Public Participation in Environmental Decision-Making - Coursework Example

Public Participation in Environmental Decision-Making Module Module Number Academic Year Seminar Essay Question: Discuss the role of public participation in environmental decision making with reference to international, EU and UK law. Student’s number Public Participation in Environmental decision-making Many governments believe that easier public participation in environmental decision-making can be best achieved by availing more information on the subject matter to the public. This kind of public involvement improves trust within society and public authority for better accountability and the creation of effective environmental policy or decisions. The approach to environmental conservation alongside easier access to judicial services, will create more transparency in ecological issues, and will result in the society realizing its objectives of more environmentally healthier development. Public participation in environmental conservation efforts have been an important part of not just the local UK environmental law, but International law. The UK’s ratification of the Aarhus Convention in 2005 practically paved way for domestication of its provisions. Since then, the Convention has evolved into an imperative law of environmental democracy within the UK. And apart from being party to the Aarhus Convention, the European Community has been influencing UK’s environmental law through its various public participation Directives since the 1970s. This paper discusses the role of public participation in environmental decision making with reference to international, EU and UK law. Evolution of Public Participation Since the beginning of the 21st Century, public involvement in environmental decisions has been indispensable in addressing environmental challenges and bringing about viable solutions which foster development along that path. Part of the triggers of the evolution have been the wide perception that the past technocratic, bureaucratic approaches to decision making alone are too aloof from utilitarian needs to guarantee effective solutions. By contrast, public participation enables governments to enact policies that are in line with the common interests because the processes capture popular ideals. Public participation in environmental policy-making is thus acknowledged as a vital principle to the acceptance and effective implementation of virtually any regulation, regardless of its potential ‘punitive’ impacts on communities which may make it unpopular1. Despite the fact that public knowledge on environment cannot match government technocrats’, with increasing challenges on the environmental matters, public participation is imperative, especially in the implementation stages of a policy. Environmentalists have recognized that ecological challenges are beyond the power of the government on its own. Instead, participation in ecological decision-making properly links communities to environmental administration and thus adds to the strengths of both parties for more effective outcomes. By engaging the public, who generally occupy the very end of causes and remedies of ecological problems in ecological conferences and debates, transparency and accountability causes, effective conservation efforts are likely to be realized. The resulting partnership creates the democratic validity of the decision-making process that is appropriate for environmental governance2. Unlike in the past when the public was considered passive in environmental policy and decision-making processes, an effective public participation has been attributed to better governance by enhancing the level of commitment among various stakeholders, which then strengthens the conformity to and implementation of conservation laws. Some researchers have suggested that the right to be involved in environmental policy and decision-making is a holistic approach to environmental conservation democracy. As such, unlike the more dictatorial laws and mentalities, which prevailed in the 20th and 19th centuries, greater public participation in the current world is seen as an inevitable outcome of expanding democracy which requires the meeting of the citizens’ environmental rights. Interestingly, these goals can only be achieved through proper public engagement in a similar way as it is done in other sectors of the economy. Unlike fewer environmentally damaging scientific discourses of the past, the development of the world is increasingly presenting unique challenges that require public input. As such the current school of thought considers considerable uncertainties brought by scientific discovery as adequate grounds for public input, especially in resolving the ethical dilemmas which might present potentially negative implications on the community. As such, public participation enables government agencies to reverse such uncertainties and narrow the divide between scientifically-driven environmental challenges and the experiences and interests of the stakeholders in an ethical way. In addition, through an integrated approach to environmental policy and or decision-making, the government, scientists, and the public are increasingly achieving better environmental conservation, since utilitarian decisions are always bound to be made under such arrangement3. Limiting conservational costs Practically, costs have an imperative consequence on public participation in environmental decision-making. Costs and financing can create serious practical hurdles for the ordinary citizens or interest groups to effectively engage in policy-making. As a consequence, judicial review of environmental law is contributing significantly in the evolution towards greater public participation and the realization of common interests. The Aarhus Convention under Article 9(4), for example, provides for adequate public access to information and their subsequent participation in decision-making processes including access to litigation resources, provided the subject matter is environmental conservation. The courts too have taken cue and are today easing access of justice by issuing a protective cost orders (PCOs). Regardless, UK’s local courts are still in the process of domesticating various Aarhus provisions. The primary issue which still hinders effective public participation in environmental decision-making is whether the Convention’s requirement that justice should not be prohibitively costly ought to be determined based on logical grounds from the standpoint of the average person, or on a ‘skewed’ basis where the financial capacity of the plaintiff in question counts. The uncertainty brought about by the Aarhus Convention is hindering consistent public participation in environmental decisions. But with threat of environmental pollution being real as highlighted by various public groups, further evolution of the common law to encompass public participation is likely to be achieved in the near future4. In the recent judgment of R (Edwards & Anor) v Environment Agency & Ors (No 2) [2013] UKSC 78, the need to define and expand public participation featured prominently. The dispute was occasioned by an order for liability delivered in favour of the defendants. Owing to the fact that the case was touching on the Convention, the Supreme Court of UK transferred the case to the Strasbourg Court for direction on various duties under the Aarhus Treaty, which can make environmental litigations more affordable by a majority of the public. In its decision, the Court extended public participation by stating, inter alia, that litigation expenses must not surpass the financial capacity of the claimant nor be seen as objectively extreme. The court added that it is important to determine whether: the plaintiff has a practical likelihood of success in the case; the magnitude of the environmental issue on the line is worth the intervention; the relevant environmental law and system is intricate and needs interpretation; the prayer is potentially farfetched; and that a plaintiff had been free to proceed with the proceedings. These latest tests are adequate to discard inappropriate cases while ensuring an inclusive approach to environmental policy making process. These tests have been triggered by constant public clamours for the rationalization of litigation costs5. International Laws In other jurisdictions the public involvement in environmental decision-making has been codified for more consistency in practice. The right to popular input in the process has been gradually introduced as a human right by virtue of its public invocation of the right to associate and assembly. As such, Germany and most Scandinavian countries have established proper public participation structures, which guarantee freedom to access information. Many Western countries now consider democratic governance and public input on environmental decision making as too inexorably interconnected to ignore. In the United States, for example, the right to make a formal request in respect of virtually any social issue is part and parcel of the Constitution under the First Amendment. This means the average member of the public can petition environmental bodies and thus help influence the environmental decision on the issue in question in their favour. Similarly, New Zealand has passed environmental and public health legislation making it mandatory for government agencies to consult members of the public who are affected by an environmental decision or policy during the formation stages6. By virtue of widening of the parameters for public participation in environmental decision-making both locally and internationally, it can be argued that effective public input has led to the release of quality information about the environment. However, entrusting government agencies with the work of disseminating accurate environmental information, which is not laced with political interests is nearly impractical. Laws limiting public participation in some way can be enacted, but with massive monopoly of resources to campaign for their adoption being at the government’s disposal, swaying public opinion in favour of certain unpopular interests may render public participation less effective or even be seen as counter-productive, especially where massive resources are misdirected toward swaying public opinion7. The EU Directives It is these possible government biases that attract the European Commission and its very consistent Directives, which are aimed at ensuring that environmental decisions are not just pro-public but are actually made by the public. Directive 2003/4/EC, for example, obligates government agencies to furnish their respective citizens with proper environmental information. The body of law has been repealed by the Environmental Information Regulations 2004 - SI 2004/3391 (EIR 2004), which substituted the 1992 Regulations. Due to the need for public participation, the EC has issued comprehensive direction on the EIR 2004 alongside a Code of Practice in order to ensure effective public understanding of the environmental law. The strategy improves public participation in environmental decisions from an informed point of view. As such, the EC Directive has brought the UK up to speed with internationally acceptable standards for public access to ecological information. Nonetheless, long timelines set for the complete domestication of the Directive by the UK and comprehensive notes on the same have resulted in the realization of partial success in public participation8. Regardless, public pressure led to the creation of Directive 2003/35/EC, which requires more public involvement in the creation of particular plans and initiatives concerning the environment. The adoption of the Directive in June 2003 brought lots of hope in respect of public participation, but has since been viewed as more of a technical than practical intervention. The Directive repeals public input rights in the Environmental Impact Assessment (EIA) Directive (85/337/EEC) and the other related Integrated Pollution Prevention and Control (IPPC) Directive (96/61/EC). The law also provides the mechanisms for public involvement in plans and initiatives contained in other previous Directives such as the Framework Waste Directive (75/442) 1975, the Hazardous Waste Directive (91/689) 1991 and the waste landfill Directive (99/31) 1999 among others. The UK is in the process of enacting the Directive through several statutory laws covering the specific policy areas impacted by it, which is a positive step towards guaranteeing legal safeguards for public participation. However, the slow process will not deliver immediate answers to current environmental problems9. Environmental Justice Public participation guarantees environmental justice by balancing the popular interests with the best practices that have worked in ensuring that the environment is used in the best interest of all stakeholders. In light of this, the European Commission released its final submissions drawn from the Aarhus Convention. Part of proposals was the Directive on public Access to Justice in Environmental Matters. As a member of Convention, UK is expected to make practical steps to enact the National Implementation report and prepare for reviews of the achievements made so far in respect of public participation in both short-term and long-term environmental decision-making process. The report spells out the necessary statutory, policy or other regulatory measures that the country has taken to enact the requirements of the Treaty; and their realistic implementation10. This is where public participation in the decision-making processes through debates, petitions, active drawing of the plans and programs will ensure accountability and proper utilization of environmental resources through effective decisions. Authorities Public participation has contributed significantly to the environmental decision-making by improving access to litigation avenues. In response, courts have laboured to ensure that the interests of the public and government as well as conservation efforts remain objective. In the case of R (European Metal Recycling Ltd) v Environment Agency [2012] EWHC 2361, for instance, public participation is evidenced in the Agency’s submissions aimed at ridding the area in question of noise pollution. However, the difficulties faced by the same body in implementing the suspension ‘order’ under the Regulations raises the high stakes game that public participation has become11. As the result, courts are forced to explore parallel statutory provisions in ensuring judicial reviews that give the public a fraction of the whole interest, but which could have been forfeited altogether if more public involvement in environment was amiss. In this case, the agency gave a suspension ‘order’ requiring all transportation of waste to stop. It also attempted to obligate the firm to create and enforce measures that would remove the risk of severe noise pollution. But in its decision, the Court invalidated the suspension ‘order’ on the grounds that the conservationist agency had failed to indicate in the document, the precise steps to stop the danger of noise pollution. It can then be argued that public participation is yet to bear fruit or rather, the current abstract approach to environmental decision-making by the public may not deliver tangible outcomes in the increasingly tighter environmental and business regulatory framework in the United Kingdom12. By contrast, the European Court of Justice appears to be more concerned about environmental pollution and public interest, by making pro-public decisions. In the case of Thames Water Utilities Case C-252/05, for example, the Court established that sewage waste from a facility owned by the defendant would not have been approved by the public. The ruling elaborated that sewage firms are vulnerable to grave criminal charges when their actions or inactions lead to sewage spills. The decision was influenced by the EU Directive 75/442/EC on pollutants, which according to the Strasbourg Court, considers waste leaks as a discarded, prompting a refer of the case to the UK’s Magistrates Court. The defendant company was convicted, among other charges, for acting in breach of the Environmental Protection Act 1990 § 33(1)(a), which states that a party shall not discard controlled waste or knowingly cause or allow the deposit of the pollutants13. In the most recent case of R(ThamesWater) v Bromley Magistrates Court [2013] EWHC 472, the defendant sought the court’s determination of whether the actual construal of section 33(1)(a) of the Act considers accidental leaks of sewage as constituting a ‘deposit’ of the waste or ‘deposit’ of waste is reserved for intentional act only. In its decision, however, the court extended the parameters of the ‘deposit’ to include accidental leaks of waste. Both decisions symbolise the determination of courts, especially since the recent past, to safeguard public interest in decision-making by acting in their best interests. Mountpace Ltd v Haringey LBC [2012] EWHC 698 is another case that symbolizes the massive output of public participation in environmental decision making. The case is especially unique because the court delivered a ruling that not only extends the benefits of a sustainable environment to the public, but one that emphasizes on the duty of care in environmental decisions. In the case, the Divisional Court was unequivocal in its message to construction companies that the duty of care is paramount under the Environmental Protection Act 1990. In the case, freeholder Mountpace Ltd entered a contract with the property owner to refurbish a property. The contract covered site clearance and safe discarding of the waste. The contractor subsequently entered a sub-contract with another company specialized in waste disposal, which on two different occasions discarded the waste un-procedurally14. The fly-tipping method is in breach of section 33 of the Act. The Court then evoked sections 33 and 34(1) (a) of the Act, which criminalize the offence to enforce liability on the primary contractor. The court established that the Mountpace failed in its duty to ensure that the sub-contractor conformed to the relevant provisions of the 1990 Act. Recommendations Owing to the relatively mixed results on cases involving or resulting from public participation in environmental decision-making, members of the public should be more concerned about the different interests of various stakeholders that must also be met, and make targeted, holistic, human rights approach to be heard on environmental issues. Firstly, these can be achieved by reading various provisions of the Aarhus Convention in order to keep abreast with the legal requirements as expected of government bodies and the public. A well informed public will not only be conversant with their environmental rights, but will have the capacity to identify and take the best approaches to participation in environmental decision-making15. Secondly, UK citizens should either individually or collectively petition relevant members of parliament to speed up the implementation of various provisions of the Aarhus Convention. This would improve public input in decision-making and law creation processes. The same approach can be effective at regional and local levels of government16. Thirdly, in respect of Article 9(4) of the Aarhus Convention, members of the public should petition the relevant government departments and environmental conservationists to make public any important information about environment and hold peaceful protests against non-disclosure or selective disclosure of environmental information, especially by government. This way, the public will be more conversant with the condition of one’s immediate environment or the policies or interventions that have been implemented or those that are still in the pipeline. More public involvement can be achieved by signing collective petitions on the environment and its portrayal as a human rights issue. This is especially true considering that environment impacts other fundamental human rights such as the right to life, right to association and the right to own property among others17. The public should advocate the fact that environmental mismanagement through lack of public participation could result in pollution, which then has a direct impact the primacy of human life18. Fourth, the public should organize themselves into group. Groups provide better bargaining platform and power than individuals, especially where a social issue like environment is concerned. Lastly, the public should lobby for more environmental funds. These funds can then be used to finance litigation against any suspected criminal parties. This will be imperative considering that there is some uncertainty as to how litigation costs should be settled; this only serves to create public unwillingness to be actively involved in decision-making processes. As such, with easier access to justice, the public will practically influence environmental decisions through the courts. Conclusion Public participation is increasingly becoming an important part of environmental democracy. The development has resulted in the enactment of pro-public environmental decisions by government institutions. However, more still needs to be done to deliver tangible public participation. Broad agreements are part of the UK’s environmental law, but the concept of public input in environmental decision-making remains a contested subject. Critics argue that public input in decision-making tends to concentrate on arriving at a consensus between parties who share similar interests and pursue the same goals. However, the mixed outcomes of litigation or government programs paint a gleam future of public participation in environmental issues. The problem can be partly attributed to insufficient information about environment issues and lack of litigation resources among members of the public. The government should, therefore implement the Aarhus Convention and specifically disseminate more, simple environmental information to the public; and carry litigation costs to ensure more public participation in environmental decision-making. Bibliography Journal Articles Arts et al, (2014), ‘The Effectiveness of EIA As An Instrument For Environmental Governance: Reflecting On 25 Years of EIA Practice in The Netherlands And The UK. Journal of Environmental Assessment Policy & Management, 14(4), p.1-11. Cole, Matthew A., and Elliott, Rob J. B.E., (2007), ‘Do Environmental Regulations Cost Jobs? An Industry-Level Analysis of the UK,’ Journal of Economic Analysis & Policy: Topics in Economic Analysis & Policy, 7(1), pp.1-25 Mehdi, D. Piri and Faure, Michael, (2014), ‘The Effectiveness of Cross-Border Pipeline Safety and Environmental Regulations (under International Law),’ North Carolina Journal of International Law & Commercial Regulation, 40(1), pp.55-134 Pedersen, Ole W., (2014), ‘What Happened To Environmental Justice?,’ Environmental Law Review, 16(2), pp.87-90 Scotford, Eloise and Robinson, Jonathan, (2013), ‘UK Environmental Legislation and Its Administration in 2013—Achievements, Challenges and Prospects,’ Journal of Environmental Law, 25(3), pp.383-409 Shiers David, Lavers Anthony and Keeping Miles, (2007), ‘Indicators of the impact of environmental factors on UK construction law: developments in the new millennium,’ Construction Management & Economics, 25(7), pp.821-829 Shiers et al, (2014), ‘Implementing new EU environmental law: the short life of the UK Site Waste Management Plan Regulations,’ Journal of Environmental Planning & Management, 57(7), pp.1003-1022 Smith, Mark and Crotty, Jo, (2008), ‘Environmental regulation and innovation driving ecological design in the UK automotive industry,’ Business Strategy & the Environment, 17(6), pp.341-349 Taylor et al, (2012), ‘Selecting Policy Instruments for Better Environmental Regulation: a Critique and Future Research Agenda,’ Environmental Policy & Governance, 22(4), pp.268-292 Thornton, Justine, (2014), ‘Significant UK Environmental Cases 2013–14,’ Journal of Environmental Law, 26(2), pp.341-354 Wilson et al, (2012), ‘An Evaluation of the Impact and Effectiveness of Environmental Legislation in Small and Medium-Sized Enterprises: Experiences from the UK,’ Business Strategy & the Environment, 21(3), pp.141-156. Books Bell Stuart, McGillivray Donald and Pedersen Ole, (2013), Environmental Law, Oxford University Press, Oxford, pp.101-123 Fisher Elizabeth, Lange Bettina, and Scotford, Eloise, (2013), Environmental Law: Text, Cases & Materials, Oxford University Press, Oxford, p.75 Kiss Alexandre Charles and Shelton, Dinah, (1997), Manual of European Environmental Law, Cambridge University Press, Cambridge, pp.61-123 Mumma Albert, (1995), Environmental law: meeting UK and EC requirements, McGraw-Hill, London, pp.121-142 Singleton Ross, Castle Pamela, and Short, David, (1999), Environmental Assessment, Thomas Telford, London, pp.23-67 Stubbs Amanda, and Dering Chris, (2002), Environmental Law for the Construction Industry Masons guide, Thomas Telford, London, pp.114-139 Wolf Susan and Stanley Neil, (2003), Wolf and Stanley on Environmental Law, Cavendish Publishing, London, pp.22-31 Legislation The Environmental Protection Act 1990 Cases Directive (99/31) 1999 Directive 2003/4/EC Environmental Information Regulations 2004 - SI 2004/3391 (EIR 2004) Framework Waste Directive (75/442) 1975 Integrated Pollution Prevention and Control (IPPC) Directive (96/61/EC) Mountpace Ltd v Haringey LBC [2012] EWHC 698 R (Edwards & Anor) v Environment Agency & Ors (No 2) [2013] UKSC 78 R (European Metal Recycling Ltd) v Environment Agency [2012] EWHC 2361 R(ThamesWater) v Bromley Magistrates Court [2013] EWHC 472 Thames Water Utilities Case C-252/05, The Environmental Impact Assessment (EIA) Directive (85/337/EEC) The Hazardous Waste Directive (91/689) 1991 Read More