of that province.
An NGO presented an "amparo" proceeding (summary proceeding
which serves to guarantee constitutional rights) to
annul the resolution, claiming that the administrative
authority was not competent to issue the permit.
Even the Court dismisses the legal argument stated by
the plaintiff, it did declare the permit null based
in other legal arguments. Thus, the judge stated that
in order to issue a permit to capture wild animal, it
was necessary to carry out a previous study of the environmental
impact that it might cause in the Argentine sea shore;
this study, added the judge, is a requirement for the
legality of the administrative act.
The interesting aspect of the sentence
is the fact that the judge lacked of a norm that expressly
requires to execute an environmental impact assessment
in these cases; accordingly, the judge based his sentence
on provision 41 of the Argentine National Constitution,
which recognises the right to a clean environment and
establishes the correlative duty to protect the environment,
and provision 28 of the Constitution of the Buenos Aires
Province which states that the authorities should control
the environmental impacts of any activity which damage
the environment. Clearly, the court interpreted that
the obligation to previously executed an environmental
impact assessment in order to issue a permit, is implicit
in the legal system designed by the national and provincial
Constitutions to protect the environment; accordingly,
the court stated that an administrative resolution that
authorises an activity that clearly has impact in the
environment and which does not have a previous environmental
impact assessment, is null.
It is worth noting the attitude of
the court in this case. The judge, overcoming
possible dogmatic structures, made a integral interpretation
of the legal order and assume his roll in the defence
of the environment, as a complex of cultural and natural
assets from which the quality of human life depends
on.
Details of the case: Fundación
Fauna Marina c. Ministerio de la Producción de
la Provincia de Buenos Aires; Juzgado Federal
N. 11, Mar del Plata, Secretaria Civil y Comercial,
5/08/96
(for more info about the Author see "Global View")
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The network of Ecopravo and Environmental Public Advocacy Centers
(EPAC - Lviv, Kiev, Kharkiv - Ukraine) in cooperation with and with financial
support from American Bar Association/Central and East European Law Initiative
(ABA/CEELI) and Institute of Soviet American Relationships (ISAR)
will organize:
The 5th Annual International Environmental
Public Interest Law Conference
GUTA-V
for public environmental lawyers from NIS and CEE countries, June, 1998
Yaremcha (Carpathian National Park - Ukraine)
We are going to publish the materials of the conference and to make
a separate collection of successful cases before the conference starts.
We hope it will be extremely useful for the development of public interest
environmental law in the region.
Ecopravo-Lviv/ Environmental Public Advocacy Center
2, Krushelnitskoi Street
290000, Lviv, Ukraine.
Tel./fax: +380 (0322) 97-14-46
e-mail: skravchenko@gluk.apc.org, epac@icmp.lviv.ua, epac@link.lviv.ua
Draft Agenda
"Partnership of the Environmental Lawyers for Protection of Environmental
Interests of the Citizens (Countries of CIS, Central and East Europe) "
DAY 1
8:00- 9:00 Registration
9:00- 9:20 Greetings and opening of the conference Svetlana Kravchenko
- "Ecopravo-Lvov" (Ukraine)
9:20- 9:40 Presentation and acquaintance of the participants
9:40-10:30 Ratification, monitoring, implementation of the Aarhus Convention
On Access to Information, Public Participation in Decision Making and Access
to Justice in Environmental Matters
Facilitators and speakers will be determined
10:30-11:00 Coffee Break
11:00-11:30 Public participation in EIA and ecological expertise. Panel
presentation.
11:30-12:30 Public participation in environmental decision-making:
law drafting, EIA, ecological expertise, permitting, land-use planning.
Small group discussion.
12:30-13:00 Report from small groups
13:00-14:00 Lunch
14:00-15:00 Small groups discussions on the draft law on Public Participation
in Environmental Decision Making (prepared by Ecopravo network).
15:00-16:00 Propositions and the comments on the draft law. Report
from small groups.
16:00-16:30 Coffee Break
16:30-17:00 Implementation of the law "On Wastes": national and transboundary
problems. Panel presentation.
17:00-18:00 Implementation of the law "On Wastes". Small group discussion.
18:00-18:30 Report from small groups
18:30-19:30 Dinner
19:30-22:00 Cultural program of NIS
DAY 2
9:00-10:00 Access to justice. Panel presentation.
10:00-11:00 Access to justice: obstacles and recommendations how to
overcome them. Small group discussion.
11:00-11:30 Coffee Break
11:30-13:00 "The Project Circle"
Problems of practical activity of the environmental lawyers.
Participation of all willing to solve their problems with the help
of the colleagues.
13:00-14:00 Lunch
14:00-19:00 Excursion into the Carpathian Reserve (by bus). Taking
Photos of all of the participants in the Center of Europe
19:00-20:00 Dinner in the Reserve
20:00-22:00 Cultural program of the USA and Western Europe
22:00 Returning to the place of the Conference
DAY 3
9:00-10:00 Implementation of the Aarhus Convention: creation of the Pollution
Release and Transfer Register for CIS, Central and Eastern Europe and public
participation
10:00-11:00 Experience of PRTR creation in the region. Small
group discussion.
10:00-11:30 Coffee Break
11:30-13:00 Strategy of carrying on cases by the attorneys. Exchange
of opinions. Presentation of the successful cases.
13:00-14:00 Lunch
14:00-15:00 Association of the environmental lawyers: Progress in its
creation. Development of the Statute and registration.
Sandor Fulop
15:00-16:00 Cases on compensation for damage to health and for moral
damages, caused by the environmental transgressions. Small group discussion.
16:00-16:30 Coffee Break
16:30-18:00 Sustainability of environmental law NGOs.
Fundraising (exchange of ideas and experience).
18:00-19:00 Dinner
19:00-22:00 Cultural program of Central and East European Region.
DAY 4
9:00-10:30 Brainstorm in small groups.
Organization management problems and relationships with the clients.
Problems under Discussion:
- Necessity of the Board of the Directors.
- Necessity of the expansion of the network of environmental law organizations.
- Co-ordination of their activity.
- Necessity of common information system (e-mail, Internet)?
- Language problem.
- Relationships with the clients.
- Job descriptions and working time.
- Office meeting - weekly?
- Collaboration with mass media.
- Advertising: where to take money?
10:30-11:00 Report from small groups. Conclusions
11:00-11:30 Coffee Break
11:30-13:00 Clinical program or how to attract students to the attorney
practice.
13:00-13:20 Closing the conference
13:30-14:30 Lunch
15:00 Departure
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"Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters"
Ukraine
The process of ratification of Aarhus in Ukraine has started. The expert
group which consists of 3 environmental lawyers, 2 members of Parliamentary
Committee on Environmental Policy, one representative of the Ministry for
Environmental Protection with the financial support of ABA/CEELI is doing
evaluation of current legislation, comparative analysis with AC and proposals
for necessary changes in national legislation, negotiation with the Ministries
with are involved in the process of ratification, preparation of official
translation of the Convention to Ukrainian languages. Open parliamentary
meeting on Aarhus will be organize on March 26 by Parliamentary Committee
on Environmental Policy together with TACIS environmental awareness program.
Before OPM 3 regional seminars-consultation for NGO is planning to
held by the network of ECOPRAVO with the aim to inform public about their
environmental rights granted by the Convention and reflect in Ukrainian
legislation, discuss problems of ratification and implementation of AC.
Parliamentary Component of TACIS Environmental Awareness Program (TEAP)is
planning to organise open parliamentary meetings in Armenia, Georgia and
Azerbaijan(in February) and in Moldova (in April) ; NGO meeting on
Public Participation in Environmental Decision Making for Kazahstan, Kirgizstan,
Uzbekistan (in April), NGO meeting on Aarhus in Belarus (in May) and 3
conferences of Inter-Parliamentary Assembley of CIS in March, June and
October.
Svitlana Kravchenko
President of Ecopravo-Lviv,
Director of Parliamentary Component of TEAP
Russia
Unfortunately - inspite of all enourmous efforts of all involved NGOs,
officials from Goscomecologia and Ministry of Foreign Affairs, Ms. Zlotnikova
( Chair of the State Duma Environmental Committee) Russian Government lost
its chance to sign PPC before 21 December. As many of you, may be know,
this convention came for signature during very upsetting and hectic period
in Russia - several changes of Federal Government, deep and very hard financial
and political and social crisis, riots and organized crime,violence etc...I've
spoken to Goscomecologia to-day ( Mr. Gorshkov and Kuraev) now they are
going to push signing even after the deadline.
There was a meeting of the PP group in the Goscomecologia which decided
inspite of the upsetting situation with signature still try to push our
government and to widen and disseminate PPC principles around vast Russian
regions. We also - together with representatives of Goscomecologia who
are very committed to the Aurhus Convention ( Mr. Kuraev, Mr. Borozin and
Mr. Vostorobetc) decided to establish Coordinatiion ( Steering?) Council
with participation of the relevant representatives of federal agencies,
NGOs and business to promote public participation in Russian Federation.
I will keep all our environmental lawyers informed about the further developments
in this field.
Olga Razbash
Slovakia
The Slovak government in its resolution of November 11, 1998 authorised
Ministry of Foreign Affairs of Slovak Republic to ensure signing of convention
till December 21, 1998 (information source: Radoslav Jonas, Legal Department
of MoE ).
Magda Tóth Nagy, REC
Hungary
The Hungarian government made a decision on signing the Aarhus Convention
in its last Thursday meeting (Dec. 10), and authorized the ambassador in
New York to sign it. They think there will be no problem meeting the deadline.
Magda Tóth Nagy, REC
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Belarus signed 16 December 1998,
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Malta 18 december 1998
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Germany 21 December 1998
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Source: REC Bulletin, Law Report
Water law pending
Bulgaria's signing and ratification of the Danube River Convention will
be a significant step toward EU membership and harmonisation with
European water quality standards. Serious steps are currently being
taken to modernise and improve water policies through a new draft
water law prepared by the Ministry of Environment and Waters (MoEW)
in cooperation with other concerned ministries. The draft law incorporates
all the major points of EU Directives relating to water management.
In particular, the institutional responsibility for water supply
and wastewater treatment will be decentralised.
The new law also addresses the ownership of water and assets; the
licensing systems for water abstraction and for discharge of wastewater;
the regime of concessions for water services; the collection of information,
including self-monitoring; and public access to information on water quality
and quantity. It will promote the establishment of water- user associations,
especially in the field of irrigation, and will look to incorporate broad
public participation in the decision-making process and public procedures
for all river basin management activities in the water sector (planning,
permitting, etc.). The development of River Basin Management Plans
will be required under the law, as will the establishment of public
registers. Civil liability and legal prosecution will also be covered,
with any disputes to be solved administratively or in court.
Specific water quality norms will be harmonised with European standards
(under assistance from the EU's DISAE facility), while policies for water
quality management will embrace the principle that reducing emissions should
be accomplished through technological improvements at source and not at
"end of pipe."
The draft law recently underwent two public discussions, and conclusions
must be drafted by the end of November 1998. It will then be submitted
to the Council of Ministers for final commentary and official approval
before presentation to the Parliamentary Committee on the Environment
and Water. It is expected to be passed at the end of 1998 or in early
1999. (Rositsa Nikolova of the MoEW contributed to this report.)
Nature protection law passed
The Law on Protected Areas was passed by Bulgaria's National Assembly
on Oct. 30. The new law contains many changes from the one originally
submitted to the Parliament in March and has created a significant amount
of controversy between governmental and non-governmental representatives
in Bulgaria.
Major shortcomings, as reported by opponents to the law, include: lack
of provisions for buffer zones to be established around most types of
protected areas (PAs) ambiguities concerning how and by whom Category
V PAs (Nature Parks) will be managed in practice
Major strengths, as reported by the law's proponents, include:
clear status for protected areas, which are slated to become exclusive
state property under the jurisdiction of the Ministry of Environment
and Waters establishment of management bodies for National Parks
the introduction of management plans as the main mechanisms for governing
activities in protected areas
Other specific impacts of the new law include: The "recategorization"
of National Parks including a review of boundaries. The existing
boundaries will remain for one year, however, recategorization is
supposed to be completed in six months. According to Chapter 3 of the
law, "scientific and public
organisations and other interested natural and legal persons"
are excluded from this process, while the law's provisions also invite
"requests for [the] restoration of ownership of forests and land
within national park boundaries following their determination."
A statement that National Parks "shall not include populated areas,
settlement formations, [or] monasteries," and will not lie adjacent
to lands and forests which shall be restored by the appropriate restitution
acts. A provision has also been explicitly added for the construction
of "sports and other facilities." The introduction of the concept
of "development and technical plans and projects" (for regional issues,
forestry, construction, etc.) separate from management plans. The
law now states that the MoEW "agrees" to these plans and projects,
rather than "approves" them, as in earlier drafts. The Council of
Ministers is given the responsibility for final approval (for Category
II, IV and V Protected Areas), and this should take place on the basis
of a recommendation, approved by the Minister, from the MoEW's Higher
Expert Council. Interested parties are to be advised of the Council
meeting 20 days in advance, however, there is no indication of a
mechanism for these parties to respond.
The omission of an article defining which types of parks will have
Ministry of Environment and Waters Directorates. (The REC's
Mira Mileva contributed to this report)
New energy, access to information and mineral resources laws In September
1998, the Council of Ministers adopted the "Strategy on the Development
of the Energy Sector." With its main emphasis on increasing energy
efficiency, domestic gas supplies, generating energy from the use of
alternative sources (geothermal energy, solar energy, small hydro-electric
power stations etc.), and implementing energy-saving measures within
industry and households, two related draft laws have been prepared. The
Law on Energy Production (drafted by the Committee on Energy Issues) and
the Law on Energy Efficiency (drafted by the National Energy Efficiency
Agency) have been merged and were approved by the Council of Ministers
as the Law on Power Industry and Energy Efficiency. The law is currently
undergoing examination by relevant parliamentary committees and is
expected to be forwarded to the National Assembly for final adoption at
the beginning of 1999.
Under preparation is the Law on Access to Information which is expected
to be fully compliant with the provisions of Chapter 2 of the Bulgarian
Law on Environmental Protection, as well as the corresponding EC
Directive and the Aarhus Convention on Access to Information, Public
Participation in Decision- making and Access to Justice. The MoEW has established
a working group to develop relevant regulations on public access
to environmental information.
A Mineral Resources Law is pending for final adoption by the National
Assembly. It has already been adopted by the Council of Ministers and is
now under review by parliamentary committees. It is expected to be passed
within the first quarter of 1999.
(Vanya Tsaneva of the "Yantra River Ecosociety" Organization,
Veliko Turnovo, contributed to this report.)
Access to information
With the Convention on Access to Environmental Information and Public
Participation in Environmental Decisionmaking having just been signed in
Aarhus, Denmark, Central and East European (CEE) countries are now
beginning to consider how best to begin implementation of Convention
articles within their domestic legislation. The European Union's
Access to Environmental Information Directive (90/313/EEC) provides a
further vehicle for implementation in line with the EU accession process.
The Czech Republic has begun implementation, adopting Law No. 123/1998
on Environmental Information on July 1. The law assures free access to
environmental information for any NGO or individual citizen, without requiring
explanation or the purpose for which the information is required. Among
key features is its definition of environmental information, request
procedures, terms and conditions for publication and access and environmental
education. Although the law harmonises with EU standards, it presently
falls short of meeting the requirements of the Public Participation
Convention (the scope of which is somewhat broader) which was still
in draft format at the time of the new law's adoption.
Slovakia's parliament also recently adopted its new Law on Access to
Environmental Information, which incorporated a number of NGO comments.
As with the Czech Republic, the Public Participation Convention
was still in draft format at the time of adoption, although the two
are largely compatible (even without Slovakia signing the Convention
- a result of forthcoming elections). Consideration in the
drafting process was also given to the corresponding EU Directive.
The law comes into force in September.
In Albania, a Decree on Access to Information was recently adopted,
while in Poland, under the forthcoming environmental framework law,
a chapter will be devoted to the same issue. Latvia and Bulgaria
are also considering implementing legislation in the field, with
the above Convention expected to accelerate activities in the field
in all CEE countries.
Taking a closer look at the EU's own practices, it is interesting
to note that even the EU is not faultless in guaranteeing public
access to information. As a direct result of a refusal by the EU's
Council of Ministers to a request for all but two of 20 documents
submitted by the Swedish Journalists' Union in 1995, a new EU
Court ruling of June 17 called for greater institutional transparency.
Under the new ruling, any EU institution will now have to stress
in full the specific reasons for not supplying requested information
and documents which should otherwise be forthcoming.
Telematics applications and technologies (see story on page 16)
can also be seen as a means for facilitating the implementation of
both the Convention and the EU Directive. By assisting both in the
collection and dissemination of information, these applications serve
as a support to both decision- makers and the general public. By ensuring
the free flow and sharing of data, they are also being used as
a tool to encourage public participation in the decision-making process.
The future Fifth Research and Technological Development Framework
Programme of the European Union should provide opportunities for
many CEE countries to get involved in the further development of
state of the art technologies that further public access to
environmental information.
References to the above pieces of legislation and others in the
field of access to information in CEE and the NIS can be found in
Doors to Democracy, a recent REC publication series prepared for
the Aarhus meeting in Denmark. The publication summarises the
current status of public participation in the decision-making process
in 20 countries. Copies are available from Magda Tóth Nagy
(REC).
New regulations for Polish industry
For the past nine months, a loophole in Polish environmental law
has left industry unregulated. Since January 1, when amendments to
the Environmental Protection Act took effect, regulations governing
air emissions, noise levels, and plant-life protection ceased
to exist. As a result, permits could not be granted to industry until
a new set of secondary legislation has been adopted. At the same
time, a stand-off between the environment and economy ministries
blocked government approval for new legislation. While the environment
ministry argued for tougher emission standards, the economy ministry
claimed these were too costly for industry. The standards will determine
the amount industrial companies must invest in new technology. This
is an especially sensitive issue since many industrial companies
are still state-owned and low on finances.
Nuclear legislation
A new publication overviewing nuclear legislation in CEE countries
has just been published by the OECD and the Nuclear Energy Agency.
Inventorying and summarising on a country-by-country basis legislation
in force, draft legislation, and international commitments, concerning
nuclear energy in 16 CEE and NIS countries is included. Entitled
Overview of Nuclear Legislation in Central and Eastern Europe and
the NIS, this reference source is available from OECD sales outlets
across Europe.
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Central and Eastern European Law Initiative of the
American Bar Association
Armenia
The Armenia EPAC is focusing on ratification of the Aarhus convention on
public participation in environmental decisionmaking. EPAC organized
a coalition of environmental NGOs to join in an application to the Ministry
of Foreign Affairs to expedite the ratification process. In conjunction
with TACIS, EPAC is participating in a hearing on the convention before
the relevant committees of the National Assembly on February 9, 1999.
EPAC is planning a training workshop on environmental impact assessments
for the Ministry of Environment in March. EPAC is also participating
in the implementation process for the convention on antidesertification.
Belarus
The Belarus CEELI office participated in a conference in Minsk called "Environment
and Human Rights" which was hosted by the Belarusian Socio-Ecological Union
"Chernobyl". The conference was held on October 19-20, 1998, and
included participants from Belarus, Russia, Ukraine, Sweden, the United
States and several other countries. The mission of the conference
was to discuss the development of environmental protection legislation
in Belarus, and how to foster environmental awareness among Belarusian
citizens. Topics included the role of NGOs, sustainable development,
and environmental legislation.
Ukraine
The Lviv EPAC has been involved in an ongoing battle concerning the construction
of a new toll road planned for the Lviv Oblast. The Lviv EPAC has
also been involved in an ongoing case concerning the construction of a
shipping terminal on the Black Sea near the city of Mykolaiv. The
EPAC continues to be involved in providing advice to the Ministry of EcoSafety
and has, recently, begun to provide informal legal advice to environmental
inspectors who are the targets of lawsuits. A representative of the
Lviv EPAC recently participated in the 5th International Conference on
Environmental Compliance and Enforcement in the United States. Currently,
the EPAC is planning a regional seminar concerning the ratification and
implementation of the Aarhus Convention by Ukraine.
The Kyiv EPAC has been involved in a large case involving many plaintiffs
in the Odessa region. The case involves wastewater which is infiltrating
peoples' homes. The Kyiv EPAC represents dozens of clients in this
matter. The EPAC has also recently been involved in a dispute between
a citizen of Kyiv and the Embassy of the United States concerning noise
from the Embassy's ventilation system. In addition, the EPAC has
been representing citizens who live near a landfill in the Kyiv Oblast.
Stormwater runoff from the landfill has caused and/or contributed to drinking
water pollution. Currently, the Kyiv EPAC is planning a regional
seminar concerning the ratification and implementation of the Aarhus Convention
by Ukraine.
The Kharkiv EPAC has been busy with a case involving the flooding of
land as a result of the construction of a dam in a sewage channel.
The EPAC provided representation in a hearing regarding conflicting hydrologic
assessments, and is now working to have the court appoint a new expert
to perform an environmental assessment. The EPAC has a new case involving
alleged illegal limestone mining in the Crimea, and is in the process of
drafting a claim to Ukraine's High Arbitration Court to halt the mining.
The EPAC recently participated in a seminar for NGOs about environmental
legislation, and is now planning a seminar regarding environmental auditing,
as well as a regional seminar to solicit public comments on the ratification
and implementation of the Aarhus convention in Ukraine.
CEELI has also helped establish a Ukrainian experts' working group
for the Aarhus "Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Matters".
The group has six members, including one member from the Ministry of Environmental
Protection and Nuclear Safety's Environmental Policy Department, two members
from the Verkhovna Rada's "Committee on the Problems of Environmental Policy,
Nature Resources Utilization and Elimination of Chernobyl Catastrophe",
and three NGO/university experts. The group will review existing
Ukrainian legislation and make recommendations to the Verkhovna Rada regarding
the implementation and ratification of the Aarhus convention.
CEELI is also exploring the possibility of a study tour for the lawyers
from the Ukrainian EPACs to travel to the United States and study international
cooperation in environmental law, government-industry-NGO partnerships,
and environmental education. CEELI has been involved in a number
of regional activities, including the planning of the GUTAV Conference
set for June 3-6, 1999 in Yaremcha, Ukraine. Working with the Ukrainian
EPACs, EPAC has identified a suitable conference center and is working
with the Ukrainian EPACs to finalize reservations. CEELI also participated
in the November seminar on "Framework Environmental Law Drafting in Countries
in Transition" in Jahorina, Bosnia-Herzegovina which was sponsored by the
Regional Environmental Center.
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Public participation
in environment and health matters |
dr. Sándor Fulop, EMLA
Specialization and working with well defined categories, as ones amongst
the most outstanding features of the Modern Age, sometimes can lead to
strange situations. While the ministers of environment of Europe convened
in 1991 in Dobris, in 1993 in Luzern, in 1995 in Sofia and in 1998 in Aarhus,
the ministers of health and the ministers of environment sat together in
1989 in Frankfurt, in 1994 in Helsinki and going to hold their next meeting
in 1999 in London. Did anybody warn them that they double their efforts?
Did anybody raise that environment and “environment and health” means the
same?
Anyway, we are just after the Aarhus meeting, where the ministers accepted
and many of them undersigned the famous Aarhus Convention on public participation
in environmental decision-making, and we are just before the London meeting,
where the ministers (half in number the same as were in Aarhus) are going
to undersign a declaration on environment and health issues. This document
also has a chapter on public participation.
As it is wellknown, European NGOs were allowed to actively participate
in drafting the Aarhus Convention, and there is some - but much less intensive
- public participation in the drafting process of the mentioned would be
London Declaration. We are entitled to participate on the last preparatory
meeting, held in Bled, Slovenia, between 14th and 16th of February. As
a preparation to this event, European NGOs and especially UNED UK organized
an NGO conference on the topics of the draft declaration in Soesterberg,
the Netherlands, in this January. Here I can show you the results of the
public participation session, textual changes in the declaration were proposed
and we issued some theses, too.
I. Textual changes
29. We affirm our commitment to giving all members of the
public, including minorities and indigenous people, greater
free
and effective access to information, improving communication with the
public, and strengthening the role of the public in decision-making
and
enabling public access to justice with respect to environment and health
matters, by adopting the document Public participation and access to
information in environment and health matters. We thank the Government
of the Netherlands for leading the process to promote public participation
in environment and health matters.
30. We invite the Meeting of Signatories to the 1998 UN/ECE Convention
on Access to Information, Public Participation and Access to Justice in
Environmental Matters (the "Arhus Convention") to take into account the
relevant aspects of Public participation and access to information in
environment and health matters in its preparation for the first Meeting
of Parties, and to consider the development and adoption of a protocol
on standards for access to and exchange of information. Furthermore,
we request WHO to explore options undertake steps
for strengthening public rights to information, participation and justice
in the sphere of health, with the involvement of NGOs, and to report
on a regular basis to the EEHC, and to the next Ministerial Conference.
31. We recommend that a Task Force involving UN/ECE, WHO, the
United Nations Environment Program (UNEP), the Organization for Economic
Co-operation and Development (OECD), the European Environment Agency (EEA)
and other relevant bodies, including NGOs, should be set up with the objective
of establishing a comprehensive, integrated, easily
accessible, user-friendly, participatory network
of framework for public access to databases on environment
and health issues, so as to provide the public with streamlined, low-cost
and timely access, in particular through electronic access and in geographic
information system format, through the internet to
environment and health information. We welcome initiatives that NGOs
have taken to further public access along these lines and we undertake
to support these initiatives. We request that the Task Force report back
to the EEHC on a regular basis and to the next Ministerial Conference.
32. We recommend the establishment of a working group, involving
representatives of the media, environmental health professional, NGOs and
other key partners in assessment or communication on risks, to elaborate
guidelines on risk communications, taking into account the need to rigorously
apply the precautionary principle in assessing risks and to adopt a more
preventive, pro-active approach to hazards.
33. We resolve to promote the application of the principles
of the Arhus Convention in international decision-making processes dealing
with the environment or health and, in particular, the provision of opportunities
for effective participation by NGOs in the preparation by intergovernmental
organization of instruments having significant environmental or health
implications.. We support UNEP Governing Council decision that UNEP
should lead efforts to globalize the Arhus Convention, embarking on the
experiences gained from the joint implementation efforts undertaken by
ECE.
To be added in an appropriate / new section of the Ministerial Declaration:
We take note of potential severe environment and health risks and
hazards associated with the "Millennium Bug" Year 2000 computer problems,
especially in Eastern Europe and newly independent States, and commit ourselves
to giving immediate attention to thorough examination of these risks, to
taking reasonable and timely preventive steps and to the facilitation of
appropriate contingency planning through a broad-based consultation process.
II NGO Commentary on Participation
1. Public participation is fundamental to environmental and health
issues, therefore we urge the governments to adopt the document „Public
participation and access to information in environment and health matters".
We do not see any justified reasons for Governments not to adopt the document.
Simply endorsing it would show that they are not ready to provide
the public with proper rights for access to information, public participation
and access to justice in environment and health matters. If this is their
position, they should disclose it to the broad public.
2. We are convinced that the Governments should take at least as
advanced measures in the field of public participation in health
issues as in that of environmental protection. If there is an area, where
people are at least as much affected and should be involved and have the
right to participate as in environmental matters, that should be the field
of public health issues. It is quite a contradiction that in decision-making
on public health matters at the time being there is much less possibility
for the public to participate than in the field of environmental protection.
We call on governments to ensure the rights set out in the Aarhus Convention
as a minimum in health matters, and to take steps to extend these further
to public health matters.
3. Guarantees for implementation are lacking and we are afraid that
another nice document will be produced without any meaningful practical
consequences. For instance, we can see in the text a task force and
a working group which are mandated to work on such important issues as
user friendly data-bases and risk communication, but we do not see any
definite requirements and deadlines concerning the results of their work.
Nor do we see any reference to sanctions in case of false or omitted risk
communication or assessment. Neither do we see capacity building measures,
which help the public participate in a meaningful way. Everyone should
have the same rights for access to information, public participation and
access to justice in environment and health matters. People in disadvantageous
situations such as minorities and indigenous peoples should have positive
discrimination ensuring their equal rights
I would like to add some further explanation only to two issues.
We know from our legal systems and practices, that public participation
rights are much weaker in public health cases than in environmental protection
cases. That is quite a contradiction.
We can start from the 6th recital of the Preamble of the Aarhus Convention,
which recognizes that “adequate protection of the environment is essential
to human well-being and the enjoyment of basic human rights, including
the right to life itself” and such way attaches together two basic sets
of human rights, namely rights to health and life and rights for a healthy
environment. In other words, rights for a healthy environment is a sub-category
of the most basic human right, the right for health and life. That is actually,
where the majority of force and prestige of environmental law comes.
From legal viewpoint now, it seems really illogical, that for the consequential,
indirect protection of life and health the legislator ensures a broad set
of public participation rights, while it would fail to do the same in respect
of the direct protection of these basic human rights.
We can add also an everyday practical consideration to these arguments.
It is a fact, which can be reassured by reading newspapers or learning
about the activity of NGOs or of the groups of dwellers in our countries,
that public is almost equally interested and active in environmental and
public health matters. That is why it also seems to be necessary to ensure
them the same entitlements on both fields of their interest.
The second issue I would like to address separately is the so called
“who should participate” problem.
The essence of „who should participate” issue could be rephrased in
a way that the legal institutions of public participation are nothing else
than a set of positive discrimination measures for those stakeholders,
whose interest in the decision are vital, but they are „handicapped” out
of financial, professional, informational or other reasons. That’s the
point where public participation is (should be) more than standing. The
other basic difference is that those who have standing are usually “standing
on the other side of the barricade”, representing a special interest which
is regulated and governed by the state and its authorities, while those
who are subjects of public participation are very frequently representing
a general public interest, and such way can be called „amici curae”, a
special help for the authority.
All those who are interested in deeper studying of the issues of this
paper are invited to ask for further details by Email. I can send you the
recent text of the whole declaration and the commentaries of the Soesterberg
forum on all of its chapters (amongst these are such interesting topics,
like transport, environment and health; local processes; early human health
effects of climate change; and the environment and children’s health. I
am also happy to send to any requester Jeremy Wates’ bright paper on public
participation in environmental and health matters.
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Daniel Ryan - FARN Sustenar Argentina
I have spent two weeks participating in a visitors
program organized by the Environmental Management and
Law Association (EMLA), in the city of Budapest. The
program's objective was to study EMLA's work and the
exchange of experiences between the two organizations
and to learn about the Hungarian legal-institutional
reality. Through the program I have had the opportunity
to interview NGO leaders, government officials, professionals
engaged in topics of environmental law, representatives
from the economic sector, etc.; all of which gave me
diverse perspectives and opinions on the legal and institutional
reality of the Hungarian environmental policy as well
as an extraordinary learning experience.
Central European as well as Latin American society have
experienced, in recent years, dramatic and deep changes
in the political, economic, social and environmental
areas. Eventhough these processes have occurred at different
time and speed, it would be interesting to do a comparative
analysis, identifying similarities as well as differences
in each country's process. Drawing upon my brief stay
in Hungary, I have identified some directions that I
found interesting in analyzing the legal-institutional
realities in the environmental sector:
The thematic of governance for sustainable development
appears as a central topic in both Hungarian as well
as Argentine civil society agenda. Our societies have
realized that the viability of sustainable development
strategies depends a great deal on institutional frameworks
that allow and contain all involved actors (the State,
academia, economic sector and civil society). In this
regard, there are numerous efforts in Argentina as well
as Hungary, for the institutionalization and/or the
perfection of policies on access to public information
and public participation in the decision making process
on public policies.
It is important to mention the involvement of Hungary
and other Central European nations in the process of
the Aarhus Convention. One of the most significant aspects
of this Convention is the regional effort dealing with
this issue. According to the information received, it
is very likely that Hungary will ratify the Convention.
Furthermore, the Hungarian legal order has already internalized
a number of obligations and institutions outlined by
the Convention.
In Latin America, meanwhile, the Inter-American Strategy
for Civil Society is being developed. It has among its
objectives, to promote the institutionalization of participation
by the civil society in the processes of sustainable
development policies formulations.
Consensus building and the search for institutional
ways that allow such construction becomes a fundamental
area in the governance model for sustainable development.
Therefore, the role the Hungarian National Council of
the Environment plays in the building of consensus for
the formulation of policies is extremely interesting.
Argentina lacks a similar organ, therefore, the Hungarian
experience could be very important, taking into account
the similar historical experiences of authoritarianism
and lack of participation both nations have experienced.
In both countries the problem of environmental law enforcement
is a main area in environmental policy. The low levels
of enforcement are due to several technical, economical
and political reasons whose analysis exceeds that of
this brief article. In many cases the national environmental
legislation has a "symbolic character", product
of international compromises, but without an effective
internalization of the internal law. The lack of enforcement
is of singular seriousness which not only affects the
effectiveness of the environmental legislation but it
erodes the legitimacy of the legal environmental order
as well.
Finally, I understand that more than the visible and
clear differences in the historical processes of environmental
policies in Argentina and Hungary, there are particular
experiences in each country from which reciprocal lessons
could be learnt for the strengthening of environmental
law and policy.
The author is the Director of FARN Sustenar group in
Buenos Aires, Argentina. (www.farn-sustentar.org). They
have very strong environmental management, capacity
building, and education programs, and want to work on
building up the legal side. FARN is well known in Argentina
for its public participation work.
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