Estonia

I. The Context of Public Participation in Estonia

Around 1988, even before the movement for independence began to gain momentum, environmentalism in the form of non-governmental organizations and even political green parties was very popular and environmental protection was high on the political agenda. At that time it could truly have been said that popular opinion and the priorities of the public were actually driving forces behind increased public participation. But since independence has been regained the implementation of economic reforms and relations between ethnic Estonians and the Russian minority have preoccupied the press and the population as a whole. More recently, tensions between the two ethnic groups have decreased. Meanwhile, the Green Party, which played a not insignificant role in politics just after independence, has become increasingly marginalized and in anticipation of the 1995 elections entered into a coalition with, among others, the Royalist Party (which had approximately 7% of the seats in the last parliament).

It may seem ironic that the major impetus behind an increase in public participation, at least as embodied in the law, is coming from a group which in the past had been opposed to greater public participation, since it meant greater scrutiny over their activities and less control over their decisions Ð that is, persons in the government itself. But government administration in Estonia has undergone a generational change. At least some officials in the Ministry of Environment are familiar with public participation practices in other countries and recognize the importance of public participation. The new openness can be illustrated by the case of the Law on Building and Planning, presented to Parliament in early 1995. Authorities conducted pilot studies about public participation in land use planning on various levels, with generally positive results, and thus included substantial public participation provisions in the final bill. Working groups charged with drafting laws and developing policy are using public participation as an aid in reaching consensus. These working groups use public partici-pation on an ad hoc basis, however. No laws or rules govern the deliberations of such bodies.

Additionally, Estonia is a member of numerous international conventions and knows it is obliged to implement principles of information and public participation pursuant to some of these conventions. As a small, precariously positioned country it relies more on such international agreements than most other countries. It has entered into 15 conventions, more than the other Baltic countries. Also, in 1995 a chair in environmental law was established at the University of Tartu.

Another important trend in Estonia is decentralization of governmental power. Like a handful of countries in the region, Estonia has moved relatively swiftly to transfer power from the central authorities to localities. This potentially is good news for the environment, since many environmental issues are better resolved on the local level, but in the beginning stages difficulties will be encountered. For example, environmental specialists are basically unknown on the local level and it will be some time before local authorities can be trained to follow national environmental policy and to ensure adequate public participation. The 1995 training budget (mostly applied on the level of the 15 counties plus two cities) of the Environmental Fund, for instance, is a mere 800,000 EEK (approximately $80,000).

Due to the basic level of public participation provisions contained in the law, and the reported lack of implementation of even these basic provisions, public participation is extremely uneven in Estonia. Although the authorities are under a duty to inform the public about environmental problems, local observers claim that this does not routinely occur, and in fact authorities rely on the media to supplement their ability to inform the public. Nonetheless, NGO representatives can point to some successful cases of public involvement, as well as failures.

II. Legal Structure and Legislative Process

A. Constitution

1) Basic Rights and Obligations

b. Right of Expression

Freedom of speech and of the press is guaranteed by Article 45 of the Constitution, which reads:

All persons shall have the right to freely circulate ideas, opinions, beliefs and other information by word, print, picture and other means. The right may be restricted by law in order to protect public order or morals, or the rights and liberties, health, honor and reputation of others. The law may likewise restrict this right for state and local government officials, in order to protect state or business secrets or confidential communications, which due to their service the officials have access to, as well as to protect the family life and privacy of others, and in the interests of justice. There shall be no censorship.

c. Right to Information

Article 44 of the Constitution states:

All persons shall have the right to freely receive information circulated for general use. At the request of an Estonian citizen, and to the extent and in accordance with procedures established by law, all state and local government authorities and their officials shall be obligated to provide information on their work, with the exception of information which is prohibited from disclosure by law, and information which is intended for internal use only.

d. Right of Free Assembly
This right is guaranteed by Article 47 of the Constitution.

e. Right of Association

Article 48 guarantees the right of formation of non-profit associations and leagues.

The termination or suspension of the activities of an association, league or political party, and its penalization may only be involved by a court, in cases where a law has been violated.

f. Right of Petition
Under Article 46 all persons have the right to petition state and local government authorities and officials with memoranda and applications.

g. Government's Relationship to the Citizens
Article 1 of the Constitution provides that "the supreme power of the State is vested in the people." Furthermore, Article 14 provides: Guaranteeing rights and liberties shall be the duty of the legislative, executive and judicial powers, as well as of local governments.

2) Right to Petition Constitutional Court for Review

Estonia does not have a separate Constitutional Court, but provides for decisions regarding the constitutionality of laws and acts to be made by the regular courts. Since 1994, one collegium of the National Court has been established to deal with constitutional issues. The right to judicial review is found in Article 15 of the Constitution:

Every person shall have the right to bring a case before the courts if his or her rights have been violated. Any person whose case is being tried by a court of law shall be entitled to demand the determination of the constitutionality of any relevant law, other legal act or procedure.

The court system established by Article 148 includes county, city and administrative courts, district courts, and the National Court, the highest court of appeal and the court of constitutional review. Art. 149.

Under Article 152 of the Constitution, persons may complain of the unconstitutionality of a law or rule, as well as the unconstitutionality of the actions of officials in applying the law.

3) Other Remedies

B. Legislation and Rule-Making

1) Constitutional Provisions

2) Right of Legislative Initiative

3) Right of Referendum

Referenda may be held upon the action of the Parliament (Riigikogu). See Const., Art. 65 (2). Under Article 105 the Parliament may put to referendum "draft laws or other national issues." A majority of those who participate in the referendum is sufficient to pass on it. If a draft law fails at the referendum, the President must declare special elections to the Parliament. The Constitution also calls for the promulgation of a Law on Referenda, at Article 106, although at the time of writing no law defining the procedure for referendum had been adopted.

4) Public Participation Provisions in Laws

5) Public Participation in Parliamentary Practice

6) Public Participation in Governmental Practice

C. Right-to-Know and Freedom of Information

1) Constitutional Provisions

Article 44 of the Constitution states:

All persons shall have the right to freely receive information circulated for general use. At the request of an Estonian citizen, and to the extent and in accordance with procedures established by law, all state and local government authorities and their officials shall be obligated to provide information on their work, with the exception of information which is prohibited from disclosure by law, and information which is intended for internal use only.

Under Article 74 of the Constitution, Members of Parliament have the right to demand explanations from the government and its members and other officials.

2) Laws

Section 3, Paragraph 3 of the Law on Protected Objects of Nature (1994) requires public notice of

[t]he taking of an object of nature under protection, termination of protection, change in borders of protected areas, formation of different zones of protection, [or] change of protection regimeÉ

through the public media at least one month in advance.

Under Paragraph 10 of the decree of November 13, 1992 on environmental impact assessment, authorities and experts involved in the EIA process are obliged to maintain the confidentiality of "state, production, business and private secrets." In 1994 a Law on State Secrets was enacted which helps to define the circumstances in which this provision could be invoked.

3) Procedures

III. Legal Process

A. Administrative Law and Procedure

No specific administrative procedures determine the process of public participation in decisionmaking. Interested parties in administrative proceedings may challenge decisions of authorities through normal administrative channels. Final administrative decisions are reviewable by a court of law. There are no reported cases of persons challenging the competency of authorities to make decisions in the area of environmental protection or their procedures in decisionmaking.

In 1995 work is proceeding on a total revision of the Law on Administrative Procedure. By early 1995 a draft law had been produced.

1) Standing in Administrative Actions (Legal Interest)

b. Intervening in Ongoing Case
According to standard notions of state administration, a party who proves a legal interest in a given case is considered to be an indispensable party to the case, and therefore can enter at any time.

2) Challenging Inaction of Officials (Failure of Duty)

3) Recource for Aggrieved Parties

The results of any public participation process are in no way binding upon the deciding authority, however. It is therefore difficult to imagine a legal or administrative proceeding in which a party complains that its views were not reflected in the final decision of the authority.

It is expected that the revision of the Administrative Procedure law, currently underway, will result in significant changes to the situation outlined below.

According to Paragraph 26 of the government decree on environmental impact assessments:

Contesting decisions of state environmental impact assessment shall be enacted judicially.

Up to the end of 1993 no such procedures had been adopted.

a. Reconcideration
Letters asking for reconsideration of decisions are a little-used option in administrative procedure. More commonly, parties seek review at a higher administrative level.

b. Administrative Appeal
According to traditional notions of state administration, parties dissatisfied with the results of an administrative proceeding create a file by writing letters of complaint to higher governmental authorities. Such authorities may include a local or regional director, a minister, or the Government. In such cases, the usual procedure is for documentation to be collected and for the file to pass from office to office, accumulating opinion letters from various authorities until a final consensus is reached.

c. Judicial Review of Final Administrative Decisions
Although judicial review of final administrative decisions is theoretically available, generally through the administrative court, the difficulties of its use can be illustrated by a case mentioned by several Estonian observers. Officials in the hierarchy of the Ministry of Environment gave instructions to its local implementing authorities to issue certain orders concerning water protection. These orders were inconsistent with the Law on Water Protection. A local authority complained through administrative channels that his efforts to issue the orders were being frustrated, since the regulated parties referred to the Law on Water Protection and refused to comply. The local authority received no adequate response from the administration and so complained to a court. The court, in dismissing the case, chided the local authority, saying that it was bad practice to refer such cases to a court. The local authority, supported by his colleagues, is appealing the dismissal before the National Court, and legal experts think there is a good chance of it being overturned. In the meantime, the administration of the Ministry is changing the order to be consistent with the law.

Whether the final decision is in favor of the local authority or not, elevation of the case to the judicial level did achieve results that were apparently impossible to achieve using normal administrative channels.

B. Public Participation in Environmental Protection Laws

1) Principle of Public Participation

Laws passed in its wake concerned with various specific environmental problems include the Waste Management Act (July 1992), the Forest Law (October 1993) and the Mineral and Hunting laws. All are being revised. The Forest Law contains no public participation provisions. Additionally, the Government issued a decree on environmental impact assessment November 13, 1992.

Under the Nature Protection Act, the Ministry of Environment and the 17 local district environmental protection departments which act as the Ministry's administrative units are charged with protecting the environment. The highest administrative official is the Inspector General for Environmental Protection. The local departments each have subdepartments for land, air, water, forest, fisheries, minerals, etc.

2) Environmental Impact Assessment

The Law on Sustainable Development, enacted in February 1995, includes declaratory statements about EIA and environmental audits, representing a parliamentary ratification of the EIA concept.

Projects included on a list appended to the 1992 government decree on EIA must be evaluated for environmental impacts at several stages of the approval process, including:

1. on the choice of a location of an object [of EIA];

2. on an application of a permit of the use of natural resources and the environment;

3. on the approval of initial task and technical conditions and on technical-economical justifi-cation of a project;

4. before approval of project documentation or before giving into construction.

Paragraph 15.

The environmental impact assessment governmental decree provides clear language requiring public participation in environmental decisionmaking. Paragraph 18 of the decree provides:

Proceedings of environmental impact assessment are made public by competent office, who:

1. determines the ways of informing the due juridical and natural persons;

2. announces the places and times of consultations and discussions:

3. determines the order of gathering information and forwarding to competent office;

4. retains materials of environmental impact assessment in its files.

In case of essential additional information on the object of environmental impact assessment comes in, competent office can organize supplementary assessment.

Paragraph 21 goes on to require the competent office to inform the participating parties about the results of the impact assessment.

The 1994 Ministerial Order gives further guidance concerning the public participation procedures. It defines public participation as:

the participance [sic] of people and organisations in the process of EIA and herewith having the possibility to influence the decision maker. The public becomes involved in different stages of EIA. There are multiple possibilities to be utilised for that purpose (e.g. media, press conferences, etc.).

Furthermore, under "Public participation in EIA process," the Ministerial Order states the following:

It is the responsibility of competent authority to make public (utilising media, regional channels of information delivery) the initiation of EIA process, the proposed location and general technical characteristics of the development, also enclosing the name and address of contact person where the mail with opinions and proposals would be forwarded.

It is the responsibility of competent authority to make the results of the EIA, i.e. environmental impact statement, public through media, assures the access of the public to the EIS and possibilities for comments. Received comments and opinions and their evaluation are attached to the EIS.

Another section of the glossary describes the meaning of "Decision maker brings his decision into public":

Decision maker brings his decision and justification into public through media channels, paying special attention to the comments made by the public and the extent they were considered. Press conference may become invaluable.

Complaints and claims raised during the process of EIA are to be submitted to the competent authority, who is responsible for reporting back to the applicant about the measures taken to solve the problems raised.

In case the decision maker ignores the results presented in the EIS, competent authority has the right to bring the case into the court, following legal procedures.

Finally, the order gives guidelines for an expert or expert group in compiling an environmental impact statement. Those guidelines include the following:

5. Public responses (such as written responses, media responses, statements of press conferences) should be included in the environmental impact statement, attached to appendices

5.1. In what way has the public and other interested parties been contacted to appraise them of the project and its implications?

5.2. What have the public meetings been facilitated for (e.g. seminars, discussions, press releases) in relevancy with the project?

5.3. Regional and general political responses, as well as opinion of environmental movements and institutions should be considered.

3) Environmental Permitting

4) Citizen Enforcement, Monitoring and Inspection Rights

Enforcement cases are brought by the Ministry and the Inspector General. Citizens may not bring actions directly, but may make complaints to the proper administrative authority which has the duty to take action.

5) Liability

Standard rules of establishing liability for harm apply in Estonia. Due in part to obstacles of proof concerning establishment of causation, such cases have been rarely brought so far.

C. Public Participation Through Other Laws

1) Land Use Laws and Construction Permitting

A Law on Building and Planning had been presented to Parliament early in 1995, and includes a full chapter of public participation provisions, including notice of planning procedures, the duty of cooperation, public access to documentation and an opportunity for comment. Until the law's passage, the laws regulating land use planning and construction from the prior regime remain in force. The latter laws contain sparse public participation requirements. The Law on Sustainable Development, passed in February 1995, is primarily a declaratory law, but includes in Article 12 (8):

[P]ublic participation of land use plannings, development programs and projects should be organized by the initiator.

This provision can be used to justify more elaborate public participation in land use planning and construction pending the passage of the new Law on Building and Planning.

Laws concerned with privatization, property reform and development include the Principles of Property Reform Act (June 13, 1991), the Land Reform Act (October 12, 1991), the Law of Privatization (September 1993), and governmental decrees on procedures of privatization. None contains public participation provisions.

2) The "Earth Crust" Act

Regulations governing the permit issuance procedure, including regulation of public information and comments, were issued in February by the Ministry, but were not yet officially published at the time of writing. These regulations require that public notice be given prior to the issuance of a permit, and further provide for a period for the public to submit written comments concerning a proposed permit. Special rights are granted to neighboring property owners and local authorities. The permitting authority is only obliged to consider comments from those parties whose interests may be affected. Standards for determining interest are not defined in the law, however. Notice must be given following granting of the permit, and appeal from the decision is available in the administrative court.

3) Other Laws

In 1994 new laws were enacted on Protected Objects of Nature and on Water. Section 3, Paragraph 3 of the Law on Protected Objects of Nature requires public notice of

[t]he taking of an object of nature under protection, termination of protection, change in borders of protected areas, formation of different zones of protection, [or] change of protection regimeÉ

through the public media at least one month in advance. These laws contain no other public participation provisions.

Both the criminal and administrative laws contain provisions which can be used to prosecute persons for violations of environmental laws. Citizens do not have the right of direct enforcement, but may refer evidence of violations to the proper authorities who are under an obligation to take action.

IV. Priorities for Development of Law and Practice

Among the many laws currently in various stages of drafting are the Law on Building and Planning (presented to Parliament in early 1995) and the law on Environmental Impact Assessment (which presently includes compulsory public participation provisions in the draft). In the context of the MinistryÕs development of a national environmental strategy, discussion has touched upon creation of an environmental code.

V. Case Studies on Public Participation
(including Public Actions)

The rights of initiative and referendum included in the Constitution have not been used for any purpose, environmental or otherwise, up to the beginning of 1995. The complications in holding local referenda on some kinds of environmental problems can be illustrated by a recent occurrence in the town of Kunda. An air filter (part of a reconstruction funded by a loan from the International Finance Corporation) broke down at a cement factory in September 1994, causing air pollution to reach extreme levels similar to those reached prior to the reconstruction. A referendum was organized to consider whether to shut down the factory. The scheduled referendum was cancelled, in part because a great many of the persons who would be voting were employees of the factory and would face layoffs if the plant were shut down. Negotiations continued between the local authorities and the factory, resulting in an agreement for compensation for the damages caused by the accident, frequent street cleaning, and required consultations between the factory and meteorological officials that would lead to partial plant closings in certain weather. Meanwhile the factory continues to operate without the air filter. Efforts are underway to replace the air filter and to reduce overall pollution at the plant by 90% by the year 1997.

Although 47 private firms and 85 individuals are licensed to conduct EIAs in Estonia, NGOs can point to only five positive examples of EIA with public participation in Estonia so far. One such example is the Muuga Port project. An open EIA proceeding resulted in several changes to the project plans in accommodation to the needs of the public. The original plan has been significantly changed for other reasons, however, and it is necessary to hold another EIA proceeding based on the changed plan. Another example with substantial international involvement is the EIA proceeding for the Kurtna Lakes area of northeast Estonia. Public meetings have been held and Western and Estonian assistance organizations, including U.S. EPA and Estonian Management Institute, have helped local authorities to develop databases, presentation materials, fact sheets, etc.

NGOs pointed to Tallinn city planning as a positive example where the public is kept informed and is involved in decisionmaking. The pilot public participation studies conducted by the Ministry of Environment in the process of developing the Law on Building and Planning, for example in the city of Paarnu, were mentioned above. They were considered to be successful.

In Tartu, protests were organized against the Raadi military air field and petitions were presented to local authorities. The air field was eventually closed following the departure of the last Russian troops from Estonia in August 1994.