Module 9:
Challenging the Decisions of Public and Private Institutions

Purpose

Objectives

• challenging the actions of Parliament;
• challenging the decisions of the central government;
• challenging the decisions of the local government;
• challenging the actions of private parties.

Contents: Challenging the Decisions of Public and Private Institutions

Introduction

9.1 Challenging the Actions of Parliament The decisions of Parliament may not be directly appealed by citizens or citizens groups. The only possibility that exists for the public to challenge the laws adopted by the Parliament is to lobby the MPs to challenge the law in the Constitutional Court. In Bulgaria, there are no officially recognized or enacted rules for "lobbying." The political tradition in Bulgaria has established a far more calculated system of personal links between the political class, which is in course of forming now, and individuals, who have only begun to organize into groups since 1989. Therefore, "lobbying" as it is defined in the American system, is far less developed, as are the rules governing or regulating such activity in Bulgaria. Despite these historical and contemporary circumstances, however, interested parties must try all possible means to reach their MPs or the staff of their MPs and to "lobby" to further their ideas and convictions. According to Article 150 of the Constitution, only those persons or bodies identified in Box 9.1 can bring an appeal to the Constitutional Court against an already enacted law.

Box 9.1 Parties Allowed to Bring Appeals to the Constitutional Court (per Article 150) - one fifth of all MPs, or a minimum of 48 MPs; - the President of the Republic; - the Council of Ministers; - the Supreme Court; - the Prosecutor of the Republic.

Interested parties can lobby one or several of these institutions to demand that they ask the Constitutional Court to declare a given law unconstitutional. Case 9.1 provides an example of such a case in Bulgaria. Perhaps the most important approach for interested parties to influence the appealing process is to organize using nonformal methods and actions to support the actions of those persons and bodies that can appeal enacted laws in the Constitutional Court. As in the case of lobbying, there is no strict rule or prescribed method for this. There are a number of possibilities, however. Interested parties can: ask for meetings with the responsible people; publish articles in defense of their position; offer to make interviews with the press; try to influence the responsible persons through international organizations and campaigns abroad. 9.1.1 Appealing a Lack of Activity in Enactment of Laws The public does not have direct involvement in the process of enacting laws. According to Article 87, Line 1 of the Constitution, this legal initiative belongs to any MP or to the Council of Ministers. Instead, the public has at it's disposal the means to lobby any MP or the Council of Ministers for proposing a law to the Parliament. MPs can be reached through the variety of methods, as described in Module 4: Public Participation in National Governmental Decisionmaking.

Case 9.1 An example of one approach in Bulgaria would be the demand signed by 51 MPs from the uDF against the amendment of the EPL (amendment adopted in the State Journal No 31/95) which states that the EIA process is non obligatory for some projects. The demand, signed by these 51 MPs, was accompanied by a vast campaign against the amendment. This campaign was organized and sustained by several NGOs. The presence in the Parliament of a group of MPs from Ecoglasnost made the action more easy. Some "rivalry" began over the question of which organization began the campaign, and which organization played the most important role. In fact, all NGOs - both these that are close to the governing party and those which are close to the opposition, protested as a part of the campaign. This is not typical political behavior for Bulgaria -- in fact, during this campaign different organizations of the ecological movement worked together for the first time in order to abolish this amendment. What examples do you know?

9.2 Challenging the Decisions of the Central Government According to Article 125, Line 2 of the Constitution, the Supreme Administrative Court can issue statements on the acts of the Council of Ministers (CM) and can decide whether or not these acts are legal. The Supreme Administrative Court has not yet been created, but the Supreme Court has decided that it will act in this role until the Supreme Administrative Court is functioning. All interested parties, whether NGOs or businesses, may appeal the act of the Council of Ministers. Regardless of whether the interested party is a physical person, an NGO or a business, the interest of appealing is the same. In all cases, however, the appeal must be prepared by a lawyer. Interested parties should appeal to the Supreme Court those acts of the CM that are considered illegal. The public can also react against specific activities of the Central Government, or the lack of activities, in cases where the government does not properly exercise it's duties. The appropriate public response to inappropriate governmental activity should be chosen on a case-by-case basis. Here we speak primarily about the legal opportunities to respond, but there are many cases when there are no possibilities for a legal response by the public. In these situations, the public -- both business and the NGO sector -- will have to inform public opinion about the illegal acts of the government. There are a number of possible ways of doing this, and interested parties can use a variety of nonformal tools, including: an information campaign about the facts; a protest campaign: protest demonstrations, protest letters, protest camps, etc. The use of pressure requires a very good knowledge about the acts that regulate a given issue. For example, if interested parties are interested in water protection, they would need to consult the following documents: the water use permits issued by the competent authority (see Articles 8 - 10 of the Water Use Law). In cases where the water is taken from the water supply net, the permit is given by the Water and Canalization Firm on the territory of the Municipality. the water discharge permits; the plan for the sanitary zone around the water sources and the conditions for the economic activity in this zone; the local Regulation for the protection of the environment.

Case 9.2 There is a precedent in Bulgaria of a physical person appealing to the Supreme Court regarding a Regulation of the Ministerial Council. The case regarded an appeal regarding local taxes which contradicted the Local Tax Law. The Supreme Court ruled in favor of the right to appeal, and issued a decision on the case. The Regulation in question included an interest of commercial firms to abolish the act of the Council of Ministers concerning a restriction to pay sums larger than 20,000 levas in cash. What examples do you know?

9.3 Challenging the Decisions of the Local Government 9.3.1 Direct Challenging The local government issues many individual administrative acts that concern the public, including: the construction permit; the act with which the amendment to the Local Land Use Plan is approved; the act with which the sanitary zone around a water source is created and with which certain conditions for the economic activity is created. These administrative acts are appealable according to the Constitution and the Law on the Administrative Procedure. There has been practice to appeal the construction permits and the amendment of the Local Land Use Plans in Bulgaria, but there has been little to no practice regarding the other possibilities to appeal. Box 9.2 Guidelines for Direct Challenging A suggested set of guidelines for all interested parties, including individual citizens, NGOs and businesses, for directly challenging: Request Information The interested parties must know that some acts are in the course of preparation. The public can ask for information through existing legal mechanisms: the right of information, provided in Articles 8-14 of the EPL. The necessary information can be provided also through nonformal mechanisms. Establish the Objective The interested parties should know and formulate the objective - whether it is a reduction of pollution, or the provision of an installation with some additional guarantees for safety production, or the imposition of some restrictions on the economic activity. Submit Demand The interested parties should submit a demand to the local administration with information about the act, regardless of whether it is an amendment to the Local Land Use Plan or for a water discharge permit. Consult a Lawyer With the help of a lawyer, the interested parties should consult the law and see whether the administrative act is appealable according to the Law on the Administrative Procedure, or whether another way to appeal the act exists, or whether the act is not appealable at all. Usually, if there is not a special norm, the act is appealable according to the Law on the Administrative Procedure. This means that the interested party should be informed about the act, when this act is issued, etc.(this is why filing the demand with the Local Administration is an important step). File an Appeal If there are no special rules for the procedure, there is a seven day period, from the day the interested part is informed, in which to appeal the act. The appeal is filed in the Local Administration, but is addressed to the court. Prepare Documentation and Proof During the proceeding in the court, the question of whether there is a legal interest in favor of the interested party can be discussed. Normally, the court should have proof that the interested party is an interested party in terms of the law on the Administrative Procedure. This is why it is good to have the act of it's registration in the court. It is also good to have documented some of the activities of the interested party (for example, articles in local newspapers). In court, the question of whether the interested party has legal interest to appeal the administrative act is the first question that will be discussed. All other efforts can be in vain if the interested party is not admitted in the procedure.

Case 9.3 A good example of a nonformal public response is the case of the Green Patrols' reaction against the illegal logging in the Rhodopes mountain, described earlier and the case of the closing the illegal waste disposal in Etropole. What examples do you know?

9.3.2 Indirect Challenging There are some cases where the public is not given the right to directly challenge the decisions of the local authorities, but where the public can exercise public pressure on the authorities given the right to appeal the decision or to issue other acts. Such cases are: The prerogative of the regional governor to bring to the Regional Court the decisions of the Local Council - Article 72 of LGLAL. Here the Regional Court will decide whether the act of the Local Council is contrary to any law or not. The right of the mayor to object to the decision of the Local Council - Article 45, Line 2 of LGLAL. The right of the Local Council to abolish the act of the mayor if these acts are contrary to the Local Council's decisions - Article 45, Line 1 of LGLAL. The possibilities are numerous - for example, the mayor may issue acts that are more favorable to the protection of the environment. If these acts are abolished by the Local Council, the position of the public can be in support of the regional governor, which can object to the acts of the Local Council. The opposite situation is also possible: the mayor may issue an acts that does not take in account the dispositions of the local regulations for the protection of the environment. In this situation, the public's interest will be in support of the Local Council's efforts to abolish the mayor's decisions. There are no cases in Bulgaria of using any of these specific mechanisms provided in LGLAL in connection with environmental issues. However, the cases presented (Case 9.4) provide examples of how these mechanisms have been utilized in connection with other issues.

Case 9.4 Sofia's mayor objects to the decision of the LC of Sofia to order the mayor to return a sum of 126 000 leva spent for advertisments to the Municipality. In the future, the LC should vote the same decision again with the majority of more than the half of all Councellors. If so, the mayor can object to the decision in court, but only on a legal basis. Also, Sofia's Regional Governor stopped the decision of Sofia's LC to transform the municipality firms "Health" and "Liulin" to firms with limited responsibility. The Regional Governor's motives were linked to the lack of guarantees for workers in the firms. The labor legislation provides some guarantees for the share of workers or for the working conditions in cases of the transformation of one commercial form into another. The example does not concern the environmental field, it is a pure example from commercial law and from labor legislation. However, the case illustrates that the Regional Governor stopped the decision exactly on these motives. What examples do you know?

9.3.3 Ad Hoc Challenging There may be instances when the Local Regulations are less favorable for the environment than the law. In such instances, if the local regulation is not abolished by any of the mechanisms described above in 9.3.2, the interested party can ask the court to apply the law and not the local regulation. During the procedure, the court will have to decide whether the local regulation and the law have the same matter of regulation, and which act -- the law or the local regulation -- must be applied. If, for example, a central regulation provides that the noise level at five meters distance from a restaurant should be no higher than five decibel, and if in a given section of the city the local regulation adopts, "for environmental reasons," stricter conditions for restaurants (perhaps a maximum of four decibel), interested parties can argue ad hoc whether the local or the central regulation should be applied. At the center of this issue is the very interesting and important matter about the relations between the local and the central "legislation"in Bulgaria. There is currently not a very distinctive delimitation between the prerogatives of the central government and those of the local government. It is not clear, for example, what "environmental issues of local importance" means specifically. As illustrated in Case 9.5, this lack of clarity can produce the potential of conflict between the local and the central rules if, for example, a local regulation for the protection of the environment adopts stronger standards than those provided in national legislation. There are not public known cases where the local regulation was objected on the basis of contradiction to the law. As the Local Government and the Local Administration Law (LGLAL) is a relatively recent one, instituted in 1991, there are not many examples for comparing the local and the central legislation. Regarding "laws," it is important to mention that after the adoption of the new Constitution in 1991, a new rule was introduced in the Bulgarian legal system. International treaties, ratified by Bulgaria, and published in the Official Journal, are stronger than internal Bulgarian laws (Article 5, Line 4 of the Constitution). This provides an important opportunity for interested parties to influence domestic activities utilizing the tools provided in international treaties and conventions. 9.4 Challenging the Actions of Private Parties The term "private parties" here refers to physical and legal individuals belonging to the private sector (i.e. firms, societies, cooperatives, etc.) 9.4.1 Administrative Law In administrative theory, the authorities are empowered to do things beyond the disposal of every citizen. For example, the Minister of the Environment can stop or close facilities, that do not respond to the required standards of activity, but this is at everyone's disposal. In some cases, the developed countries allow citizens to start some administrative procedures themselves. Thus the administrative authority is again empowered to act (the citizens do not have this right), but the administrative authority cannot stop the process without the consent of the citizens. This form of "direct" acting by citizens does not exist in Bulgaria. Interested parties can only inform the administrative authority about violations of the environmental legislation, but cannot act instead of the administrative authority. Therefore, in Bulgaria there is not a possibility for direct enforcement of the law by private persons or NGOs. Interested parties can only use tools to inform the authorities that have the prerogative to act against a violation of the law or an individual permit and to request them to utilize their prerogatives to stop the violation or to impose sanctions on the violator. In order to do this, the interested parties must know which administration is responsible for the issue in question. The general administrative power in environmental issues is the MoE and it's local agencies - the Regional Inspectorates for Environment (RIE). When the issues concerns the territory of only one municipality, then the administrative power can also be the Local Administration (Article 27 of the EPL). The prerogatives of the MoE and of RIE are great. Article 28(1) of the EPL states that: "(1) In case when there is damage to the environment - caused or supposed - and when this is realized through an EIA procedure - the competent authority can: stop the activity until the violation stops; stop indefinitely the activities that can cause irrepairable damages to the environment or to the human health; give prescriptions for removing the consequences of the violation. (2) The Minister of the Environment can stop the execution of other Ministries' acts and acts of the Municipalities, when these acts contradict the dispositions of the EPL." The application of the text of Article 28 of the EPL is of tremendous usefulness to interested parties. It is important to also have a profound and concrete understanding of the rights and powers of the other Ministries. There is not currently a comprehensive source of information regarding all related environmental laws and regulations. Very often the matter is so technical, that it concerns only a handful of specialists. Even in the MoE, specialists do not have copies of the acts of other Ministries. Because it is so difficult to obtain information, it is important for interested parties to seek the assistance of a specialist to obtain the necessary information about an activity and it's consequences to the human health and to the environment in order to press for the application of Article 28(1) of the EPL.

Case 9.5 Conflict Between Local and National Regulations A hypothetical case example of the potential conflict between local and national regulations would be that of when a local regulation adopts noise level standards in a community of a different standard (either higher or lower) than those provided in national legislation. In such an instance, the argument of the Local Council can be, for example, that peace and quiet is necessary for the health of the community, or that such noise has a direct impact on the tourist business of the community. Such reasons can be the motive for the adoption of stronger local regulations for the protection of the environment. However, an opposite situation is also possible: the Local Council adopts local regulations that are of a lower standard than the central rules. The motives may again be linked with the tourist business, arguing that the community should not chase away tourists with stronger rules than those already mandated. It is obvious that in the two possible situations the position of the interested party will be different. In the first situation, when the local regulation has higher standards, the position of the interested party will be in favor of the local regulation. In this case, the defense will be oriented to the "local importance" of the issue. The interested party will have to prove that the issue is of "local importance" so that the court can admit that the local regulation will be the act to be applied. In the second situation, the interested party will be in favor of having the central rule applied instead of the rules of the local regulation. In this situation, the interested party would need to find the proof that the issue regulated in the local regulation is not of "local importance," that it has nothing to do with the environment or that the issue regulated in the local regulation is only one side of a larger issue linked with the environment. If we accept that the milder standards of noise level are adopted by the local regulation, then the interested parties will have to prove that the higher level of noise permitted in the city is not good for the health of the population living in the neighbourhood of restaurants and places where the public gathers. In conclusion, the question of what is of "local importance" can be treated "ad hoc" in any case in the court.

From legal point of view, the prerogative of the Minister of the Environment is so great that the problem is a question of how to create the situation in which the MoE can use it's powers without being hindered by other branches of executive power. This issue is oftentimes very closely linked with the influence of industrial lobbies as illustrated in Case 9.6. This is a clear opportunity for cooperation between NGOs/communities and the MoE, since the public and it's representatives will have a vested interest in creating a climate for the proper application of the law and in which the Minister of the Environment will feel the public support to act according to the law. In this case nonformal methods of protest against the polluting activity, against the Minister's inaction, or in support of the Minister actions to stop or sanction the polluter would be most effective. Article 23 B of the EPL also illustrates the great potential of the powers of the MoE: "The competent authority interdicts or stops the activities or the realization of projects for which the EIA decision is negative; or for which the obligatory EIA procedure has not been held; or which are not equipped with the necessary facilities for prevention of the environmental pollution and for purifying the emissions in the environment." Again, there is great potential for cooperation between interested parties and the MoE to support the actions of the Minister of the Environment in favor of the protection of the environment. Of course if the Minister of the Environment has public support, s/he would act more boldly and would have more courage to enter into conflict with the other more powerful ministers of the "industrial ministries." If the Minister of the Environment lacks public support, s/he would be less courageous and less motivated to act in favor of the environment. Increased public support also assures public awareness about environmental problems -- another motivation for "acting according the law."

Case 9.6 The dispute between the MoE and the Forest Committee over the creation of a National Service for Biodiversity by the MoE, that would look after the protection of the biodiversity, is one example of the "rivalry" between the powers of different branches of executive power. The creation of such a service was a threat for interference in the activity of the Forest Committee which is at the same time the agency responsible for controlling and exploiting the forests. The woodcutting and woodtrading lobby was against the initiative, and even if the service was legally created, it does not function. The attempts of the Ministry of Construction to exempt the Land Use Plans from EIA study is another example. The interests at stake are the interests of the powerful construction and entrepreneur lobby which would like to have a less complicated procedure. The officials of the Ministry of Construction would like to have all the power to decide all questions over the Land Use Plans, since more power means more money. What examples do you know?

9.4.2 Civil Law If in the administrative field, there is no possibility for direct enforcement of the environmental law. The EPL gives an excellent tool for enforcement of the environmental law through civil action directly in court (according to the civil procedure). Article 29 and 30 of the EPL provide the basis for such action: Article 29: "Persons who are found to have, by intent or neglect, caused harm to others by pollution or damage to the environment shall be bound to remedy the damage. The compensation may not be less than the sum required to repair the damages caused. Article 30(1): "The injured party under Article 29 can request the court to order the dangerous activity to cease and to remove the consequences of the pollution. (2) The actions under Line 1 of Article 30 can be brought in court also by the municipal authorities, by citizen's associations and by any citizen." It is obvious that here the law gives great prerogatives to the court to stop polluting activity. The law also provides the right to any citizen or to any citizen's association to bring the action to court. The problems are again in the nonformal aspect, however. The first problem is how to know when there is damage to the environment caused by "intent or neglect." Here interested parties can use the procedures for obtaining information from the authorities. Box 9.3 illustrates a proposed method for proceeding.

Box 9.3 Suggested Method for Using Articles 29 and 30 of the EPL 1. Ask for information about the existence of permits and about the conditions for the activity, described in the permit. 2. Collect information through formal and nonformal tools about the result of the polluting activity. 3. Try to document the obtained data. 4. See whether there is discordance between the polluting activity and the standards, described in the permit. What is done in violation of the permit will already be illegal. 5. The question about the intent or the neglect action must be discussed with a lawyer, but if the data collected during the first four steps shows violation of the law, then the prospects for success of the Article 29 and 30 action is good.

In addition, another possible step for the interested party would be to inform the Local Administration of the violation and to request a civil procedure in court. In situations when the Minister of the Environment has the power to sanctions on the polluter, but there is significant pressure from other agencies, the interested party must organize public support of the action so that the defense is in the difficult position to influence the court decision against whomever brings the action under Articles 29 and 30 to court. The cause of environmental protection must be backed by the public with the organization of nonformal activities.

Case 9.7 Even without using the tool of Articles 29 and 30 of the EPL, the steps described in Box 9.3 were used by the Green Patrols in two of their successful actions in Etropole and in the Rhodopes Mountains. What examples do you know?