Chapter 5: Ukraine

(continued)

MAPPING AND EVALUATION OF OPPORTUNITIES

International Decisionmaking

The Ukrainian legislation does not provide any possibilities for the public to participate in the decisionmaking process on the international level. The legislation does not provide any possibilities for NGOs or individuals to control decisionmaking, to have their comments seriously taken into account or to participate in joint decisionmaking. Sometimes the public can be informed about the international decisionmaking process from mass-media (interviews, articles, announcements). At the same time, the public has a right to access to information which is applicable to the information on international decisionmaking processes. In practice, individuals almost never use their right to access to information in this case, and NGOs only from time to time. Usually, access to information concerning the international scene is provided with the help of NGOs. Nowadays, access to information concerning international environmental decisionmaking is improving and the Ministry of Environment Protection and Nuclear Safety as well as environmental NGO make attempts to make the process more open.

TABLE 4: International Decisionmaking
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	1	1	1	1	1	1	1
Adequate notification (right to be informed)	2	2	1	1	1	1	2
Access to information (right to access to information)	2	2	2	2	2	2	2

Preparation and Approval of National Laws and Regulations

Citizens and NGOs are not provided with the right to legislative initiative. The President, deputies, Cabinet of Ministers and National Bank of Ukraine have this right (Article 93 of the constitution.). Citizens and NGOs may realize their right to participate in the legislative process through appeals to the subjects of the right of legislative initiative. People can realize the right to decide, the right to joint decisionmaking or can directly influence lawmaking only by way of national referendum. There are no such examples in practice.

Some NGOs from time to time participate in the drafting of law, commenting or presenting their alternative variants of laws/regulation to the deputy committees in the Parliament. In 1991, when the Law on Environmental Protection was adopted, public activity in the lawmaking process was the highest. Nowadays the Environmental Committee of the Parliament from time to time invites some NGOs to participate in the discussion and commenting of law drafts (for example the Law on Wastes — Ecopravo-Lviv, EcoPravo-Kyiv, EcoPravo-Kharkiv, Greenpeace Ukraine participated in discussions and made their comments).

There is no legislatively established procedure for the proper legalizing and reflection of public comments and the procedure of choosing alternatives at the stage of adopting the laws. There is no requirement for obligatory consideration of the suggestions of the public on the drafts. The problem is also that the public got to know about the law/regulation, only after that law has been adopted. Information about the process of decisionmaking by the President of Ukraine or Cabinet of Ministers, or other central bodies of state power is absent in fact, except for some brief announcements made in mass media. Therefore the public is not able to participate in the discussion properly.

Public participation in the preparation and approval of national laws and regulations could be improved by the creation of a system of free provision of information (active/passive) about the drafting process and drafts. The Environmental Committee should more often involve Environmental NGOs in law drafting/commenting, organize public hearings.

TABLE 5: Preparation and Approval of National Laws and Regulations
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	2	1	1	1	1	1	1
Adequate notification (right to be informed)	3	2	2	2	2	2	3
Access to information (right to access to information)	3	2	2	2	2	2	3

Preparation and Approval of Local Rules and Regulations

The main obstacle for public participation in the preparation and approval of local rules and regulations is bad information. It is difficult to analyze the practice in all the regions of Ukraine. Under different circumstances the informing of the public might be more or less developed in different regions, cities etc. (for instance, in the eastern Ukraine in the huge urban centers where the environmental situation is bad. There is a large amount of public activity.That is why some forms of public participation are more developed in these areas. Nonetheless the general tendency is that the information about local decisionmaking is presented very briefly. The full information may be obtained only by means of the request (if citizens or NGOs know about the project or decision). The projects of decisions are rarely published in the original (usually as a brief announcement) and newspapers rarely reflect these issues.

Usually local rules and regulations are adopted without any public participation. In practice, there are even difficulties in receiving the text of the adopted decision.

To improve public participation in this process we need to work out and adopt the mechanism (procedure) of informing at all stages of preparation and adoption of local rules and regulations; to make sessions of local self-government more accessible for people; to oblige local authorities to take into account public opinion.

TABLE 6: Preparation and Approval of Local Rules and Regulations
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	2	1	1	2	2	1	1
Adequate notification (right to be informed)	2	1	1	1	1	1	2
Access to information (right to access to information)	2	2	2	2	2	2	2

Preparation and Approval of National Strategies, Programs, Plans

The process of preparation and approval of national policies, strategies, programs and plans is almost the same as for the national laws and regulations. So, the problems and obstacles for public participation are the same, as well as the methods for their improvement. Many national policies, strategies, programs and plans connected with environmental issues have been adopted or worked out during the last two years. Now, mainly because of NGOs' active participation and democratic changes in Ukraine in general, this process has become more transparent. For instance: some drafts were published in the newspaper "Green World"; NGOs actively discuss the draft of the Conception of Sustainable Development in Ukraine.

TABLE 7: Preparation and Approval of National Strategies, Programs, Plans
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	2	1	1	1	1	2	2
Adequate notification (right to be informed)	3	2	1	2	2	3	3
Access to information (right to access to information)	3	2	2	2	2	2	3

Preparation and Approval of Local Policies, Strategies, Programs, Plans

The situation of public participation in preparation and approval of local policies, strategies and plans does not differ greatly from the situation with public participation in local lawmaking.

TABLE 8: Preparation and Approval of Local Policies, Strategies, Programs, Plans
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	2	1	1	2	2	1	1
Adequate notification (right to be informed)	2	1	1	1	1	1	2
Access to information (right to access to information)	2	2	2	2	2	2	3

EIA

According to Ukrainian legislation, EIA is a part (or first stage) of the State Environmental Expertise (SEE). The investor works out the EIA materials and present them to SEE. The necessity for taking into account public opinion is identified legislatively by the Law on Environmental Expertise (Article 6, Part 2 [February 9, 1995]), where one of the ecological expertise principles is established as taking into account public opinion, by both investors as well as master planners, while preparing EIA materials for expertise. According to the State Construction Standards (July 1, 1995), it is required to include in EIA information on public opinion regarding the planned activity (Item 2/26). But there is no formal procedure for taking into account public opinion and no procedure for public participation during EIA. The real opportunity for public participation opens during the ecological expertise. Any project that can have negative impact on the environment as well as siting, most kinds of permits and land use plans, require State Environmental Expertise to be held. Before beginning, the investor of environmentally dangerous projects has to notify about the SEE by announcing the Environmental Impact Statement (final document of EIA). The state authorities are not allowed to start SEE before EIS is announced (published). In practice, the Ministry of Environmental Protection and Nuclear Safety and its bodies start SEE without following this condition, which is required by Law. This means that people are not informed in time about the SEE process and are not able to participate appropriately. But using the "tools" that are set in legislation on Environmental Expertise (public hearings, public expertise, public notification by investor as well as authorities, etc.). At present, public hearings during the expertise do not actually take place because of the absence of a regulated procedure and the necessity of certain fund expenditures.

The problems are mostly the same as for other types of decisionmaking: bad notification (even when it's obligatory by law), absence of formally established public participation procedure (for example, public hearings, submitting and reflection on public comments, procedure for public participation in EIA), lack of practice. But there are positive examples, when because of public participation in ecological expertise, dangerous projects were improved or stopped.

To improve the situation the working out and adoption of the regulation (procedure) of public hearings, as well as procedure for participation in EIA, can be recommended. The following of already established legislation norms and procedures by governmental authorities is also important for good public participation practice.

TABLE 9: Environmental Impact Assessment
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	3	3	3	3	3	3	3
Adequate notification (right to be informed)	3	2	2	2	2	3	4
Access to information (right to access to information)	4	4	4	4	4	4	4

Siting

According to the Law on Environmental Protection (Article 15) the local councils give consent to the siting of enterprises, institutions, and organizations on their territory. In general, the public participation process doesn't differ from such processes in local rule-making, and has the same obstacles and ways of improvements.

People can realize the right to decide, and the right to joint decisionmaking or can directly influence local decisionmaking by way of local referendum. A recent example was allocation of solid wastes that took place on the territory of Olkhovka Village Council of Kharkivska Oblast (February 25, 1996). With the referendum's decision the allocation of solid waste was abolished.

There is also possibility for public participation during the State Ecological Expertise that is also required for siting.

TABLE 10: Siting
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	2	1	1	1	1	2	1
Decisionmaking power is shared (right to joint decisionmaking)	2	2	2	2	2	2	1
Comments are seriously taken into account (right to be heard)	2	2	2	2	2	2	1
Adequate notification (right to be informed)	2	1	1	1	1	1	2
Access to information (right to access to information)	4	2	2	3	3	3	3

Management of Environmental Funds

Till March 5, 1998, the environmental funds (national/local) were separated from the state or local budgets. They were often not used for environmental purposes and management of the environmental funds was not very transparent. But sometimes NGOs that managed to get more information about the funds or were favorites of governmental authorities could receive some money for their projects.

According to the new amendments to the Law on Environmenta Protection from March 5, 1998, such funds were cancelled and environmental accounts were included in the state and local budgets. It seems that this will not make management of environmental costs more transparent. The problems seem to be the same as in other types of decisionmaking : lack of information, absence of the formal public participation procedure.

TABLE 11: Management of Environmental Funds
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	1	1	1	1	1	1	1
Adequate notification (right to be informed)	2	1	1	1	1	1	2
Access to information (right to access to information)	2	2	2	2	2	2	3

Permitting

One of the main problems for public participation in permitting procedures is bad notification on stages of the procedure: people do not know when (to whom) the permit is being issued or was issued. But if people learn about the permit they can receive information about it according to the general procedure of Law on Information. Citizens can participate (if they know) in the permitting procedure according to the procedure of the Law on Petition and they can send comments, proposals, etc. Usually it is possible to learn about permit when it has already been granted, and citizens can just appeal to a higher level of authority or directly to the court. Most kinds of the permits are granted after the State Environmental Expertise positive conclusion (new projects or activities). In such cases individuals/NGOs can participate in Environmental l Expertise procedure according to the Law on Ecological Expertise.

The practice of public participation in the permitting process is almost absent, especially with regard to the issuing of permits. Although there have been some examples when a permit was cancelled or suspended after it had been issued.

TABLE 12: Permitting
	Initiation of DM (problem/ proposal)	Defining the scope, issues and stakeholders (pre-decision scoping)	Defining the scope of DM (impacts and alternatives)	Evaluation of the alternatives	Selection of the alternative (DM about the selected alternative)	Execution of the selected alternative	Post-decision monitoring & enforcement (feedback/ adjustment)
Phases of Decisionmaking LEVELS OF PUBLIC PARTICIPATION
Control of decisionmaking (right to decide)	1	1	1	1	1	1	1
Decisionmaking power is shared (right to joint decisionmaking)	1	1	1	1	1	1	1
Comments are seriously taken into account (right to be heard)	2	1	1	1	1	1	2
Adequate notification (right to be informed)	1	1	1	1	1	1	2
Access to information (right to access to information)	2	2	2	2	2	2	3

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