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Regressions in the right of access to environmental information, articles 6 and 7 of the regional agreement

Civil society is extremely disappointed with the regressive nature of the access to information provisions in a region which has some of the strongest right to information legislation in the world. The regional agreement is a backward move in that it fails to meet the standards outlined in the Inter-American Regional model law on access to information and provides no categories or types of environmental information which can be definitively deemed  as public information across the region..

The failure to include an exception regime unbalances the agreement as it provides no substantive guidance on a regional standard for the release of environmental information under reactive regimes. It also fails to provide innovative and progressive mandatory proactive disclosure regime to improve access to critical information including information on emissions, EIA, permits etc.

The main regressions we see in articles 6 and 7 are:

  1. There is no regional standard for an exceptions regime
  2. There is no category of environmental information whose access can never be denied by the states
  3. There is no general duty of states to provide assistance to persons making a request for access to environmental information
  4. There is not a mandatory list of information to be included in environmental information systems
  5. There is regression in the provision of access to public documents that impact the environment

1.There is no regional standard for exceptions

The text adopted in article 6 on access to information, while enshrining the principle of maximum disclosure in paragraph 1, restricts its application by not establishing a clear, limited and standardized system of exceptions for the whole region and instead allows each country to apply its own general domestic regime of exceptions, however restrictive when denying access to information. The exemption regime is critical to the operation of an effective and transparent system of access to environmental information. To create a regional agreement the Parties needed to create a list of information that would be exempt.

 The provision is also incongruous. It indicates that Parties may apply the exceptions. In no country a party applies exceptions, it should be a public authority that applies exceptions

 A clear regime of exceptions would also provide clear guidance to the signatory countries who currently do not have access to information legislation such as St. Kitts and Nevis, Dominica, Grenada and St. Lucia. The list of exemptions that exists does not meet with the standard for the model law in the region and there was no response or substantive discussion with these countries on these provisions.

Finally, the text only encourages each Party to adopt an exception regime that favors the disclosure of information. It does not require this.

2.The text also does not establish any category of environmental information whose access can never be denied by the states.

In the sixth version of the compiled text, Article 6.7 stated that information concerning factors that negatively affect the environment and human health and safety would not be considered as being exempt from disclosure. This article, which was deleted by the states in the negotiation in Argentina, provided for information of fundamental importance to the protection of the right to health and a healthy environment was always brought to the attention of the citizens. Similar articles are included in other instruments of international law such as the Aarhus Convention, which states that information on emissions of pollutants to the environment should always be delivered, and the Inter-American model law on access to information, which states that in no case access to information may be denied in cases of serious violations of human rights or crimes against humanity.

Art 6.6 now contains a vague and unprecedented obligation to ‘take into account’ human rights obligations when applying the exceptions regime. There is no meaningful standard in this article as countries are already obligated to apply the human rights instruments they are parties to. It is unclear how this is expected to operate in this context as it is not expressed as an exemption to the exceptions regime and it does not form part of the public interest test. This will undoubtedly create problems in implementation as it is a binding obligation which is difficult to interpret and apply. This has ramifications both for the public and public authorities as public authorities will have difficulty establishing they have complied with this requirement and the public will have difficulty understanding the scope of this requirement in the first place.

3.The general duty of states to provide assistance to persons making a request for access to environmental information was excluded

Article 6.2. stated certain rights that states must guarantee to the people when a request for environmental information is made such as: make a request without mentioning any special interest or explain the reasons for the request, be informed promptly if the authority has the information requested, and be informed of their right to appeal if the information is not given, however, this article did not include the general duty of states to offer assistance to individuals when making a request. The duty to assist is important to ensure that petitioners receive information in a timely manner. When authorities help petitioners clarify their requests for information they can reduce time spent searching for information. This duty is found on The OAS Inter-American Model Law on Access to Public Information states, s. 25(2) and access to information legislation in Jamaica and Trinidad and Tobago among others. Although Article 5(3) refers to assistance to be provided to the public when exercising access rights, the language used in that article is “shall endeavor” and is therefore non-binding.

4.There is not a mandatory list of information for environmental information systems which must be proactively disclosed.

The failure to provide a regional exception regime is made worse by the refusal of Parties to agree on a minimum set of information which must be proactively released to the public as a regional standard. This will undermine the ability of the public to be able to get access to key environmental information which currently is not available in many countries including permits, EIAs, contracts, monitoring reports, enforcement information. The access to environmental information proactive provisions in the regional agreement do not then substantially take the region forward requiring progressive improvement at the national level. States committed in article 7.3 to have environmental information systems but failed to agree on a mandatory list of information that should be included in environmental information systems, and simply included a list that established certain voluntary guidelines.

5.There is regression in the provision of access to public documents that impact the environment

The regional instrument should address the provision of access to documents and information in relation to the use and exploitation of natural resources. The new Article 7.9 states that: “Each Party shall promote access to environmental information contained in concessions, contracts, agreements or authorizations granted involving the use of public goods, services or resources, in accordance with national legislation.” This article is problematic because it circumvents the standards of many countries whose legislation already enshrines that documents such as concessions and public contracts will be public, and instead provides that the parties will promote access to environmental information in such documents, but not to the whole documents as such. There is much information in these documents that despite not being strictly environmental impacts the environment, and should be public knowledge.

Regresiones en el derecho de acceso a la información, Artículos 6 y 7 del acuerdo regional

La sociedad civil está extremadamente decepcionada con la naturaleza regresiva de las disposiciones sobre el acceso a la información en una región que cuenta con una de las legislaciones más fuertes sobre el derecho a la información en el mundo. El acuerdo regional es un retroceso en el sentido de que no cumple con los estándares esbozados en la Ley Modelo Interamericana de Acceso a la Información y no proporciona categorías o tipos de información ambiental que por su naturaleza pueda ser declarada como información pública en toda la región.

El hecho de no incluir un régimen de excepción desestabiliza el acuerdo, ya que no proporciona ninguna orientación sustantiva sobre las normas en toda la región para la liberación de información ambiental bajo regímenes reactivos. El texto tampoco proporciona un régimen de publicación proactivo obligatorio y progresivo para mejorar el acceso a información crítica, incluida información sobre emisiones, estudios de impacto ambiental, permisos, etc.

Las principales regresiones que vemos en los artículos 6 y 7 son:

  1. No existe un estándar regional para un régimen de excepciones
  2. No hay ninguna categoría de información ambiental cuyo acceso nunca pueda ser negado por los estados
  3. No existe un deber general de los Estados de prestar asistencia a las personas que hacen una solicitud de acceso a información sobre el medio ambiente
  4. No existe una lista obligatoria de información que debe incluirse en los sistemas de información ambiental
  5. Existe retroceso en la provisión de acceso a documentos públicos que impactan el medio ambiente
  1. No se crea un estándar regional en el régimen de excepciones

El texto adoptado en el artículo 6 sobre el acceso a la información, aunque consagra el principio de máxima divulgación en el párrafo 1, limita su aplicación al no establecer un sistema de excepciones claro, limitado y estandarizado para toda la región y, en cambio, permite que cada país aplique su régimen domestico de excepciones, así sea mas restrictivo al negar el acceso a la información. El régimen de excepciones es fundamental para el funcionamiento de un sistema eficaz y transparente de acceso a la información ambiental. Para crear un acuerdo regional las partes debían crear una lista de información exenta.

La disposición de 6.5. es también incongruente ya que indica que las Partes pueden aplicar las excepciones. En ningún país una parte aplica excepciones, sino que debe ser una autoridad pública la que aplica las excepciones.

Un régimen de excepciones claro también proporcionaría orientación clara a los países signatarios que actualmente no tienen legislación sobre acceso a la información como San Kits and Nevis, Dominica, Granada y Santa Lucía. La lista de exenciones que existe no cumple con los estándares de la ley modelo en la región y no hubo una respuesta o una discusión sustantiva con dichos países sobre estas disposiciones.

Por último, el texto no establece un requerimiento sino que sólo alienta a cada Parte a adoptar un régimen de excepción que favorezca la divulgación de información.

2. No se estableció ninguna categoría de información ambiental cuyo acceso nunca pueda ser negado por los estados

En el texto compilado sexta versión el articulo 6.7 establecía que la información relativa factores que afectaran negativamente el medio ambiente y la salud y la seguridad humanas no se consideraría exenta de divulgación. Este artículo, que fue borrado por los estados en la negociación en Argentina permitía que información de importancia fundamental para la protección del derecho a la salud y a un medio ambiente sano siempre fuera puesta en conocimiento de los ciudadanos. Artículos similares están incluidos en otros instrumentos de derecho internacional como por ejemplo el Convenio de Aarhus que establece que la información sobre emisiones de contaminantes al medio ambiente siempre deberá ser entregada, y la ley modelo interamericana sobre acceso a la información que establece que en ningún caso se podrá negar el acceso a la información en casos de graves violaciones a los derechos humanos o crímenes contra la humanidad.

El ahora artículo 6.6 contiene obligación vaga y sin precedentes de “tener en cuenta” las obligaciones de derechos humanos al aplicar el régimen de excepciones. No existe un estándar significativo en este artículo porque los países ya están obligados a aplicar los instrumentos de derechos humanos de los que son parte. Además, no está claro cómo se espera que funcione en este contexto, ya que no se expresa como una exención al régimen de excepciones y no forma parte de la prueba de interés público. Esto indudablemente creará problemas en la aplicación, ya que es una obligación vinculante que es difícil de interpretar y aplicar. Esto tiene ramificaciones tanto para el público como para las autoridades públicas, ya que las autoridades públicas tendrán dificultades para establecer que han cumplido con este requisito y el público tendrá dificultades para entender el alcance de este requisito en primer lugar.

3. Se excluyo el deber general de los estados de prestar asistencia a las personas que hacen una petición de acceso a la información ambiental

El Artículo 6.2. estableció ciertos derechos que los Estados deben garantizar a las personas cuando se hace una solicitud de información ambiental como: hacer una solicitud sin mencionar ningún interés especial o explicar los motivos de la solicitud, y ser informado con prontitud si la autoridad tiene la información solicitada.

 Sin embargo, este artículo no incluye el deber general de los Estados de ofrecer asistencia a las personas al hacer una solicitud. El deber de asistencia es importante para asegurar que los peticionarios reciban información de manera oportuna. Cuando las autoridades ayudan a los peticionarios a aclarar sus solicitudes de información, pueden reducir el tiempo dedicado a buscar información. Este deber se encuentra en la Ley Modelo Interamericana de Acceso a la Información Pública de la OEA, s. 25 (2) y legislación sobre acceso a la información en Jamaica y Trinidad y Tobago, entre otros. Aunque el apartado 3 del artículo 5 se refiere a la prestación de asistencia al público en el ejercicio de los derechos de acceso, el texto utilizado en dicho artículo es “se esforzará” y, por lo tanto, no es vinculante.

4. No hay una lista obligatoria de información que se deba divulgar proactivamente en el sistema de información ambiental

La falta de un régimen de excepción regional se ve agravada por la negativa de las partes a ponerse de acuerdo sobre un conjunto mínimo de información que debe ser divulgada de forma proactiva al público como un estándar regional. Esto perjudicará la capacidad del público para obtener acceso a información ambiental clave que actualmente no está disponible en muchos países, incluyendo permisos, estudios de impacto ambiental, contratos, informes de monitoreo, información de cumplimiento. Las disposiciones proactivas de acceso a la información ambiental en el acuerdo regional no llevan sustancialmente a la región hacia adelante, requiriendo una mejora progresiva a nivel nacional. Los Estados se comprometieron, en el párrafo 3 del artículo 7, a contar con sistemas de información ambiental, pero no acordaron una lista obligatoria de información que debía incluirse en los sistemas de información ambiental y simplemente incluyeron una lista que establecía ciertas directrices voluntarias.

5. Hay una regresión en el acceso a documentos públicos que impactan el medio ambiente

El instrumento regional debería abordar la provisión de acceso a documentos e información en relación con el uso y la explotación de los recursos naturales. El nuevo artículo 7.9 establece que : “Cada Parte promoverá el acceso a la información ambiental contenida en las concesiones, contratos, convenios o autorizaciones otorgadas que involucren el uso de bienes, servicios o recursos públicos, de acuerdo con la legislación nacional.” Este artículo es problemático porque soslaya los estándares de muchos países en cuyas legislaciones ya se consagra que documentos como las concesiones y contratos públicos, y en vez se establece que las partes promoverán el acceso a la información ambiental de dichos documentos, pero no a los documentos como tal. Hay mucha información en estos documentos que a pesar de no ser estrictamente ambiental si impacta el medio ambiente y por ese debe ser de público conocimiento.

Fighting for Answers, Indonesia’s Poorest Communities Don’t Know What’s in Their Water

This article is the third in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on Indonesia, where industrial runoff is degrading the water fishermen depend on.

Roshadi Jamaludin has fished from his local pond for only three years, but everyone in his village remembers what it was like before the pulp and paper and textile mills started releasing wastewater into the Ciujung River, which fills it. Roshadi, who prefers his nickname, Adi, commented, “Long before the fishpond got affected by pollution, everything was really smooth. There was no disease on the shrimp, crab and milkfish. Their growth was also good.”

For generations, people in Adi’s village of Tengkurak, in Serang, Java, Indonesia, have relied on the Ciujung River as their daily source of water for bathing and cooking. Village fishermen set up enclosed ponds on the bank of the river to raise and sell shrimp and fish. But in the 1990s, after rapid industrialization in the area, community members noticed a significant decline in water quality and suspected that industrial wastewater was to blame. Since then, pond fishermen have noticed drastic decreases in the quality of their catch and in their income. Shrimp populations have declined, with catches falling from 30-50 kilograms to 15-20 kilograms. Adi agrees, “Daily income is not available if there is wastewater. If wastewater goes to the pond, everything is off.”

After years of trying to engage the mills and the Indonesian government through protests, meetings and even the courts, people in Serang are still fighting to restore the Ciujung and protect their livelihoods. Yet even after a 2013 government audit of the main waste contributor found multiple problems with its practices and violations of water pollution laws, the community is still struggling. They want answers about the pollutants contaminating their river and whether the companies are releasing more pollution than allowed under wastewater discharge permits.

“(We received) no notice from government when wastewater came along, came uninvited,” confirms Adi. “Information is desperately needed. When there is wastewater, come discuss in forum. Just to let me know. All is helpful.”

Transparency Laws Ineffective

Adi is not alone. Many communities throughout Indonesia and Asia are struggling to get the information they need to address the impacts from rising industrial pollution and weak enforcement of pollution control laws. As documented in WRI’s new publication, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia and Thailand, these Asian governments have strong transparency laws that clearly require the disclosure of environmental information. But inadequate implementation and ineffective disclosure mechanisms are preventing poor, often marginalized community members from getting the local, facility-specific public health information they need.

Indonesia is trying, despite limited budgets and resources. It passed a Right to Know law in 2008 so citizens could request information from the government, implemented a public ratings program showing how industries comply with pollution control laws, and mandated the release of government environmental impact assessments, which set forth standards for private companies and monitoring requirements. It’s developing a public, online environmental database. Despite these efforts, information on local water quality is still not reaching communities like Tengkurak.

Impacts on Participation

Governments in Asia and across the world have recognized access to information as an essential prerequisite for participation and accountability. It can help build public trust in government decisions; ensure proper compliance and enforcement of laws; tailor solutions to local socio-cultural and environmental conditions, and increase a sense of ownership over the process and outcomes. Sharing information clearly with communities can inspire citizen activism and help the government as it works to identify and correct environmental problems.

But without meaningful access to information, local communities are handicapped. For Adi and other communities throughout Indonesia, Mongolia and Thailand, this lack of access is hurting their ability to protect their livelihoods and earn a living. Without the power of knowledge, they can’t hold local government and companies accountable for the impacts of contaminated water, or participate in government decisions about pollution control and enforcement that could help clean up the river.

The report cites numerous examples. In a village in Mongolia, herders fear that mining companies are polluting the Tuul River and making their livestock sick. In Thailand, independent researchers have confirmed that wells in the industrial community of Map Ta Phut are contaminated with mercury and arsenic. But without documentation of water contamination or information about the companies causing the pollution, residents don’t have the facts they need to stop them from violating their permits.

Actions to Improve Transparency

Governments, civil society and international donors have many options to improve responsiveness on water issues. They can release local water pollution information in non-technical formats, like radio broadcasts, pictures and signs that citizens can understand without translation or internet access. They can organize local environmental data and publicly provide accurate, up-to-date information about water use, health risks, and types and amounts of pollutants entering waterways, as well as company-specific data. Civil society organizations and international donors can advocate and invest in initiatives that promote better access to water pollution information.

For now, Adi watches his catches dwindle and his pond degrade. For citizens like him throughout Asia, implementing these recommendations will help ensure he gets the local, facility-specific and public health information he wants. It will ensure he has the power to fight for water justice. 

Left in the Dark on Pollution, Mongolia’s Poorest Communities Must Use Contaminated Water

This article is the second in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on Mongolia, where toxic chemicals from gold mining threaten residents and their herds.

Baasan Tsend, a nomadic herder living in the Mongolian gold mining region of Zaamar, suspects that the water he uses for drinking, bathing and raising his livestock is toxic. Over the past two decades, he’s watched dozens of multi-million-dollar corporations and powerful Mongolian companies pillage his ancestral homeland in search of gold. He’s seen these mines contaminate the groundwater and rivers that have sustained his family’s way of life for generations and consoled neighbors whose animals died after drinking the polluted water.

“We cannot live here,” Tsend says, holding his grandson’s hand. “It is now impossible for any human or animal to drink from that water.”

Like Tsend’s village, poor communities across Mongolia—those that still depend on local water sources—have suffered most from the water pollution that has accompanied the country’s gold rush. Lead, arsenic and other toxic chemicals released during gold extraction processes have leached into Mongolia’s groundwater and flowed untreated into rivers. Exposure to these pollutants can cause severe, long-term health effects, from skin and bladder cancers to irreversible immune system and neurological disorders.

Contaminated water also threatens Mongolian herders’ livelihoods. For many families, livestock are their primary, and often only, source of income. When their animals get sick or die from drinking bad water, herders are left with nothing. They have few financial safety nets and limited economic opportunities.

As the scramble for gold in Tsend’s village heats up again, water pollution is also on the rise across Mongolia and throughout Asia. Each year, industrial facilities dump 300-400 million tons of heavy metals, toxic sludge and other pollutants into the world’s waters, and in Asia, 80-90 percent of wastewater flows untreated back into ground and surface water sources. Yet secrecy around the amount and type of chemicals that companies discharge is still the norm, especially in Asia. Worldwide, 80 percent of countries do not provide comprehensive information on the amount of pollution that companies release into the environment.

A new WRI report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand, examines vulnerable communities’ access to water pollution information in these three countries. It finds that, like many Asian nations, Mongolia, Indonesia and Thailand have all established comprehensive laws that mandate proactive disclosure of water pollution information to the public. Mongolia’s laws, for instance, recognize citizens’ right to obtain environmental data from the government, and establish concrete steps officials must take to release this information to local communities. Yet WRI’s report shows that, despite passing these strong “right to know” laws, Mongolia, Indonesia and Thailand are putting many of their poorest communities at risk by not effectively telling them if their water is safe to use.

Resolving this environmental injustice will require these governments, and others across Asia, to address three barriers that obstruct local communities’ access to information:

Gaps in Local Water Quality Information

Across the world, people need to know if their water sources are too contaminated to drink, cook with, fish or give to their livestock. They need to understand what pollutants companies are releasing into their water sources, how these chemicals will impact their health, which companies are contaminating their waterways and what steps governments have taken to prevent further degradation. Access to this information not only allows families to make more informed choices about their water use, but also enables them to monitor industrial facilities’ compliance with environmental regulations and hold law-breaking polluters to account.

But in Mongolia, Indonesia and Thailand, the data that governments disclose concern ecosystem impacts or threats to overall water quality―not the local, facility-specific and health information that communities need. Mongolia, for instance, does not disclose individual facilities’ pollution discharges, issue permits regulating these discharges or provide companies’ compliance records. Our research partners were also unable to locate any information about health risks associated with using contaminated water, or water quality data for local sources.

In Indonesia, community members face comparable challenges accessing facility-specific information. Although their government publicly rates companies’ compliance with Indonesian environmental regulations, including water pollution controls, officials do not disclose the criteria they use to evaluate compliance. Nor do they release any information on the amount or type of pollutants that facilities dump into local waterways.

Inaccessible Water Pollution Information

The information that Indonesian, Mongolian and Thai governments do release is inaccessible to local community members, many of whom live below the poverty line and reside far from government offices. Villagers in Tsend’s hometown of Tumstii, for example, have few computers and limited internet access, making it nearly impossible for them to navigate national websites or access online databases.

Similarly, when community members in Thailand’s Rayong province submitted information requests to get water data that they couldn’t find online, officials told them that they had to search for the documents in Bangkok—a demand that shifted the burden onto poor villagers to cover travel costs and forfeit a day’s earnings.

Technical, Hard-to-Understand Data

Even when people can successfully access water pollution information, the data that governments provide is so technical that community members cannot understand it. Indonesian fishermen in Serang, a village on the Ciujung River, had to rely on civil society organizations to translate the raw data provided into pictures that they could understand. Mongolian herders also needed local nonprofits to explain the technical responses they obtained through information requests. Community members we interviewed in Thailand received official documents in English, a language they couldn’t speak.

Suffering the Consequences

Without access to pollution information, Tsend can’t protect his grandson from drinking contaminated water. He can’t determine whether it’s safer to give his herd groundwater from a well or let them drink from the river. He can’t meaningfully participate in local decision-making, pressure his government to protect his community from exploitation, or hold companies responsible for environmental violations.

Improving transparency of water pollution data will give Tsend’s village and poor communities throughout Asia access to the information their governments are legally obligated to provide and a voice in the water justice movement. It is an essential first step in claiming their right to clean water. 

RELEASE: Is the Water Safe To Drink? Without Better Access to Pollution Information, Asia’s Poorest People Don’t Know

STOCKHOLM (August 30, 2017) — A new report from World Resources Institute’s (WRI) The Access Initiativereveals that Asian countries are not effectively telling people if the water they use for drinking, farming and fishing is polluted or dangerously toxic. Despite passing strong “right to know” laws, governments are still putting their poorest communities at risk by failing to release pollution information that they are legally required to disclose.

Launching at this year’s World Water Week that focuses on water and waste, the report Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand examines vulnerable communities’ access to water pollution information. WRI analysis shows that, although governments have passed laws that protect citizens’ right to environmental information and mandate public disclosure of this data, officials are failing to live up to their legal obligation—either proactively or upon request. For example, government agencies in Indonesia and Mongolia ignored 58% and 59% of information requests, respectively.

“The right to information about environmental threats is a human right in itself, and it is also critical to the protection of other human rights,” said John Knox, the United Nations Special Rapporteur on Human Rights and the Environment. “People have the right to know about hazardous pollution in the waterways on which they rely. Governments that fail to provide that information are violating their citizens’ human rights.”

Each year, industrial facilities release upwards of 400 million tons of hazardous pollutants into the worlds’ waters. Yet secrecy around the amount and type of chemicals that companies discharge is still the norm, especially in Asia. Worldwide, 80% of countries do not provide information on the amount of pollution that companies dump into the environment.

Thirsting for Justice analyzes data from state of the environment reports, water quality monitoring portals and other public databases to assess the availability of pollution information that governments are legally obligated to disclose. The report authors also tracked 174 information requests that local community members submitted and spoke with nearly 150 affected people about barriers they faced accessing pollution data.

“Governments’ failure to provide water pollution information is an environmental injustice,” said Elizabeth Moses, report author and environmental democracy specialist at WRI. “Without it, poor, marginalized communities cannot participate in decision-making, let alone hold governments and more powerful corporations accountable for contaminating their local water sources.”

In Thailand, a country with one of the most advanced environmental disclosure regimes in the world, residents of Map Ta Phut, a sprawling industrial estate that hosts more than 140 petrochemical facilities, still don’t know if their water is safe to use. Researchers from nearby organizations and international universities have discovered dangerously high levels of mercury and arsenic in the water, but as the report finds, public access to government pollution data is extremely limited in practice.

“All the government services — municipalities, public health, the Office of the Natural Resources and Environmental Policy and Planning, and the Industrial Estate Authority of Thailand — realize what has been happening with pollution in our community, but they don’t tell or give us the true information … I’ve never received correct and clear information about the water,” said Nangsao Witlawan, former oil refinery worker and Map Ta Phut resident.

When governments do release environmental data, officials often provide limited information that community members can neither access nor understand. For instance, Thai government officials frequently respond to information requests in English, which most Map Ta Phut residents do not speak. In Indonesia, many local fisherman cannot understand the highly technical wastewater information they receive from the government and need it translated into more straightforward formats like pictures or graphics.

“Villagers who fish Indonesia’s Ciujung River need to know what pollutants companies are releasing into their water sources, how these chemicals will impact their health, which companies are responsible and what steps their government has taken to prevent further contamination,” said Henri Subagiyo, Executive Director at the Indonesian Center for Environmental Law. “Yet our government rarely provides such local, facility-specific information, and even when officials do, it’s often so technical that we have to translate it into pictures that the fishermen can understand.”

WRI’s report calls for a radical shift in information sharing to protect people from using contaminated water that could harm their health and economic livelihoods. It recommends that governments release information in non-technical formats, create centralized systems for responding to communities’ information requests and encourage companies to disclose pollution information.

Civil society organizations and international donors also have a role to play. They should invest in building local communities’ capacity to understand water pollution information, advocate for greater government transparency and participate in decision-making.

The full report is available at http://www.wri.org/thirsting-for-justice.

In Thailand

This article is the first in a series on WRI’s latest report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand. This post focuses on a Thai community’s fight for information on industrial water pollution.

Complaints about pollution in Map Ta Phut, Thailand, a sprawling industrial estate south of Bangkok, are not new. For decades, residents have voiced concerns about the pollution pouring from more than 140 petrochemical plants, oil refineries and coal-fired power stations. Researchers from nearby organizations and international universities have confirmed local communities’ fears, discovering dangerously high levels of mercury and arsenic in their water. Many have ranked Map Ta Phut as Thailand’s number one toxic hot spot.

Exposure to these pollutants can cause serious health effects. A 2003 Thailand National Cancer Institute study found unusually high rates of cervical, blood and other cancers in Rayong Province, where Map Ta Phut is located. Provincial public health officials have also reported increased numbers of birth deformities, disabilities and chromosome abnormalities, while environmental activists have claimed that pollution from the estate caused at least 2,000 cancer-related deaths from 1996 to 2009.

Yet the Thai government has not responded to communities’ concerns about health risks or made any significant attempt to clean up the region’s water.

Nangsao Witlawan, a former oil refinery worker and Map Ta Phut resident, has stage four cervical cancer and has unanswered questions about her water. But after meeting with officials and company representatives, she still doesn’t know if the water is safe to use or contaminated.

“All the government services — municipalities, public health, the Office of Natural Resources and Environmental Policy and Planning, and the Industrial Estate Authority of Thailand — realized what has been happening with pollution in our community, but they don’t tell or give us the true information,” Witlawan says. “I’ve never received correct and clear information about the water.”

Witlawan’s story, although commonplace across Asia, is surprising in Thailand. On paper, the country has one of the world’s most advanced legal environmental disclosure regimes. Its constitution protects citizens’ right to receive information from the government before the approval or implementation of activities that might have serious environmental, health or quality-of-life impacts on their communities. Nearly ten years ago, it passed strong rules under its Freedom of Information (FOI) law that require officials to proactively disclose environmental and health information to the public. In theory, such legislation should enable Witlawan and all Map Ta Phut residents to access water pollution information. But as a new WRI report finds, implementation of these laws is ineffective, in Thailand and throughout Asia.

The report, Thirsting for Justice: Transparency and Poor People’s Struggle for Clean Water in Indonesia, Mongolia, and Thailand, analyzes vulnerable communities’ access to water pollution information in these three countries. It finds that, like many nations in the region, they have made real progress in protecting citizens’ right to environmental information and enacting laws to ensure governments release water pollution data to local communities. However, as WRI’s study illustrates, weak implementation and limited investments in information disclosure systems are undermining strong “right to know” laws in Thailand, Indonesia and Mongolia. These governments are failing to answer questions about water pollution―information they are legally required to provide.

Proactively Disclosed Information

The Thai, Mongolian and Indonesian governments have made notable progress in establishing “right to know” laws specifying the proactive disclosure of water pollution information. In Thailand, for instance, officials must release companies’ permitting documents, information on the amount of pollutants released, and explanations of public health impacts. Indonesian and Mongolian legislation also mandate that the government provide water quality data, updates on cleanup efforts and information on livelihood impacts. But new research shows that, with few exceptions, these governments are not effectively disclosing the required data, and public access to crucial water pollution information is limited.

Responses to Information Requests

Working with local partners in Thailand, Mongolia and Indonesia, WRI tested the strength of countries’ Freedom of Information laws by tracking 174 local community members’ information requests.

In Indonesia and Mongolia, government agencies ignored over half of information requests, failing to issue even a formal refusal. In some instances, officials asked community members to justify their requests before agreeing to respond, though the law does not require citizens to provide a rationale. Although the Thai government responded to 74 percent of information requests, officials took over 60 days—four times the legally mandated timeframe of 15 days—to reply. Even when officials in all three countries did respond to information requests, they often provided data that related only tangentially to citizens’ questions.

The Ramifications of Poor Implementation

In Map Ta Phut, such poor transparency is undermining public trust in the government. A neighbor of Witlawan’s, Kanis Phonnawin, worries that officials manipulate water pollution data to benefit the estate’s industries. 

“Government agencies paid very little attention to the water problems,” Phonnawin says. “Also, information about each issue released by a government agency always lacks reliability, because most of the information is biased for the sake of petrochemical factories.”

Without the trust of its citizens, a government’s capacity to implement policies, build public support for necessary reforms and enforce the law suffers. A radical shift in information sharing is needed to improve access to water pollution information, restore Phonnawin’s faith in her government, and enable Witlawan to hold companies that do not comply with environmental regulations to account. Improving transparency―not only in Thailand, but across Asia and the developing world―is a critical step forward in the water justice movement.

President Trump’s First Week: Is Environmental Democracy in Jeopardy?

During the new president’s first week in office, the Trump administration took actions that could threaten inclusive decision-making on environmental issues—what we refer to as “environmental democracy”—in the United States:

  • On Monday, the administration instituted a “media blackout” at the Environmental Protection Agency (EPA), prohibiting staffers from publishing news releases, blogs, social media posts and new web content.
  • Similar actions were taken at other agencies, including curtailing of communications at the Department of Agriculture, Department of Interior, Department of Health and Human Services and with the National Parks Service.
  • On the same day, the president stated that he plans to “cut regulations by 75 percent, maybe more” to make it faster for businesses to move projects forward.
  • On Tuesday, he issued an executive order to revive the Keystone XL and Dakota Access pipelines, without consulting with the State Department and bypassing further public consultations.
  • On Wednesday, after proposing and then rescinding a directive to remove EPA’s climate change webpage, a spokesperson for the EPA transition team announced that political appointees must review scientific findings on a “case-by-case basis” before releasing them to the public, including routine pollution monitoring data.
  • These actions could not only undermine the government’s ability to protect the environment and public health, but they also erode the foundations of good governance: transparency, public participation and accountability.

Transparency

Citizens can neither understand nor participate in environmental decision-making without having access to objective, scientific information and data. Sound and effective policymaking within government should be based on the best possible information and evidence. Further, the free flow of information is essential for allowing people to reveal wrongdoing and hold officials to account. As a public institution, the EPA is legally required to provide access to critical environmental information, such as air and water pollution monitoring reports, Environmental Impact Assessments, compliance and enforcement data and climate data. Doing so ensures that Americans “have access to accurate information sufficient to effectively participate in managing human health and environmental risk.”

Beyond communications, it is problematic to require that political appointees review the agency’s scientific data—including regarding climate change—before releasing it to the public. This will be the first time that an administration’s appointees will screen such studies.

This directive undermines the EPA’s established Scientific Integrity Policy, which “prohibits all EPA employees, including scientists, managers, and other Agency leadership, from suppressing, altering, or otherwise impeding the timely release of scientific findings or conclusions.”

The administration’s actions also obstruct an integral component of democratic policymaking. To meaningfully engage in political processes, citizens must have access to accurate information that has not been editorialized or modified. Only with unbiased facts can they understand and shape key decisions that impact their local environments.

Public Participation and Accountability

Public participation is the bedrock of environmental democracy; yet the new administration’s plans may undercut this pillar of good governance. While meeting with business leaders during his first day in office, President Trump declared that the government must eliminate regulations and expedite permitting processes for large development projects. Effective, efficient rule-making should be a goal for policymakers, but it must not come at the cost of public participation.

Many of the EPA’s and other agencies’ procedures—such as air and water discharge permits, waste cleanup plans and Environmental Impact Assessments—require a public consultation process. Soliciting public participation allows policymakers to consider the needs of all stakeholders who may be affected by projects like oil and gas extraction and mining and road construction, and enables them to better identify unintended consequences. Long-term, policies developed with community input often get more public support and less resistance because citizens perceive these decisions as fair and legitimate.

The Dakota Access pipeline project showcases the importance of public participation. In July 2016, the Standing Rock Tribe filed a complaint against the U.S. Army Corps of Engineers, the agency that grants permits needed to construct the pipeline. They claimed that, by crossing under the Missouri River, the pipeline posed a serious threat to the community’s clean water and sacred burial grounds. Their complaint further alleged a breach of the National Environmental Policy Act and the National Historic Preservation Act on the grounds of failure to consult with affected parties, adverse effects on water health and failure to assess scared sites.

In December, following weeks of public protests, the Corps decided it would delay the project in order to conduct an Environmental Impact Statement, which would explore alternative routes for the pipeline. This result shows the power and necessity of public participation—people’s involvement is critical for protecting communities and for finding the safest, most appropriate options for infrastructure projects.

But on his second day in office, Trump ordered the Corps to “review and approve [the pipeline] in an expedited manner,” without considering alternative routes or conducting a public consultation. His directive effectively thwarts the public participation process to resolve what has become the biggest joint protest of Native American Indian tribes in decades.

The Way Forward

The United States has long been recognized as a global leader in establishing rights to environmental information, to accurate and objective scientific resources, and to public participation in decision-making processes. It currently holds the third-highest ranking on WRI’s Environmental Democracy Index, which scores countries on their ability to provide these fundamental rights.

The EPA and other government agencies’ mandate to use science to inform policies, to conduct extensive public consultations, and communicate openly with people plays a foundational role in protecting people’s health and the environment. Pursuing and sharing scientific data and evidence is integral to this process. The Trump administration, its agencies and their staff have an obligation to protect and continue America’s strong leadership on environmental democracy.

Voices from the Global Gathering

Last week the Access Initiative hosted its sixth Global Gathering, Open Government for Climate Action, on 5 December – 6 December, 2016, in Paris, as part of the lead up to the Open Government Partnership (OGP) Paris Summit. The Gathering brought together over 95 people from climate, open data, and open government civil society communities to expand new spaces for action and build momentum around implementation of the Paris Agreement on Climate Change.

TAI asked a number of the participants how they can use open government to foster strong climate action in their work moving forward. This is what they said:

Carole Excell, Director, The Access Initiative

You have heard it said before: climate change remains one of the greatest challenges of our times. It affects all future generations. The Paris Agreement brings climate policies down to the national and local sector level in the “real world” where citizens can understand such as decisions around coal power plants, transportation, coastal structures to deal with sea level rise, land restoration, pipelines and adaptation requirements to deal with floods. However in many countries citizens do not a voice or seat at the table when these decisions are being made. To achieve accountability, people need rights that go to the heart of accountability. This requires strong transparency rules to facilitate understanding of power dynamics and culpability that people can participate in decision-making processes in a timely fashion, and that forums exist to address environmental justice demands. Good climate governance requires open and accountable government actions.  The Global Gathering built communities of actors who often work in silos, together for the first time to springboard greater and more effective climate action.  

Augustine B NJAMNSHI Executive Secretary Bioresources Development and Conservation Programme Cameroon & National Coordinator The Access Initiative Cameroon

Although as humans we all have common responsibility to take action to address climate change, some are more responsible than others. This is not only based on the fact that the current climate crises has been principally caused by the past and present production and consumption systems practiced by the global North, but also that they have benefited from it and have the capacity to withstand the shocks of climate change. They therefore owe greater responsibility not only to do more to stop the climate crises, but also a duty to help those who are suffering more from the effects of climate change in the global South.

Now the talking is over, and we need action. Equity and justice have to be translated into national action in every aspect of the climate regime. The farmer on the ground has to see equity and justice in every climate decision made by the government at all levels. There is no need to fight for climate justice at the international level, and then turn to deny the local population what has been fought for and demanded from the global north. After all, it is said he who goes for equity must go with clean hands! The global gathering was an opportunity for us, climate justice and governance advocates to pave the way on how to take the struggle at the national and local levels.

Eco Matser, Hivos, Global Coordinator Climate, Energy and Development

Hivos has been working with civil society organizations in countries such as Malawi, Kenya, Tanzania, Zimbabwe, Indonesia, Nicaragua and Costa Rica on ensuring that governments follow up on their commitments towards ending energy poverty as detailed in the Sustainable Development Goals and the Paris Agreement. Our main focus is on ensuring that decentralized renewable energy – a key component in establishing universal energy access – has the right policy and regulatory environment as well as access to finances from international and domestic climate finance. In many countries CSOs will keep a close eye on national energy budgets and are advocating for policy changes while in others such as in the Indonesian island of Sumba Hivos works in a multistakeholder approach with communities, governments and businesses to ensure the whole island gets powered by renewable energy.

During the Global Gathering Hivos explored the relevance of OGP for tracking international and national climate finance streams (both from donors and from national sources) as well as develop concrete ideas with the transparency and climate movement to increase transparency of climate finance and how to shift investments to be more focused on creating real energy access for the poor.

Renato Morgado, Public Policy Coordinator, Imaflora

Imaflora is one of the organizations responsible for the Brazilian Greenhouse Gas Emission Estimate System (SEEG) promoted by Climate Observatory, a coalition of 35 NGOs. Such initiative provides transparency to Brazilian GHG emissions, disseminating calculation method, database used on national inventory and results per sector, which allows a better comprehension and incidence on Brazilian public policies and climate compromises. We are also developing a web platform for visualization and monitoring of Amazonian timber flows, from harvest to consumption. The platform will allow better transparency in wood sector as well as to improve the combat to illegal logging and Amazon deforestation, main factor to GHG emissions in Brazil.

The Global Gathering helped enhance our performance, enabling an interaction with community of open government and knowledge of transparency, participation, accountability and technology initiatives and tools, which can be applied to the Brazilian context.

Leah Good, Programme Coordinator (Asia Pacific), Transparency International

Transparency International works with our partners around the world to make sure that actions to address and adapt to climate change are free from corruption. TI partners are tracking climate finance to figure out how much money is flowing and make sure it is spent properly. In Bangladesh and the Maldives, two of the most climate vulnerable countries in the world, our partners are working with beneficiaries of adaptation projects to assess their effectiveness. When problems are identified, our teams ensure local voices are heard. In forest-rich countries in Africa and South America, we are promoting governance reforms that will support successful REDD+ schemes to protect forests. Where investments in renewable energy are huge and growing, we are ensuring civil society plays a role in monitoring public contracts.

At the OGP Summit and beyond, we want to see governments commit to address the climate crisis transparently and openly. By bringing together such a broad range of actors and expertise, the Global Gathering helped TI partners forge new alliances, learn from other approaches, and build even more momentum towards a cleaner, greener future.

Using Open Government for Climate Action

Countries made many national climate commitments as part of the Paris Agreement on climate change, which entered into force earlier this month. Now comes the hard part of implementing those commitments. The public can serve an invaluable watchdog role, holding governments accountable for following through on their targets and making sure climate action happens in a way that’s fair and inclusive. But first, the climate and open government communities will need to join forces.

Historically, open government and climate groups have worked in silos, operating in different forums, using different terminology and meeting with different stakeholders. Yet the NGOs, academics and other non-state actors focused on transparent governance and accountability are critically important in the climate arena, especially now that countries must address numerous governance hurdles, including the need for national level institutional coordination, capacity building and political buy-in. Bringing together the open government and climate communities offers an opportunity to develop new strategies that enhance accountable and inclusive climate policy decision-making.

Here are four areas where these communities can lean in together to ensure governments follow through on effective climate action:

1) Expand access to climate data and information.

Open government and climate NGOs and local communities can expand the use of traditional transparency tools and processes such as Freedom of Information (FOI) laws, transparent budgeting, open data policies and public procurement to enhance open information on climate mitigation, adaptation and finance. For example, Transparencia Mexicana used Mexico’s Freedom of Information Law to collect data to map climate finance actors and the flow of finance in the country. This allows them to make specific recommendations on how to safeguard climate funds against corruption and ensure the money translates into real action on the ground.

Civil society NGOs can also provide alternatives to online portals to ensure information is actually reaching local communities. One group in Indonesia, Yayasan Lembaga Konsumen Indonesia (YLKI), uses its weekly consumer radio show to provide a forum around electricity issues in Jakarta. This allows them to directly share information about public rights around electricity services, provide a forum to answer questions, and increase the ability of local residents to address grievances about power cuts and service reliability.

2) Promote inclusive and participatory climate policy development.

Civil society and community groups already play a crucial role in advocating for climate action and improving climate governance at the national and local levels, especially when it comes to safeguarding poor and vulnerable people, who often lack political voice. Public survey research has also found that people want civil society NGOs included in climate policymaking decisions, and believe the process is more legitimate when civil society is involved. Open government and climate civil society groups can use their links with local communities to strengthen the number and type of initiatives used to feed public input into wider policy debates and secure a seat for both men and women at the decision-making table. This can include mobilizing youth awareness, training indigenous leaders on proposed and negotiated climate change legislation and their rights around the principle of “free, prior, and informed consent,” or strengthening NGO participation in government-led roundtables on national climate change agendas.

3) Take legal action for stronger accountability.

Accountability at a national level can only be achieved if grievance mechanisms are in place to address a lack of transparency or public participation, or address the impact of projects and policies on individuals and communities. Civil society groups and individuals can use legal actions like climate litigation, petitions, administrative policy challenges and court cases at the national, regional or international levels to hold governments and businesses accountable for failing to effectively act on climate change. In the Netherlands, for example, the Hague District Court determined the country must further reduce CO2 emissions to adequately address the impacts of climate change and meet their obligation to protect people and the environment. The case was brought by the Urgenda Foundation, a Dutch NGO, and 886 individuals concerned about the country’s ongoing contribution to climate change.

4) Create new spaces for advocacy.

Bringing the climate and open government movements together allows civil society to tap new forums for securing momentum around climate policy implementation. For example, many civil society NGOs are highlighting the important connections between a strong Governance Goal 16 under the 2030 Agenda for Sustainable Development, and strong water quality and climate change policies. WRI is hosting the sixth Global Gathering of The Access Initiative, called “Open Government for Climate Action,” organized in connection with the December Open Government Partnership Summit (OGP). This event will bring together leading thinkers in open government, open data and climate to exchange ideas on how civil society can best engage in implementing national climate policy.

The Gathering will also inform future open government commitments made by OGP member countries, including many of the countries responsible for the largest emissions of greenhouse gases, such as the EU, United States, Mexico, Indonesia and Brazil. The Gathering and Summit offer exciting opportunities to bring together the separate worlds of open government and climate. Together, they will help spur accountable and inclusive climate action that improves the lives of local communities.