REC: Manual on Public Participation - Baltic Supplement: Introduction

Introduction

This supplement to the Manual on Public Participation in Environmental Decisionmaking: Current Practice and Future Possibilities in Central and Eastern Europe examines the law and practice pertaining to public participation in environmental decisionmaking of the three Baltic countries - Estonia, Latvia and Lithuania. The addition of these three brings to thirteen the number of countries examined through the Manual project.^[1] Affinities within the cobbled-together CEE region are based primarily on the ongoing transition from centrally planned to market economies, from one-party rule to multi-party democracy. But beneath the surface, the region constitutes a fascinating mozaic of social, political, cultural, and economic variations, spanning seven major language groups (Albanian, Baltic, Finno-Ugric, Germanic, Latinic, Romany, Slavic), two alphabets (Cyrillic and Latin), and five major religious traditions (Islam, Judaism, Orthodox Christianity, Protestantism, Roman Catholicism). Invasions, occupations, migrations and empire-building involving such diverse peoples as Austrians, Germans, Italians, Russians, Swedes and Turks have influenced legal, political and social traditions.

When viewing public participation in Central and Eastern Europe, therefore, one should look beyond the region itself to the greater historical context of Europe as a whole. Against this background the three Baltic countries add a new richness to public participation in the region. Both individually and collectively they present unique opportunities for the development of public participation law and practice. In fact, it could be argued that the Baltic countries have the potential to become the leaders of public participation law and practice in the region. Not of least importance is the prospect of economic growth. But at least two other significant factors play a role in this conclusion.

The Baltic Sea Region

From the point of view of public participation and environmental protection, the Western countries of the Baltic region (Sweden, Finland, Germany and others) offer special advantages to their neighbors' processes of reform. In addition to historical and economic ties, they share an important geographical and ecological connection with Estonia, Latvia and Lithuania - the Baltic Sea - which gives them a direct interest in the success of environmental protection measures in these countries. Within Western Europe, moreover, these countries tend to be part of a handful of Northern countries that lead Europe in environmental protection initiatives. Public participation has enjoyed a strong tradition as an important component of environmental protection in these countries - in fact, Scandinavia is unparalleled in its public participation tradition. As one would expect, therefore, the Baltics are among the most active CEE countries in public participation initiatives, although such initiatives are still in the very early stages.

Pan-Baltic environmentalist organizations and networks mirror the Pan-Baltic cooperation on the governmental level. Cooperation across borders gives an international flavor to the Green movement and helps to raise the standards of national organizations, increasing their professionalism, sophistication and influence. Environmentalists in Estonia, Latvia and Lithuania can test their successes and failures against similar coordinated efforts in other Baltic countries. And for the Western partners in these ventures the countries in transition are like a laboratory. They offer an outlet for progressive ideas that, for one reason or another, may not be achievable currently in the West. International development efforts specifically concerning public participation are strong in the Baltics.

Soviet Legacy

The other unique aspect of the Baltic countries in comparison with the other CEE countries is the legacy of the Soviet past. For more than a generation, the Baltic countries were subsumed into a superpower, during which their pre-war identities hung in limbo. Massive economic redevelopment and migrations of people took place. Legal and social traditions were eroded. To a great extent these processes also occurred in the other countries in the CEE region. But those nations maintained nominal independence, border controls, foreign policy, currency and trade. A distinction more important than these, however, is a psychological one. The nations of the Baltic, more than the other CEE countries, can disavow complicity with the problems of the prior regime. This is important because it allows these countries to make a clean break with the past on an ideological level and freely to choose their destinies, whether their futures will be communist or capitalist, liberal or conservative. Even the newly formed countries in the region - the Czech Republic and Slovakia, Slovenia, Croatia and Macedonia - cannot so completely obliterate the past. Only Albania, undergoing a gut-wrenching self-examination as a people, can provide an analogy.

In this atmosphere of political opportunity, the three Baltic countries have taken quite different approaches towards restored independence. Latvia took the remarkable step of reaffirming the 1922 constitution, stating that it had remained in force in theory since 1940. Although this constitution is anomalous for the 1990s, the lack of a statement of basic rights and other shortcomings have been addressed by adoption of "constitutional laws," and the difference indeed may be form over substance. Estonia and Lithuania, on the other hand, have taken the clean slate approach, and are reinventing their constitutional bases. The great freedom to experiment is also evident in the environmental field. Just after independence, Lithuania established an Environmental Protection Department, separate from the Government and answering only to Parliament. The Department had a remarkable "veto power" over government decisions on environmental protection grounds. But this proved impossible to use and after much debate the government was reorganized and the Ministry of Environmental Protection was established. Now the highest environmental protection authority can have a voice in government decisions, thus "strengthening the preventive function." Whether the voice in deliberations will have a net positive effect over the veto threat remains to be seen.

Lithuania's Law on the Ombudsman is a quite remarkable step and deserves special mention. The law specifies standards for authorities in carrying out their responsibilities and provides a mechanism for taking to task authorities that are corrupt or incompetent, a large task for a nation saddled with the traditions of Soviet public administration. A people weary of the complicity of the judiciary in political repression may find enforcing efficient state administration through an ombudsman more palatable than another system relying upon courts (for example, the Dutch one in which courts have recourse to unwritten but accepted principles of state administration). The Lithuanian law provides an additional model (Poland has several years of mostly positive experience with the institution of ombudsman) for countries throughout Central and Eastern Europe to watch closely. It is a prime example of the kinds of transferable reforms that can emerge from these three dynamic nations.

Obstacles to Public Participation

Even with strong international initiatives and a greater freedom for experimentation, it would be a mistake to paint too rosy a picture of public participation in the Baltics. The hard times are not over for residents of Estonia, Latvia and Lithuania. Social and economic problems are still dominating the agendas of politicians and ordinary citizens alike. As one Estonian from the environmental NGO movement put it when complaining about the lack of motivation of ordinary citizens about environmental issues, the typical person is not concerned with matters that are "outside his soup plate." And where citizens find the resources to exercise rights, new threats arise constantly. Freedom of the press is being challenged by the recent mafia-style slaying of an investigative reporter. Use of libel and slander laws by public officials and others criticized in the print media also have a chilling effect on the exercise of freedoms.

Improving the transparency of decisionmaking and inculcating the practice of civil service in public authorities is perhaps the most challenging task ahead for the Baltics and for other states evolving from the Soviet Union. The lack of transparency in decisionmaking can extend even within the government itself. In one country, the environment ministry stated that no personnel from the ministry participate in privatization decisions. The ministry had never been consulted about environmental auditing of facilities being privatized, nor the terms of any indemnifications made by privatization authorities about prior contamination. The lack of openness contributes to a high level of corruption and arbitrary decisions - legacies of the last decade of Soviet power that stubbornly persist.

A more insidious practice that discourages public participation is the perpetuation of "expertization" in state administration. Special powers in policy- and decisionmaking processes are accorded to those who have attained expert status, even though many opportunities to reach such positions have been subject to political manipulation. Ordinary citizens including non-establishment experts, no matter how much common sense or specialized knowledge they have, continue to be marginalized. Current practice limits opportunities to attack "expert bias."

A lack of respect for the judiciary, illustrated by the following story, undermines an important avenue for public participation. During the 1980s members of one of the pioneer environmental groups in the Baltics were routinely hauled into court for violations of various laws arising out of their activities, including demonstrations and publications critical of the government. Standing in court accepting judgment for their "crimes" they felt like national heroes. They were fighting the system, which included the courts. In most cases they were fined. At the time of independence, one branch of this organization was in court for defacing the wall of a glass insulation factory. The case started against them as another criminal case, but as the laws were changed, it became a civil case for damages. The factory got judgment for compensation for the cost of cleanup. Although there was a significant difference in the posture of the case and the potential punishment or stigma attached to it, the result to the layman was more or less the same. Moreover, the environmentalists were "cheated" out of their feelings of heroism, reduced to cleaning walls for the factory. Today citizens still do not generally view the courts as defenders of the average citizen - rather, they are perceived as instruments of the policy of the government.

Other obstacles to public participation in environmental protection arise from the lack of economic or market mechanisms for reallocating financial resources in response to social problems. Financially inadequate remedies discourage citizens from exercising their rights. An example is the failure of the insurance industry to provide an adequately flexible pool of funds to address environmental risks. Without financial assurance, enterprises can more easily escape liability by declaring bankruptcy or "disappearing," leading to imposition of a fractionally equivalent and inefficient governmental solution. Moreover, indigenous non-governmental (so-called "third sector") organizations that might hope to change the situation currently lack an economic base. The day when citizens feel secure enough to exercise influence through donations from discretionary income has not arrived.

For citizens to effectively participate they need to have available to them certain resources in addition to time and money, however. Although some international organizations support public participation initiatives of one kind or another in the Baltic countries, the future health of public participation as an integral part of civil society in these countries depends on the development of indigenous professional support. At present the lack of certain skilled professionals is an obstacle to the participation of citizens and NGOs in policymaking and decisionmaking. Two critical fields may be specially mentioned - lawyers specialized in the provision of public interest legal services, and independent technicians and scientists. The development of such professionals depends in part on market forces. But it is clear that there must also be a need and a use for such persons. There must be an enforceable legal framework in which lawyers can (at least on occasion) successfully defend citizen rights supported by technical expertise.

Finally, the Baltics are no different from other European countries in that they show a tendency to put all public participation eggs in the Environmental Impact Assessment (EIA) basket. This approach, although not at all uncommon, is dangerous. The marginal benefit to the environment from an EIA law is dependent upon both the pace of economic development and the willingness of officials to take EIA recommendations into account. In countries where development is slow, opportunities for improving the environment will be rare. If one admits that public participation is a useful tool for environmental protection, more attention must be given to including public participation in the renewal of permits and other environmental matters pertaining to ongoing operations. Public participation in land use planning offers some additional opportunities, but greater possibilities can be realized by requiring a periodic modified EIA procedure with public participation for operating facilities, even without a triggering proposed activity.

An Optimistic Conclusion

In spite of obstacles, there are early indications that the potential for participatory democracy in the Baltics may be realized. All three countries have demonstrated remarkable adaptation to changes in politics and economics. They rapidly and thoroughly asserted their unique identities and are steadily disentangling the remnants of the Soviet system, while making progress on social issues including reconciliation with the Russian minorities. In Estonia, government environmental officials are taking the lead in providing legal mechanisms for public participation in environmental laws. Latvia is considering adopting a separate law on public participation in environmental protection. In both Estonia and Latvia, pilot programs for public participation in land use planning are being touted as successes and are forming the basis for reforms to the land use planning laws. Lithuania is behind its neighbors, but in that country there are indications that public participation initiatives are gaining momentum and the previously mentioned ombudsman law is encouraging. Geography, demographics and political history have combined to form a fertile ground for the growth of strong public participation elements in these countries. Whether the obstacles prove to be too great, or the mix of factors proves to be the right one for public participation, the rest of Central and Eastern Europe should pay attention.

A Note to Lawyers in the Baltics

What about lawyers who want to work in this field? First, they must be prepared for frustration. Apart from the extremely complex problems connected with environmental issues - problems of proof and causation, lack of scientific knowledge, inherent uncertainty of risk assessment, identifying defendants, etc. - dealing with judges can be a headache as well. Environmental cases are frightening to most judges because of their enormity and complexity. Judges would much rather put them aside and work on simple cases. Secondly, they must be prepared to take risks. For today's nouveau riche, the stakes are high. There is a growing perception that if a lawyer wants to work for private companies, he should not represent the public in environmental issues. In one country a lawyer who filed a complaint about a company that wanted to build a petrol station in the city center lost significant business opportunities. It may be possible in the future for lawyers to dedicate a certain portion of their efforts to pro bono activities without endangering their client base, but at least for now a lawyer must choose between a commercial career and a public interest one.

Public interest law in its non-governmental form offers many opportunities to Western lawyers, but is still virtually nonexistent in Central and Eastern Europe. A number of programs (usually Western-supported) are starting up in the region, including environmental, human rights and other kinds of advocacy centers. Some of these centers are operated similarly to the kinds of subsidized Legal Aid offices found in many western countries. They extend free or low-cost legal assistance to certain types of claimants, for example, environmental NGOs or citizens who are concerned about the environment or who have suffered damages from pollution. Eventually, the governments of the region will take over the task of subsidizing such services, or, at least, private donations or graduated fee arrangements will take over from the Western support. In the meantime, environmental legal issues will not go away. If the last thirty years in the West are any indication, environmental law will be one of the fastest growing fields of law in Central and Eastern Europe over the next thirty years.

1. Thus, the Manual project now covers all the countries served by the Regional Environmental Center for Central and Eastern Europe. The Central and East European Law Initiative works in the countries of the Commonwealth of Independent States as well and is planning to produce similar manuals for those countries.

REC * PUBLICATIONS * MANUAL ON PUBLIC PARTICIPATION * BALTIC SUPPLEMENT * INTRODUCTION