Public Participation: Expectation vs Reality

This image was taken from the Living Asia website where this article was originally published

We have recently dedicated much time to discuss such complex topics as environmental assessment. However, even though “strategic environmental assessment” and “environmental impact assessment” terms may sound complicated, it is crucial to know about them for the sake of own future. First of all, because these legal tools include such an essential component as public participation in decision-making processes.

Therefore, a series of webinars has been organized in order to raise public awareness on the impacts of the Belt and Road Initiative and make it easier for the general public to understand all the legal intricacies. Marianna Bolshakova, the coordinator for Environmental Law and Governance, United Nations Environment Program (UNEP) shares her knowledge with us on this topic for the second time. Last time Marianne explained the “strategic environmental assessment” term and its importance. This time the expert will elaborate on the right of the public to participate in decision-making, which is provided within the framework of the environmental impact assessment (EIA). If you would like to get more information on EIA, you can also read our article “Is there a place for EIA in our life?”

Let’s start by figuring out what kind of legal tools are being used at the international level to enable the public to participate in decision-making.

Espoo Convention

The Espoo Convention (Convention on Environmental Impact Assessment in a Transboundary Context) is an international agreement initiated under the auspices of the United Nations Economic Commission for Europe. It has not found wide application in Central Asia yet since it was adopted only by Kazakhstan and Kyrgyzstan.

However, the importance of this document lies in the fact that it deals with projects with transboundary impact, i.e., considers those cases when the implementation of a particular economic activity in one country can affect the welfare of another. Also, the notion of “transboundary impact” should not be taken literally. In this case, we are talking about protecting the interests of any countries, sharing a border or not, from the potential impact of planned projects.

Even though public participation in decision-making is considered mandatory in the convention, not much attention is paid to this matter in the document itself. The convention mainly focuses on the interaction of countries at the national level, which, nevertheless, also implies considering the views of the public of both countries. The country of origin is responsible for providing the public with the opportunity to express opinions.

Public opinion can be gathered at different stages of the process. Undoubtedly, one of the main conditions is to inform the public about the final decision and the possibilities of its appeal.

Aarhus Convention

The Aarhus Convention is a convention of the United Nations Economic Commission for Europe “On Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters.” In Central Asia, the Aarhus Convention is much more common than the Espoo Convention since it was adopted by four countries at once – Kazakhstan, Kyrgyzstan, Tajikistan, and Turkmenistan.

The convention covers both projects with transboundary impact and local ones. Article 6 of this convention defines public participation in decision-making as compulsory. In other words, the public has the right to express its opinion on whether a particular activity or project should be permitted.

The notion of “public” covers the part of the population that may be affected by the decision-making process. The government agencies, in their turn, are the ones who are responsible for ensuring access to information and public participation. However, the state also has the right to delegate this authority, even to individuals. As a result, the developer often becomes responsible for carrying out the procedure. Thus, direct interest in promoting the project negatively affects objectivity.

What happens when individuals are in charge?

First of all, there is a threat of manipulation behind the “interested public” definition. Even though, the Aarhus Convention, comparing to the Espoo Convention, gives the “public” a much narrower definition, the person in charge still has the ability to decide who falls under this category.

Another obvious problem is the incorrect execution of procedural obligations. Since we often deal with conflicts of interest, there is a risk that the procedure will not be carried out properly. As a result, the process of taking public opinion into account is often not objective.

To address this issue, the Aarhus Compliance Committee and the Espoo Committee agreed that governments should be in charge of providing information and taking public comments into account.

Mariana Bolshakova also presented a list of possible criteria to ensure objectivity. They include:

  • Impartiality;
  • No personal interests towards the decision being made;
  • Specialization in the relevant field or extensive experience in the field of public participation;
  • Proximity to the interested public.

To sum up, ideally, the area of ​​responsibility of the project developers should be limited to the expenses’ coverage and participation in the necessary activities under the supervision of the competent authorities.

What information should the public have access to?

First of all, the public should have all the necessary information about the decision-making process and the planned projects, including the possible alternatives being considered. It is also crucial to emphasize that the public has the right to access the environmental impact assessment documentation. However, in some cases, the public is deprived of this right because of the copyrights although they are not applicable here. The exception is cases containing confidential information related to legal proceedings, as well as internal communications.

What happens after the public has expressed its opinion?

Comments received from the public should be duly considered. We certainly need to understand that every single opinion cannot be taken into account. Nevertheless, every comment, supported or not, should be carefully examined. To meet this condition, a reasonable amount of time should be allowed for the examination of public opinion.

Thus, the tools for public participation in decision-making on the implementation of economic projects do exist. However, as elsewhere, there are many pitfalls that we cannot avoid without knowing our rights.  

Forewarned is forearmed.

This article originally appeared on Living Asia in Russian.