european union‘s experience with public participation in ...€¦ · of public participation in...

1

European Union‘s Experience with Public participation in

regional EIA Directive in the context of economic

integration and lessons for ASEAN

Public Participation in Mekong region

Regional symposium, Siem Riep, Cambodia

April 25-27, 2016

Ministry of the Environment and Spatial Planning, Slovenia

Vesna Kolar Planinšič, Msc.

[email protected]

Environmental Technical Assistance

and Information Exchange Facility (ENV-TAIEF)

This project is financed by the European Union

Environmental Technical Assistance and Information

Exchange Facility (TAIEF)

Jan 2014 – Dec 2016

Contact:

Technical Assistance and Information Exchange Facility (TAIEF)

NIRAS IC Sp. z o.o., ul. Waliców 11, 00-851 Warsaw, Poland

Phone: +48 22 583 96 90, fax: +48 22 583 96 97

http://ec.europa.eu/environment/international_issues/taief/

Email: [email protected]

Implemented by IC Sp. z o.o.

Environmental Technical Assistance

and Information Exchange Facility (ENV-TAIEF)

This project is financed by the European Union

Public Participation in the Mekong region, Third meeting of the Regional Technical Working group on EIA, April

25-27, 2016, Siem Reap, Cambodia2

Public Participation in the Mekong region, Third meeting of the Regional Technical Working group on EIA,

April 25-27, 2016, Siem Reap, Cambodia

1. POLICIES AND LEGISLATION

• Espoo Convention

• EIA Directive

• Arhus Convention

• Arhus Directive

2. GUIDELINES

� Guidance on Public Participation under the Espoo Convention

� Maastricht Recommendation on Promoting Effective Public

Participation in Decision making in Environmental Matters

3. INSTITUTIONAL SETTINGS

4. KEY PRINCIPLES

5. GOOD PRACTICES EXAMPLES

EIA PROCES, INFORMATION,STEAKHOLDERS

6. RECOMMENDATIONS

3

ENVIRONMENT

HORIZONTAL

EIA DIRECTIVE

Environmental assessment for

privat and public project

ESPOO CONVENTION

Transboundary Environment

Impact Assessment in

Transboundary Context

ARHUS CONVENTION/

DIRECTIVE

The views expressed in all

presentation do not

necessarilly reflect the views of

the European Commission.


April 25-27, 2016, Siem Reap, Cambodia 4

1. EU Policies and legislation1. Convention on Environmental Impact Assessment in a

Transboundary Context /Espoo Convention

2. Environmental Impact Assessment Directive

Directive 2011/92/EU of the European Parliament and of theCouncil of 13 December 2011 on the assessment of the effects ofcertain public and private projects on the environmentDirective 2014/52/EU of the European Parliament and of theCouncil of 16 April 2014 amending Directive 2011/92/EU on theassessment of the effects of certain public and private projectson the environment



EU Policies and legislation3. Convention on Access to Information, Public Participation in

Decision/making and Access to Justice in Environmental Matters

/Arhus Convention

4. Directive 2003/35/EC of the European Parliament and of the

Council of 26 May 2003 providing for public participation in

respect of the drawing up of certain plans and programs relating

to the environment and amending with regard to public

participation and access to justice Council Directives 85/337/EEC

and 96/61/EC

The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention, in particular by:

�improving the public participation and providing for provisions on access to justice within Council Directives 85/337/EEC and 96/61/EC.



ESPOO CONVENTION� Article 2.2 requires Parties to establish a national EIA procedure

that permits public participation.

� It is recommended that, as a minimum, national EIA procedures should include provisions that:

a) the public is informed on any proposals relating to an activity with potential adverse environmental impacts in cases subject to an EIA procedure in order to obtain a permit for a given activity;(b) the public in the areas likely to be affected is entitled to express comments and opinions on the proposed activity when all options are open before the final decision on this activity is made;(c) reasonable time-frames are provided allowing sufficient time for each of the different stages of public participation in the EIA procedure;(d) in making the final decision on the proposed activity, due account is taken of the results of the public participation in the EIA procedure.





ARHUS CONVENTION1. The right of everyone to receive environmental information

that is held by public authorities ("access to environmental

information")2. information on the state of the environment, but also on

policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment.

3. Applicants are entitled to obtain this information within one month.

4. The right to participate in environmental decision-making. State portal

Focal point

Focal point

Focal point

Focal point

Focal point

Focal poit

Focal point

Arhuscentre

New EIA Directive

MS shall ensure information available to public concerned:

(a)any information, the main reports and advice issued to the competent authority or authorities

(b)any other information, relevant for the decision.

The „public concerned“ shall be given early and effective opportunities to participate in the environmental decision-making procedures and shall be entitled to express comments and opinions when all options are open !

Public Participation in the Mekong region, Third meeting of the Regional Technical Working group on EIA, April 25-27,

2016, Siem Reap, Cambodia 9

New EIA Directive

The detailed arrangements for informing the public, forexample by bill posting within a certain radius orpublication in local newspapers, and for consulting thepublic concerned, for example by written submissions or byway of a public inquiry, shall be determined by the MS.

MS shall take the necessary measures to ensure that therelevant information is electronically accessible to thepublic, through at least a central portal or easily accessiblepoints of access, at the appropriate administrative level.

30 days for comments as the minimum.



PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES

Arhus Art. 6 obligations

The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, of:

� The proposed activity and the application on which a decision will be taken;

� The nature of possible decisions or the draft decision;

� The public authority responsible for making the decision;

� The envisaged procedure, including, as and when this information can be provided:

� The commencement of the procedure;

� The opportunities for the public to participate;

� The time and venue of any envisaged public hearing;


25-27, 2016, Siem Reap, Cambodia 11

Arhus Art. 6 obligations� An outline of the main alternatives studied by the applicant;

� In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed

� Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

� Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.



Arhus Article 6 obligationsEach Party shall :

- ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision,

- make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based,

- ensure that, when a public authority reconsiders or updates the operating conditions for an activity.

Public Participation in the Mekong region, Third meeting of the Regional Technical Working group on EIA, April 25-

27, 2016, Siem Reap, Cambodia 13

2. KEY PRINCIPLES



Three pillars of public participation�information,�participation in decision-making and�access to justice.

I. Information� The public has access to information early in the

process.

� The EIA Act very broadly defines “public” as one or more natural or legal persons, associations, organisa-tions or other groups; in a word: anybody. So any-body can submit comments during the three stages of public participation in an EIA procedure.

� The legal consequence of submitting a comment is that the person, association, organisation or group becomes what the EIA Act calls the public concerned.



II. Participation in decision making

� The public concerned is then invited to take part in the second pillar of public participation – the decision-making process.

� The public concerned may actively participate in the prepara-tion and authorisation of the proposed project throughout the EIA procedure up until the authority issues the (non-binding) final statement.

� As the final statement is not an official decision there is no remedy against the statement.

� European Commission: final EIA decission in the case of building is building permit

� Consequently, the public concerned may actively take part as a party to the proceeding in any permitting procedure where a final decision on the authorisation of a project is taken.



III. Access to justice

� Once the competent permitting authority has decided to grant or refuse a permit, the public concerned has the right to access to justice.

� One of the main tools for the public concerned at this stage is the appeal against the permitting decision. The public concerned may challenge the EIA procedure in the administrative appeal.

� Any deficiencies during the EIA process (which often takes place years before the permitting process) can thus be raised in the appeal.

� The court will review the decision only considering the compli-ance with the procedural rules, not the substantive matters assessed in the EIA or the subsequent permitting procedure.



3. GuidelinesGuidance on Public Participation under the Espoo Convention

Maastricht Recommendation on Promoting Effective Public

Participation in Decision making in Environmental Matters



Public Consultation � The essence of public consultation is the communication of a

genuine invitation to give advice and a consideration of thatadvice.

� To achieve consultation, the consulting party must supplysufficient information to the consulted party to enable it totender helpful advice.

� Sufficient time must be given : does not mean ample, but atleast enough to enable the relevant purpose to be fulfilled.The consulted party in this context is competent andenvironmental authorities, non-governmental organizations(NGOs), local community groups, individuals, etc.

� All EU countries have elements in their national EIAprocedures, which permit public participation



Methods used for effective public information ,

distribution of the EIA documentation and receipt

of comments• development of web sites/web pages with EIA information with proposals on

public participation and used for receipt of comments

• dissemination of EIA information and receipt of responses from public by e-mail

• notification of stakeholders in the region likely to be effected (owners, the public,NGOs) and national and international NGOs by post with request to answer aquestionnaire

• organizing points of contact with the public in and around the site of theproposed activity and its possible effects

• organizing public hearings and public meetings with representatives ofproponent and authorities and preparing reports of such meetings

• publishing and disseminating booklets and other materials with EIA info withrequest to answer a questionnaire

• advertisements in local, regional and national newspapers, TV and radio, postersin and around the site with request for public response.



Practical information for organizing effective

public participation

� the name and address of the proponent;

� the name and address of the competent authority that will make the decision on proposed activity;

� location of the proposed activity;

� an address where the EIA documents relating to the proposed activity may be inspected, and the latest date on which they are available for inspection;

� whether copies of the EIA documentation, including the non-technical summary, are available;

� the address to which comment or objections about the proposed activity and/or EIA documentation should be made and

� the final date for such comments.



To maximize the time available, and to ensure an effective EIA procedure, the following preliminary measures or activities may be useful:

� to recommend to potential proponents of projects with possible effects to include in the budgets of these projects adequate resources for financing measures aimed at public participation in EIA;

� to understand which NGOs and groups of the public may be interested in and have relevant skills for participation in transboundary EIA; to establish contacts (by e-mail, fax, telephone and so on) with these NGOs and groups of the public.



Recommendations on increasing effectiveness of

public participation

Preliminary work with potential participants

� The principles of good administration require that applicationsare dealt with efficiently and that decisions are taken asquickly as possible.

� Usually there are time constraints within which a decision isexpected to be taken.

� Consequently the procedures EIA and public participation willalso have limited time scales.



Final decision and results of public participation

To ensure that, in the final decision on the proposed activity, due account is taken of:

� the outcome of the EIA, including the EIA documentation,

� the comments thereon received in consultation withministries and organisations,

� the outcome of the public consultations.



Maastricht Recommendations on Public

Participation in Decision-making

� Terms from Convention on Access to Information, Public participation in Decission –making and Acess to Justice in Environmental Matters (Arhus Convention)

� Public authorities: persons or bodies, other than the competent authority to take decission, to which some tasks related to a public participation procedure are delegated



Terms

The public includes :

� Natural and legal person,

� their associations or groups in acordance with nationallegislation.

Good practice: every person principle

The public concerned : non-governmental organisationspromoting environmental protection and meeting anyrequirements in the national law



Designing public participation

procedure� Procedure should be designed in such a way that both

public authorities and public know precisely:

�what decissions are to be taken,

�at which stage,

�the legal effects of those decissions,

�who is responsible to take it.



Sugestion� Ensure that the framework for public participation is:

� TRANSPARENT,

� CLEAR,

� CONSISTENT.

The following may be clearly specified though national law:

1. What constitutes „having an interest“ in environemntal decission making

2. The requirements, if any , which NGOs promoting environmental protection must meet in order to be deemed to have an interest.

3. What constitutes a sufficient interest should be determined

Aim : Giving the public concerned wide access to justice



4. INSTITUTIONAL ORGANISATION

Each Party shall require the competent public authorities to give the public concerned :

�access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article

�In EU : Environmental Authorities



Institutional Arrangements

Arrangements are to be made by public authorities to1. enable the public affected and environmental non-governmental organisations to comment on proposals forprojects affecting the environment, these comments to be takeninto due account in decision-making, and information to beprovided on the final decisions and the reasons for it ("public

participation in environmental decision-making");2. the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general ("access

to justice").



5. PRACTICES AND EXAMPLES� EIA PROCESS

� INFORMATION

� STAKEHOLDERS

� EXAMPLES, CASES



EIA AND PUBLIC

• Acess to justiceEIA Screening

decission

• Information

• Consultation on scoping reportEIA Scoping

• Public participation

• Consultation on EIA reportEIA Report

32

Finaldecission

• Acess to justice


April 25-27, 2016, Siem Reap, Cambodia

EIA PROCESS

�There are three occasions in the course of the EIA pro-cedure where the public can actively participate by sub-mitting statements:

�early in the process, after the project developer hassubmitted its preliminary environmental study,

�after the authority has issued the scoping decisionand

�after the environmental report has been published.



Information good practice

case by case• informing the public about the start of the EIA procedure;

• advertisements in local, regional and national newspapers;

• informing the public by post, TV and radio;

• posters along the project route/ locality;

• organizing public hearings and meetings with the proponent;

• publishing and dissemination booklets with EIA information;

• organizing points of contact with the public along the route/in the area of project location



Public participation

� Should be seen as a prerequisite of effective action and

� Opportunity for real influence

� Not merely as a formal procedural requirement

� Shoul be incorporated into the decission –making

� Active public participation should be stimulated and encouraged

� The procedure should be open enought to consider new options identified as a result of public participation



� Timeframes for each stage(reasonable prediction)

� How the public will be informed about any future steps in the procedure

� The roles of the different bodies involved in the decission –making, including who is responsible for the various tasks and stages of the public participation procedure and their contact details

� The costs

� How to appeal or contest a decission, including final decission



Tehnical icssues

� Free acess to information: no fees or charges for the public seeking to participate

� Could be costs for copying: If there are any cost for copying the full EIA documentation, they should be known in advance

� Cse by case: situation –dependent and adapted to meet the particular context, e.g., specific cultural needs and be flexible to changes that occour during the procedure.



Good practice

� Predict /plan the procedure

� Monitor the procedure and evaluate how well it is working.

� Public authorities may as part of design processestablished criteria to assist in monitoring and evaluatingthe proceedure

� Evaluation may be available to the public

� Adress deficiencies in procedure and revise or adapt theprocedure, including the choice of tools, techniques andpersonnel



Anger or frustration by certain members of public concerned ?

� Not the reason to do away with participation

� Mybe indication that the format of the publicparticipation procedure is not meeting its purpose andmy need to be revised and improved

� Adressing negativness in an early stage

� Reduce the likelihood that members of the publicconcerned will seek to contest the decission laster on.

� If the public participation will repeat or change, the publicshould be duly notified.



Good practice :

Evaluation of public participation

� After the decission making process is conducted, evaluatethe public participation procedure overall to identify whatmight be done to ensure more effective publicparticipation in the future.

� Evaluation parts:

� effectivness of the procedure

� facilitating the engagement of the public





SCREENING DECISSION

Available to the public

PRIVAT OR PUBLIC Annex II PROJECTS

Consultation with ministries and organisation

PUBLIC PARTICIPATION

Public Participation in the Mekong region, Third meeting of the Regional Technical Working

group on EIA, April 25-27, 2016, Siem Reap, Cambodia 43

CONSULTATION

Public participationMinistries andorganisation

ENVIRONMENTAL REPORT

Aims Indicators Scoping report

ANNEX 1 DRAFT PROJECT

ENVIRONMENTAL CONSENTFINAL DECISSION

Good practice tools

� For activities of high potential environmental significanceor affecting a large number of people, more elaborate procedures:

� written comments,

� public inquiries or hearings, more formal

� formal evidence

� public debate or meetings, less formal, possibility withfacilitated group processes



Case example 1: Public participation in hydropower plant projectin Slovenia� Publishing : newspapers, TV, film

� Public hearings in each local community, 30 days for comments

� Answers prepared for each of the comment

Consultations with public concerned groups :

� Farmers and their assotiation on road crossing field

� Owners of the houses next to the river, possible effected byunderground water, discussion on measures taken to minimiseeffects

� Owners of the houses next to another river, which will beprotected against the flood, but did not like design of protection



Figure: Illustrative location map for national plans for hydropower use in Brežice, 13 km from the border between Slovenia and Croatia, and Mokrice, ca. 0.5 km from the border, and existing hydropower chain on the Sava River



Possible cross-border impacts on Natura 2000 sites

in the Republic of Croatia, Nature conservation

NGO

Case example 2: Public participation in stadium in the city

� Publishing : newspapers

� Publishing on web page

� Answers for each of the comment

� Specific consultation on noise, presentation of measures, project location slighly changed

� Specific consultation on lightning: technical measures

� Public presentations , exhibition, design competition tender with steakholders involved at the very early stage



Case example 3: Public participation in nuclear storage facilities� Publishing : newspapers,

� Public hearings in each local community

� 3 years project working with local community, already in locationphase, alternatives, small groups, focus discussion,

� Answers for each of the comment

Consultations with public concerned groups, involved in the process





Case example 4

Central EIA portal in Slovenia

PUBLIC ANNAUNCEMENTLegal base and Information for public:- The developer/ proponent- The reasons for EIA- The EIA process- The main possible effects- The EIA report- Invitation to the public participation- Place of venue, place where documentation could be read in advance:

administrative unites, municipalities, Environemntal Agency,- Time when documentation is available for comments- Invitation also to public concern : inhabitants in the effected area, the land

owners, other property owners, NGO

http://www.arso.gov.si/varstvookolja/presojavplivovnaokolje/

Conclussion� Public participation enhances the quality and the effective

implementation of decission concerning the environment� Opportunity for public to express its views should be effective and

organised� Public authorities have to take due account of those views in the

decission� Enhance the accountability and transparency of environmental

decission-making and may strengthen public support for thedecission taken

� It contributes to greater awareness of env. Issues among the publicand public authorities

� It contribute to the high level EIA quality



More information and links

�http://www.unece.ohttp://ec.europa.eu/environment/eia/eia-legalcontext.htm

�Court of Justice where you can search for recent EIA case-law: http://curia.europa.eu/jcms/jcms/j_6/accueil

�rg/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppppdm/ppdm-recs.html

�http://www.unece.org/env/pp/treatytext.html

�http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32003L0035

Public Participation in the Mekong region, Third meeting of the Regional Technical Working group on EIA, April 25-27, 2016, Siem Reap, Cambodia 54



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