Topics: Access to Justice

By Jesse Worker and Stephanie Ratte (Posted: July 30, 2014)

This blog post was originally posted on WRI Insights on July 29, 2014.

Written by Jesse Worker and Stephanie Ratte

This blog post is the first installment of WRI’s Exploring Environmental Democracy blog series, which examines the state of environmental rights in regions around the world. Later this year, WRI’s Access Initiative will launch a new mapping tool that evaluates how environmental democracy principles are being applied in 70 countries.

Eight years ago, developers proposed a five-dam project on the Baker and Pascua Rivers in Patagonia, Chile. While they projected that the hydropower would produce 2,750 megawatts of power, the project would also flood 23 square miles of wilderness, jeopardizing the environment, local culture, and tourism of the region.

Citizens opposed the project, arguing that Chile’s energy needs could be met through less damaging projects, such as energy efficiency and renewable energy. Just last month—after eight years of campaigning by the Patagonia Defense Council, a coalition of more than 70 domestic and international organizations and individuals—Chile’s Environment Minister, Pablo Badenier, revoked the permit. The advocacy of this coalition, which includes Access Initiative member FIMA, was credited by International Rivers as “perhaps the most important reason” for the reversal.

The success of this campaign is a powerful example of the importance of public participation in land-use decisions. Civil society raised concern over the impacts of the proposed dams on livelihoods and the environment, which ultimately created political opposition. However, far too often the public is not meaningfully engaged in these decisions. This is often due to weak laws that limit the public’s access to information, do not provide adequate public voice in decision-making, or provide no access to justice when environmental harms are committed. These issues are at the heart of environmental democracy—a key component in preserving the health of communities and the regions they call home.

Why Is Environmental Democracy Important?

Environmental democracy is rooted in the idea that meaningful participation by the public is critical to ensuring that land and natural resource decisions adequately and equitably address citizens’ interests. Rather than setting a standard for what determines a good outcome, environmental democracy sets a standard for how decisions should be made.

At its core, environmental democracy involves three mutually reinforcing rights that, while independently important, operate best in combination: the ability for people to freely access information on environmental quality and problems, to participate meaningfully in decision-making, and to seek enforcement of environmental laws or compensation for damages.

Understanding 3 Fundamental Rights: Information, Participation, and Justice

Access to Information

When well-designed and implemented, access-to-information laws require that governments and companies make information such as environmental impact assessments, development project plans, and pollution discharges freely available to the public. By being informed, the public can participate more effectively in decision-making and hold companies and governments accountable for actions that are not in accordance with the law. Information should not only be available, but accessible to the public through formats they can readily use—taking into account literacy, language, readability, use of technology, and more.

Making environmental information open and freely accessible can often be the foundation for change. The United States, for example, developed the first-ever Pollutant Release and Transfer Register (PRTR)—called the Toxics Release Inventory—in 1986 following several environmental disasters, including a chemical release from the Union Carbine plant in West Virginia in 1985. The TRI requires that certain industrial facilities annually submit data on the quantity of toxic chemicals they release. Since 1986, at least 50 other countries have developed PRTRs or implemented pilot programs. While the US TRI certainly still has room for improvement, compelling companies to make this data public has helped reduce the incidence of toxic releases in the country.

Public Participation

Public participation laws improve information flow between communities and government or private sector decision-makers. This exchange can help avoid unintended consequences, increase support for a decision, and lead to a more equitable distribution of costs and benefits. The public should be informed early in the decision-making process about opportunities to participate, such as through town hall meetings or community workshops. They also need to be provided with any information necessary to meaningfully engage—such as environmental impact assessments—and should be able to participate without incurring burdensome costs, such as traveling to a capital city. Participation is less meaningful when the public is merely informed of an upcoming decision and left with no opportunity to influence it.

One of the better-known public participation processes for the environment is through Environmental Impact Assessments (EIA), which in many countries require public consultations before the development of projects that will have environmental impacts. However, these consultations can vary widely in quality. When the public is given ample notice along with the necessary information to understand and participate meaningfully, these assessments can be effective ways to safeguard against environmental harms or to ensure that adequate compensation. On the other hand, public consultations that serve only to inform of a decision that has already been made undermine public trust, reduce legitimacy and stifle the flow of important information.

Access to Justice

When members of the public do lack access to information and participation, they should be able to exercise a right to seek justice—such as compensation or appealing a project. These accountability mechanisms should be independent and impartial, and ideally able to issue binding, enforceable decisions.

Environmental tribunals such as India’s National Green Tribunal (NGT) are good examples of mechanisms that provide access to justice. The NGT was established in 2010 in recognition of the large number of court cases involving environmental disputes. The tribunal has jurisdiction over all civil cases involving “substantial question[s] relating to [the] environment,” and is mandated to attempt to conclude a case within six months of the filing date. Between May 2011 and March 2014, the Tribunal has adjudicated 393 cases.

Spotlight on Environmental Democracy

Over the coming months, The Access Initiative at WRI will continue to look at environmental democracy around the world. This work will both showcase success stories and help shed light on areas for improvement. By fostering a better understanding of how environmental democracy principles are applied in countries throughout the world, we can work toward improving quality of life for people and the planet.

By Devika Jaipuriar (Posted: July 3, 2014)

After the announcement of the United Nations Environment Programme’s (UNEP) new access to information policy, The Access Initiative and over 150 CSOsworldwide expressed the need for immediate reform. At the United Nations Environment Assembly (UNEA) on 23-27 June in Nairobi, Lalanath de Silva of TAI raised his concerns to UNEP Executive Director, Achim Steiner, about the policy’s lack of true transparency. Mr. Steiner responded by inviting members of civil society to actively join the reform process of this pilot policy over the next year. Watch the full video here.

By Devika Jaipuriar (Posted: June 30, 2014)

This article was originally posted on WRI Insights on 23 June, 2014.

The United Nations Environment Programme (UNEP) released its first-ever access to information policy last week. The pilot policy—which will be revised after its first year—aims to “enhance transparency and openness” in the organization’s work. But despite its noble aspirations, the policy falls far short of providing true transparency.

Why UNEP Needs a Strong Access to Information Policy

UNEP describes itself as “the voice for the environment within the United Nations system … acting as a catalyst, advocate, educator and facilitator to promote the wise use and sustainable development of the global environment.” An access to information policy therefore falls squarely within UNEP’s own mission and could serve as a powerful tool to help the vast number of stakeholders who rely on the organization.

UNEP works on such diverse areas as climate change, disasters and conflicts, ecosystem management, environmental governance, chemicals and waste, as well as energy and resource efficiency. And its reach is huge—the organization has branches in every region of the world and acts as the facilitator of major, global treaties like the Basel Convention, Convention on Biological Diversity, and several others. In theory, UNEP therefore collects an assortment of data and research—much of which could be made publicly available through a strong access to information policy. This information is important not just to academics and researchers, but to government officials, the private sector, and civil society groups who work on ensuring environmental sustainability in decision-making.

4 Areas that Could Be Strengthened

Four areas of the policy in particular are ripe for reform, including:

Innovation

UNEP had an opportunity to act as an outstanding leader in proactively providing relevant, timely, and accurate environmental information and data to the public. While the policy outlines some documents that will be released proactively rather than by individual requests, it includes no obligation on UNEP to collect and disseminate information via its most publicly accessible platform, “UNEP Live.” UNEP also had an opportunity to be innovative in its policy, recognizing the potential of open data and the need to release information in new forms, such as its entire surface and ground water quality data sets over time. Unfortunately, no such innovation is reflected in the current draft.

Grounds of Refusal

Virtually all access to information policies include exemptions, recognizing that some information may cause serious harm if released—such as information that could prejudice or jeopardize national security. But these “grounds of refusal” are typically narrowly defined, only applying to very specific types of information. UNEP’s new policy includes very broad provisions that allow it to deny information requests, essentially defeating the purpose of the policy. One important example is clause 15: “UNEP does not provide access to any documents, memoranda, or other communications which are exchanged with Member States, with other organizations and agencies, where these relate to the exchange of ideas between these groups, or to the deliberative or decision-making process of UNEP, its Member States, or other organizations, agencies or entities.” This language is so broad basic communications which would cause no harm to UNEP’s internal deliberations—such as the planning of a conference—could be exempted.

Independent Appeals Mechanism

UNEP’s policy establishes an appeals mechanism for people whose information requests are denied, with appeals being considered and decided by the UNEP Access to Information Panel. However, the Panel only consists of seven UNEP staff members appointed by the organization’s executive director—there are no non-UNEP members to ensure independence or impartial application of the policy. In contrast, both the World Bank’s and the Asian Development Bank’s access to information panels include an independent appeals mechanism.

Accountability

UNEP’s policy states that the organization does not need to provide a reason for denying someone’s information request. This same is true for appeals, with the policy stating that “The outcome of the review will be communicated to the requestor, and there will be no requirement for providing a detailed explanation of the outcome of the review.” This undermines accountability, as future requestors will have no guidance on how the organization makes its decisions or if decisions are made fairly by competent individuals considering all relevant facts. In contrast, the World Bank and the Asian Development Bank make their review decisions public on their websites and provide reasons for the refusal of information requests.

Strengthening UNEP’s Access to Information Policy

UNEP is at a pivotal time in its history. For example, it is currently expanding Governmental membership from 58 member countries to “universal membership” involving participation of all 193 UN member states. This move will seriously broaden the organization’s scope and reach—so there’s no better time for it to improve its transparency.

UNEP took a preliminary step toward transparency last week, but it’s important that the organization use its pilot year to strengthen its access to information policy, consult broadly with civil society, and make space for innovation. It’s time for UNEP to create a policy that reflects the scale of information needed to overcome the great environmental challenges we face in this decade.