First of all, in Ukrainian legislation there is no definition of environmental information. This often makes some concrete and specific information — for example, information about the activity of state bodies that make environmental decisions — unavailable to the public.
Secondly, there is no legislative mechanism that regulates the process of obtaining the information from private structures and business circles.
Third, the requirements of legislation regarding the active dissemination of information, including environmental information, are often violated by the authorities. There are different reasons, for example because of the inner interest of the department or commercial interests or because of lack of the financial means for publications, etc.
Fourth, the lack of administrative sanctions for not providing information gives authorities no real motivation to do so.
There are other problems in the legislative regulations, as well. Professional environmental lawyers, who can effectively use the legal tools and means of defense when they are refused information, generally can get the material they seek. However, individuals and NGOs are not aware enough of their rights or of legislation in general and therefore have much more difficulty in getting information.
In practice, the fact that some provisions for public participation do not have legislatively established procedure creates problems. For instance, the existing term "public hearing" is not upheld with the procedural norms, therefore it is almost forgotten. The same problem exists with the proper legalizing and reflection of public comments and the procedure for choosing alternatives at the stage of adopting laws. The problem again is that the public learns about a decision or law only after the law is adopted. As a result, the public is not able to participate in the discussions properly.
Public participation at the stage of licensing is almost absent. The duty to inform the public actively (i.e. by publishing or announcing) about issuing licenses and permits or about the process of issuing such documents is not established in legislation, except for the cases when environmental expertise is necessary. The public may obtain information about giving licenses for conducting this or that activity or to treat polluting substances, etc., only by means of an informational appeal/request.
Public opinion is not taken into consideration properly during environmental expertise, and proper public notification is also lacking. However, in one case the court, with regard to the principles of information and public participation, ruled that the conclusion of a state ecological expertise held by the Ministry of Environmental Protection and Nuclear Safety was illegal. This has stopped the construction of the Mineral Fertilizers Terminal in Mykolaiv (decision of High Arbitration Court, November 20, 1997).
To improve the process of public participation in environmental expertise, it is first of all necessary to promote the governmental fulfillment of legislation in the sphere of informing the public and promoting its participation. It is necessary to support the process of conducting public hearings and to take the public comments into consideration on the legislative level.
The main problem, as mentioned previously, is a lack of public awareness about environmental legislation and individual rights, and doubts about the ability to successfully defend those rights. Therefore, citizens often do not appeal to either the judicial bodies or to NGOs to deal with the problem. In addition, there are only three NGOs dealing with environmental issues in Ukraine, and private attorneys do not deal with environmental cases because they are not profitable.
The principles of filing lawsuits subject to termination, prohibition of some kinds of activities of enterprises, institutions, organizations which pollute the environment are missing in the legislation. However there is such provision in the draft of the Civil Code of Ukraine. An effective mechanism of compensation for damages caused to citizens' health as a consequence of damage to the environment is missing as well.
The amount of state duty for non-material disputes and lawsuits in Ukraine is not high, but ecological expertise is prohibitively expensive and acts as an obstacle in environmental cases.
Despite these problems concerning environmental lawsuits, the number of environmental cases in Ukraine increases every year. Some successful examples are presented here.
In the end, the park won. According to the decision of the Lychakiv district court of Lviv, the Mr. V. was ordered to pay compensation for damages caused to the park, to build a wall for holding the rest of the hill, to make the territory healthier, and to pay the costs of the project, which was equivalent to USD 450. The interests of the park were presented by Ecopravo-Lviv.
The matter involved a city council decision to give a plot of land permanently to the commercial firm Astra Ltd. to build three residential buildings. The plan included situating the buildings partially on the territory of a city park. The project proposal called for trees to be cut down; also, the planned buildings did not adhere to the insulation norms and the norms of the lighting of the living quarters. It was argued that the construction of the buildings in a densely populated district could diminish the environmental situation in general.
The NGO and citizens filed suit in September 1996, charging that the decision made by the city council was illegal and that the state act which permanently granted the land to Astra Ltd. also was illegal. Astra and the city council were named as the respondents in the case. After long court hearings and the passing of the case from one court to another, in December 1997 the Frankivskyi District Court fully satisfied the demands of the applicants. In other words, the court found the decisions of the city council to be illegal, and it found the state act granting the land to be invalid.
The project, a chemical fertilizer terminal to be located in Mykolaiv, was financed by an Irish-Russian-Ukrainian joint venture. On the day the joint venture registered to do business, it donated 30 trams and 30 trolley buses to the city. Local authorities subsequently approved the project, and construction began in August 1995 in violation of environmental laws requiring that an environmental expertise be conducted prior to project approval.
The local Ministry of Environmental Protection and Nuclear Safety (EcoSafety) ordered the company to conduct an environmental expertise of the project, and a prosecutor with the Sanitary Epidemiological Station (SES) ordered the company to stop work. The prosecutor also brought suit against the local administrators who gave the company the land for the terminal. The district court rejected this case on procedural grounds.
The company then submitted the project to the local ministry office for environmental expertise. However, the company did not publish the environmental impact assessment statement, in violation of the Law on Environmental Expertise. Local ministryofficials subsequently rejected the project on grounds that it had unacceptable negative environmental impacts. However, the company then requested the national EcoSafety office in Kiev to review the local EcoSafety office's environmental expertise, and officials in Kiev reached a positive conclusion in their own environmental expertise, overturning the local ministry office's rejection of the project.
Ecopravo-Lviv sued the national EcoSafety office in the High Arbitration Court, claiming that the environmental expertise it conducted was deficient on procedural grounds. The court dismissed the case three times on procedural grounds before Ecopravo-Lviv was granted a hearing on the substance of its claims.
Ecopravo-Lviv represented two clients in the action filed in the High Arbitration Court: Zeloney Svit (Green World), an environmental nongovernmental organization; and a shipbuilding company that claimed that the health of its workers would be adversely affected by the terminal. More than 10,000 local citizens also signed a petition opposing the project. By the conclusion of the case, this number had increased to 100,000, including the members of representative bodies such as local co-operatives and labor unions.
In its lawsuit, Ecopravo-Lviv claimed that the ministry's expertise was invalid primarily on the following grounds:
The ministry had argued that its failure to publish the EIA statement did not affect the outcome of the expertise because the public knew about the project. The court rejected this argument outright because the Expertise Law does not provide for substitution of the notice requirement. Without notice of the expertise, the court observed, the public could not fully take part in the process.
This case represents a landmark victory for Ecopravo-Lviv on issues fundamental to meaningful public participation in environmental decisionmaking. Not only does the decision uphold the basic principles of participatory democracy, it sends a clear message to governmental officials and citizens that public officials can be held accountable under the law for their actions. The case offers hope for citizens currently suffering violations of their environmental and civil rights, that with perseverance, those rights can be upheld.