1. Implementing the Second Pillar of the Aarhus Convention: Problems Identified in the National Implementation Reports Magda Tóth Nagy, Senior Expert Geneva, Expert Group on Public Participation, July 7, 2009

2. www.rec.org Article 6. Public Participation in Decisions on Specific Activities The scope of Art. 6. par. 1 (a)and (b) Should the same procedures be applicable to proposed activities listed in annex I and those not listed but having a significant effect on the environment? Several EECCA countries indicated need for clarification of the scope of activities

3. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Who is the “Public Concerned”? The term “public concerned” not defined in legislation – EECCA countries Diverging practice in interpretation –EU countries Narrower definition in different legal acts of “affected” and “interested” parties or NGOs – part of the “public concerned” may be left out of PP procedure “public concerned” is narrower defined focusing on the formal application of law rather than on substantive implementation - e.g. Art. 6 is only applicable in strictly environmental decision-making and not applicable in the construction of motorways

4. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Narrowing standing criteria for NGOs - Limiting, no NGO or few can obtain status of party or changing the status of civil associations not entitling them to appeal a decision by environmental authority or to request a judicial review (amendment of EIA act or nature conservation act) In case of multiple decision-making process (EIA and IPPC), when public participation should be provided for? – in decision-making only on environmental permit or also on the construction permit

5. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Lack of adequate control over the quality and level of public participation –especially when developers are responsible for implementing the procedures Art. 6.2 Notification of public concerned, making available the information Detailed provisions do not exist Requirements are not sufficiently known Problems with notification – does not reach all “concerned public” or only electronic tools are used Not all required information is included in notification Poor access to documentation

6. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Art.6.par.3 What is reasonable time-frame and sufficient time for informing the public and prepare? 30 days for written comments is usually applied as reasonable, but 21 days was found too short – EU countries Timeframe not necessarily sufficient when complex decision- making Art. 6.par 4. Early participation Lack of public participation in screening and scoping phases of EIA - EECCA Decision on whether to make EIA or not is communicated late in the process- EU EIA comes late in the decision-making process, sometimes even after activity has already started – EECCA

7. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Art. 6. par.5 Difficulty to implement it in absence of legal regulation – EECCA Limited cooperation between authorities and developers in the course of public consultation – EU countries Art. 6. par. 6. Information to public does not always include the required documentation Information does not reach the affected EIA reports are not always made publicly available – (concerns on violation of copyright laws)

8. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Art. 6. par.7 Public participation procedure is not regulated Public hearings are not always held – EECCA Art. 6.par.8 “Due account” taken of the outcome of PP Lack of legal requirements - EECCA Practical implementation problems - when developer is responsible for PP procedure

9. www.rec.org Article 6. Public Participation in Decisions on Specific Activities Art. 6. par.9 Lack of legal requirements and clarity on what information should be given about the decision and how comments have been taken into account - EECCA Art.6.par.10 No such provisions exist in legislation-EECCA Art. 6 par.11. Legal framework is being developed-EECCA

10. www.rec.org Article 7. Public Participation Concerning Plans, Programmes and Policies Relating to the Environment Scope of the article Which plans and programmes should be covered? Broad variety of plans and programmes and corresponding legislation Often no legislative requirements clearly specifying to which types of strategic decisions public participation should apply - EECCA For policies –pragmatic approach, same as for plans and programmes - EU In some countries there is no legal obligation for PP if political programmes or strategies - EU

11. www.rec.org Article 7. Public Participation Concerning Plans, Programmes and Policies Relating to the Environment Quality of practical implementation may vary between regions within countries and between countries Lack of PP in the early stage of decision-making, comments cannot effectively influence the outcome – EECCA Exclusive use of electronic tools for consultation as public participation using – Lack of transparency, not enough feedback and debate, not clear how substantive consideration of comments happens - EU

12. www.rec.org Article 8. Public Participation during the Preparation of Executive Regulations and/or Generally Applicable Legally Binding Normative Instruments Lack of proper regulation of PP process regarding early notification procedures for due account of comments no information given on decisions and how comments have been taken into account - EECCA, EU Time-frame for PP for drafting normative acts are too short, drafts published but too late for effective commenting – EU,EECCA Exclusive use of electronic tools for consultation – lack of transparency, not enough feedback and debate, not clear how substantive consideration of comments happens - EU

13. www.rec.org Thank you for the attention!