There has been some criticism from the Danish NGOs that the Danish government's implementation of these guidelines has been for the most part on the local level rather than the national level. In particular, the expression "sustainable development" has yet to be defined, and indicators need to be designed so that it will be possible to measure improvements in smaller communities.
Besides this report, no other initiatives to evaluate the Sofia Guidelines have been taken.
The responsibility of the administration for these acts is divided among the national authorities, the counties and the municipal level. In addition, as a member of the European Union, Denmark is subject to the environmental legislation from the EU.
The local governments have a right to adopt regulations independently from the central government. Environmental legislation at the national level is characterized as being framework legislation, which means that it is up to the regional and local administration to work out the details. This method is used in order to promote decentralization and thereby enhance public participation at the regional and local level. As early as 1974, the municipal councils became the foundation for the new environmental administration.
In addition, the counties were given new responsibilities when they were appointed to issue environmental consent to the enterprises in their region. As a result, the counties now supervise these enterprises.
Other acts include these three on administrative management:
The directive differs from the original Danish laws in two ways: 1) it defines an absolute time limit of two months for replies; and 2) it gives access to information that enterprises with a public responsibility for the environment have in their holding.
Environmental information is defined in directive 90/313/EEC as information concerning the state of:
This includes information on activities or measures affecting the above, or designed to protect them. Also included are administrative measures and environmental management programs.
The following is a listing of some of the types of information that a person or organization can request from the public authorities at any level:
These indicators are classical environmental statistics of the so-called "end-of-pipe" environmental strategy, which is related to a sector approach. The question today is how to develop these indicators to include the cross-sectoral aspects of sustainable development. Sustainable development also implies other dimensions such as social and economic conditions that are not measured with end-of-pipe indicators. Consequently there is a need for developing new indicators which are based on this way of thinking. One example of a new indicator could be on the air quality. Instead of only measuring the emissions it could be related to the public health condition.
Conditions for Obtaining the Information
Both the directive on access to environmental information and the open files act define public authorities as being any public body at the national, regional or local level that has responsibility for or obtains information related to the environment. The directive also includes semi-public enterprises. Examples of these might include an electricity company that produces, transmits or distributes electricity over a certain number of volts; institutions that are running a natural gas network, etc.
In general, the directive applies to all companies partly owned and controlled by the public authorities. Other examples might be the A/S Great Belt Connection and the A/S Sound Connection, as they are not in competition with other companies.
The time frame for the public bodies to respond to a request is determined in both the open files act and the administrative act and demands that the authorities react 10 days, should it be possible to respond to the request immediately. All requests should under normal circumstances be addressed within 10 days. The absolute time limit for providing information or sending out a final refusal is two months. In case of a refusal, one is always entitled to get a substantiated reason from the authorities addressed.
Any natural or legal person may make a request. This means that not only private persons, but also organizations and companies have the right to access to environmental information.
It is up to the authority in question to decide in which particular form the information will be provided. That means whether the information will be provided in oral form, written form, in software — or if it is possible to inspect the actual documents.
Refusal to Provide Information
The public authorities can decide to refuse a request if one of the following situations is relevant:
These exemptions to the rule on access to information are formulated in fairly broad terms. This means that in theory it would be fairly easy for the authorities to find a reason why the information could not be provided, but in reality this is fortunately not the case in Denmark.
Informal Guidelines for Agencies and the Public
General and rather detailed guidelines exist on how the public should request environmental information from the authorities. For present purposes, we will only describe the ones that are most essential. First, it is not necessary to give a reason for the request. Secondly, there does not exist any specific condition for the form of the request, which means that the request can be a written letter as well as an oral request over the phone.
Generally speaking it is a good idea to make the request as concrete as possible and to direct it to the specific public authority holding of the information needed. This means that it is necessary to do some research before the request is elaborated. It is also recommended to specify in which form (written or on computer disk, etc.) you wish to receive the information. In most cases the public authorities provide the information by sending a copy of the requested material, or simply over the telephone. The authorities can charge payment for this information to cover costs.
Specific Institutions/Officials to Provide Information
A wide range of the institutions placed under The Danish Ministry for Environment and Energy are responsible for providing environmental information to the public. They include:
The following also provide information related to the environment:
These institutions have traditionally assisted the public with getting the environmental information needed. Information concerning the environment is published by these institutions and is available at a publicly owned Environmental Shop in downtown Copenhagen. The information is either free of charge or (in the case of reports, etc.) provided at cost.
If an Authority Does Not Possess the Information
If the public authorities do not possess the information requested, they are obliged to forward the request to other agencies (The Guide to the Open Files Act, p.14, Paragraph 19). On the other hand, they are not obliged to provide information from a different agency, and it is therefore important to do some research before the request is made. In most cases the authorities addressed will be helpful and suggest which other institutions might be relevant to the specific request.
Information Held in Public Registers
Environmental information in the form of raw data, so to speak, is not held in public registers in Denmark. But information in the form of published reports is held in a database, which is accessible in the Environmental Shop mentioned previously.
In addition, the environmental protection agency has made all its publications available on the Internet.
As mentioned above, some of the public authorities are obliged to actively disseminate information to the public. Active dissemination of information takes place in connection with spatial planning in general. The counties and the municipalities are responsible for the dissemination of information at the local and regional level prior to a decision on the future development of a specific area, or in connection with environmental impact assessments.
In case of an emergency there are several different institutions that are responsible for the active spreading of information including environmental information. For instance, in case of a nuclear disaster the main responsibility lies with the emergency agency. In other cases, for example where there has been a contamination of the groundwater the local authorities will have the responsibility to warn the local residential areas; and if the contamination spreads to other parts of the country, the Danish EPA would then step in.
Methods of Dissemination
Strategic environmental planning in Denmark is based partly on a report that describes the state of the environment and the impacts thereon and partly on another report that describes the follow-up policy initiatives. These reports are published every fourth year. The National Environmental Research Institute prepares the reports on the state of the environment. The first report was published in 1993, the second in 1997. The ministry for environment and energy prepares the report on Denmark's Nature and Environment Policy. The first report was published in 1995; the second shall be published in 1999. Both reports are very useful tools for the public and the NGOs in monitoring the performance of the public authorities. Furthermore, the ministry every year prepares a publication of statistics on environmental indicators.
Electronic Means of Dissemination
The Danish authorities are under no obligation to spread information electronically. However, the ministry for environment and energy has a Web site where the public has access to a wide range of documents, legislation and so forth published by its institutions.
Nongovernmental Centers
Green Information is the name of an information center on the environment and consumption, which was founded by five NGOs in November 1993. The center is independent but is 100 percent subsidized by the government. Its main purpose is to assist the Danish population in minimizing negative environmental impacts and also to give concrete advice on how each individual person can help these processes. In an evaluation of Green Information in May 1996, many of the users of the information center agreed that the information they got had a positive impact on their behavior in an environmental perspective. In 1996 Green Information had about 8000 inquiries and 5000 subscribers to their magazine, Environmental Facts/Green Advice.
It is also common practice among the Danish NGOs to provide environmental information or other information to any citizen who approaches them with a request.
Informing the Nongovernmental Organizations
One of the things that characterizes the relationship between the nongovernmental organizations and the governmental bodies is the long tradition of formal and informal meetings and collaboration between NGOs and the public authorities.
These meetings are an established part of the decisionmaking process and many of the larger NGOs in Denmark attend hearings and participate in working committees several times a month, thereby having an opportunity to comment on the proposed legislation and to keep up to date with the authorities' environmental efforts.
All the sessions of the Danish Parliament are open to the public. The chairman, some of the members or a minister do have the right to request that a session be closed but this right is practically never used. The meetings of the committee on the environment and regional planning are closed to the public, but it does receive delegations and as such this makes it possible for different interest groups to present their views. In addition, all the documents sent to or from the committee are accessible to the public.
Another committee related to environmental policy is the EU Special Committee on Environmental Issues. This committee is placed under the environmental protection agency and allows a wide range of commercial as well as non-commercial NGOs to attend and comment on drafts from the European Commission four times a year. These comments are taken into account by the authorities when the final negotiating paper is drawn up.
The committee is an example of a well-functioning exchange of opinions between the NGOs and the government. But on the other hand it is far from enough to actually influence the EU policy process. Based on experience, to gain influence it is necessary to be involved earlier in the process, preferably already while the commission is still working on the draft proposals. Those kinds of activities, however, demand a lot of resources, which the NGOs only hold to a very limited extent.
In Denmark there is also so-called Green Accounts, a concept which obligates certain enterprises to present an account of relevant environmental information to the authorities. In the future this could be an area where it would be possible to measure the environmental impact of these enterprises.
Another example is the Register of Products, which contains information about all the products on the Danish market defined as dangerous substances, products or materials. The information is confidential and is accessible to the Danish EPA and the Occupational Organization. However, it is possible for an NGO or an individual to obtain information, for example if one wishes to inquire if a certain substance is contained in a specific product, but one needs to know what one is looking for.
The policymaking in relation to the labeling, marketing and distribution of chemical substances is one of the most complicated and important areas, and has a tremendous influence on the future protection of the environment. But the fact is that it takes a lot of resources to keep up to date with the development of chemical research. This means that it is very difficult for NGOs, especially those with smaller budgets, to "compete" with the knowledge in the possession of the chemical industry. This makes participating on equal terms difficult.
Another problem is that it can be difficult for the Danish citizen to fully understand the labeling of the products and in some cases this could cause serious threats to the health and safety of the users and consumers of various products. Similar problems arise in connection with some aspects of the environmental policy of the European Union. Today the policymaking in relation to standardization of products is without any public participation, influence or control. The standardizations are elaborated in committees which are dominated by the industry, and it is impossible for the NGOs to keep up with their resources.
Of the three major environmental acts, the Planning Act (Promulgation Order No. 563 of June 30, 1997) includes the most detailed procedures for public participation in the decisionmaking process. The Environmental Protection Act (Promulgation Order No. 625 of June 10, 1997) as well as the Nature Protection Act (Act No. 9 of January 3, 1992 as amended by Act No. 439 of June 1, 1994 and Act No. 19 of January 13, 1997) are both lagging behind in this respect.
The procedure laid down in the Planning Act declares that 1) proposals should be presented at an early stage; 2) it must ensure that the plans are debated among the public; and 3) it is possible for the public and other groups to comment on these plans.
The environmental protection act makes use of the well-established cooperation that exists between the NGOs commercial, non-commercial and decisionmaking bodies. In the administration of the nature protection act, there are provisions stating that the notification of plans is restricted to persons and organizations that have the right to appeal (see under "Access to Justice").
Other more recent examples of laws dealing specifically with the subject is Directive 85/337/EEC (since updated by Directive 97/11/EEC) on Environmental Impact Assessment (EIA) which to a large extent deals with the involvement and participation in decisionmaking processes related to larger projects.
However, many of the NGOs agree that in some cases the EIA in practice has become a formalized and "empty" procedure without any concrete influence on the final decisions made. The EIA was initially meant as a very cogent procedure, but Danish authorities have been criticized that the implementation of the procedures has not been satisfactory and that the procedures are not followed as cogently as they were meant. The Nature Protection Board of Appeal has agreed with the criticism of the NGOs and has pointed out to the authorities that the EIA procedure has to be followed according to the provisions of the Directive.
In an attempt to sharpen the EIA procedure the authorities have elaborated a new proposal on this procedure, but at present time it is still waiting to be discussed in the Danish Parliament.
The right to a referendum on the environment and related issues in Denmark does not exist. This is due to the fact that we have a tradition of consensus, and referendums are therefore primarily used in connection with issues that have major political consequences, such as Denmark's membership of the European Union and the various treaties ratified by it.
Right to Initiative
The Danish Society for the Conservation of Nature (DSCN), with approximately 210,000 members, has a very unique position as an NGO in Denmark. Since 1937 it is the only NGO in Denmark that has the right to initiative in cases related to the conservation of areas.
The conservation of nature can have many different purposes:
When the DSCN decides to request the conservation of an area, it begins by drafting a conservation proposal, often in collaboration with the authorities and in some cases with the plot owners. The proposal is sent to the nature conservancy board and the plot owners affected. Afterwards the nature conservancy board has public hearings on the proposal. After a period (of many years, as is often the case) the board makes a decision. However, this decision is not final and can be appealed to the nature protection board of appeal, which is quite common practice. This is especially the case when the question of larger financial compensation is raised as a result of the conservation of an area. Today approximately four percent of Denmark's total area is conserved and more than 50 cases are under consideration.
The many local branches of the DSCN play an important part in conservation cases because they have the advantage of being "on site." As such they collect detailed information about the area in question, which is essential to the work of the organization as a whole.
Two NGOs, The World Wildlife Foundation and the Danish Society for the Conservation of Nature are members of this board as equal partners, as they have one vote like the other members of the board, representatives of the council on consumers, industry, etc. At first this would seem to be a great opportunity for the NGOs to have direct influence on the decisions made. But on the other hand this is a potentially dangerous situation for the NGOs.
This is due to the fact that the decisions made by the board presuppose a detailed knowledge of each and every one of the products, a process which costs the NGOs both time and money. The fact that at least 20 percent of the products in each product group must be labeled green puts additional pressure on the NGOs. In the worst case this could mean that the NGOs might be pressured into a situation where they label a product as green which later on may turn out to have a contaminating effect on the environment. Such a case could cause a lot of problems for the NGOs and weaken their credibility in the public eye.
In 1997 for example, DSCN participated in approximately 10 hearings concerning genetically modified organisms, but in none of these cases did the comments of the organization change any of the decisions made by the authorities.
Another example where NGOs see a problem in getting through to some of the decisionmaking bodies concerns the Green Councils.
The counties have over the years attained technical skills in the environmental field, and as a consequence have gained a central position in the Danish environmental administration. It therefore became more important for the NGOs to monitor and influence decisions at this level, which lead to the formation of the so-called Green Councils.
Some of the NGOs express concern that in reality it can be difficult to get through to the officials at the county level in these Green Councils. This might be one of the areas where there is a need to insert some new mechanisms which can improve collaboration between NGOs and the county officials.
To understand the importance of these Councils one needs to keep in mind that at the same time the "Municipal Councils became the foundation for the new environmental administration" in 1974, the Counties also gained an important role, as they became responsible for "issuing consents to particularly complex and environmentally troublesome enterprises." The counties supervise the enterprises to which they have issued environmental consents, and as such continue to play an important role in the decisionmaking process in this field.
The provisions of the planning act and the EIA specifically mention the participation of the public in the decisionmaking process and as such supports the individual's and the NGO's right to have their comments taken into account by the authorities.
The nature protection act states specifically that the Danish Society for the Conservation of Nature is to be notified of any exemptions that are issued in connection with the conservation of an area, or any case which is protected by the general provisions of the act.
It is not uncommon for some of the larger NGOs to receive several draft proposals a month. This gives the NGOs a chance to keep up to date with the activities of the official authorities. It is also fairly common that the NGOs have personal contacts within the public bodies, which can provide them with information.
Having said this, there are still many areas where progressive changes are needed, and especially where factors such as participation and information available to the public need to be recognized as important parts of policy-making in general.
Possibility to Influence
The lobbying of the NGOs can be characterized as being an established part of the decisionmaking process in the sense that the existing collaboration such as the hearings and meetings between the official bodies and the NGOs follows substantiated procedures as described earlier. These procedures are defined by being more open, and as a result the public has the possibility to monitor which groups participate in the different committees.
In connection with this collaboration the authorities expect the NGOs to provide expert knowledge on a wide range of subjects. But there is an inconsistency between these expectations and the resources that are available to the NGOs from the authorities. In many situations the reality is that the NGOs are just barely able to sustain the role as the qualified opponent that is so important for the environmental decisions made.
Openness of Parliamentary Committees
Any person has the right to approach parliament with a statement. Even though this right has been used by some of the NGOs (DSCN/WWF), it is not one of the most common procedures. When the NGOs want to influence the decisions made at this level, they often use an indirect approach through members of parliament.
During the recent years more and more of the environmental legislation originates from the institutions of the European Union. In terms of influence on the policymaking of the EU, the Danish NGOs have a very weak position in comparison with decisions made at the national level.
In relation to some specific issues the minister has set up advisory committees, as for example the advisory committee related to environmental investments in, and assistance to, Central and Eastern European countries. In these committees the NGOs participate on equal terms.
Some interest groups are in possession of many more resources than environmental NGOs and thereby gain more influence. The most powerful of these organizations is the Confederation of Danish Industries and the National Association of Local Authorities in Denmark.
As an effort to strengthen the position of the environmental organizations in Denmark, these organizations choose to work together and prepare common statements on certain issues. The so-called Green Contact Committee and the 92 Group (refers to the Rio Conference in 1992) are both examples of cooperation between the Danish NGOs. For instance, the Green Contact Committee meets once or twice a year with the minister of environment and energy and thereby gets a chance to set the agenda and present its opinions on various subjects.
In Denmark, there exists a public funded board of technology whose main purpose is to initiate public discussions on different issues related to the implementation of new technology and in some cases, the environmental consequences of these technologies.
As mentioned, Agenda 21 is another example of how the authorities try to promote public participation at the local level, although the original intent has not been fulfilled.
The Green Foundation is, as the name implies, a fund that supports projects on environmental issues and in some cases projects that deal with public participation in relation to environmental policymaking.
One of the projects that The Green Foundation partly finances is the Green Guide project. At the moment there are around 60 Green Guides all over the country. A Green Guide is a person with a connection to a small local area who helps the population to live in an environmentally friendly way. They are thereby contributing to sustainable development.
In the case of territorial plans, for instance, the possibilities of appeal are rather limited. Another example is the nature protection act, which explicitly delimits the right of administrative appeal to 1) the addressee of the decision, 2) public authorities, 3) the Danish Society for the Conservation of Nature, and 4) local associations and others that have a substantial interest in the decision. As a result, this means that in such cases individual neighbors do not have the right to appeal. This is just to show the complexity of the Danish legislation in this field.
It should also be noted that in relation to cases on environmental liability and compensation for restoration, the NGOs do not have access to justice in the administrative appeal system although it is possible to appeal to the Danish Courts. This is a concrete example of an area where there is a need for clear statutory rules, which would strengthen the position of the NGOs and thereby ensure a legal foundation for their future work for sustainable development.
In addition, many of the environmental cases are not brought before the Danish courts. This is due to the fact that Denmark has a well-established administrative appeal system in connection with the environmental law system. The appeal system consists of two independent appeal boards, the environmental appeal board and the nature protection board of appeal.
| TABLE 1: Administrative Standing | |||
|---|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | In the judicial appeal of administrative decisionmaking process | |
Individuals |
|||
| every person | - | - | - |
| interested | - | x | - |
| affected | x | x | x |
NGOs |
|||
| everyone | - | - | - |
| interested | (x) | x | (x)* |
| affected | - | x | x |
* This was demonstrated in the case of Greenpeace versus the Ministry of Transport. |
|||
At the same time, Greenpeace also took action against the ministry of transport on EIA rules in relation to the A/S Sound Connection. For the first time in Denmark an environmental organization was "found to have a right of action — without legal support and without being entitled to invoke its members' economic interest as being affected." Thereby, the court acknowledged their right to legal standing and the case is going to the supreme court in November 1998.
A general and simplified description of the procedure in which an NGO, such as the Danish Society for the Conservation of Nature (DSCN), can appeal to the decisions made by the administrative authorities:
| TABLE 2: Statistics on Number of Administrative Appeals | ||
|---|---|---|
| The Danish Society for the Conservation of Nature statistics on the number of administrative appeals in relation to:
the Nature Protection Act, the Act on Forests, the Act on Raw Materials and the Planning Act.
|
||
| Year | A | B |
| 1983 | 48 | 53 |
| 1984 | 40 | 53 |
| 1985 | 50 | 50 |
| 1986 | 72 | 40 |
| 1987 | 115 | 63 |
| 1988 | 62 | 85 |
| 1989 | 87 | 73 |
| 1990 | 66 | 48 |
| 1991 | 52 | 64 |
| 1992 | 68 | 84 |
| 1993 | 71 | 75 |
| 1994 | 65 | 81 |
| 1995 | 50 | 94 |
| 1996 | 45 | 76 |
| 1997 | 55 | 112 |
In environmental injunction cases there exists the possibility that the environmental authorities issue a deadline extension. The deadline extension is a sort of interim injunctive relief in cases where the authorities accept the explanation from the enterprise in question and as a result does not report them to the police. It is also a built-in practice that when an injunction is issued to an enterprise there automatically follows a guidance of appeal.
The county prefect and four members of the county council will be in charge of cases concerning the municipal politicians. If the cases involve the politicians at county level the ministry of interior will act as the supervisory body.
As mentioned above most environmental court cases are criminal cases, where the penalty consists of fines. In 1992, the total amount of fines peaked to about DKK 3 million, but seen in a larger perspective this is not a great amount. This could be a result of the following: 1) that the authorities were not yet fully capable of exposing all the environmental crimes; or 2) that the fines were too small.
The general understanding in Denmark has been that the penalties for environmental crimes were too mild. In some cases it could actually be worthwhile and economically more attractive to pay the fine than follow the environmental protection act. Because of this, the Danish Parliament passed on a new legislation, as late as 1997, to encourage more severe penalties. At this occasion the environmental protection act, the chemicals act and the criminal code were changed in what was called the enforcement package.
The average time for appealing an administrative decision in civil court cases is rather long — it can take up to 3-4 years in the high courts (as first instance) and 2-3 years if the case goes on to high courts as a second instance. With criminal cases the average duration is much shorter, city courts use a couple of months and three to seven months in high courts as a second instance.
If a case is submitted to the nature protection board of appeal, the average duration for a final decision to be made is six months, and at the environmental appeal board an average case can take from six months to several years.
If a citizen loses a court case he/she is not always ordered to pay the legal costs of the opposing party. But in cases where the citizen has chosen to contest the decision of the courts, he/she may end up having to pay all the costs in connection with the case.
From 1994 to 1996, the ombudsman of the parliament had 24 to 30 cases a year, which were defined as being under the responsibility of Denmark's Ministry of Environment and Energy. Environmental cases account for around one percent of the total number of cases dealt with by the ombudsman of the parliament. An average of 15 percent of these cases was acted upon. It should also be noted that many of the cases dealt by the ombudsman of the parliament concern access to information.