Procedural environmental rights in the transboundary context: Aarhus vs Espoo legal regimes Magdalena Bar Annual EELF Conference 2016 Procedural Environmental Rights: Principle X in Theory and Practice 14-16 September 2016, Wrocław, Poland Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Scope of the presentation Public participation requirements in case of transboundary impact of activity Espoo Convention on EIA in transboundary context Aarhus Convention Situations when: Espoo procedure is carried out (the government of the affected Party intends to participate in the procedure) Espoo procedure is not carried out Who is responsible to carry out the public participation procedure Access to justice Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Jendrośka Jerzmański Bar & Partners. Environmental Lawyers Espoo Convention Intergovernmental procedure Course of EIA procedure under Espoo Party of origin informs the affected Party/ies The affected Parties (their governments) respond whether they want to participate in the procedure If not – the procedure closes here If yes – the Party of origin submits the required documents etc.; also: the public of the affected Parties shall be consulted In some cases the procedure is only in writte (when the affected Party finds it sufficient); in other cases – also meetings Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Public participation under Espoo (1) Art. 3.8. The concerned Parties shall ensure that the public of the affected Party in the areas likely to be affected be informed of, and be provided with possibilities for making comments or objections on, the proposed activity, and for the transmittal of these comments or objections to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin. Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Public participation under Espoo (2) Art. 2.6. The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin. Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

What if the government of the affected Party is not interested? The public of that Party still may be potentially affected / interested in the proceedings The obligations arising from the Aarhus Convention are still relevant (they are relevant and applicable also when the transboundary procedure is carried out) Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Public participation under Aarhus Art. 6 - Public participation in decisions on specific activities Rights granted to the public concerned affected or likely to be affected by, or having an interest in, the environmental decision-making; environmental non-governmental organizations meeting any requirements under national law shall be deemed to have an interest Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Non-discrimination under Aarhus Art. 3.9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities. Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Jendrośka Jerzmański Bar & Partners. Environmental Lawyers Who is responsible (1) Which Party (which Party’s authority) shall notify the public, organize public hearings etc.? When the affected Party enters into transboundary proceeding under Espoo – it is assumed that the affected Party is mainly responsible – although according to findings of the Aarhus Convention Compliance Committee, the authorities of the Party of origin are also co-responsible (ACCC/C/2012/71 – Czech Republic) Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Jendrośka Jerzmański Bar & Partners. Environmental Lawyers Who is responsible (2) When the Espoo procedure is not carried out – the authority responsible to issue a decision (development consent / permit for activity) is still responsible to ensure public participation without discrimation, i.e. also for foreign public Jendrośka Jerzmański Bar & Partners. Environmental Lawyers

Jendrośka Jerzmański Bar & Partners. Environmental Lawyers Access to justice Regulated mainly under Art. 9.2 of the Aarhus Convention Art. 9 shall be applied without discrimination (see Art. 3.9) Regardless of whether the Espoo procedure is carried out or not Jendrośka Jerzmański Bar & Partners. Environmental Lawyers