1. 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

2. 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

3. 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

4. Public participation under Espoo (1)
Art 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

5. Public participation under Espoo (2)
Art 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

6. 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

7. 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

8. Non-discrimination under Aarhus
Art 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

9. 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

10. 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

11. 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