IPPC Directive and the Relevant Legislative Framework

1. Which are the main legislative instruments used in order to reduce pollution caused by point sources in EU?[go]
2. In few words, what are the main characteristics of IPPC ?[go]
3. In few words, what are the main characteristics of EIA ?[go]
4. Is it possible IPPC and EIA procedures to be applied simultaneously?[go]

Public Participation in the Elaboration and Approval of Environmental Decision

1. What is the ArhusConvention? [go]
2. Who is the "public"?[go]
3. What does it mean that the public should participate in 'green' decision-making?[go]
4. What has been done in the EU so far?[go]
5. What is the public being asked to do?[go]
6. Who needs to participate in the decisions?[go]
7. How will we persuade the public to participate?[go]
8. What information will the public need?[go]
9. Can requests for environmental information be refused?[go]
10. What is going to change in terms of public participation in environmental decision-making at EU level?[go]
11. How will "access to justice" work at EU level?[go]
12. What does "access to justicce" mean at Member State level, and what will be the differences compared to the present situation?[go]

2. In few words, what are the main characteristics of IPPC ?

The IPPC Directive focuses on the environmental impact of the operation of new and existing installations. It does not cover infrastructure projects. Thresholds for installations sometimes differ from those used in the EIA Directive. The control of emissions to air, water and soil is complemented by provisions concerning energy use, waste flows and accident prevention. Installations under this Directive need an integrated permit and are subject to ongoing monitoring and updating of the permit conditions.

Many new IPPC installations also have a requirement to carry out an environmental impact assessment in accordance with Directive 85/337/EEC. Member States may, but are not obliged to, provide for a single procedure in order to fulfil the requirements of both Directives. Whether planned changes necessitate an impact assessment is subject to a case-by-case decision, depending on the significance of the potentially adverse effects on the environment.

1. What is the Arhus Convention?

On 25 June 1998, Ministers from European countries signed a Convention in the town of Aarhus, Denmark. The Convention is now known as the Aarhus Convention and it gives the public the right to obtain information on the environment, the right to justice in environmental matters and the right to participate in decisions that affect the environment.
The Aarhus Convention sets out a general right of access to information on the environment. It emphasizes the need to make access easy and prohibits discrimination between requests for information on the grounds of citizenship, nationality or place of residence.

If rights are to be effective, the public must have a way of seeking justice when those rights are accidentally, or deliberately, denied.
The Convention sets out rights of access to justice to meet this need. The Convention highlights rights of appeal against decisions to refuse requests for information on the environment, against failures of law in decision-making processes, or against actions, which are illegal under a country’s environmental laws.
Opportunities for public participation in making decisions that affect the environment have sometimes been limited. The Aarhus Convention gives the public a right to participate in making these decisions. The right covers decisions on whether to allow specific activities listed in Annex I to the Convention (e.g. roads, power stations, dams and factories), plans and programmes that affect the environment and also policies and laws. The Convention sets out minimum levels of opportunities for participation and the procedures that must be followed.
It is only by working with the public that decisions will be made which provide a good environment and meet the needs of local communities for a better quality of life. This is why public participation in decision-making is highlighted in the Aarhus Convention.
However, successful public participation depends on more than just granting a right to participate and setting out a procedure in a Convention. This handbook concentrates on the practical issues and sets out good practice in public participation exercises to complement the legal text.

2. Who is the "public"?

The public means you.

The Convention uses the term "the public" and defines this as "one or more natural or legal persons, and in accordance with national legislation or practice, their associations, organisations or groups”.

The Convention also uses the term "the public concerned" which means "the public affected or likely to be affected by, or having an interest in, the environmental decision-making". For the purpose of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.
Access to environmental information and participation in the decision making process and access to justice must be given without discrimination as to citizenship, nationality or domicile and in case of a legal person (e.g. a company) without discrimination as to where it has its registered seat or an effective centre of its activities.

3. What does it mean that the public should participate in 'green' decision-making?

The protection and enhancement of the environment is the main aim of most Environmental Decision Making (EDM) processes, and public participation can improve the quality of both the process and the end decision. The participation process is also a learning one for all the stakeholders involved, especially if there is a free flow of information between the parties. For the public it can often be the first experience of taking an active part in the democratic process.
EDM processes benefit from the direct and immediate knowledge held by citizens and business, concerning environmental conditions in their communities and industries. Encouraging the public and other stakeholders to share their knowledge, with the regulatory authorities, fosters better-informed decisions and decreases the likelihood of environmental harm, whilst increasing project viability. It should be realized that wisdom is not limited to scientific specialists and government officials, and that rational analysis, carried on in ignorance of political reality, may well end up so divorced form social reality, as to be of little use to anyone.

4. What has been done in the EU so far?

Directive 2003/4/ on public access to environmental information sets out the basic terms and conditions for right of access to environmental information held by or for public authorities and aims to achieve the widest possible systematic availability and dissemination of this to the public. Moreover, it is aimed at aligning EU law with the provisions of the United Nations/Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the so-called "Arhus Convention 1998" with a view to its ratification by the EU. The countries are required to ratify, approve, accept or accede to the Convention in order to bring about its entry into force.
The Directive comprises the following key elements:

1. disclosure of information is the general rule, unless there is an overriding public interest in refusal;

2. access to information is in principle free of charge, however, public authorities may, under certain circumstances, charge for supplying environmental information as long as it does not exceed a reasonable amount;

3. information on the contamination of the food chain is also covered, where relevant, by the scope of the Directive;

4. information requests must be answered within one month of being received, with the possibility of extension by one month if necessary;

5. when replying to requests for information public authorities must specify the different procedures used in compiling it or refer to the standardised procedure used. Member states should report to the Commission on their experience in applying this Directive no later than 14 August 2009. In light of experience and taking into account developments in computer telecommunications and/or electronic technology, the Commission shall report to the EP and Council any proposal for revision, which it may consider appropriate.

5. What is the public being asked to do?

The constitutional right and duty of everyone to protect the environment implies also that everyone has a right to participate, to have a say in the decisionmaking process, in the formulation and implementation of environmental policies, and in drafting general regulations and laws concerning the environment. The modalities of participation have been determined in many countries by law and public authorities, by tradition, and by culture. The right to participate may be executed individually or collectively. Everyone has the right to cooperate with others and to form organizations and associations representing and defending specific environmental interests.
A healthy environment is the concern and responsibility of all citizens. Public participation is an instrument or a mechanism that can express this. The system does not work automatically. All the people concerned have to make the necessary efforts, and the participating citizen has to show self-motivation. Therefore, the government has to realize that not every citizen is an all-round expert. In order to involve the citizens closely in their policy, which is a precondition for a successful environmental policy, they also have an educational task. Countries with an extensive system of public participation provide a lot of information. They inform the citizens, with the help of many techniques, on the condition of the environment, the consequences of pollution, and how they can contribute themselves by changing their lifestyle. In general, the citizens are shown the way through the complicated maze of authorities and departments that can be of help.

6. Who needs to participate in the decisions?

The decision-making process should be open to everyone so that anyone affected by the decision can participate.

This though may not be enough. The best decision-making processes actively seek out all the people and organizations likely to be affected by the decision so that they are fully aware of it and its likely effect on them. A wide range of interests should be identified and encouraged to take part in the process. Waiting for people to come forward is not best practice.

7. How will we persuade the public to participate?

The most obvious starting point for preparing a strategy for a participation exercise are the existing legal requirements. In many countries, the law sets a framework for public participation exercises. Good practice goes beyond these minimum requirements and even where there is no legal framework in place, it is still possible to organize effective public participation exercises.
The participation exercise must be open and honest to encourage trust and show that the decision is fair. Giving the impression that the decision has already been made is very damaging to the process. The public will not participate if they think that the decision has already been made.

8. What information will the public need?

The demand for sufficient information is closely connected with the question of how the public can be reached, how the information is to be given, and where it will be necessary. A simple answer could be that the citizens themselves have to ask for it. In that case the authorities remain passive. This is the easiest way and, as shown by experience, it leads to frustrations, especially if the information is too late in arriving. Besides, the obligation to give information should not mean that the authorities can present the citizens with a puzzle or send them into the woods on a trail. The apparatus of government is a complicated system in which the average citizen can hardly find his or her way, the right person, or the right department. The obligation to give information, therefore, demands an active attitude of the authorities. They have to see to it that the required information reaches the citizens on time, in the right place, and in an understandable form. All kinds of techniques are available which have already been tested with success elsewhere. They range from supplying folders, arranging information meetings, advertising in newspapers and magazines, radio and television spots, to providing opportunities to read or look through plans, acts and decisions in post offices, libraries, town halls or other public buildings.
Access to information is the key to public participation. In general, openness should be the rule in a democracy, and secrecy an exemption. Actually, this implies that whoever wishes to engage in an activity has to take the initiative to give sufficient and relevant information. Mostly this concerns the government and industry. The costs of the information should not be so high as to be accessible only to a small group. This is one of the reasons why many countries focus on development and regulation of effective information systems. In this context it would be relevant to think of the possibility of demanding that the government and/or industry prepare and distribute environmental information among the public, and not wait for the public to ask for this information. For example, some countries demand reports on the annual state of the environment from industry. The United States demands that industry store data on their toxic releases (Toxic Release Inventory). The EU has a similar regulation (Pollution Emissions Register) and the Netherlands has prepared a bill forcing industry to publish an annual environmental report, accessible to everyone.

9. Can requests for environmental information be refused?

In some cases requests for some environmental information may be refused. This will for example be the case if the disclosure would adversely effect:

1. the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest

2. intellectual property rights

3. international relations, national defence or public security

4. the environment to which tine information relates, such as the breeding sites of rare species.

Requests for environmental information may only be refused as an exception. The main rule is that all environmental information shall be disclosed. Any refusal of requests for environmental information shall state the reason for the refusal.

10. What is going to change in terms of public participation in environmental decision-making at EU level?

Public involvement in environmental decision-making contributes not only to increased environmental awareness among the public but also to improved quality of the decisions and, lastly, public support. The new Directive establishes basic procedures for public participation in important plans and programmes relating to the environment, in the sectors of waste, air pollution and protection of water against nitrate pollution. The Directive also introduces for the first time public participation in the decision-making on environmentally significant projects. To do so, it amends the Directives on environmental impact assessment and integrated pollution prevention and control. It also establishes access to justice, giving the public a possibility to challenge the legality of decisions, acts or omissions subject to the public participation provisions. Within the framework of the Directive, Member States will have to establish the practical arrangements to provide for effective and early participation.

11. How will "access to justice" work at EU level?

The third pillar of the Convention (Article 9) aims to provide access to justice in three contexts:

• review procedures with respect to information requests;
• review procedures with respect to specific (project-type) decisions which are subject to public participation requirements;
  challenges to breaches of environmental law in general.
• Thus the inclusion of an 'access to justice' pillar not only underpins the first two pillars; it also points the way to empowering citizens and NGOs to assist in the enforcement of the law.

Access to information appeals: A person whose request for information has not been dealt with to their satisfaction must be provided with access to a review procedure before a court of law or another independent and impartial body established by law (the latter option being included to accommodate those countries which have a well-functioning office of Ombudsperson). The Convention attempts to ensure a low threshhold for such appeals by requiring that where review before a court of law is provided for (which can involve high costs), there is also access to an expeditious review procedure which is free of charge or inexpensive. Final decisions must be binding on the public authority holding the information, and the reasons must be stated in writing where information is refused.

Public participation appeals: The Convention provides for a right to seek a review in connection with decision-making on projects or activities covered by Article 6. The review may address either the substantive or the procedural legality of a decision, or both. The scope of persons entitled to pursue such an appeal is similar to, but slightly narrower than, the 'public concerned', involving a requirement to have a 'sufficient interest' or maintain impairment of a right (though the text also states that these requirements are to be interpreted in a manner which is consistent with 'the objective of giving the public concerned wide access to justice').

General violations of environmental law: The Convention requires Parties to provide access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which breach laws relating to the environment. Such access is to be provided to members of the public 'where they meet the criteria, if any, laid down in ... national law' - in other words, the issue of standing is primarily to be determined at national level, as is the question of whether the procedures are judicial or administrative.

Other access to justice requirements: The procedures in each of the three contexts referred to above are required to be 'fair, equitable, timely and not prohibitively expensive'. Decisions must be given or recorded in writing, and in the case of court decisions, made publicly accessible. Assistance mechanisms to remove or reduce financial and other barriers to access to justice are to be considered.