ENVIRONMENTAL RIGHTSLecture 3: Comparative procedural rightsProfessor Mark Poustie, Oriental Scholar, Shanghai University of Finance and Economics Law School; University of Strathclyde, Glasgow, UK27 November 2014

OUTLINE OF LECTURE 3

• The role and value of procedural rights in environmental law

• The development, scope, merits and effectiveness of provisions relating to access to information, public participation and access to justice in environmental matters in the UK/EU, US, India and China

VALUE OF PROCEDURAL RIGHTS

• Contribute to sustainable development• Enhance public awareness and participation• Increase accountability and legitimacy of regulation• Improve quality of policies, plans and decisions• Allow effectiveness of regulation to be monitored • Improve enforcement• Educative function• Market-type regulatory instrument

PROCEDURAL RIGHTS – INTERNATIONAL DIMENSION• Rio Declaration (1992), Principle 10

• "Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided." (emphasis added)

PROCEDURAL RIGHTS – EUROPEAN REGIONAL DIMENSION• EU Directive 85/337 (as amended) on environmental

impact assessment• EU Directive 90/313 on freedom of access to

environmental information now replaced by EU Directive 2003/4 on public access to environmental information

• EU Directive 2001/42 on strategic environmental assessment

• Aarhus Convention on access to information, public participation and access to justice in environmental matters (1998)

PROVISION OF ACCESS TO ENVIRONMENTAL INFORMATION-UK• History of secrecy until 1970s• Arguments against access to information

• Commercial confidentiality• Cost • Potential for misuse of information

• Provision of limited access to information through public registers from mid-1970s• Contain limited information on permits, compliance,

enforcement• Anyone could inspect register for free - Stirrat Park Hogg v

Dumbarton District Council 1994 SCLR 631; 1996 SLT 1113 • Development of more comprehensive system of

access to information from early 1990s - enhanced further by Aarhus implementation measures

DRAWBACKS OF REGISTERS• Lack of public awareness• Onus also on interested party to seek out the

information• Problems with accessibility• Costs imposed• Type of information held• Comprehensibility of information held• Remedies• However, improvements made to registers

DEVELOPMENT OF MORE COMPREHENSIVE REGIME - 1• Directive 90/313 on freedom of access to

environmental information• Environmental Information Regulations 1992• Reactive system• Environmental information• Held by public authority• No need to demonstrate interest• BUT No duty to assist• Two months to respond

DEVELOPMENT OF MORE COMPREHENSIVE REGIME - 2• Extensive grounds for refusing to disclose • National security• Personal information

• R v British Coal Corporation, ex parte Ibstock Building Products Ltd. [1995] Env LR 277

• Confidential deliberations• Contained in unfinished documents

• Maile v Wigan Metropolitan Borough Council [2001] Env LR 204

• Still inadequate remedies

DEVELOPMENT OF MORE COMPREHENSIVE REGIME - 3• EU Directive 2003/4 on public access to environmental

information and repeal of Directive 90/313 • One month to respond• Extensive duties to assist • Enhanced provision for remedies in UK to implement this

through Freedom of Information legislation• Much enhanced duties in relation to dissemination of

information – shift to more proactive system• Voluntary initiatives eg corporate reporting – now a

statutory requirement in UK in many cases by virtue of the Companies Act 2006

PUBLIC PARTICIPATION – PLANS - I• Policy, programme plan-making• Policy-making: normally consultation but not

systematic – limited Aarhus obligations• Land use planning system

• Development plan making procedures contain extensive public participation requirements (Town & Country Planning (Scotland) Act 1997 as amended by the Planning etc (Scotland) Act 2006); less extensive in context of National Planning Framework

• Environmental system• National Waste Strategy (EPA 1990, ss 44A-44B); River Basin

Management Plans (Water Environment and Water Services (Scotland) Act 2003)

PUBLIC PARTICIPATION – PLANS - II

• EU Directive 2001/42 on strategic environmental assessment – of plans & programmes

• See eg Environmental Assessment (Scotland) Act 2005

PUBLIC PARTICIPATION–PROJECTS-I

• Environmental impact assessment• Application of preventive and precautionary principles• Environmental statement for qualifying projects• Public consultation on this• Importance of consultation?• Where EIA not carried out, initially ready acceptance

of information gathering which was carried out (R v Poole Borough Council, ex p Beebee [1991] JPL 643; Uprichard v Fife Council 2000 Env LR 122)

• Berkeley v Secretary of State for the Environment & Fulham Football Club [2001] JPL 58, HL

PUBLIC PARTICIPATION–PROJECTS-II

• Land use planning & environmental systems• Advertising/notification/registration of licence

applications• Right to make representations• Duty on regulator to take account of representations• Effectiveness of these measures?

ACCESS TO JUSTICE – APPEAL RIGHTS• Appeal rights against permit refusals, conditions,

forms of enforcement action• Licence applicants normally have appeal rights to the

relevant English/Scottish/Welsh/N Ireland Minister • Usually judicial review available thereafter• Third parties do not have appeal rights• Right to request call-in of application• If called in, participation may be possible in a public

inquiry• Judicial review otherwise only remedy• Third party appeal system has so far been rejected in

UK although it does exist in eg Republic of Ireland

ACCESS TO JUSTICE – LIMITATIONS OF JUDICIAL REVIEW• Scope – not merits appeal

• Standing

• Grounds

• Remedies

ACCESS TO JUSTICE – IMPACT OF AARHUS CONVENTION (1998) - 1• Only guarantees right to challenge substantive and

procedural legality• Possibility of administrative review etc• Judicial and administrative review must be fair,

equitable, timely and not prohibitively expensive • Recognition that costs can have huge deterrent effect

on exercise of rights - only reasonable costs may be recovered

• Ensures environmental NGOs have standing• Practical information must be given to the public

about access to administrative and judicial review procedures

ACCESS TO JUSTICE – IMPACT OF AARHUS CONVENTION (1998) - 2• Aarhus Convention Compliance Committee• Members of the public/NGOs may make complaints• Eg UK Port of Tyne case – a number of procedural

rules found to violate Aarhus and also costs found to be prohibitively expensive

• Has resulted in Protective Costs Orders capping costs at £5000 for unsuccessful claimant in England & Wales and similar Protective Expenses Orders in Scotland

US PROCEDURAL ENVIRONMENTAL RIGHTS - INFORMATION• Freedom of Information Act

• Limited grounds for non-disclosure• Emergency Planning and Community Right to Know

Act 1986• Toxic Releases Inventory (TRI)

• Environmental Protection Agency website• www.epa.gov: GIS-based partially interpreted data from TRI

etc

US – PARTICIPATION & ACCESS TO JUSTICE

• Clean Water and Clean Air Acts• Provisions for public comment on draft permits• Judicial review available• Provision for citizen enforcement

• National Environmental Policy Act 1969• Federal project-based EIA system• Judicial review available

INDIA – PROCEDURAL RIGHTS• Official Secrets Act 1923• Very limited rights to participate• Specific rights developed in certain statutory regimes:

Sarap Chinna Potharaju Dora v District Collector• Rights of private prosecution • BUT very wide access to justice provisions developed

by Supreme Court and High Court• Right to Information Act 2005 (replacing Freedom of

Information Act 2002)

INDIA – RIGHT TO INFORMATION ACT 2005 - 1

• Wide definitions of public authority and information• Extensive obligations on public authorities in relation

to maintenance of records, publication, provision of reasons

• Qualified obligation to pro-actively provide information

• Duty to assist laid upon public information officers within public authorities

• No need for applicant to demonstrate interest

INDIA – RIGHT TO INFORMATION ACT 2005 - 2

• Maximum of 30 days to respond • Fees may be payable• Reasons for rejection must be given and details of

appeal rights• Extensive exemptions• Public interest disclosure test where exemption

applies

INDIA – RIGHT TO INFORMATION ACT 2005 - 3

• Internal appeal possible within 30 days• Second appeal possible within 90 days to Information

Commissions established by the 2005 Act• Onus in appeal is on the public authority to prove that

denial of request was justified• Penalties can be imposed by the Information

Commissions for non-disclosure, destruction, obstruction etc

INDIA – RIGHT TO INFORMATION ACT 2005 - 4

• PWC Study, Understanding the Key Issues and Constraints in implementing the RTI Act

• Need for enhanced accountability and role at Information Commission level

• Need to improve awareness• Need to improve convenience in making requests• Need to develop better record management and

improve Public Information Officer capacity• Need to improve appeals system

CHINA

• Access to information laws - Regulations of the People's Republic of China on Open Government Information 2007

• Public participation - Environmental Impact Assessment provisions allow for public participation

• Access to Justice - Civil Procedure Rules – registered NGOs may bring actions

COMPARISON

• EU, UK and US have well developed systems of procedural rights

• However, there are weaknesses not least in area of remedies, notably in UK

• RTI Act 2005 major step forward in India • Lack of awareness of rights amongst public and lack of

culture change amongst officials in India and China

A ROLE FOR PROCEDURAL ENVIRONMENTAL RIGHTS?• Elaborated rights are probably more valuable than general

rights derived by courts from constitutional provisions• Sometimes specific procedures for engaging public not

well elaborated within EIA systems – eg China• Implementation of rights needs to be sensitive to needs

and capacity of particular societies or sectors of society • Awareness of rights amongst public and culture change in

public administration is very important• Judicial willingness to enforce such rights is also crucial• Effective access to justice required to underpin other

rights

ANY QUESTIONS?

• Mark Poustie• mark.poustie@strath.ac.uk