The Access Initiative

Enhancing Access to Environmental Information and Justice in Malawi

(Posted: May 27, 2009) 

From January 2009, Centre for Environmental Policy and Advocacy (CEPA) has been implementing a project aimed at enhancing access to environmental information and justice in matters relating to the environment by facilitating enactment of the revised framework Environment Management Bill and the Access to Information Bill.

As a first step in implementation, CEPA has successfully reviewed current drafts of the Access to Information Bill and the Environmental Management Bill to determine the manner in which they address the access principles as well as mechanisms for improving access to environmental information and justice. The policy brief produced from the review will be used to engage policy makers and other stakeholders involved in enactment of these draft bills and monitoring compliance to the legislation.

The Constitution of the Republic of Malawi guarantees every person the right of access to information held by the state. Similarly the draft Access to Information Bill outlines provisions for improving access to information. However both the Constitution and this Bill limit their application to information held by the state or any of its organs. The draft Environment Management Bill seeks to address some of these limitations by expanding the scope of the environmental information that may be accessed to include that held by private entities. The provisions for promoting access to environmental information and justice are adequate. The challenge will be ensuring that an independent authority is established which can make public institutions to respond to requests for environmental information.

La Inciativa de Acceso en Centro America

San José, Costa Rica. 2009

Last April 29th and 30th, representatives from TAI Coalitions from Guatemala, Honduras, El Salvador, and Costa Rica gathered in regional workshop to create a common Action Plan to strengthen their work on the implementation of Principle 10.

The Action Plan has three sections:

A) Challenges and commitments of the leader organizations in each coalition: This point is related with the strengthening of the following aspects: 1) National coalitions to promote the Access Rights. 2) Information channels within the coalitions and between the coalitions. 3) Fundraising for national coalitions projects. 4) the inclusion of the Dominican Republic and Panama in the regional process. 5) Establishing a regional partnership that consolidates common work strategies and get funding for regional projects. 6) Political context challenges in each country. B) Regional Agenda: This point refers to issues related with: 1) access to information and communications between governments and civil society, 2) Legal framework on access rights. 3) Proceedings and institutional structures of public participation. 4) Education and training on access rights. 5) Funding for public participation and access to information. C) Building a regional partnership: It contains the actions defined to create a regional partnership of TAI Coalitions in Central America.

As part of the program, the meeting had two spaces to tend other topics: Daniel Barragán, from TAI Ecuador, presented the hemispheric strategic plan of Latin America Access Coalitions. Aldo Palacios and Diego Cooper from PP10 Secretariat presented the components and the work of the Partnership for Principle 10.

This workshop is an activity of the project “Partnership 10 Central America” which is funded by the International Union for Conservation of Nature (IUCN) and executed by Foundation for Peace and Democracy(FUNPADEM).

Further information please contact Luis Diego Segura from Foundation for Peace and Democracy, FUNPADEM. Email sociedadcivil@funpadem.org or +506 2283 9435.

El Principio 10 en Costa Rica: Situación y desafíos

San José, Costa Rica. 2009

Last April 29th and 30th, representatives from TAI Coalitions from Guatemala, Honduras, El Salvador, and Costa Rica gathered in regional workshop to create a common Action Plan to strengthen their work on the implementation of Principle 10.

The Action Plan has three sections:

A) Challenges and commitments of the leader organizations in each coalition: This point is related with the strengthening of the following aspects: 1) National coalitions to promote the Access Rights. 2) Information channels within the coalitions and between the coalitions. 3) Fundraising for national coalitions projects. 4) the inclusion of the Dominican Republic and Panama in the regional process. 5) Establishing a regional partnership that consolidates common work strategies and get funding for regional projects. 6) Political context challenges in each country. B) Regional Agenda: This point refers to issues related with: 1) access to information and communications between governments and civil society, 2) Legal framework on access rights. 3) Proceedings and institutional structures of public participation. 4) Education and training on access rights. 5) Funding for public participation and access to information. C) Building a regional partnership: It contains the actions defined to create a regional partnership of TAI Coalitions in Central America.

As part of the program, the meeting had two spaces to tend other topics: Daniel Barragán, from TAI Ecuador, presented the hemispheric strategic plan of Latin America Access Coalitions. Aldo Palacios and Diego Cooper from PP10 Secretariat presented the components and the work of the Partnership for Principle 10.

This workshop is an activity of the project “Partnership 10 Central America” which is funded by the International Union for Conservation of Nature (IUCN) and executed by Foundation for Peace and Democracy(FUNPADEM).

Further information please contact Luis Diego Segura from Foundation for Peace and Democracy, FUNPADEM. Email sociedadcivil@funpadem.org or +506 2283 9435.

Memoria: Taller regional de las Coaliciones de Acceso de Centroamérica

San José, Costa Rica. 2009

Last April 29th and 30th, representatives from TAI Coalitions from Guatemala, Honduras, El Salvador, and Costa Rica gathered in regional workshop to create a common Action Plan to strengthen their work on the implementation of Principle 10.

The Action Plan has three sections:

A) Challenges and commitments of the leader organizations in each coalition: This point is related with the strengthening of the following aspects: 1) National coalitions to promote the Access Rights. 2) Information channels within the coalitions and between the coalitions. 3) Fundraising for national coalitions projects. 4) the inclusion of the Dominican Republic and Panama in the regional process. 5) Establishing a regional partnership that consolidates common work strategies and get funding for regional projects. 6) Political context challenges in each country. B) Regional Agenda: This point refers to issues related with: 1) access to information and communications between governments and civil society, 2) Legal framework on access rights. 3) Proceedings and institutional structures of public participation. 4) Education and training on access rights. 5) Funding for public participation and access to information. C) Building a regional partnership: It contains the actions defined to create a regional partnership of TAI Coalitions in Central America.

As part of the program, the meeting had two spaces to tend other topics: Daniel Barragán, from TAI Ecuador, presented the hemispheric strategic plan of Latin America Access Coalitions. Aldo Palacios and Diego Cooper from PP10Secretariat presented the components and the work of the Partnership for Principle 10.

This workshop is an activity of the project “Partnership 10 Central America” which is funded by the International Union for Conservation of Nature (IUCN) and executed by Foundation for Peace and Democracy(FUNPADEM).

Further information please contact Luis Diego Segura from Foundation for Peace and Democracy, FUNPADEM. Email sociedadcivil@funpadem.org or +506 2283 9435.

Access to Justice in Mae Moh Lignite Power Pant, Thailand

By Suphasuk Pradubsuk (Posted: March 11, 2009) 

On March 4, 2009, the Chiang Mai Administrative Court ordered the Electricity Generating Authority of Thailand (EGAT) to pay compensation to villagers affected by the pollution caused by its Mae Moh power plant in Lampang province. Mae Moh, Thailand’s largest lignite-filed power plant, began operating on a small scale in the 1960s and was significantly expanded in the 1980s. Sulphur dioxide emissions from the power plant have had a severe impact on the heath of people, damage to crops and useable land in the 16 villages. Based on the Pollution Control Department’s air-quality reports from November 1992 to August 1998, the level of ambient sulphur dioxide in the Mea Moh area was beyond the legal limit at 780 micrograms per cubic metre. Under the court ruling, EGAT will need to pay each resident up to Bt 246,900 ($ 7,000), plus interest, and to cover relocation costs for families and find each of them new farmland at least 5 kilometres away from the plant, to rehabilitate the environment at the coal mine, and to replace the golf course with trees.

In 2004, 35 lawsuits have been filed against EGAT by several hundred villagers with the support from the Council of Work and Environment Related Patient Network of Thailand (WEPT). This case actually was one of the access to justice case studies in the third TAI assessment in Thailand implemented during 2006 and 2007 by Thailand Environment Institute (TEI) and its coalition partners. The coalition examined related laws and policies, tracked information distributed from related agencies such as EGAT, Pollution Control Department, Greenpeace Southeast Asia as well as interviewed representatives from EGAT, WEPT and mass media.

The Mae Moh case study yields the following findings that clearly reflect the situation also found in other cases of similar environmental and health impacted problems in Thailand. Existing laws do facilitate access to justice of litigants and clearly define the scope and responsibilities of agencies and organizations that handle complaints and appeals. However, such laws require improvement on the determination of time frame to finish trial proceedings. As well, there are ambiguous definitions of certain provisions in some laws thereby requiring a wide degree of discretion by those involved in the deliberation.

In term of governmental effort, state agencies have made an effort to disseminate environmental information among general public, still it is hard for local communities to access the information because the disclosed information is sometimes too technical and was distributed through limited channels. In term of effectiveness, apart from the court adjudication to have the plant operator provides compensation to villagers and together with other measures to mitigate negative health and environmental impacts on the people in general, effective measures to control pollution are also required to ensure that the power plant would no longer cause social and environmental impacts to their communities.

The victory of the villages in this case signifies a new era whereby the grassroots people have a better access to justice in the area of environmental management than in the past. However, capacities of local agencies and local people must be developed, so that they would acquire knowledge about laws related to the environment and are able to participate in investigations of violations of such laws and monitoring implementation of the court orders.

Grassroots’ Victory in Maptapud, Rayong Province, Thailand

By Suphasuk Pradubsuk (Posted: March 13, 2009) 

The Rayong Provincial Administrative Court ruled on March 3, 2009 that the National Environment Board must announce Maptapud Industrial Estate and the surrounding areas as a pollution control zone within 60 days of the court’s order. The verdict followed a lawsuit filed against the National Environment Board by 27 Maptapud residents, who claimed that the National Environment Board (NEB) was negligent in not announcing the Maptapud Municipality and vicinity, heavily affected by serious environmental problems, as a pollution control zone in order to control, reduce and eliminate toxic waste, as directed in the Environment Act.

The Court considered the case following the reports of Pollution Control Department and related academic studies. All documents indicated the pollution levels in the area where the sprawling Maptapud Industrial Estate is located affects the quality of the environment and is dangerous to the health of its residents. In making this landmark decision, the court cited findings of the Pollution Control Department which showed that 40 volatile organic compounds have been detected in the air in the Maptapud areas with 20 of them carcinogenic and in amounts exceeding safety levels.

On the exact day of the court’s ruling, Thailand Environment Institute (TEI) and Thailand Environmental Governance Coalition (TAI Thailand) held a conference in Rayong Province to present results of the environmental governance assessment of the Petrochemical Industrial Development Master plan (Phase III), the Pollution Reduction and Mitigation Action Plan for Rayong Province and the Maptapud Town Plan and their recommendations. The assessment was carried out during 2007 and 2008 by using TAI indicator-based methodology to study three pillars of people’s access rights: 1) access to information; 2) participation in decision-making; and 3) access to justice.

The findings reveals that the government has continuously promoted heavy and petrochemical industries in the Maptapud area at the expense of the environment, coastal resources and the health of its residents. This promotion goes against Article 67 of Thailand Constitution (2007) which states that the right of a person to live in the environment which is not hazardous to his health, welfare or quality of life, shall be protected appropriately. The fact that the above three plans lacked meaningful public participation also shows that government agencies responsible for preparing the plans did not implement Principle 10 of the Rio Declaration.

Amidst pressure from the Federation of Thai Industry to have the National Environment Board appeal the Court’s ruling, on March 11, 2009 Thailand Environment Institute, the Thailand Environmental Governance Coalition, Thailand Council of Lawyers, Union for Civil Liberty, Social Research Institute, Chulalongkorn University and Society for Industrial Pollution Impacts Study and Campaign collectively submitted a Statement to the Prime Minister, members of the National Environment Board, Parliamentarian Committees, Industrial Estate Authority of Thailand, local governments, a few other relevant agencies and the media. The Statement proposes ten recommendations, including, among others, calling for the National Environment Board not to appeal to the Court’s ruling or permit any more new industry or expansion of existing industry in the area of question before industrial pollution in the area can be put under control and for the industrial estates to immediately set up a network of pollution information centers to proactively inform nearby residents and schools of any pollution leakage and how to protect themselves. The Statement also calls for environmental information to become public information according to Article 9 (8) of the Official Information Act (1997) and amendment of the following acts: Official Information Act (1997), Environmental Act (1992), Town and Country Planning Act (1975).

For more information, visit www.tei.or.th.

The Law Can Never be Secret!

Posted by Lalanath de Silva 

News Release from Access Info Madrid, 11 March 2009, for immediate release

The European Court of Justice ruled on 10 March 2009 that it is illegal to enforce against individuals a law which has not been made public. The case referred to rules governing what cannot be carried onto aircraft, which for years since they were first adopted in 2002 were kept secret, violating the fundamental principle that a law is not a law until it has been published. The news release was issued by Access Info Europe, a human rights organization dedicated to promoting and protecting the right of access to information in Europe and contributing to the development of this right globally.

The result of these secret “laws” has been widespread confusion and misinterpretation. Not only did an Austrian gentleman have his tennis racquet confiscated (which was the origin of the case to the European court) but many people have had nail clippers and scissors and tweezers and other small personal items confiscated when in fact the rules (which were eventually made public by the European Commission on 8 August 20082) state that only scissors and knives with blades longer than 6cm are prohibited.

“A fundamental principle of democracy is that a law is not valid until it has been published. Citizens cannot be expected to comply with laws they cannot even know about. If we abandon these principles, even in the name of the fight against terrorism, then terrorists and others who do not believe in democracy really are gaining the upper hand,” said Helen Darbishire, Executive Director of Access Info.

Access Info reports that it is not only the European Union which has kept this list secret. A freedom of information request to the UK government to know what UK law says about what cannot be carried onto aircraft was refused on 29 September 20083 with the argument that to disclose the actual regulations, even partially, would make it “easier for the information to fall into the hands of a person with hostile intent.”

The problem with this line of argument is that it confuses the compulsory publication of laws, with no exceptions, with other information which may be subject to exceptions from disclosure. In this case it might be possible to withhold some aspects of information about airport security such as the technical specifications of X-ray machines in airports. But any rules with which the public must comply as a matter of law can never be subject to exception.

Access Info calls on all governments in Europe to make public the national laws, regulations and rules relating to what passengers may not carry onto aircraft. As Franz Kafka said in his short story Before the Law, “the law should always be accessible to everyone”.

For further information, please contact: Helen Darbishire, Executive Director, Access Info Tel: +34 667 685 319 (mobile) Tel : +34 91 366 5344 (office) helen@access-info.org

Editors Notes

  1. Judgment of the Court of Justice of the European Communities in Case 345/06

  2. COMMISSION REGULATION (EC) No 820/2008 of 8 August 2008 laying down measures for the implementation of the common basic standards on aviation security.

  3. Letter to Helen Darbishire from UK Department of Transport of 29 September 2009, Reference F0004502, which states at paragraph 6 that: The Department is of the view that to safeguard national security, information on the Government’s guidance to the aviation industry regarding airport security measures should not be made public. To make such information widely available would potentially undermine the effectiveness of the National Aviation Security Programme (NASP) as it would be much easier for the information to fall into the hands of a person with hostile intent. This danger is present even where only a limited amount of information is disclosed as incomplete or partial information can be used to supplement information already in the public domain and can be used to build a clearer picture of the UK’s aviation security measures.

Lessons from a Community’s Struggle with Coal in Thailand

By Lalanath de Silva (Posted: March 9, 2009) 

The story of the Mae Moh coal plant in Thailand shows why early community engagement is critical to the development and implementation of a sustainable project.

On March 4, 2009, a landmark court decision provided much-needed relief for communities harmed by pollution from a controversial coal power project in northern Thailand. The story of Mae Moh highlights the importance of public participation and access to information in protecting the rights of communities affected by development projects.

About the Mae Moh Coal Power Project

The Mae Moh coal-fired power plant sits in the hills of Lampang in northern Thailand. The plant is an enormous complex consisting of 13 power generating stations. Until 2008, the project was the largest of its kind in Southeast Asia.

Near the power plant lies its fuel source—a lignite coal mine, where open-air pits cut a 135 square kilometer slice out of the surrounding farmland. The government predicts there is enough coal in the area to meet a large percentage of Thailand’s energy needs through 2035 (it currently provides 12% of Thailand’s electricity), and recently approved plans to expand the mine to access 187 million tonnes of additional, proven coal reserves.

Impacts on Local Communities

Sixteen communities live near the power plant and mine. As the project has expanded over time, the mine has grown closer to their lands (only 800 meters away from one village). The power plant has expanded from one unit of 75 Megawatts in 1978 to 13 units of 2,625 Megawatts in 1996, and now consumes over 40,000 tonnes of lignite each day.

Fifteen years ago, the size of the project reached a tipping point. Thousands of communities began to complain of respiratory illnesses and severe damage to their crops. The communities alleged that wind blew coal mine dust into their homes and farmlands and that the smokestacks of the power plant did not contain appropriate filters, allowing the release of sulfur dioxide, mercury, and other toxic chemicals into the air.

In 1992, the plant activated all 11 of its generating units (now expanded to 13), and within a few days thousands of people in the area began noticing breathing difficulties, nausea, and inflammation of their eyes and throats. Communities estimated that within 2 months, 50% of rice fields were damaged by sulfur dioxide emissions. In 1998, mobile inspection clinics organized by the government diagnosed 8,214 patients, and found that an estimated 3,463 suffered from respiratory illnesses. Communities alleged that the project was connected to several deaths, including six Mae Moh villagers who died from blood poisoning.

Communities also complained that chemicals from the plant leaked downhill into water supplies, where uninformed people fished from the water. In October 2003, the State Natural Resources and Environmental Policy and Planning Office found high levels of arsenic, chromium, and manganese in most water sources near the plant.

The Government’s Response

The communities claimed that the government continued to grant permits and licenses to expand the project despite these impacts, and that the government failed to inform stakeholders about the project’s environmental and health risks. As people experienced harm to their health and crops, they complained to the government, but felt the government was not responsive. Communities described how public relations officials made promises to address their concerns, but then failed to follow through.

Communities also complained to financiers of the project, including the Asian Development Bank, Export Development Canada, and the U.S. Export-Import Bank. In 2001, ADB financed an evaluation of the project’s environmental and health impacts, which brought sulfur dioxide emission levels into compliance with national standards. As a result, fewer people now suffer from respiratory illnesses.

While this was an important first step, the government’s and financiers’ responses did not address communities’ other concerns such as compensation for crop damages, resettlement to safer areas, and payment for medical treatment. As a result, the communities resorted to lawsuits for redress. In 2002, local activist Maliwan Najwirot created the Occupational Patients Rights Network, which has filed several lawsuits against the government. In May 2004, a court ruling awarded approximately US$142,500 to villagers for crop damages caused by the power plant.

On March 4, 2009, a Thai court ordered the government (the Electricity Generating Authority of Thailand) to pay $6,800 plus interest to each plaintiff in a lawsuit brought 5 years ago by several hundred villagers whose health was harmed from living near the project. The court also ordered the government to move affected people to new land at least five kilometers from the project, to rehabilitate the environment at the coal mine, and to replace a controversial golf course with trees. This landmark decision provides a much-needed turning point, so that Mae Moh communities can finally begin to restore and rebuild their lives.

Lessons Learned

During the struggles of the past decade, Mae Moh communities have turned their experiences into an important lesson for others. Representatives of other Thai communities frequently visit Ms. Najwirot and the site to learn how to organize themselves, and how to address the tensions that development projects can create between those community members who benefit from jobs and electricity, and those who are harmed.

Mae Moh also provides important lessons for governments and companies about the importance of engaging communities early and throughout the life of a project so they can better identify and mitigate risks, and build trust to resolve problems that do emerge. This in turn helps to prevent costs from disaster cleanup, lawsuits, and tarnished reputations.

Finally, the project demonstrates the importance of transparency and public participation in the review and approval of permits and licenses that entail potentially harmful activities. In Mae Moh’s case, engagement with communities could have provided an earlier indication that construction or expansion of the project was not worth the environmental and health risks.

For more information see the story on the World Resources Institute website.

Highlights from the TAI Global Gathering

By Monika Kerdeman (Posted: March 6, 2009) 

50 people representing 29 countries participated in the second TAI Global Gathering, held in Sligo, Ireland at the Sligo Institute of Technology. The gathering was the largest international conference held at Sligo Institute of Technology. Highlights from the meeting include:

  1. Jeremy Wates, from the Aarhus Convention Secretariat in Geneva, opened the conference by discussing the importance of access work in the role of shaping environmental policy.

  2. The deputy leader of Seanad Eireann (the Senate of Ireland), and Green Party chairperson, Senator Dan Boyle, addressed the gathering. He spoke on Ireland’s need to ratify the Aarhus convention and the importance of access to information in a mature democracy.

  3. TAI partners shared ideas, stories, successes and solutions for moving the network to more action on the ground.

  4. Latin American partners agreed on next steps for a collaborative regional advocacy plan.

  5. The TAI Secretariat shared major themes and messages from its publication, Voice and Choice: Opening the Door to Environmental Democracy.

  6. Partners discussed case studies on access rights for the poor carried out by five TAI partners and next steps for including poverty-access rights analysis in all future TAI assessments.

  7. The Thailand Environment Institute (TEI) introduced partners to a draft citizen’s toolkit.

  8. New sectors were explored in the context of TAI, including climate change, forestry and aid effectiveness.

Click here to read the full report from the gathering.

TAI Water Governance Toolkit

Published: 2007

This paper combines the various pieces of TAI’s method for evaluating citizen voice in water sector governance.

Contents include:

General Capacity Building Indicators