UNEP Draft guidelines for development of national legislation on access principles

UNITED NATIONS ADVANCE COPY EP UNEP/GC/25/INF/15/Add.2

Governing Council of the United Nations Environment Programme
Distr.: General 29 October 2008

Original: English Twenty-fifth session of the Governing Council/ Global Ministerial Environment Forum Nairobi, 16–20 February 2009 Item 4 (a) of the provisional agenda* Policy issues: state of the environment

Draft guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters

Note by the Executive Director Summary Annex I to the present note contains the draft guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters as set out in the annex to the report of the consultative meeting of government officials and experts to review and further develop the draft guidelines held in Nairobi on 20 and 21 June 2008 (UNEP/Env.Law/CM.Acc/1/2). Annex II contains a commentary on the guidelines prepared by the UNEP secretariat in consultation with the senior advisory group of selected high-level external experts and high-level judges . The annexes are being circulated as submitted to the Governing Council for its consideration and have not been formally edited.

Annex I

Draft guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters

The purpose of these Guidelines is to provide general guidance to States who so wishes, primarily developing countries and countries with economies in transition, on promoting the effective implementation of their commitments to Rio Principle 10 within the framework of their national legislation and processes. In doing so, the Guidelines seeks to assist such countries in filling possible gaps in their respective relevant national legislation in order to facilitate broad access to information, public participation and access to justice in environmental matters. The Guidelines should not be perceived as recommendations to introduce changes in national legislation or practice in cases where it provides for broader access to information, more extensive public participation and wider access to justice in environmental matters than follows from these Guidelines.

I. Access to information

Guideline 1

Any natural or legal person should have free, effective and timely access to environmental information held by public authorities on request (subject to Guideline 3), without having to prove a legal or other interest.

Guideline 2

Environmental information in the public domain should, inter alia, include information about environmental quality, impacts on health, and factors that influence them, information about legislation and policy, and advice about how to get information.

Guideline 3

States should clearly define in law the specific grounds on which a request for environmental information can be refused. The grounds for refusal are to be interpreted narrowly, in order to take into account the public interest served by disclosure.

A. Collection and dissemination of environmental information

Guideline 4

States should ensure that their competent public authorities regularly collect and update relevant environmental information, including information on environmental performance and compliance by operators of activities potentially impacting the environment. To this end States should ensure an adequate flow of information about proposed and existing activities and require regular reporting of such information to the competent public authorities.

Guideline 5

States should periodically prepare and disseminate at reasonable intervals up-to-date information on the state of the environment, including, inter alia, information on its quality and information on pressures on the environment.

Guideline 6

In the event of an imminent threat of harm to human health or the environment, States should ensure that all information that would enable the public to take measures to prevent such harm is disseminated immediately.

II. Public participation

Guideline 7

States should ensure early and effective public participation in decision-making related to the environment. To that end the public concerned should be informed of their opportunities to participate at an early stage in the decision-making process.

Guideline 8

States should, as far as possible, make efforts to proactively seek the participation of the public, in a transparent, consultative manner, including efforts to ensure that the public concerned are given an adequate opportunity to express their views.

Guideline 9

States should ensure that all information relevant for decision-making related to the environment is made available, in an understandable, timely and effective manner, to the public concerned.

Guideline 10

States should ensure that due account is taken of the comments of the public in the decision-making process and that the decisions are made public.

Guideline 11

In cases where previously unconsidered environmentally significant issues and/or circumstances arise, States should allow the public to initiate a review process whenever such issues and/or circumstances arise.

Guideline 12

States should consider appropriate ways of ensuring public input into the preparation of legally binding rules and the formulation of policies that may have a significant effect on the environment.

Guideline 13

States should provide means for capacity-building, including environmental education, in order to promote public participation in decision-making related to the environment.

III. Access to justice

Guideline 14

States should ensure that any natural or legal person who considers that his or her request for environmental information has been unreasonably refused, inadequately answered or ignored, or in any other way not handled in accordance with applicable law, has access to review procedures before courts of law or other independent and impartial bodies to challenge such decisions or acts by a public authority.

Guideline 15

States should ensure that the public concerned has access to courts of law or other independent and impartial bodies to challenge the substantive and procedural legality of any decision, act or omission relating to public participation in decision-making in environmental matters.

Guideline 16

States should ensure that the public concerned has access to courts of law or other independent and impartial bodies to challenge any decision, act or omission by public authorities or private actors that affects the environment and/or violates the substantive or procedural legal norms of the state related to the environment.

Guideline 17

States should provide broad and inclusive interpretation of standing in proceedings concerned with environmental matters.

Guideline 18

States should provide effective procedures for timely review by courts of law or other independent and impartial bodies, of issues relating to implementation and enforcement of laws and decisions relating to the environment. States should ensure that proceedings are fair, open, transparent and equitable.

Guideline 19

States should ensure that the access of the public concerned to review procedures relating to the environment is not prohibitively expensive and that the participation in such procedures does not expose the public concerned to unreasonable financial risk.

Guideline 20

States should provide a framework for prompt, adequate and effective remedies in cases relating to the environment, such as provisional measures, interim and final injunctive relief, compensation, restitution and other appropriate measures.

Guideline 21

States should ensure timely and effective enforcement of decisions in environmental matters by courts of law, and by administrative and other relevant bodies.

Guideline 22

States should provide adequate information to the public about the procedures operated by courts of law and other relevant bodies in relation to environmental issues.

Guideline 23

States should promote appropriate capacity-building programmes, on a regular basis, in environmental law for judicial officers, prosecutors and other relevant stakeholders.

Guideline 24

States should encourage the development and utilization of alternative dispute resolution mechanisms.

Annex II

Commentary to the guidelines

Commentary to Guideline 1

Environmental information, such as that contained in public registers, should be available to the public for inspection free of charge. Any person requesting information should be provided with adequate facilities for obtaining copies of such information, on payment of cost of reproduction and dissemination, if appropriate and reasonable.

A response should be provided by public authorities to a person requesting information within a reasonable period of time which should be defined under national law.

Where information is held in various forms, including written, visual, aural or electronic, it should be provided in the form specified by the person requesting the information.

There might be situations where specific measures to facilitate access to information should be considered. For example when illiteracy is widespread or when minorities do not adequately understand the (official) language(s) used by the public authorities.

Grounds for refusal of a request for environmental information are addressed in Guideline 3.

Commentary to Guideline 2

To ensure the transparency of environmental information systems the type and scope of the environmental information available and the basic terms and conditions under which it can be obtained should be specified. Registers should be established and maintained and information officers should be designated within relevant public authorities.

Commentary to Guideline 3

The grounds expressed in law for refusing an information request ought to be clearly specified and limited to, but need not include, situations where its disclosure adversely affects:

(a) The confidentiality of the proceedings of public authorities;

(b) International relations, national defense, and public security;

(c) The course of justice;

(d) Commercial and industrial confidentiality, including intellectual property;

(e) The confidentiality of personal data and/or files;

(f) Interests of a third party which has supplied information without that party being under, or being capable of being put under, a legal obligation to do so, and where that party has not consented to the release of the material;

(g) The environment to which the information relates.

Reasons for a refusal to comply with a request for information should be stated in writing. Where only part of the information requested falls within one of the exempt categories, the remainder of the information should be separated out and supplied to the person making the request.

Commentary to Guideline 4

In addition to the flow of environmental information addressed in Guideline 4, entities whose activities have a significant adverse impact on the environment should be encouraged to report regularly on the environmental impact of their activities directly to the public.

Commentary to Guideline 7

Public participation in decision-making processes having significant environmental implications should be facilitated by ensuring that members of the public concerned are informed in a timely and effective manner about the relevant decision-making procedure and the opportunities, procedures and criteria for their participation. The earlier in the decision-making process the public gets involved, the more effective its participation can be. Public participation should therefore commence at an early stage when options are still open and effective public influence can be exerted.

Public participation procedures should include reasonable time frames for the different phases, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively during the decision-making process. The timing of the opportunities to participate should be compatible with those pertaining to public access to the relevant information, in order to facilitate informed public participation.

The public concerned should be given opportunity to consult the information necessary to effectively participate in the process. Such information could be provided through web sites as well as, if possible, directly to members of the public concerned having requested to be so notified or having otherwise been identified as in need of direct communication. Where appropriate, the relevant authorities should give the public additional assistance and explanations.

Public participation in environmental administrative decision-making processes should be ensured preferably by means of explicit rules governing certain procedures such as, if applicable, environmental impact assessment (EIA) and the issuing of permits or licences, particularly where these may have significant effect on the environment. Such rules could include, inter alia, the right to be heard, procedures which include the right to submit comments and propose alternatives, a reasonable time-frame to comment, the right to a reasoned decision and the right of recourse to administrative and/or judicial proceedings in order to challenge failures to act and to appeal decisions. The provision of financial assistance to members of the public to enable effective participation in policy and other decisions related to the environment should also be considered.

Special efforts should be made to promote public participation in environmental policymaking (see also Guideline 12) and on decisions related to plans and programmes that are of particular interest to sub-national regional and local communities.

Irrespective of the characteristics of the decision-making process in question, it should be noted that special efforts may have to be undertaken to facilitate effective participation of some groups/members of the public concerned. This could for example be the case when illiteracy is widespread or when minorities do not have an adequate understanding of the (official) language(s) being used in the decision-making process. It is also important to ensure involvement and participation by both men and women. Specific measures should be considered to ensure equal participation in this regard since participation could be affected by power imbalances within communities, inter and intra household family relations and different time use by women and men which could hamper effective participation.

Commentary to Guideline 8

To ensure an adequate opportunity for the public to express their views could, where appropriate, include taking account of literacy levels, minority languages and holding oral hearings. It could also, where relevant, include holding meetings and proceedings in a location close to the site that will be impacted and/or the activity whose environmental impacts are under consideration and/or in close proximity to where the majority of the public concerned resides.

Commentary to Guideline 10

To take due account of the comments of the public should be understood to mean, as a minimum, that the competent authority needs to respond to the main substantive arguments put forward in the comments. The public should be promptly informed when the decision has been taken, in accordance with appropriate procedures. The text of the decision, along with the reasons and considerations on which the decisions is based, should be made public.

Commentary to Guideline 14

It follows from the above Guidelines that any natural or legal person should have free, effective and timely access to environmental information. Consequently, any person whose right to access to environmental information has been denied should also have access to review procedures in order to enforce the right.

Commentary to Guidelines 15 and 16

The wording of Guidelines 15 and 16 is without prejudice to the right of States to require additional qualifications for the public concerned to have access to justice in the cases covered by these Guidelines. For example, members of the public concerned may be required to have a sufficient interest or maintain the impairment of a right in a specific case, see e.g. Article 9 paragraph 2 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

Commentary to Guideline 17

Giving a broad and inclusive standing in proceedings concerned with environmental matters should include to accord standing to appropriate public interest and community groups. This should include according standing to non-governmental organizations promoting environmental protection and who meets the criteria that may exist in national law.

Commentary to Guideline 18

It should be ensured that the obligations of courts of law and other bodies charged with resolving environmental issues are properly defined and that they are adequately resourced and staffed to perform the obligations required of them.

Commentary to Guideline 19

In order to facilitate access to review procedures relating to the environment the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice should be considered. Such mechanisms may include the timely provision of financial and legal aid to poor litigants. The risk of the losing party having to cover the (litigation) costs of the winning party in the review procedure, may be an example of a situation where the public concerned is exposed to an unreasonably financial risk.

Commentary to Guideline 20

The ultimate objective of any review by courts of law or other independent or impartial bodies is to obtain a remedy for a transgression of law. It should be ensured that remedies are adequate and effective. Adequacy requires the relief to fully compensate past damage, prevent future damage, and may require it to provide for restoration. The requirement that the remedies should be effective means that they should be capable of efficient enforcement.

In environmental cases remedies such as compensation and restitution are often not enough to reverse the situation to ex ante, due to the irreversible impacts of many environmentally hazardous act and activities. Therefore, provisional measures, such as injunctive relief, are important remedies in order to avoid irreversible damage. When initial or additional damage may still happen and the violation is continuing, or where prior damage can be reversed or mitigated, courts and other review bodies may issue an order to stop or to undertake certain action. This order is called an “injunction” and the remedy achieved by it is thus injunctive relief. An injunction can be final (permanent) or interim (temporary). An interim injunction is granted to restrain activity, or to require somebody on a temporary basis until a final decision can be made.

Restitution is a remedy by which a defendant can be ordered to give up his or hers gains from an unlawful activity to the claimant. Restitution should be contrasted with compensation, which is an order to the defendant to compensate the claimant for his or her loss. It could thus be in the interest of the claimant to seek restitution if the profit that the defendant has made as a result of unlawful behaviour, i.e. by transgression of laws relating to the environment, is greater than the loss suffered by the claimant.

Commentary to Guideline 21

It should be ensured that the laws relating to enforcement or decisions in environmental matters are adequate and effective to remedy any harm done to the environment, to provide full compensation for such harm and to protect the environment from suffering similar harm in the future.

Commentary to Guideline 22

Education on the participation and environmental rights of individual and public interest groups should be actively promoted. Such education should, inter alia, explain to the public concerned how they can use the legal system to protect their rights to access to information and public participation.

Commentary to Guideline 24

Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the judicial or administrative process. ADR includes, inter alia, negotiations, arbitration and mediation. The use of ADR should be encouraged as a potentially speedy and relatively inexpensive way to resolve disputes. In the sphere of environment one potential benefit associated with the use of ADR mechanisms is the possibility to arrive at broadly accepted and thereby long-lasting solutions to disputes. It is primarily mediation, but also arbitration, which has been used in the environmental field. In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution), but does not impose a resolution on the parties. In arbitration, participation is typically voluntary, and there is a third party, such as a private judge, who imposes a resolution. A prerequisite for mediation to be successful is that national law allows enough margin for negotiations to develop a win-win solution for all involved. The potential role of ADR can thus vary according to the nature of the decision-making process, the issues at stake, the margin for ADR that national law allows, etc.

Where appropriate, the relevance and use of traditional, community level ADR mechanisms and processes should be considered.