Regional Overview: Western Europe

Public Participation in Environmental Decisionmaking

Legislation on Public Participation

In general, participation is limited to the following matters:

• elaboration of regulations about environmental matters;
• approval of plans, programs and policies that affect the environment;
• territorial planning, including the planning of land-use and resources and urban planning;
• decisionmaking about the issuing of authorization or permits for installations and the performance of certain activities, which also includes the environmental assessment of certain projects.

Especially in relation with the last point, the existence of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, recently amended by Directive 97/11/EEC, has served as a harmonizing element of the requirements for participation in relation to environmental impact assessment.

Public participation systems are clearly a reflection of the different societies, cultural traditions and histories of the different nations, thus explaining the differences encountered from one system to another, though they are always within the context of a series of common principles.

The Sofia Guidelines, together with the future Convention on Public Participation, are the only instruments that deal globally with this matter and which do so in an international framework with the aim of promoting harmonization. The Sofia Guidelines include a series of recommendations about public participation including: transparent procedures and provision of relevant information; consultations that take place early in the decisionmaking process, when options are still open and effective public influence can be exerted; guarantees that public opinion is taken into account, etc. Although strict compliance with these recommendations is not found in all the countries, they should nevertheless be taken as a reference when examining the different situations.

Public Participation in Making Laws and Regulations

Public Control of Decisionmaking

Public participation in the legislative function is achieved directly through the instruments of referendum and legislative initiative. Both permit the public to intervene in the legislative process.

Referenda

Austria, Germany, Greece, the Netherlands, Norway, Portugal, Spain, and Switzerland include the right to referendum in their systems. This instrument is applicable at different levels (i.e. state, regional and/or local), depending on the country.

Austria has three types of referendum, only one of which, regulated by a federal law, can be initiated by voters (10,000 voters are required). All three referendum types are applicable to all types of political issues and have been used for environmental matters. The nine states also each have different laws on referendum. The first type, "Volksabstimmung," is legally binding and an example of its use was the referendum about the nuclear power plant at Zwentendorf. The second, "Volksbefragung," is politically but not legally binding and has been used in some states; for example, the citizens of Vienna voted for the construction of the Freudenau hydropower plant in 1994. Finally, the "Volksbegehren" can be initiated by voters and, if it is signed by 100,000 voters, parliament is obliged to discuss a text, although it is not obliged to adopt it. This last type of referendum is quite similar to legislative initiative, and it has been used for animal protection and for last year's engineering referendum. In the engineering referendum, 1.2 million Austrians signed a text with proposals against genetic engineering in agriculture. Implementation of these demands has not been very successful until now.

In Germany, there are also three types of referendum, only one of which is legally binding. The referendum is possible in some states and also at the local level. The state of Bavaria has conducted more referenda than any other German state, and some environmental issues have been subjected to referendum, including development planning, traffic projects, and waste disposal projects.

In the Netherlands there is no provision for a national referendum, although there is currently a proposal to regulate a referendum which would allow popular nullification of legislation. Provinces and municipalities are able to organize referenda concerning their own regulations. However, the threshold requirements for such referenda were raised recently after a referendum in the city of Amsterdam blocked a plan to build 150 housing units on open space at the edge of the city.

In Switzerland, referenda are possible at the federal and canton (district) level. There are three types of referendum, one of which permits the nullification of a law or decree already approved by the Federal Assembly. All environmental issues can be subject to referenda which are binding and widely used in practice.

In Norway, Portugal, Spain and Greece, referendums have never been used for environmental issues, and in Greece there has never been a referendum on any issue.

Right to Initiative

Legislative initiative is only possible in Denmark, Switzerland and Spain. In Denmark there is a privileged NGO that has the right to take initiative in cases related to conservation of natural sites.

In Switzerland, all environmental issues can be the subject of legislative initiative and are often addressed through this kind of public participation instrument. This is also possible at the local level, where the required number of signatures is much lower and depends on the number of residents.

In Spain, it is possible for the public to initiate legislation at both the national level and in many autonomous regions. A national initiative requires 500,000 signatures of Spanish nationals who are recorded on the census in order to oblige parliament to debate the text of the proposition which forms the subject of the initiative. The law allows citizens to take to parliament an articled legislative proposal but does not oblige the parliament to approve it. The legal requirements demanded, together with the high number of signatures required, has prevented any national initiative from succeeding so far. Its use for environmental issues has been attempted though — several NGOs started a legislative initiative proposing a law to stop the production and use of nuclear energy in 1991. The measure failed to collect the necessary 500,000 signatures.

Public Shares Power to Decide

The largest environmental NGOs in Denmark are regularly consulted on laws and policymaking. It is common practice for draft proposals to be sent out for consultation to hearings among NGOs potentially interested in the issue. NGO representatives are also appointed as members of several advisory committees, as is the case of the advisory committee on environmental investments in Central and Eastern Europe. The Danish system also offers many examples of good practice built on a culture of consultation with the public. Environmental NGOs are members of many official committees that have advisory functions, and through that participation are allowed to influence the decisionmaking process. This is the case, for instance, for the Board of Environmental Product Labeling, which makes recommendations on which products should be labeled "green." In short, Danish environmental NGOs have the right to be heard and to have their comments and proposals seriously taken into account by government officials. This privileged position in Europe nevertheless has scope for improvement, especially in relation to support to these organizations to meet the technical and quality standards required to represent public opinion in an appropriate way, and on the issue of practically gaining influence on the final outcome in the decisionmaking process.

The Dutch system is consensus-oriented. The preparation of decisions is accompanied by a great deal of consultation with the representatives of concerned groups. All levels of government consider it an ordinary function of public authorities to grant opportunities for public participation, public sessions, hearings, etc. Environmental NGOs may be informally involved in the preparation of a decision; consultation occurs through the invitation of the authorities.

In Norway, public participation takes place during the formal process of passing a law, when the minister responsible finalizes the draft proposal and sends it out for public hearing to all institutions and interested groups. These participants have a time limit of three months to express their opinions in written form. The informal process involves several parties, including the media and influential groups and individuals who provide debate on the issue. Public opinion surveys and television debates also can be conducted. NGOs also often play advisory roles and are invited to sit on committees and form reports. Some groups are appointed to participate in the National Committee for International Environmental Issues and the Sustainable Development Committee. In addition, informal contacts are also maintained.

Under the Swiss system, each new law proposal is sent to all interested groups and parties for written comments before the draft enters parliament.

In Spain, environmental NGOs are allowed to participate in several consultative bodies at the national and regional levels, where the representatives express their opinions and state their positions regarding environmental legislation. Although there are no specific criteria for appointing NGOs, priority is usually given to NGOs with the greatest representation or presence in the specific environmental issue. Some examples include the national Environment Advisory Council, similar bodies at the regional level, and the National Water Council. However, environmental NGO involvement in such bodies is quite a novelty in Spain, and is not yet provided with budgetary means to help the councils or the NGOs to support its development. These conditions recently caused a majority of the NGOs participating in the Environment Advisory Council to leave because the council failed to meet expectations.

In Ireland there is no regular process for involving or informing environmental organizations on legislative issues. This happens on an informal basis, however, and it is possible for these groups to give input into legislation. In certain cases individual government ministers or public officials can invite submissions from environmental organizations or can organize meetings with them. In general, selected individuals and some NGOs can give input through the Advisory Committee created to make recommendations to the Environmental Protection Agency or the Minister for the Environment relating exclusively to the functions of the EPA.

In Austria, some authorities invite environmental NGOs to comment on law initiatives, although they do not have a right to comment in the same way as other Austrian NGOs that belong to the so-called "social partnership."

In Germany, the partnership approach has not yet been introduced. Environmental NGOs with legal status only have the right to observe and inspect expert reports in connection with the preparation of laws by authorities responsible for environmental affairs.

In Greece the partnership approach has not been introduced at all. Public participation consists of the right to address petitions and applications to political parties or members of parliament and to submit petitions and reports to the authorities, which are obliged to act in a short time and to give a response, properly based, to any petition or report.

In Portugal, although environmental NGOs do not legally have the right to be heard on national law-making, the government often consults them.

Finally, there are no public participation rights as such set out in any legislation in the United Kingdom. There are some provisions for consultation to take place, and such consultations depends on the invitation made by the public authority for representations to be made by members of the public.

Overall, the systems are rather different. There are some cases of good practices, but in most of the countries there is great room for improving the procedures for participation in the elaboration and approval of laws and regulations. In this sense, and as has been mentioned above, the future Convention on Public Participation can help to harmonize criteria and practices for lawmaking.

Public Participation in Policies, Plans and Programs

Danish environmental NGOs are regularly consulted on policymaking. Regarding plans and programs, legislation provides that proposals should be presented at an early stage, that it must be assured that plans are debated among the public and that it is possible for the public and other groups to comment on them. In some cases, notification of plans is restricted to people and organizations that have the right to appeal. At the local level, NGOs participate in the monitoring and influencing of decisions through the so-called Green Councils.

In the Netherlands, the right is recognized for any person to contribute comments on draft plans such as provincial and national environmental policy plans. Public participation is the first step in some legal proceedings, including municipal zoning plans. When some of these proceedings are formally restricted to interested parties, the definition of "interested" is given a broad enough interpretation that environmental NGOs active in the region concerned have access to the proceedings based on the objectives established in their statutes.

In Switzerland, policymaking includes regular consultations with NGOs, provided the subject of the decisionmaking process is relevant to them. Besides this, and at the canton level, individuals and NGOs have the right to petition.

Spanish NGOs can participate in approval of policies, plans and programs through their participation in different consultative bodies at national and regional levels. Land legislation sets out mandatory periods for public participation in town planning procedures and allows affected individuals and interested NGOs to participate in these procedures. The effectiveness of these procedures are considered to be far from the desirable level of development, though some good examples can be found in recent years.

In Ireland, public involvement in the planning process is set forth by different acts. Development and environmental plans are approved every five years, and draft plans are put on public display for at least three months. Any person is allowed to comment on a draft, and changes approved consequently must be displayed afterward for at least another month. Local waste management plans and Environmental Protection Agency hazardous waste management plans are put on public display for two months. Written comments on the proposals are taken into consideration by the authority when it finally approves the plans. Water quality management plans are also available for public inspection, and members of the public may make written comments on them. Finally, air quality management plans may be also subject to inspection by the public and any comments made on them must be taken into account by the local authority when making the final decision.

As mentioned above, some Irish NGOs and individuals are members of the Advisory Committee created to make recommendations regarding functions of the Environmental Protection Agency. This ability to give comment directly to the EPA or to the Minister of Environment constitutes direct participation in some environmental planning decisionmaking. It should also be mentioned that the National Trust for Ireland — An Taisce — as a prescribed body, is designated by the Planning Act to receive privileged treatment with regard to participation in decisionmaking about environmental plans. This gives them the right to receive copies of draft plans and notices of planning applications, etc.

In Austria, some authorities can invite environmental NGOs to participate in working groups involved in preparing national environmental plans. However, this rarely happens in practice, and NGOs do not receive money for such work. Also, comments on plans for releasing genetically modified organisms have to be taken into account. Finally, every time an individual right is affected, public participation is allowed, but only for affected individuals.

The German system regulates public participation in formal public planning procedures and in development planning. The participation rights provided by transport planning laws have been reduced. Many non-public procedures are of this type; it is possible to gain information, inspect files and submit comments, but the procedural rights are limited to those people who may be affected. Environmental NGOs with legal status have only the right to observe and inspect expert reports in connection with the preparation of district and regional landscape plans and formal public planning procedures.

Portuguese law gives environmental organizations a specific right to consultation and information concerning the plans, proposals and studies of the central, regional and local administrations. These rights apply primarily to regional land-use plans; general municipal plans and other urban studies and projects; integrated regional development plans; and plans and projects for hunting, forestry or agricultural development or protection.

As mentioned above, there are no public rights as such set out in any legislation in the UK However, there are some provisions regarding consultation, in particular within the planning system. Furthermore, in recent years the public's right to be consulted has been recognized by the courts in certain cases.

Throughout the region, public participation in preparation of policies, plans and programs is not adequately developed, and in some countries the arbitrariness is very broad. In addition, there is a clear need to commit funding and general institutional support to encourage public participation in environmental planning. The lack of participation in many cases makes the necessary environmental planning totally ineffective. The principle of shared responsibility demands public participation in the design, approval and application of policies, plans and programs. This fact should be taken into account more by planners, particularly by those who really wish to have effective plans, programs and policies.

Public Participation in Siting, Permitting and Environmental Impact Assessment

In Austria, when there is a formal procedure and individual rights are affected, or in an EIA issue, individuals and NGOs are adequately notified about the decisionmaking process. The Law on Environmental Impact Assessment and Public Participation entered into force in 1993. According to that law, everybody is allowed to get information about the project and to comment on it within six weeks. EIA results are to be published and discussed in a public hearing. Affected individuals can create a citizens' group which is a formal party in the permitting proceedings. Their opinion must be taken into account and they are able to challenge the permitting even at constitutional court level. A similar system has been established regarding release of genetically modified organisms (GMOs). The Law on Genetic Engineering (1994) provides for a six week period during which anyone is allowed to comment before companies can receive a permit to release a GMO.

In Germany, several attempts to deregulate and simplify several environmental laws in order to speed up permitting procedures have led to a decline in public participation in recent years. The number of industrial permitting procedures that require public notification and public participation has been reduced. Genetic engineering legislation has also faced some changes; for example, public hearings in permitting procedures have been abolished. This trend is not applicable to the EIA procedure, which remains unchanged.

The Dutch system allows public participation in the most important environmental proceedings concerning environmental and emissions licenses for industrial, energy-producing and waste-processing installations; proceedings to establish the routes of highways and rail lines; and the construction or extension of airports. Many of these proceedings are open to the public, and when restricted the broad interpretation of the concept of interested parties allows NGOs to participate in the procedure.

The Irish system provides different provisions regarding public participation on licensing application procedures. For instance, regarding planning permission, any person may inspect an application and submit a written comment which must be taken into consideration by the planning authority when making its decision. In the case of applications for integrated pollution control licenses, submissions may be made in the early stages and are available for public inspection for two months. Similar provisions apply to waste license applications, waste collection permits, applications for licenses for direct discharges into waters (but not for discharges to sewers) and for air pollution licenses.

Spanish legislation allows public participation on procedures regarding EIA; authorizations for the installation and activity of annoying, unhealthy, harmful and dangerous activities; and authorizations for activities likely to cause pollution or degradation of public waters, particularly discharges of wastewaters and products. These procedures allow all citizens to present comments and claims. Although sometimes this participation is limited to affected or interested parties, the interpretation of this concept includes environmental NGOs. Despite the fact that notification is usually restricted to affected parties, information can be accessible in official journals or by other means (e.g. town council notice boards).

Some countries reported important concerns regarding EIA. In Portugal, for instance, where NGOs have the right to consultation and information regarding EIA procedures, the law provides the right to participate only after the project is already defined, thus making participation an ineffective form of social legitimization of the decision rather than ensuring real participation. In fact, EIA legislation is currently under review in several countries because of varying levels of noncompliance with the EU Directive. This is the case in Denmark and in Spain. The EIA procedure is viewed in several countries as a formalized and empty procedure without a proper influence on the final decision.

Public participation in granting licenses and permits is also limited in several of the surveyed countries. The most common problem is that by the time participation is allowed it is not feasible to contribute alternatives because the proposals are almost completely closed. In addition, this type of participation is often restricted to affected parties, although in many countries the participation of environmental NGOs is permitted within the interpretation of this concept. For effective participation, it is also important for information provided to be sufficiently broad and widely available. Finally, there is a need to promote participation in these procedures in a more decided way and, specifically, by providing the technical assistance necessary for this participation.