The Aarhus Convention and the Access to Justice Pillar: Introduction to Article 9. 1

1. The Aarhus Convention and the Access to Justice Pillar:Introduction to Article 9. 1 Stephen Stec Tirana, November 2008

2. Aarhus Convention: A New Kind of Convention • Rights based approach • Link with human rights • Public and civil society empowerment

3. Stockholm to Rio • Principle 1 of Stockholm Declaration (1972) spoke of a right to a decent environment and the duty to protect the environment • Principle 10 of the Rio Declaration (1992) showed the way for individuals and groups to reach the goal of a healthy environment is to participate in decisionmaking • Prin. 10 set framework for 3 pillars of Aarhus Convention

4. Aarhus Convention has influenced EU legislation EIA Directive Information Directive SEA Directive Information held by Community institutions PRTR (EPER, IPC) GMOs Standards reflected in many sectoral directives

5. Some general provisions (Art. 3) • Public authorities should assist and guide the public • NGOs should be recognized and supported within the framework • Legal system should be adjusted if necessary • Convention is a “floor” not a ceiling • Establishes minimum standards that can be exceeded • State must protect against public being penalized, persecuted or harassed for making use of rights • Non-discrimination on the basis of citizenship, nationality, domicile or seat

6. The Access to Justice Pillar Access to Justice (Art. 9) • Mechanisms for enforcing the legal regime • 9.1 – Access to Information • 9.2 – Participation in Decisionmaking • 9.3 – Public “Defense” of environmental law

7. Article 9.1 claims Arise to guarantee rights under Article 4, where information request is: Ignored Refused Partial information is given

8. Definitions relevant to Arts. 4, 9.1 (Art. 2) • “Public authority” • Authorities at all levels – as well as public or private bodies performing traditionally public functions or providing public services that are acting under the control of a public authority • Exception – bodies exercising judicial or legislative functions • “Public” • Any person

9. Definitions relevant to Arts. 4, 9.1 (Art. 2) • “Environmental Information” • Virtually any info • In any material form • that can be connected to the environment • Relates to “elements” of the environment (air, atmosphere, land, landscape, soil, water, biological diversity etc.) • And their interaction • Factors affecting these elements • Substances, energy, noise, radiation • Activities or measures affecting these elements • Administrative measures, environmental agreements, policies, legislation, plans, programs • And cost-benefit and other economic analyses and assumptions used in environmental decisionmaking • AND this includes • Human health and safety, conditions of life, cultural sites and built structures insofar as they may be affected by the above

10. Art 9.1 – Obligation to provide review of claims that right of access to information is violated • Judicial or other independent and impartial review • Binding decisions • Reasoned, written decisions • Where judicial review is available, another expeditious, inexpensive procedure shall also be available • Reconsideration by public authority or • Review by other independent, impartial body • Standing - any person principle • fast • free of charge or low-cost • before court or other body

11. Critical issues under Art. 4 • No need to state interest (4.1) • In form requested (4.1) • Time limits (4.2) • Optional exceptions (manifestly unreasonable, too general, material in course of completion, internal communications) (4.3) • Optional exceptions with adverse interest test • Proceedings of public authorities • International relations, national defence, public security • Matters in the course of justice • Commercial and industrial confidentiality • Intellectual property rights • Personal data • Voluntary information • Protecting the environment (e.g., habitats of rare species)

12. Critical issues under Art. 4 (cont’d) • Response to initial request, forwarding to relevant authority (4.5) • Separation of information (maximum disclosure) (4.6) • Procedures for refusal to disclose (in writing, with reasons, including information on appeal possibilities, time limits and notice) (4.7) • Reasonableness of costs, publication of schedule of charges (4.8)

13. Typical cases under Art. 9.1 • The filing of a case may lead to “voluntary” disclosure of the information by an authority to avoid going to court • Interpretation of deadlines – Conv requires not only a formal response but a substantive one • Information request must relate to information actually held (alternative basis for failure to collect relevant info – Art. 8 of ECHR) • Over-exclusion of information based on exemptions, failure to maximize disclosure • Reasonableness of costs – material costs can be recovered only, not labor

14. Typical cases under Art. 9.1 (cont’d) • “proceedings of public authorities exemption” should not be used for matters in the general public interest, but only for matters related to an ongoing specific investigation (Eur. Ombudsman) • Challenges concerning balancing done by public authorities – exemptions should be applied in a limited way • Challenges concerning requirement for legal basis for exemptions (e.g., “confidentiality of proceedings of public authorities, where such confidentiality is provided for under national law”)

15. Aarhus Convention: Third Pillar Art 9.4 – Minimum standards for A to J • Adequate and effective remedies, including • Injunctive relief ‘as appropriate‘ • Permanent and temporary • Fairness • Equity • Timeliness • Not prohibitively expensive • Decisions made in writing and publicly accessible

16. Thank you Stephen Stec Central European University Earthconsult LLC earthconsult@earthconsult.net stephenstec@gmail.com