Environment law in public hands

A United Nations convention finally empowers the public to have a say on environmental issues – but will it have any real effect? Alan Osborn reports.

After two years of negotiation involving 37 European countries, a convention to give more power to the public arm over government and industrial decisions affecting the environment was finalised this year. A commendable move perhaps, but one that has already drawn fire from lawyers in the UK who believe it falls short of its stated goals.

Even so, the Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters drawn up by the United Nations Economic Commission for Europe extends much of present UK legislation. When ratified by 16 countries, hopefully within five years, it will at the very least spark a review of practices in this country and possibly force a change in domestic law over public participation in environmental decisions.

Content aside, the agreement stands out if only for the negotiating role played by and impact of non-governmental organisations, which acted through a European coalition representing environmental groups from Britain to Russia.

Peter Roderick, legal adviser to Friends of the Earth, says: “This was about citizens' rights and we used the opportunity to participate in all sessions. I dread to think what this would have looked like if we hadn't been there.”

Another first is the convention's relevance for local community groups in Europe. It marks, claims the European Commission, “the first application of an international convention to [local] community institutions”. More good news is that, put forward as an EU decision, the convention will be as binding on cross-governmental Euro bodies as it is on the public authorities of member states. Also new is the pledge in article one which lays down “the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”. This is the first time such terms have been used in a binding international treaty.

“Enhanced public access to information and increased public participation in decision-taking are recognised as essential tools for improving public awareness and encouraging a better implementation of environmental legislation, supporting environmental policies and their effectiveness,” says the commission, urging member states to support the convention. The treaty, it adds, is “likely to widen current provisions for access to environmental information and to increase the scope for challenging official decisions at EU level”.

However, this does not mean those who flout environmental standards will be called to account. “The convention clearly lays down a set of fundamental principles about public participation,” explains Professor Richard Macrory, professor in environmental law at Imperial College, London. “What it does not do is to prescribe the particular or specific environmental quality standards to which the public are entitled.

“Its long-term impact will therefore largely be dependent on the degree to which members of the public and environmental groups make use of the rights it contains and the good faith with which government departments approach these principles,” he says.

Of the three pillars picked out for reform – access to information, public participation and access to justice – only the first is expected to push through any change in law. Access to information was previously covered by a 1990 directive on access to environmental details and the convention broadens several key definitions beyond the usual issues of land use planning, chemicals and biological diversity. This will make it harder for governments to avoid disclosure by claiming information is not relevant.

Under the pillar of public participation, the convention lists areas where disclosure will be obligatory, and targets the energy, metals, minerals and chemical industries, as well as waste management, major waste water treatment plants and other water management constructions. It sets out detailed rules for participation procedures, including what information should be available to the public and when it should be released.

To improve public access to courts, the treaty obliges all parties to establish “judicial or administrative procedures which provide adequate, effective and fair remedies that are also equitable, timely and not prohibitively expensive”. But it gives each government power to decide who has legal standing before its courts.

Also tackled is the highly charged issue of public participation in genetically modified organisms (GMOs). The convention stresses that decisions relating to the deliberate release of GMOs should take place “only to the extent feasible and appropriate within the framework of national law”. That phrase holds little comfort for Roderick, who damns it as “meaningless”. “They were prepared to grant participation rights on chicken farms but not on GMOs like oil seed rape, sugar beet and maize. That is unacceptable.”

The oversight, he says, means each country can set its own level of public participation. And more worrying, by failing to guarantee a right of participation, members of the public may revert to criminal action such as uprooting crops, as occurred after a Court of Appeal case this year which held that trials of genetically modified maize in Devon were unlawful but refused to order that the crops be pulled up.

Roderick says this omission is the most serious flaw in the convention, though he also criticises its failure to propose an EU body to enforce compliance. And the words used to tackle abuses hardly pack a punch – parties must “establish, on a consensus basis, other arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance”.

For the UK, the convention's impact will depend on the extent to which it meshes with the Government's plans on freedom of information set out in last year's White Paper. One sticking point will be over access to “tradable information”. Whitehall is keen to exclude some information from the disclosure rules as it has commercial value. But this runs counter to the convention and the directive, which state that environmental information is subject to a “reasonable cost cap”. The Government's ideas, confirms Roderick, are “inconsistent with the convention and completely unacceptable for environmental information, the price of which is already prohibitively high”. In fact, the EC has already taken action against the UK on grounds of “reasonable cost”, citing “many examples of reasonable costs not being charged”.

A second dispute between the UK and the EU looks likely over the right of industry to appeal against disclosure, not provided for in the convention except on a sub judice basis.

Renewed pressure on the UK to update its environmental access laws will not happen overnight. But change looks likely. Germany takes the EU presidency at the end of the year and now its Green Party is in a coalition with the ruling Social Democrats, reform seems round the corner.