Regional Overview: NIS Countries
(continued)
CONCLUSIONS AND RECOMMENDATIONS
The principles of public participation in environmental decisionmaking are well-established in the legislation of the NIS. Unfortunately, little has been done during the past three years to transform legal provisions into practice. One of the main reasons for the lack of participatory democracy in the NIS is bad enforcement, which makes it a "democracy on paper."
Several recommendations can be made on the basis of analysis of current NIS national legislation and practice of its implementation.
In the Sphere of Access to Information
The main condition for the enforcement of legislation on public participation in environmental decisionmaking is access to information. The definitions of "environmental information," "public," "public domain" of information and "environmental decisionmaking" are absent in the legislation of the NIS, as is the procedure for obtaining the information. The NIS would benefit from a specific law on environmental information that would define these terms. The definition of environmental information should include not only information on the state of the environment but also information on planned and ongoing activities that are harmful or could harm the environment or the state of health and safety of the population. Such a law or regulation could also mandate publicly accessible environmental registers in which information on planned environmentally harmful activities would be compiled.
The questions of payment for information and forms of information available for the public are not clearly regulated in current legislation. These questions should be addressed by the legislation of the NIS in accordance with the Convention on Access to Information and Public Participation in Environmental Decisionmaking. The possibility to make environmental information available on the Internet would be welcomed by the public, although a contrary opinion of governmental officials and their arguments about the poor economic condition in the NIS are to be expected.
In the legislation of the NIS, the provisions for a public-interest test possibility in classifying environmental information do not exist. Such a practice does not take place in Armenia, Belarus or Moldova and it happens very rarely in Russia and Ukraine. Guidelines or regulations on using this test and its application in practice would be welcomed.
The level of environmental consciousness and awareness as well as the legal culture of the public and governmental officials in the NIS is very low. There is a clear need for environmental education of the population and training programs on environmental and legal issues throughout the NIS.
It would be beneficial to have an information department at the Ministry of Environmental Protection in all the NIS and to see the creation of independent national environmental information agencies similar to the existing RFEIA in Russia.
In the Sphere of Public Participation in Environmental Decisionmaking
There are some substantial gaps in NIS legislation on public participation in environmental decisionmaking, especially on permitting, licensing, land-use plans and environmental funds. As a result, the practice on these issues does not exist or is poor. The main obstacle is that the public has no access to information in this type of decisionmaking or citizens/NGOs get the information after the decision has been made. The national legislation of the NIS has to be developed in a way to include public participation provisions in all types of decisionmaking.
The current NIS legislation contains clear provisions on public participation in EIA and environmental expertise. However, one of the most significant drawbacks of the current system is the lack of access to information about EIA or SEE. The developers and local authorities should be made responsible for informing the public about planned activities that can have negative impact on the environment; otherwise public participation provisions will be not more than a declaration.
According to the current NIS legislation, public comments and opinion can be taken into account or consideration when making the decision in the procedure of EIA and SEE. It would be useful to make this consideration mandatory for governmental officials responsible for conducting the EIA and SEE.
The main and the most powerful tool for public participation in EIA and SEE is public hearings. The regulation of public hearings does not exist in the legislation of the region. Only a general obligation of the developer to conduct public hearings is contained in the NIS legislation, and it is violated often in practice without any liability. It is necessary to adopt clear regulation of the procedure of public hearings throughout the NIS.
It would be useful to make the provision about participation of the representatives of the public in SEE expert committees obligatory because now it is left entirely to the discretion of governmental officials responsible for conducting the SEE.
The scope of SEE and public participation provisions in it should be broader, and SEE should cover policies, plans, programs and other strategic decisions as well as projects.
In the Sphere of Access to Justice
The main obstacles in access to justice are:
- lack of financial resources to apply to the court and to pay court expenses;
- lack of lawyers specialized in the sphere of environmental law and a shortage of public-interest environmental lawyers in the NIS;
- low level of environmental and legal consciousness of citizens and NGOs, which often do not know their rights granted by law;
- lack of tradition o solving environmental problems and protecting environmental rights of citizens in the courts;
- corruption of officials and distrust of independent courts;
- difficulties in proving the relationships between environmental pollution, activities of some polluters and their consequences that harm the environment and health of population, and the necessity to conduct environmental expertise which is usually very expensive;
- the fact that court practice on protection of environmental and public participation rights of citizens is new and is in the process of formation, as well as the court system's new standing as an independent branch of power in NIS.
The recommendations concerning the above-mentioned obstacles to access to justice are:
- to include a provision that allows the possibility of waiving state duty and court expenditures (or at least reducing them) for citizens and NGOs that sue to defend public interests;
- to develop and support a network of public-interest lawyers, to create new public interest environmental law firms, to exchange experience with colleagues in CEE and NIS regions;
- to promote environmental education, especially in the sphere of environmental law and environmental rights of citizens and NGOs;
- to create precedents and to develop such a court practice;
- to conduct training programs for lawyers on environmental enforcement and court defense of environmental rights of citizens;
- to actively spread information about successful court cases in the mass media of the NIS region.
REC * PUBLICATIONS * DOORS TO DEMOCRACY - NIS * REGIONAL OVERVIEW
