Public Participation in Environmental Matters

Public Participation in Environmental Matters Presented by: Prof. Squintani Date: 22 November 2023 Content - Scope: • Focus on Public Participation • Be aware of right to information and access to justice - From social sciences to law - Limitations in the legal regime • Lack of inclusiveness → Equal opportunities • Legal complexity → Chain of decision making Social Sciences: PP as a necessity Participation ladder (Arnstein, 1969) - - - Citizen Power • Citizen Control • Delegated Power • Partnership Tokenism • Placation • Consultation • Informing Nonparticipation • Therapy • Manipulation Reasons for public participation (Fiorino, 1991): - Normative: people's right to influence the decisions that affect them - Substantive: additional knowledge - Instrumental: higher public acceptability Legal Sciences: PP as a right Importance of PP is underlined at many levels - - International level • Rio Declaration - Principle X - Environmental Democracy • Aarhus Convention EU level • TEU - Democratic principles (general) - Aarhus Directive and Regulation (specific) • - Incomplete transposition of Aarhus Convention National level • E.g. Dutch Environment and Planning Act Aarhus Convention: an overview - The UNECE Convention adopted on 25th - June 1998 - 47 Parties (see map) • USA not part to the Convention - Entered into force on 30 October 2001 - Goes to the heart of the relationship between people and governments - Compliance entrusted to ACCC - Protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well being • Arts. 4 and 5  Information • Arts. 6, 7 and 8  Participation • Art. 9  Judicial Protection Aarhus Convention: Public Participation - Art. 6→ specific decisions • - Art. 8→ executive regulations • - 3 obligations Art. 7 → plan & programs • - 8 (groups) of obligations 3 obligations Art. 7 → policies • No specific obligation Core normative standards for PP: - Real voice: → 'take into due account' (Article 6(8) AC)+ 'motivation duty' (Article 6(9) AC) - Early Engagement: → (Article 6(4) AC) 'when all options are still open' - Deliberation: → ? - Inclusiveness → non discrimination (Article 3(9) AC) 4D's Model: what law does not understand about public participation - - - - Dialogue • Aarhus: YES • Escazú: NO • IBSA: NO Decision-making power • Aarhus: NO • Escazú: NO • IBSA: NO Diversity • Aarhus: NO • Escazú: NO • IBSA: NO Deliberation • Aarhus: NO • Escazú: NO • IBSA: YES Two main limitations - Growing evidence that public authorities across the world are having troubles with PP in environmental matters - • Difficulties in serving environmental goals • Difficulties in achieving consensus/acceptance Growing evidence that PPP are (a) non inclusive, and (b) that three is too much legal complexity Inclusiveness - Growing evidence and awareness that some groups of society are systematically not able to effectively participate in PP • e.g. Dieperink and others (2012), Van der Heijden & Ten Heuvelhof (2013), and Van den Broek and others (2016) - - Marginalized groups of society (from Maastricht Rec. 2015): • As children, older people, • Women in some societies, • Migrant, • People with disabilities, • Those with low literacy or language barriers, • Ethnic or religious minorities, • Economically disadvantaged groups, etc. Equal opportunities in PP • By focusing more on material equality and less on procedural equality, public participation procedures can be made more effective. What role can law play in this process? - Art. 6(2) Aarhus Convention: notification duty • 'for complex or controversial projects and activities, the plan for stakeholder engagement may be complex and use a variety of methods of notification, including things like knocking on the door of people who do not have telephones or electricity (Maastricht recomm. 2015) • 'Social media may be particularly useful in some culture for notifying younger members of the public who may not be used by more traditional forms of media' (Maastricht recomm. 2015) • 'It should be recalled that some members of the public concerned may not be reached through the usual forms of notification [...] and therefore other means of effective notification may need to be used, for example by contacting other bodies that work with those communities' (Maastricht recomm. 2015) - Art. 3(3) AC: Each party shall promote environmental education and environmental awareness among the public. • Basic environmental knowledge is an indispensable element of capacitybuilding for public participation in environmental decision-making (Impl. Guid. 2014) - Art. 3(9) AC: no person is to be excluded from the definition on the grounds of nationality, domicile, citizenship, or place of registered seat - Positive discrimination known to EU law • Free movement law to spur market access of foreign products, persons, services • EU Labor Law - 157(4) TFEU → Art. 3 Dir. 2006/54  'Full equality' as ground for 'positive action'  "The measures permitted under the positive action provisions quoted above are those designed to eliminate or counteract the prejudicial effects on women in employment or seeking employment which arise from existing attitudes, behavior and structures based on the idea of a traditional division of roles in society between men and women. The measures should, in particular, encourage the participation of women in various occupations in those sectors of working life where they are currently underrepresented.' (COM, EU Gender Equality Law, 2008, p. 17) • Positive discrimination as tool to revert historical discrimination Too much legal complexity - Aarhus Convention: Public Participation • Art. 6 → specific decisions  8 (groups) of obligations • Art. 8 → executive regulations  3 obligations • Art. 7 → plan & programs  3 obligations • Art. 7 policies  No specific obligation