CITIZENS' ROLE IN THE ENFORCEMENT OF ENVIRONMENTAL LAW IN EUROPE
MARTIN FÜHR
Öko-Institute, Bunsenstrasse 14, 6100 Darmstadt, Germany
SUMMARY
Given the interrelationships of social forces equally manifest in both East and West, environmental protection goals can only then be realized if not only the authorities and industry are involved in their implementation, but also citizen action groups and environmental associations. The paper describes the preconditions requisite to successful citizen participation, and compares these with existing practices in EC Member States. From the thus identified deficits, concrete demands for an extension of participation and litigation rights are derived.
1 INTRODUCTION
Contrary to the widely held conviction, public approval procedures are not an invention of modern environmental law but an achievement of the French Revolution dating back almost two hundred years. Napoleon introduced this procedure in the occupied European territories. In the national industrial codes the procedure survived as legislation to the present time. In the last thirty years, however, various laws have developed from the industrial code, all of which include a (slightly modified) version of the public ('formal') approval procedure.
Public participation with its inherent democratic elements can therefore be described as a relic of the French Revolution and can be regarded as an intruder in a state and administrative structure dominated by authoritarian principles. The practice of secrecy within government authorities has changed very little to the present day.
In order to illustrate the importance of public participation, I would like to preface my comments with two quotations. The first was made by the Prussian king Frederick William III in a cabinet order of 4 February 1804:
"If one were to completely deny (access by) a specific and respectable type of public, one would have no means of exposing the negligence or disloyalty of civil servants; on the contrary, the public is the surest counter both for the government itself and for the community to carelessness or dishonest intentions on the part of authorities, and for this reason deserves to be heard."
The second quotation is from a leading article in the business section of the conservative Frankfurter Allgemeine Zeitung on legal status under the German Bundes-Immissionsschutzgesetz (Federal Emission Control Act):
"The law also makes provision for local residents to file objections, basically because the past has shown that authorities concerned with the 'economic power' of their district tend where possible to connive with profit-seeking companies."
Here we have the main reason for public participation in a nutshell, namely as a check on the work of the authorities. Their legally defined task is to protect the environment and the health of the population. Experience has shown, however, that whenever authorities deal with industry in private, these interests are put aside.
The participation of the public in the implementation environmental law not only serves improved environmental protection; it also realizes elementary principles of the Rule of Law, i.e.:
access to justice for affected third parties;
the separation and balancing of powers (Executive, Legislative, Judiciary);
the principle of democracy.
2 POINT OF DEPARTURE
2.1 In the foreseeable future, economic reasons will make it impossible to place a cost on the utilization of natural resources that corresponds to the real social costs. Regulatory powers exercising the sovereign powers of the State are therefore indispensable.
2.2 To statutorily enshrine environmental protection obligations will not by itself lead to any effective progress if this is not also accompanied by the creation of the framework conditions for their implementation. This means not only the establishment of administrations, but the administration must also receive instruments that empower them to really enforce these obligations.
2.3 This implies that government authorities must not be burdened with tasks that are impossible for them to fulfil for structural reasons. Thus it cannot be the task of government authorities to detect "clean technologies" in order to bring industry to an "integrated pollution control". These are tasks for development laboratories and not for administrative officials.
2.4 The absence of public participation leads to disequilibrium in the triangular relationship polluter - state - affected party. This disequilibrium is ultimately always at the cost of the environmental and affected third parties. If it is left alone, no administrative body has the clout to hold sway over industry and the associated.
STATE AUTHORITY
POLLUTER THIRD PARTIES
Figure 1. Enforcement Triangle
2.5 Therefore those who are affected by environmentally harmful activities must also be allowed an active role in the implementation of environmental law. These include both individual citizens in their role as consumers, employees and as users of natural goods, and the corresponding representative bodies (consumer and environmental associations, trade unions, local and regional "grassroots-groups, but also municipalities).
2.6 Timely and comprehensive public participation is ultimately also in the interests of industry and administration. Uncomfortable facts are sooner or later usually uncovered, regardless of attempts to conceal them. This then creates a particular "finding-out" effect, which can cause sustained damage to public confidence. And industrial firms are often particularly dependent on a good public reputation.
3 ELEMENTS OF EFFECTIVE PUBLIC PARTICIPATION
Effective public participation in the implementation of environmental law requires three preconditions:
Transparency of all environmentally relevant information;
Participation in decision-making procedures;
Effective legal remedies against environmentally harmful activities.
3.1 Transparency: Disclosure of all environmentally relevant information
Comprehensive knowledge and information is essential for the individual's ability to play his or her full potential role in practice. This requires the disclosure of positive information, but also a clear statement of informational deficits, so-called "negative information".
The EC-Council has adopted on 7 June 1990 a Directive on the freedom of access to information on the environment. This Directive awards an individual right of access to information held by the authorities. This right exists in a number of EC and non-EC countries.
The freedom of access to information is an important step, but there are still a number of deficits:
It is limited to the information held by the authority; there is no obligation for the authority to collect the relevant information.
There is no right of access to information kept by the industry itself comparable to the US "Right-to-know Act"; as a result it is only an indirect right of information - the direct line between citizens and the polluter/producer is not opened.
It remains unclear what information can be held back as industrial and commercial secrets; here a negative definition of data that may in no event enjoy the status of secrets would be necessary.
The practical conditions of access to information are unclear, e.g. whether there is a right to obtain copies of documents.
A further point is that it would be worth considering whether, in the age of data processing, other forms of data transfer, e.g. results of ambient air quality measurements on diskette, should be made a part of the legal claim to information.
3.2 Participation: Comprehensive participation of citizens, associations and municipalities
Besides the informational basis, a further precondition is that of equal opportunities in the decision-making procedure. From the legal point of view, this demand follows from the principles of non-discrimination and fair trial.
Here the participation of the public must fulfil the following criteria:
Timeliness
Comprehensiveness and equal weight
Participation must also extend to the post-license control of environmentally harmful activities.
These points must be enshrined in corresponding procedural codes.
3.2.1 Timeliness
Participation must set in a procedural stage in which no central preliminary decisions have already been taken, because otherwise the participation is degraded to a mere "alibi event".
The EIA Directive does contain the principle of timeliness. However, it is unclear what consequences arise from a violation of this principle.
3.2.2 Comprehensiveness and equal weight
The participation procedure must allow all ecological and social effects to be a subject of discussion between the involved parties. The procedure is degraded if certain questions are excluded for formal reasons, such as the question of alternative solutions or the societal need for a project.
Affected parties must be allowed to present their position in a well-founded manner by means of bringing in experts. This necessitates a suitable regulation of how the associated costs are to be covered.
In most European countries, neither of these points has been realized.
3.2.3 Participation in the control phase
Under the law as it currently stands, public participation ends as soon as the project has been licensed. This leads to mistrust on the part of the third parties, who - often quite rightly - fear that environmental regulations will be violated during the later operations.
Public participation must therefore include the "post-license" control phase, thereby also closing the circle to a timely participation in new decisions. This requires the establishment of a sustained communication procedure between the involved actors.
3.2.4 Participation in product control
In the EC countries citizen participation is limited to licensing and planning procedures for industrial and infrastructure projects (e.g. industrial plants, highways, urban planning). The environmental impacts caused by products and substances are not subject to a participation procedure. Even in the cases where products are subject to governmental authorization and control procedures (e.g. new chemicals, pesticides), there are no participation or litigation rights for third parties (e.g. environmental or consumer organizations) such as contained in the US-American "Federal Insecticides, Fungicide and Rodenticide Act" (FIFRA).
3.2.5 Participation in sub-statutory legislation
Important prior decisions for the implementation of environmental regulations are taken through the issuance of decrees, ordinances, orders, byelaws or other sub-statutory norms.
The public is only involved in the drawing up of these regulations in a few very limited cases. None of the EC countries provide for the possibility of judicial review.
3.3 Access to justice
Without the possibility of judicial review of breaches of environmental law, participation rights remain a paper tiger. The interrelationship of forces in the enforcement triangle will only be significantly shifted if third parties can also enforce their claims in the courts.
In the EC Member States exist a variety of mixtures of administrative and judicial review in relation to environmentally relevant decisions of administrative authorities. All Member States nowadays - at least since the statutory changes in the Netherlands following the "Benthem" case - have some system of administrative and judicial review of decisions. However, the form and the importance of each may be quite different; e.g. concerning the access of common interest groups and members of the general public to these institutions for purposes of environmental protection, and in some States also concerning the effectiveness of existing procedures and remedies and the rules of apportioning the costs.
To provide for a right of action against administrative authorities alone would, however, be insufficient in view of the fact that the environment is often adversely affected not so much by the positive decisions of an authority but rather by its failure to act against infringements of the law. Therefore citizens should be enabled to also bring an action directly against polluters and other persons who cause harm to the environment. In order to avoid the confusing effect of parallel proceedings against administration and polluter, and respect national priority rules as far as possible, this direct way of action should be limited to cases where the authority has refused or failed to act.
Effective interim relief is often crucial to the successful defense of environmental interests in court. Therefore, Member States' legislation should ensure that a plaintiff in these cases can attain quickly and without great difficulty a court ruling which suspends the effect of environmentally relevant administrative decisions or an injunction which effectively stops environmentally harmful activities. Deficits can be observed in a number of EC Member States, especially in France and Belgium.
For actions in the interest of the environment, the problem of costs is a decisive factor. In principle, costs, including lawyers' and experts' fees, should not provide a barrier for the commencement or continuation, of such proceedings. Therefore it should be ensured that the plaintiff, if he succeeds, will recover all costs reasonably incurred, hereby removing any discretion that the complaints authority or the court may have under national law, and providing for the case that the losing party is unable to pay. At present, this has not been realized in any Member State.
Furthermore the reduction of the plaintiff's cost risk is warranted by the consideration that there is an overriding public interest in the correct implementation of environmental law. Therefore, any initiative which aims in this direction should be encouraged and public funds should not be spared in limiting the financial risk for private persons, which may be excessive e.g. in cases where a company as party to the proceedings makes full use of the available legal and technical expertise. Thus it is necessary to exempt the plaintiff from court fees and other parties' costs as long as the action was brought in good faith and on the basis of an arguable case.
4 PRACTICAL CONDITIONS: NETWORKING BETWEEN NGO'S
This short overview had shown that the public already has - if only to a limited extent - possibilities of influencing environmentally relevant decisions. These possibilities should be made use of, and at the same time claim should made to further improvements.
For the practical work, a well-functioning infrastructure on the side of the affected third parties is of high importance. Experience shows that the intervention of the public influences the results of the administrative procedures, especially in those cases where well organized local groups or associations use their participation rights. In quite a number of cases it was possible to achieve stricter air pollution limit values, improved safety measures or even the reduction of hazardous waste streams.
A prerequirement to such success is the existence of a structure of communication and flow of information. In order to exert influence successfully it is decisive for the environmental organizations to elaborate well-founded proposals aiming at implementation and present them to the protagonists mentioned above. This requires a multidisciplinary argumentation referring to the problem in question and showing practical possibilities of action, both being presented in a conveyable form.
In the field of licensing procedures for industrial plants the German "National Coordination Bureau for Licensing Procedures" could serve as a model. Moreover, a Europe-wide information exchange in the field of waste policy was agreed at the conference "Environmentally sound waste management? - Current legal situation and practical experience in Europe". C.E.P.A., a non-governmental research institute from Barcelona, has taken the responsibility for this further cooperation.
Founded in 1990, the "Environmental Law Network International" (ELNI) has the task of organizing the exchange between environmental lawyers siding with environmental associations. The network further also aims to facilitate concerted juristic action regarding specific problems.
Beside the "European Environmental Bureau" (EEB) further networks have been set up in Brussels as well; the "Climate Action Network" and the "Biotechnology Clearinghouse" of "Friends of the Earth" have been established. And the ecologically minded transport associations have delegated a common representative to Brussels who will be in charge of coordinating the activities from there.
To secure that participation rights can be used effectively in the struggle for environmental concerns further development or those networks is crucial both on the national and international levels.
5 EFFECTIVE INSTRUMENTS: MAKING ENVIRONMENTAL PROTECTION DYNAMIC
The broad participation of the public in a fair procedure is the conditio sine qua non in environmental law. But that is not the end of the matter by a long way: public participation is - to use mathematical terminology - a "necessary' but not "sufficient" condition for this field of law. A high level of protection is also indispensable as a prior aim, which must be defined in directly enforceable basis obligations on the part of the operator.
It cannot be the function of public participation merely to "fill in the loopholes". In fact in many procedures it has taken over this role, but this is not a satisfactory long-term solution, not only because it is asking too much but also because it blurs the real responsibilities. It is for the operator to identify the problems and hazards involved; if he does not do so to a sufficient extent, the authorities must coerce him.
In addition, the conditions must be provided for effective implementation of the law. This means in particular that the legal structures of the relevant provisions must be designed such that they necessitate a minimum of enforcement effort for the authorities.
Self-executing statutes (e.g. in the form of decrees) are preferable rather than complicated individual decisions (i.e. in the form of supplementary orders).
It is of central importance that licenses permitting environmental pollution are only issued for a limited period. The temporal limitation opens the possibility of taking a new decision on the basis of up-to-date technological and toxicological developments. The main advantage as compared to the instrument of the supplementary order is that the burden of justification lies with the polluter. He must - if he wants to receive a new license - determine the relevant current data (including the state of the art). The work of the authority is limited to checking these documents and taking a decision in the course of a new public procedure.
Finally the sub-legal definitions in decrees and administrative regulations are of great importance. If, as is the case with the German TA-Luft (Technical Instruction - Air), risks and hazards are simply "defined out of existence", there is a danger that the protective aim of the law will only be applicable in theory.
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