Challenges in Implementing the Right of Access to Environmental Information in the European Union

Challenges in Implementing the Right of Access to Environmental Information in the European Union Presented by: Dr. Whittaker Date: 10 October 2023 Uncovering the Environment: The Use of Public Access to Environmental Information - Project funded by the Economic and Social Research Council - The project investigate the use of the right to environmental information through • Doctrinal analysis • Surveys of users and public authorities • Interviews with users, public authorities and the Office of the Scottish Information Commissioner Users - An Aspirational Categorisation - Much of the right to access environmental information is based on assumptions about how the right operates - Presumption that all users are (broadly) equally capable of utilizing the right to environmental information • - With some notable exceptions (e.g. duty to provide advice and assistance) Presumption that all users are driven by the same environmental motives • "Duty to protect and enhance the environment" Users in Practice - - Not a single body of similar individuals • Professional and Personal users • State-bodies as users Expertise and knowledge • Engaging with public authorities • Understanding disclosed environmental information - Motives • Professionals acting as intermediaries • A general lack of environmental altruism How is Disclosed Environmental Information Used? - Most visible use was challenging decisions made by public authorities • Other uses beyond public authorities (e.g. discussing environmental concerns with the community; commercial activities) • - Majority of uses not driven by environmental altruism’ Participation in decision-making processes often does not lead to the "desired outcome" • Can lead to general dissatisfaction with the right to environmental information • Impossible to satisfy all users, especially with contradictory (but equally valid) desires Putting the "Environment" in Environmental Information - A healthy environment is the primary aim of the right of access to environmental information - Yet the environment does not play much of a role in shaping domestic environmental information regimes - Anthropocentrism and a loss of focus on the right's environmental aims • Is there a need to place greater emphasis on environmental motives within environmental information regimes? Privatization and the Right to Access Environmental Information - The increasing trend of privatizing public services places a unique pressure of the right to environmental information • However, there are competing public interests at play  Desire for transparency in environmental services  Desire for the state to promote small businesses delivering public services - Another perspective to consider is whether private companies should be exempt from the duty to disclose environmental information • Development in ESG laws (and expectations) for private companies The Aarhus Convention Compliance Committee (ACCC) - Established under Article 15 of the Aarhus Convention, and created through Decision 1/7 of the Meeting of the Parties - The ACCC hears complaints regarding alleged breaches of the Aarhus Convention • - Complaints can be submitted by party states or by members of the public Decisions issued by the ACCC identify whether a breach has occurred, and puts forwards measures to ensure future compliance • These decisions are non-binding, but most states comply with the decisions of the ACCC Strengths And (Potential) Weaknesses Of The ACCC - Procedures of the ACCC are designed to be accessible • No requirement to be represented by a legally trained professional - although many complainants decide to be represented by a lawyer - Length of time for the ACCC to issue a decision notice • Relatively small compliance body, and more complaints are submitted every day - What happens when a party decides to not comply with a decision-notice? • The European Union and ACCC/C/2008/32 Conclusion - The right of access to environmental information is not one singular right with a singular aim • Rather, the right is a complex network of aims, procedural rights and implicit assumptions - There are a range of challenges regarding how the right is used and its functioning in law • Yet notwithstanding this, the right is fundamentally important to enhancing environmental governance in the European Union