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Public Participation in Environmental Decision Making, as Tool for Solving Environmental Problems |
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by Nikolai Grishin and Olga Tokmakova
The paper addresses the following issues of public participation in environmental impact assessment: (a) goals and principles; (b) practical acpects; (c) legal, administrative and institutional frameworks; and (d) methods for arranging public participation in EIA. Nikolai Grishin Coordinator of International and Russian Public Networks for Environmental Impact Assessment (IPNEIA / RUPNEIA) Director of Agency "ECOTERRA" Russia and Olga Tokmakova Executive Director of CEP-Moscow Russia ngrishin@glasnet.ru More practical experience dealing with public participation in environmental impact assessment in a transboundary context has been gathered since the entering into force the Convention in September 1997. Practical aspects of public participation in EIA in a transboundary context were discussed. Principle 10 of the Rio Declaration on Environment and Development (UNCED-92) emphasizes that environmental issues are best handled with the participation of all concerned citizens, at the relevant level1. Item 23.2 of Agenda 21 adopted by UNCED-92 recognized the important role of public participation in environmental impact assessment in receiving sustainable development2. United Nations Economic Commission for Europe (UN/ECE) Convention on environmental impact assessment in a transboundary context (named further "EIA Convention")3 is one of the basic documents in the implementation of ideas and principles of UNCED-92 and in the development the principles of civil society and democracy in the region of UN/ECE. According to the definition of EIA Convention, "Environmental Impact Assessment" (EIA) means a national procedure for evaluating the likely impact of a proposed activity on the environment, where "impact" means any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors.4 The terms "Strategic Environmental Impact Assessment" (SEA) is understanding as an application of environmental impact assessment (EIA) principles to plans and programmes. European Commission proposed to strengthen the system of SEA in the end of 1966. Proposals for a Council Directive on the assessment of the effect of certain plans and programmes on the environment were published in Official Journal of the European Communities in April 1997. 1 Declaration of the UN Conference for Environment and Development (UNCED) at Rio de Janeiro. 1992. UN 1993. 2 AGENDA 21. ADOPTED BY THE UN CONFERENCE FOR ENVIRONMENT AND DEVELOPMENT (UNCED) at Rio de Janeiro. 1992. UN> 1993. 3 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25.02.1991). UN/ECE. 1991. 4 The Convention, Article 1 (vii) According to the proposals for EU Directive mention above, any alternative ways of achieving the objectives of the plan or programme which have been considered during its preparation (such as alternative types of development or alternative locations for development) and the reasons for not adopting these alternatives. It means that the objectives of the plan or programme and its alternatives are the main figures of the SEA. Public participation was usually defined as involving the public in decision-making in general, but it was also important to have cooperation between authorities. It is useful to arrange for cooperation between authorities and participation of the public at the same time. Public participation in EIA: · Stimulated a good balanced, open decision-making process; however, it could not replace this process; · Brought conflicting interests to the surface, stimulated public discussion among all interested groups and improved the quality of projects; · Promoted the presentation of relevant information at the right moment; · Made people understand and respect the final decisions on projects, even when public participation had not affected the final decisions; · In a transboundary context was an instrument to enhance good relations between peoples and countries, as well as to prevent intergovernmental environmental conflicts; · Gave an insight into environmental protection and long-term environmental problems.5 Competent authorities should promote international and national public networks and public centuries on EIA that would facilitate public participation in EIA procedure at the international and national level. As far as States have not yet ratified, accepted, approved or acceded to the Aarhus Convention6, the States are encouraged to use for the purposes of environmental decision making the broadest definition of "the Public" ("The Public") means one or more natural or legal persons") given in the Convention7 Without limitation mentioned in the other articles of the Convention("public .in the areas likely to be affected")8. Public participation in environmental impact assessment in a transboundary context should take place in a manner that takes full account of the rights and responsibilities of the public and the public authorities. Implementation of public participation in transboundary EIA in each country should take into account the national traditions, institutions and social structure. An efficient legal framework is important to implement public participation in general, as well as the relevant provisions of the Convention. ________________________________ 5 Public participation in environmental impact assessment. Fourth Meeting of the Signatories to the Convention on Environmental Impact Assessment in a Transboundary Context (Geneva, 14 - 17 March 1995). UN/ECE. CEP/WG.3/R.5. 6 Convention on Access to Information, Public Participation in Decision-Making in Decision -Making and Access to Justice in Environmental Matters (Aarhus, 25.06.1998). UN/ECE.1999. 7 The Convention, Article 1 (x). 8 The Convention, Article 2 par. 6, Article 3 par. 8 and Article 4 par. 2. Public participation was usually defined as involving the public in decision-making in general, but it was also important to have cooperation between authorities. It is useful to arrange for cooperation between authorities and participation of the public at the same time. Public access to information about the beginning of the procedure of EIA in a transboundary context and about public ability to participate is a prerequisite for effective public participation in this procedure. According to the Convention, public should be informed about: · Information on the proposed activity, including any available information on its possible transboundary impact; this information shall, as a minimum, contain; · A description of the proposed activity and its purpose; · A description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-action alternative; · A description of the environment likely to be significantly affected by the proposed activity and its alternatives; · A description of the potential environmental impact of the proposed activity and its alternatives and an estimation of its significance; · A description of mitigation measures to keep adverse environmental impact to a minimum; · A explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used; · An identification of gaps in knowledge and uncertainties encountered in compiling the required information; · Where appropriate, an outline for monitoring and management programmes and any plans for post-project analysis; and · A non-technical summary including a visual presentation as appropriate (maps, graphs, etc.) We are sure that States and international structures should facilitate public participation in environmental impact assessment in a transboundary context. They should make special efforts to promote public participation in this procedure that are of particular interest to regional and local communities which are located near frontiers of the states. States and international structures are encouraged to ensure that access to public participation in environmental impact assessment in a transboundary context is open to all members of the public. In particular, States, Secretariat of the Convention are encouraged to: · Promote the application of the principles of public participation in environmental impact assessment in a transboundary context at all levels of decision-making; · Develop ways to enhance public participation at the level of the environmental impact assessment in a transboundary context; · Open up their work for the public, including NGOs, so that they can work as partners in decision-making and implementation of the Convention; · Apply unreasonable or discriminatory conditions on the participation by NGOs as observers in meetings. It is clear that the main objective of human activity in the Earth, should be the improvement of the conditions of living and future generations of people and improvement of the environment and nature resources in long term perspective. Such objective should be formulated for the development of different regions and countries of the Earth in the international and national levels. It is important, in particular, for the countries with economy in transition. These countries, if they have such natural resources as oil and gas, based on the development of their economy on the use of these resources. But if SEA will be carried out for these countries, it may be clear that not only development of oil and gas industry may be effective for them in a long term perspective. The main question is: who should formulate and manage the process of SEA with such objective. In the national level it may be intergovernmental structures or international NGOs or international meetings of the public, like the World Congress. REQUEST FOR INFORMATION AND COMMENTS AND INVITATION TO A WORKSHOP OF EXPERTS IN MOSCOW Introduction At the First Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context (Oslo, 18-20 May, 1998), it was agreed that the work-plan for the implementation of the Convention for the period 1998 to 2000 should include work on public participation in EIA in a transboundary context (item number 4 of the work-plan (ECE/MP.EIA/2 Annex VI)). Objective of this item is to strengthen the application of public participation in EIA in a transboundary context, in accordance with the relevant provisions of the Convention. The Russian Federation is acting as lead country, with financial suppport of Italy and with assistance of the secretariat, to prepare a small workshop as well as draft guidelines (ECE/MP.EIA/2, AnnexVIII, page 65). Articles 2 (par.2 and 6), 3 (par.8), 4 (par.2) of the Convention contains the provision that the Parties of origin and the affected Parties should provide an opportunity to the public in the areas likely to be affected to be informed and to participate in the in relevant environmental impact assessment procedures. The Russian Federation and the UN/ECE carryed out a workshop devouted the public participation in EIA in a transboundary context in winter 1995. The workshop, which took place in Moscow, addressed the following issues of public participation in environmental impact assessment: (a) goals and principles; (b) practical acpects; (c) legal, administrative and institutional frameworks; and (d) methods for arranging public participation in EIA. The outcome of this workshop was presented as a report submitted by the delegation of the Russian Federation and discussed in the Fourth meeting of the Signatories to the Convention (Geneva, 14-17 March 1995, CEP/WG.3/R.5). More practical experience dealing with public participation in environmental impact assessment in a transboundary context has been gathered since the entering into force the Convention in September 1997. Practical aspects of public participation in EIA in a transboundary context were discussed at the Workshop on the practical application of the Convention which was organized in Helsinki (31May 01 June 1999). Request for information and comments As a further step in carrying out activity dealing with preparing the draft of the guidelines on public participation in environmental impact assessment in a transboundary context, the focal points of the Espoo Convention are requested to provide information on public participation in EIA in a transboundary context making use of the questionnaire in Annex 1. They also are requested to make comments to the outline of the draft of the guidelines (Annex 2). Invitation to participate in the workshop This is the first invitation to the workshop of experts on public participation in environmental impact assessment in a transboundary context which will take place in Russia, 14-15 February 2000. We are waiting for representatives of public, public authorities and other organisations. The form for expression the interest in the Workshop is Annex 3.Travel, board and loding costs can be covered for a limited number of representatives from the countries in transition, including reprecentatives of NGOs. As the working language of the workshop will be Russian with translation into English, it is therefore imperative that your representative is fluent in one of these languages. The workshop is meant to exchange views on the content of public participation in environmental impact assessment in a transboundary context. The experience of the participants of the workshop and the principles of regulation of public participation in EIA under Espoo Convention will be discissed in the workshop as far as the first draft of the guidelines. The programme of the workshop and the first draft of the guidelines on public participation in environmental impact assessment in a transboundary context will be deleloped on the basis of the replies to the questionnaire (Annex 1), comments of the participant to the outline of the draft of the guidelines (Annex 2) and other relevant information. The outcome of the workshop will be the draft of the guidelines on public participation in environmental impact assessment in a transboundary context and the report on the workshop (ECE/MP.EIA/2, AnnexVIII, page 65). This draft of the guidelines will be presented to the second meeting of the Working Group on EIA, which will take place in May 2000 in Geneva. After discussin on the second meeting of the Working Group on EIA, the draft of the guidelines on public participation in environmental impact assessment in a transboundary context will be sent to the Second Meeting of the Parties of the Convention, which will be in October 2000, for potential approvement. Please, inform us by _______________ of your interest in taking part in the workshop and send us forms for expression the interest in the Workshop (Annex 3). Copies of these forms, your answers to the questionnaries (Annex 1) and your comments to the outline of the draft of the guidelines (Annex 2) and other information you considered relevant, please, send before _______________ to: Nikolai Grishin, Agency "ECOTERRA" E-mail: ngrishin@glasnet.ru Annex 1 QUESTIONNAIRE 1. Which definition of "the public" should be used in the guidelines: · definitions of the Espoo Convention · definition of the Aarhus Convention · definitions of the Espoo Convention with taking into consideration the development of the term "the public" in the Aarhus Convention? Information for consideration: - In spite of formal broad definition of "the public" in the Article 1 of Espoo Convention ("one or more natural or legal person"), there is a strong restriction for public participation in fact. Public access to information and public participation are possible only for "the public in the areas which likely to be affected" (Article 2, par. 6 - for the public of the Party of origin; Article 3, par. 8 and Article 4, par. 2 for the public of the affected Party). - A number of the Parties of Espoo Convention are not the Parties (even they are not the Signatories) of Aarhus Convention. 2. Which term is better to use in the guidelines: · "the public" · "NGOs" · "the public, including NGOs"? 3. Which following issues of public participation in environmental impact assessment in a transboundary context (further in TEIA ) should be considered with more or less attention in the guidelines: · goals and principles - · practical aspects - · legal, administrative and institutional frameworks - · methods for arranging public participation - · other (please, identify) - Please, range these issues from most to least important (the most important issue 5, the least important issue 1). 4. Which following characteristics of the proposed activity, its impact, local circumstances and cultures should be taken into account when selecting a methods for public participation in a practical case: · the extent of expected impact · the objective of public participation (to inform of participate?) · how widely are people affected · conflicts likely to occurs · special skills needed to manage selected methods · time available for participation - · cost of public participation · possible differences in language - · possible differences in culture · other (please, identify) - Please, range these characteristics from most to least important (the most important one 10, the least important one 1). 5. Should it be any financial support for organising public participation in TEIA in affected country? If your answer is "yes": 5.1. Who should be responsible for this support (tick as appropriate): · public authorities of affected country - · public authorities of country of origin · proponent of the activity from country of origin · other (please, identify) - 5.2. This support may be used for the following purposes (tick as appropriate): · translation materials into language of affected country · distribution of materials within affected country · organising meeting of public in affected countries · translation comments and recommendation of the public of affected country into language of country of origin · other (please, identify) - 6. Who should be responsible for organising public participation in TEIA in affected country (tick as appropriate): · public authorities of affected country - · public authorities of country of origin · proponent of the activity from country of origin · other (please, identify) - 6. Your proposals for the development the guidelines on public participation in environmental impact assessment in a transboundary context? 7. If you took part in the project, which was realised under the Espoo convention, or have information about such project, please, inform us about such project shortly. Description of the projects dealing with the public participation in TEIA (prepared in format which will be developed later) may be discussed in the workshop in Moscow and it may be included into the guidelines as boxes. Your answers to the questionnaries and other information you considered relevant, please, send before _______________ to: Nikolai Grishin, Agency "ECOTERRA" E-mail: ngrishin@glasnet.ru Annex 2 Project "Development of the Guidelines on public participation under the UN/ECE Convention on Environmental Impact Assessment in a Transboundary Context" STAGE of the PROJECT: Outline of the first draft of the Guidelines DATE: 28-10-199 9 REQUEST for INFORMATION and COOPERATION: Any comments and recommendation are welcome to the address: Nikolai Grishin, Agency ngrishin@glasnet.ru 1. INTRODUCTION 1.1. The role of the public, including NGOs, in environmental decision making. 1.2. Convention on Environmental Impact Assessment in a Transboundary Context (further Convention) in providing broad legal rights for the public to become involved in the environmental decision-making process. 1.3. International policy documents emphasise the need for an adequate role of the public, including NGOs, in environmental decision-making, and their connection with the Convention: 1.3.1.UN regulations (including the Rio Declaration on Environment and Development (Rio de Janeiro, 1992), Agenda 21 (Rio de Janeiro, 1992)). 1.3.2.EU legislation (including Council Directives 85/337, 90/313, 97/11). 1.3.3.UN/ECE regulations (including the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992; Water Convention) and the Protocol on Water and Health to the Water Convention (London, 17 June 1999); Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992); Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998; Aarhus Convention) . 1.3.4.Recommendations and results of the UN/ECE-Russian seminar on public participation in environmental impact assessment in a transboundary context (CEP/WG.3/R.5). 1.4. The main task of the Guidelines is: to assist ECE-governments, joint bodies, national competent authority and public, including NGOs, in organising effective process of public participation in environmental impact assessment in a transboundary context under the Convention. 1.5. The Guidelines draws on the experiences of experts from governments, competent authorities and public, including NGOs, from the UN/ECE region. 2. GENERAL PART 2.1. Development of the definition of "the Public" for the purposes of the Guidelines. In the Convention there are: general definition of the Convention (Article 1 par. (x)) and more concrete definition (the Convention - Article 2 par. 6; Article 3 par. 8 and Article 4 par. 2) with limitation of public participation ("public of the affected Party in the areas likely to be affected"). In the Aarhus Convention the definition of "the Public" was developed. 2.2. The reasons for public participation in environmental impact assessment in a transboundary context: increasing the quality of decisions, prevention of the conflicts in early stage of decision-making process, development understanding in international and national levels, development of civil society and democracy in the countries of the ECE region. 2.3. The role of the States. 2.3.1.States are encouraged to provide legal rights for the public on access to information, public participation in environmental impact assessment in a transboundary context. For that purpose, if appropriate, states should adapt their national legal systems and, if appropriate, they should co-operate with a view to adapting treaties, rules of procedure and other relevant international documents accordingly. 2.3.2. States should ensure that public authorities and joint bodies (such as defined in the Convention) take due account of the outcomes of the public participation. 2.4. The importance that the public should be provided at an early stage with all relevant information, and that the public should be involved in environmental impact assessment in a transboundary context as early as possible, while all options are still open, in order to provide for effective public participation and for development of adequate decisions. 2.5. The role of the Secretariat under the Convention. The Secretariat should play an important role in the dissemination of information about available projects, which are realising under the Convention in the ECE region. For that purpose, it should have a budget to set up and maintain a Web site, date bases and to distribution other information and documentation. 2.6. The role of the Meeting of Parties under the Convention. The Meeting of Parties under the Convention should decide on financial assistance to support public participation initiatives in the Convention. 3. THE INTERNATIONAL LEVEL Public information 3.1.Role of the Secretariat under the Convention, States and joint bodies. All of they are encouraged to ensure that access to environmental information is open to all members of the public (?) . Access to information is a prerequisite for public participation. 3.2.The information accessible should cover a wide spectrum. For definition of the following information will be used: · the Convention (list of information mentioned in Appendix II to the Convention); · materials of the First Meeting of the Parties to the Convention (ECE/MP.EIA/2); · relevant UN, EU and UN/ECE regulations and international treaties; · relevant national legislation; · recommendations and results of the UN/ECE-Russia seminar on public participation in environmental impact assessment in a transboundary context in Moscow (CEP/WG.3/R.5); · results of the other activities carried out according to the work plan of the Convention (ECE/MP.EIA/2, Annex VI); · results of relevant case studies, international and national scientific and practical recommendation, scientific articles and so on. 3.3.Mechanism and conditions of access to information (documentation centres, libraries, data bases, Web sites, e-mail distribution, activity of the Secretariat and of the joint body of the Convention, information should be free of charge or financial support for receiving information should be developed, ). Public participation 3.4.Role of the Secretariat under the Convention, States and other structures. All of they are encouraged to ensure that access to public participation in environmental impact assessment in a transboundary context is open to all members of the public (?)2. 3.5. Recommendation to the Secretariat under the Convention, States and joint bodies on organising the effective public participation should be developed on the same background as it was mentioned in par. 3.2. 3.6.In particular, the Secretariat under the Convention, States and joint bodies should: · promote the application of the principles of public participation in environmental impact assessment in a transboundary context at all levels of decision-making; · develop ways to enhance public participation at the level of the environmental impact assessment in a transboundary context; · open up their work for the public, including NGOs, so that they can work as partners in decision-making and implementation of the Convention; · apply unreasonable or discriminatory conditions on the participation by NGOs as observers in meetings of a joint body and its subsidiary bodies. 3.7.NGOs should be encouraged to organise themselves for effective participation in joint bodies (mentioned in the Convention). 4. THE NATIONAL LEVEL Public information and public participation 4.1. Recommendation for the organising the effective procedures of public information and public participation in environmental impact assessment in a transboundary context in a national level should be developed on the same background as it was mentioned in par. 3.2 and in par. 3.5. 4.2. To provide for effective access to information and public participation in environmental impact assessment, it is important that states guarantee the right to information and to participation in decision-making through adequate legislation. 4.3.The public should be informed about and involved in standard procedures dealing with environmental impact assessment. In particular, the public should be informed about and involved in the process of quality review of EISs where this process exists according to national legislation. 4.4.Public participation in the preparation the decisions on plans and programmes relating its environmental aspects could be ensured through the national legal system. 4.5.States should provide for adequate public participation procedures in the preparation of treaties relating to environmental impact assessment including a transboundary context. 5. REVIEW After a period of 5 (3?) years, States should consider the extent to which this Guidelines have been implemented, and review them if necessary. THE QUESTION for DISCUSSION: Should there be some boxes in the Guidelines, which would contain the information dealing with public participation in environmental impact assessment in a transboundary context in concrete regions (case studies)? Annex 3 FORM FOR EXPRESSION OF INTEREST IN WORKSHOP ON PUBLIC PARTICIPATION IN EIA IN A TRANSBOUNDARY CONTEXT IN RUSSIA Name: Organisation: Post address: Country: Telephone: Fax: E-mail: Tick as appropriate: I am interested in participating in the two-day workshop on public participation in environmental impact assessment in a transboundary context in Russia 14-15 February 2000. I will need financial support in order to be able to participate in the workshop. The travel support is received for a limited number of represerntatives from countries in transition. I am willing to give a presentation in the workshop on my experiences with public participation in environmental impact assessment in a transboundary context with regard to the Espoo Convention and on my proposals on the guidelines on public participation in environmental impact assessment in a transboundary context. Please, indicate the subject of your potential presentation. Signature: Date: Back to top of the page
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