The Access Initiative

Menu

Topics: Public Participation

Jackson Ushers in New Era of Transparency for U.S. EPA

By David Heller (Posted: January 30, 2009)

The Obama administration’s emphasis on transparency and public participation in government was echoed in a recent introductory memorandum that Lisa Jackson, the newly appointed administrator of the Environmental Protection Agency (EPA), circulated to her staff.

This commitment to access principles – a clear deviation from recent EPA precedent – will face an immediate test.

In the memo, Jackson describes her vision of how EPA, under her leadership, will uphold transparency and public participation in its work. As she says,

Public trust in the Agency demands that we reach out to all stakeholders fairly and impartially… and that we fully disclose the information that forms the bases for our decisions. I pledge that we will carry out the work of the Agency in public view so that the door is open to all interested parties and that there is no doubt why we are acting and how we arrived at our decisions.

Of particular interest to Jackson is soliciting input from marginalized, impoverished, and minority populations, whom as she says, “have been historically underrepresented in EPA decision making.”

This interest in improving external transparency is complemented by a hope for more inclusiveness within the EPA itself.

“As I develop my agenda,” Jackson informed her staff, “I will be seeking your guidance on the tasks that are most urgent in protecting public health and the environment and on the strategies that EPA can adopt to maximize our effectiveness and the expertise of our talented employees.”

Jackson is not the only EPA administrator who has sought to introduce transparency and participation in the agency’s actions.

In 1983, then-EPA administrator William D. Ruckelshaus released a similar in-house memorandum that outlined many related concepts.

Ruckelshaus famously spoke of his desire to have EPA operate “in a fishbowl.” His influential memo went on to say,

EPA will provide, in all its programs, for the fullest possible public participation in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for decisions take affirmative steps to seek out the views of those who will be affected by the decisions. EPA will not accord privileged status to any special interest group, nor will it accept any recommendation without careful examination.

But these principles did not permeate through all forthcoming EPA administrations. Stephen Johnson, EPA’s leader under G.W. Bush, was accused of repeatedly ignoring the scientific findings of agency scientists and relaxing standards for polluters.

This legacy of partisanship, combined with a shrinking budget (over the past six years, EPA’s budget has fallen by $1.3 billion, or 15 percent) and diminished authority over regulatory matters, has led many to question EPA’s credibility and whether or not it’s capable of fulfilling its environmental protection mandate.

Russell Trail, EPA administrator during the Nixon and Ford eras, has gone so far as to say that, “EPA has become a nonentity.”

Likewise, during Jackson’s Senate confirmation hearing, Barbara Boxer, chair of the Senate Environment and Public Works Committee, told Jackson “The EPA needs to be awakened from a deep and nightmarish sleep.”

Consider the alarm sounded, to the tune of a massive spending package with clear environmental implications. Contained in the stimulus bill just passed in the U.S. House of Representatives is a $151 billion infrastructure component, consisting of large scale transportation and construction projects. It’s up to EPA to oversee the monitoring of environmental impacts and mitigations of these allocations, and to diligently enforce environmental standards when violations arise.

Though weakened, our nation’s official environmental steward must not claim defeat. Instead, amnesia would be more appropriate, as the time is ripe for EPA to reemerge as a vigilant enforcer of environmental standards. Jackson must prove that she can lead her agency in consonance with the principles outlined in her memo and not fall victim to the flaws of her predecessor. If she can manage to do this, then not only will EPA re-gain some of what it has lost, it can help guarantee that transparency and public participation in environmental policymaking will be here to stay. It’s a win-win situation that Jackson ought to take advantage of, and that Mother Earth will thank her for.

Stay tuned for updates on how well Jackson’s EPA is upholding its commitment to access principles, as money for the stimulus bill is doled out.

Change in the Environmental Law -TAI Macedonia

By Kiril Ristovski (Posted: January 13, 2009)

In the last period one of the cases which was subject of research in Macedonia was the case of the big polluter Refinery OKTA. One of the recommendations of the TAI report related to the legal legislator was the change in the Environmental law Article 212 i.e. increasing the minimal fines to 100 000 euros for the legal and natural persons who cause pollution or harm the environment.

The changes in the environmental regulations should be credited to the citizens. In Skopje massive strikes and blocades were organized for more than ten days. We at Florozon reacted heavily in the media and by influencing the media managed to influence the central government. What is important is that we call on our work i.e. the conducted research in the case of OKTA. Florozon lit the fire against the polluters when we published several TAI stories in the daily newspaper Dnevnik. In December, our organization carried out events, TV programs, and interviews in order to change things for better.

The first recommendation in the TAI Report in Macedonia has been implemented. Massive protests organized by the local inhabitants and Florozon’s lobbying influence brought the issue media attention. Through increased media attention and meetings with the government on the basis of the data from the TAI Research changes were achieved in the legal environmental regulation.

On 19th December the changes were implemented in the Environmental law. In the Environmental law in Article 212 bullet 1 the amount from 8000 -10 000 euros was changed with the amount from 70 000 100 000 euros. Also, the Government obliged to set up several stations for measurements in order to measure the pollution coming from Refinery OKTA.

We are pleased with this decision and the improvement that was made concerning the Environment in Macedonia.

The Calabash Project

Published: 2005
Tools for Effective Participation in the EIA Process

 

Environmental Impact Assessment (EIA) has existed for 30 years. During its evolution, public involvement in the EIA process has become a key criterion that distinguishes EIA as a participatory decision support tool. Consequently, EIA is a suitable and appropriate platform from which to build participatory decision making approaches for the southern African region. Environmental Impact Assessment is one window through which the public has the opportunity to engage a government in decision-making.

However, in southern Africa, there is insufficient public access to information and there are inadequate or weak mechanisms for public participation in decision-making. The Southern African Institute for Environmental Assessment (SAIEA), through support provided by the World Bank TFESSD (Trust Fund for Environmentally and Socially Sustainable Development) and Canadian CIDA, undertook 2-year project to develop a process to enhance participation in decision-making in the SADC region Africa. Calabash was not designed to actually do public participation, but rather was structured so that regulators, private sector, practitioners and civil society had the capacity, knowledge and tools to better undertake respective public participation programs on individual projects and programmes.

Governance in its simplest forms describes the relationship among institutions, processes and ideas. It is about the exercise of power, accountability and relationships in pursuit of an organization’s mission or a nation’s goals. In Africa, achievement of a country’s goals are severely challenged due to such issues as resource degradation, HIV/AIDS, water scarcity and conflict. EIA of projects and Strategic Environmental Assessment (SEA) of policies plans and programmes, are evolving rapidly to address wider sustainability objectives beyond biophysical concerns. The evolution of these planning tools is recognizing that the public has a significant role to play in the EIA or SEA process to assist a government to achieve its objectives, while at the same time advancing democratic reform and good governance practices. How a respective government engages civil society with respect to decision-making is one measure of how a government is reforming its governance and democratic reform processes. The recent Commission for Africa report concluded that governance is one of the key issues to be addressed by Africa if poverty reduction is to occur.

Many African countries have well written EIA statutes that require the involvement of the public or civil society in the project decisions that affect them. To date, the application and success of public involvement in EA has been most variable due to lack of capacity, information, knowledge and networks in many stakeholder groups. Regardless, EIA presents a very effective and practical tool for African governments to show to the international investment community and the African democratic review teams that democratic principles at the project/programme level are being applied. EIA is one big “window” through which democratic reform can be realized by more participation.

Furthermore, while democracy has been widely embraced by many African governments, regional bodies and international gatherings, it is difficult to assess the extent to which democratic practices have genuinely taken root One fact is clear – a county’s citizens rather than outsiders are best placed to undertake a comprehensive and critical identification of the challenges confronting their country on the path of democracy development and consolidation. And their participation in decision-making is key to democratic reform. Citizens, informed and active EIA can act as advocates for its use in decision-making processes affecting their lives to their political leaders who will then require it of regulatory bodies. Sustainable development can hardly be achieved without stakeholder involvement in the EIA process. EIA with public consultation is an essential part of the process and system needed to make sustainable development happen.

The Calabash project is one step of many to assist the SADC region to move forward on democratic reform by using EIA as a catalyst for participatory decision-making by providing appropriate tools, knowledge and networks to regulators, civil society, practitioners and industry of the SADC region.

New WRI Publication – Good Governance in the U.S. Executive Branch

By Remi Moncel (Posted: October 18, 2008) 

How will the United States’ President-elect run his administration? The answer to this question will have direct impacts on the American people’s health, safety and the quality of their environment.

The 44th President of the United States will enter office faced with an unprecedented set of complex and urgent challenges, including a fragile financial system, spiraling energy and food prices and renewed demands for leadership to combat global warming. The President will need to respond by leading an administration driven by principles of good governance: transparency, inclusiveness and accountability.

In advance of the election, voters should ask where the candidates stand on such issues as checks and balances, signing statements and scientific integrity. After the election, the transition team of the winning party should ensure that these principles of government openness drive the selection of federal agency heads and the new President’s governing style.

A new WRI policy note reveals the link between an unchecked presidency and poor policy. It reviews the practices of previous administrations in the context of relevant constitutional and legislative provisions, and attests to the vulnerability of a system of delicate checks and balances to abuse of power. In addition to the legal abuses they constitute, these cases bring to light significant negative impacts that have resulted from an opaque presidency and make the case for better governance in the next administration.

The cases examined include:

  • Abuse of signing statements. President have issued these pronouncements upon signing bills into a law to brush off important environmental, safety and civil rights provisions mandated by Congress. In 2005 for example, President Bush dismissed important whistleblower protections which Congress had included in the Energy Policy Act. The provisions granted protections to federal employees who would report safety violations in nuclear waste management.

  • National policies designed behind closed doors. Devising the country’s energy policy or health care reform in the open serves several purposes. It enables confrontation of the nation’s top experts and visions with a view to enacting the most effective policies. It guarantees the public’s right to take part in the decision and voice their priorities. Finally, transparent decision-making increases public acceptance of policies and ensures that it meets the interests of the majority over those of an influential, well-connected few. President Clinton’s Task Force on National Health Care Reform, for example, conducted its discussions and activities behind closed doors without releasing the names of the participants. Pharmaceutical companies and justice groups decried the lack of openness surrounding the President’s task force. Ultimately, the lack of political viability and public trust of the initiative caused its demise and the failure the reform the United Sates’ health care system.

  • Distortion of scientific findings. In February 2007 a report by the Union of Concerned Scientists documented “widespread political interference in federal climate science.” Almost half of the 1,600 climate scientists working in government agencies who were surveyed indicated having perceived or personally experienced pressure to eliminate the words “climate change,” “global warming” or other terms from a variety of communications. Effective environmental and health regulations and standards rely on the research and recommendations of scientific experts. Yet, in March 2008, President Bush illegally intervened in the establishment of standards for smog-forming ozone. By law, this decision rested in the hands of the Administrator of the Environmental Protection Agency and its scientists. The President nonetheless overruled their decision and, in doing so, backed more lenient requirements for a gas proven to have negative effects on human health and wildlife.

Our research puts forward a set of practical recommendations for the President-elect:

  • Government-held information should be made available to the public unless limited and clearly articulated exceptions apply. Task forces and ad-hoc committees, not otherwise governed by formal rules, should conduct their work in a transparent and inclusive manner by making publicly available the content of their deliberations as well as the names and affiliations of the participants.

  • The President should not issue signing statements to disregard or decline to enforce a law or to interpret it in a manner inconsistent with the will of Congress. In addition, executive branch officials and agencies should cooperate with Congress in its oversight duties, limit the exercise of discretionary power and abstain from asserting executive privilege to shield the administration from legitimate congressional oversight and requests for disclosure of information. Congress on the other hand should reaffirm its oversight responsibility and take necessary measures to exercise its duty even when faced with a reluctant executive branch.

  • The President should guarantee the non-partisan enforcement of the law and the scientific integrity of federal agencies by appointing administrators that will respect the advice of technical and scientific experts, pursue the non-partisan prosecution of the law and interpret legal provisions in a non-partisan and even-handed manner. The President should protect the right of scientists and researchers to publicly review and comment on documents that use their research or work. Finally, the political review and communication of findings should not undermine the integrity and independence of scientific data and analysis.

Despite the principle of checks and balances enshrined in the U.S. Constitution, Presidents retain a great deal of discretion in the exercise of power. In fact, the executive branch has been reluctant to relinquish the authority and discretion it gradually took over from the other branches of government. Neither major candidate made his views clear on all of these issues in the 2008 presidential election. On Constitution Day, over 35 public interest groups across party lines called upon the candidates to clarify their views on the constitutional issues delineated in this paper.

Voters, supported by the media, may still ask Senators Obama and McCain how they would run their administration as President. After the election, it will be the President-elect’s responsibility to ensure that these principles of good governance are implemented across federal agencies and inform his new leadership.

Original story here

Assessing Access in Yunnan, China

Posted by Monika Kerdeman

The Yunnan coalition started their TAI assessment process during a training workshop from Jan 13-15, 2008, led byTAI core team partner Thailand Environment Institute. The coalition of civil society groups includes Eco-Watch, Yunnan Academy of Social Science (YASS), Yunnan Institute of Environmental Science (YIES), Yunnan Environmental Science Society (YESS) and Centre for Mountain Ecosystem Studies ICRAF-China, the coalition’s lead organization.

At the workshop, coalition members were trained on the TAI Assessment Toolkit. Since the training, the Yunnan TAI coalition translated the indicators in the TAI Assessment toolkit into Chinese, and gathered information and relevant documentation, laws, regulations and guidelines for review.

As part of their research, Yunnan coalition members met with the Provincial Water Bureau, Yunnan Provincial Environment Protection Bureau, Agricultural Bureau, Yunnan Provincial Forestry Department, Vegetative Protection Station, Air Quality Monitoring Station, local agricultural stations, environmental protection stations and other related sectors to acquire more information. Interviewees included experts, villagers, and consumers as well as local authority staff.

The Assessment in Yunnan examines eight case studies on access to information. These studies are on various environmental issues including; the state of environment report of Yunnan Province, air quality monitoring in Kunming city, accidental explosion at a sulfur depot and vitriol factory of the Sanhuan chemical company, noise quality monitoring in Kunming city, environmental information of Yuntianhua International Chemical Company in Yunnan, monitoring of drinking water quality in Songhuaba reservoir in Kunming, GMO information monitoring in Yunnan, and paraquat herbicide accidents in Yunnan.

Five case studies on public participation are: public participation in environment protection decisions in eco-tourism policy in Diqing prefecture, public participation in the urban agglomeration development plan in south of Yunnan, public participation in the extension project of the 2nd hospital of Kunming, public participation in the water saving regulatory of Kunming city, public participation in decision-making of Provincial Forestry Development Strategy and public participation in the environmental impact assessment of the construction of Honghe Steel Factory..

The research also looks at access to justice. The access to justice case studies are on pesticide residue information in food – claimed by people to the people’s congress, public’s claim on the dam building on Salween River, local residents’ collective claim on old trees felled by a company in Baiyu Village, Xishan District of Kunming, and the claim on the pollution accident of Longma Phosphorous Chemical Company in Xundian, Yunnan.

Tribals Fight for Access Rights in North East India

By Ritwick Dutta (August 16, 2008) 

There are reasons to smile for the members of the Idu Mishmi community in the North Eastern State of Arunachal Pradesh located in the Himalayan Mountain Ranges: The Government on 13-08-08 has cancelled the proposed Public Hearing for the proposed 3000 MW Hydel Power Dam to be located in Dibang District of Arunachal Pradesh.

For more than a year, local tribal communities have been protesting against the dam touted to be among the highest in the Country on the ground that it woud devastate the fragile ecology and destroy the culture and livelihood of the Idu Mishmi Community numbering only 8000 Individuals.

The Dibang Dam is a classic instance of a fight of a local community for access to Information and Participation and a partial victory of the community. When the first Public Hearing was announced, local tribal community sent a legal notice through Legal Initiative for Forest and Environment (LIFE) requesting for postponement of the hearing in view of the fact that the Environment Impact Assessment Report was not available at designated places and only an electronic version was made available in a state where people hardly had access to Internet. The Government relented and directed that no Public Hearing be conducted till the required EIA Reports are made available at the designated places for access to the community. The Public Hearing was planned over two phases. The first Public Hearing saw large scale protests by community members.

As the Public Hearing process was underway, in a shocking development aimed clearly at undermining the Public consultation process, the Prime Minister of India, Dr Manmohan Singh decided to lay the foundation stone for the project at Itanagar, the State Capital located more than 500 Km from the project site ! This was met with stiff opposition both locally and nationally.

Finally, the date for the second Public Hearing was fixed on 20-8-2008. However, the community was shocked to learn that the place for conducting the Public Hearing was more than 100 Km from the affected villages and project site. The Environment Impact Assessment Notification, 2006 provides for conducting the Public Hearing in or in proximity to the project site. In the North Eastern Part of the country characterized by undulating terrain and heavy rainfall travelling 100 Km could very well take even upto a day’s journey.

The Community members with the support of Neeraj Vagholikar of NGO Kalpavriksh contacted Rahul Choudhary, Environmental lawyer and member of TAI Himalayan Coalition who immediately shot off a legal notice during the first week of August, 2008 citing violation of Principles of Natural Justice and provisions of the EIA procedure by conducting the Public Hearing at such a distant place which would make it difficult for the affected community to participate and thereby defeating the whole purpose of Public Hearing.

See also A Public Hearing without the ‘real’ public: Notes from TAI Himalayas

On 13th August, Community members were pleasantly surprised to know that the proposed Public Hearing has been cancelled. Even more important was the fact that the Chief Minister of the State has called for a meeting with all the concerned organizations who have been raising the issue with respect to the Dam to be held on 20-8-2008.

The happenings in the far eastern State of Arunachal has important lessons for the rest of the Country. The community is convinced that there is no use of Public Consultation unless it is based on adequate and proper information about the dam and its impact and the fact that people should be able to participate effectively in the Public Hearing. Easy access to the place where the Public Hearing is conducted is as important as access to information. In the absence of these pre conditions, the Public Hearing process becomes a mere formality and procedure to be accomplished in the EIA process. For the Idu Mishmi Community, it is their first step in securing their access rights.

Ritwick Dutta Ritwick (ritwickdutta@gmail.com) is the leader of the TAI Himalayan Coalition and the founder of Legal Initiative for Forest and Environment (LIFE) and is based in New Delhi

The Grass is Going to be Greener This Year!

Posted By Ritwick Dutta (July 20, 2008) 

The benefit of Right to Information and citizens’ participation in environmental issues is not just limited to NGO’s and citizens. It can also be of great help to government officers, especially to those trying to implement the law and Judgments of Court but who face resistance from other departments.

The recent instance in the famous tea-growing Darjeeling Hills in India provides an interesting example. As the example of Darjeeling shows, the petitioner got the relief even before the case was heard by the Supreme Court special committee on Forests, in view of the strong evidence obtained through the Right to information Act, 2005.

The issue relates to an ecologically fragile part of the Himalayas located in Darjeeling viz the Senchal Wildlife Sanctuary which is home to several endangered species. A part of the Sanctuary comprising grasslands was used for dumping old vehicles by the local government, namely the Darjeeling Gorkha Hill Council. The dumping encroached upon 20 acres of land of the Protected Area. This was done in violation of the provisions of the Wildlife (Protection) Act, 1972 and even the orders of the Supreme Court.

The dumping of vehicles continued until April 2008. The forest officer in charge of the Sanctuary, Ms Sumita Ghatak, directed the Hill Council to remove the vehicles. The Hill Council resisted, and continued to dump its old vehicles thereby polluting and destroying the fragile ecology. The orders from the Forest Department not only met with strict resistance but also led to the Hill Council making a formal complaint before the government for strict action against the Forest Officer for harassment and undermining the authority of the Council.

It was at this moment that conservation groups and concerned citizens got together. Using the Right to Information Act (RTI), 2005, local citizens obtained all interdepartmental correspondence which revealed a shocking level of arrogance of the Hill Council to the provisions of law and to the orders of the Supreme Court. It was clearly seen that the manner in which the Hill Council responded to the direction of the Forest Officer, prima facie constituted contempt of the Court. The Hill Council sought to overlook the provisions of all conservation laws.

Using the various information obtained under RTI, a petition was filed by Wildlife Trust of India, a national level NGO, before the Central Empowered Committee (CEC) of the Supreme Court asking for initiation of contempt proceedings against the Principal Secretary of the Hill Council. As is required by the Court procedure, a copy of the petition was sent to the Hill Council.

Surprisingly, within three days of receiving the copy of the petition and without even the case coming up for hearing, the Hill Council wrote to the Forest officer that in view of the petition filed in the CEC, the Hill Council would like to surrender the entire 29 acres immediately and also take away all the vehicles dumped by it!

Within days (first week of May 2008), the vehicles were removed. The land is now back with the wildlife and Forest Department.

Is this a case of effective judicial remedy, or the benefits of RTI, or responsive civil society intervention? Well, it is a mix of all and the beneficiary is obviously the wildlife of Darjeeling hills which will get to munch in an extra 29 acres of grassland free of rusting vehicles!

Contributed by Ritwick Dutta (with inputs from Vyom Raghuvanshi, WTI) Ritwick (ritwickdutta@gmail.com) leads the TAI Himalayan Coalition and filed the above mentioned petition on behalf of Wildlife Trust of India.

Lead in Our Water – A Washington, DC Mystery

By Joseph Foti (Posted: March 22, 2008) 

As part of World Water Day, The Access Initiative (TAI) is releasing a case study of how in 2004, poor data dissemination put the citizens of the capital of the world’s richest country at risk from lead in their drinking water.

The following is an excerpt of a TAI publication on the role of public participation in government decision-making about the environment. The full publication will be published and posted online later this year.

Read this case study with the following question in mind: how did leaders of the capital of a country with robust scientific and technical expertise, as well as strong environmental information systems, show such poor information transparency and inflexibility that people rose up in protest?

Note that the problem was not an absence of technical data, but a lack of face-to-face communication. People need environmental information to be communicated to them in such a way that they understand and can act upon it.

A January 31, 2004 Washington Post article created a stir with a story about a strange environmental mystery: Tap water in thousands of District houses has recently tested above the federal limit for lead contamination.

Danger: Lead in City Drinking Water

Lead exposure can lead, over time, to serious health effects – brain damage, kidney damage, and other illnesses. Those at highest risk—young children and pregnant women—can be affected by even short exposures to high lead levels. But the Post article went on to say that authorities were “baffled” by the problem and had no idea how such a serious contaminant had become so widespread in the city’s water.

Subsequent Post articles—and the public hearings, administrative reviews, independent investigations, and a class action law suit that followed them—documented that the problem actually had not been discovered “recently.”

The Washington DC Water and Sewer Authority (WASA) had been detecting unhealthy levels of lead in city drinking water for over two years. However, the public often was not informed of the problem, and in other cases was told too late to take appropriate action, or with too little urgency to convey the seriousness of the health risk.

Thus, residents of Washington, D.C. faced not one, but two mysteries. How did so much lead get into the drinking water? And how could the government have known about it for so long without addressing the problem?

In fact, problems began in 2001, when water samples in 53 homes showed levels of lead that exceeded the national standard of 15 parts per billion. Based on these findings, WASA sped up existing plans and replaced lead service pipes in key areas of the municipal water system. But the problem persisted. National water regulations then required WASA to conduct a larger water quality survey, which found a serious, widespread problem throughout the city in June 2003. Lead levels in over 4000 homes exceeded acceptable levels.

Failure to Notify

Although WASA’s survey found high lead contamination during the summer, WASA failed to notify residents of their risk until November. Water regulations required WASA to place a very specific notice on each affected customer’s water bill stating:

“”SOME HOMES IN THIS COMMUNITY HAVE ELEVATED LEAD LEVELS IN THEIR DRINKING WATER. LEAD CAN POSE A SIGNIFICANT RISK TO YOUR HEALTH.”

However, the notice that WASA sent out in November downplayed the seriousness of the problem. It left out key required phrases, including “in their drinking water” and “significant.”

Similarly, national law required WASA to conduct public meetings to inform people of the health risk and the actions they could take to avoid lead exposure. However, their advertisements for the meeting did not reveal the lead problem. Instead, they simply stated that the meeting would “discuss and solicit public comments on WASA’s Safe Drinking Water Act projects.”

As a result of the lack of urgency in WASA’s public communications, residents were slow to take action. Some residents who received the notices began buying bottled water, and discussed the issue with their neighbors, or shared information about it via email. Many had neglected the mailings, however, or didn’t understand them. One resident later told a reporter she had received a letter informing her that the lead in her water tested as “higher than the federal action level,” but she wasn’t sure if that was a good or bad result.

Front Page News

Months later, when the issue became front page news, the situation changed rapidly. Residents inundated WASA’s water hotline with calls and overwhelmed water testing laboratories with requests for their tap water to be tested for lead contamination. District elected officials immediately called for an emergency public meeting, and established an inter-agency task force to investigate and manage the problem. The task force included WASA, the Department of Health, the Washington Aqueduct, and representatives of eight other government bodies. It became the primary government vehicle for responding to the crisis.

Within four days of the initial news report, WASA itself worked with the federal Environmental Protection Agency to establish a Technical Experts Working Group, bringing together national experts to study the problem and identify a solution. Meanwhile, the inter-agency task force swiftly implemented programs to provide free water filters, water testing, and blood testing for residents at risk of lead contamination. It wrote letters to residents, established a hotline, conducted 23 community meetings, met with leading local organizations, and produced a range of outreach materials.

Conflicting Messages

However, over the six weeks following the initial Post exposé, successive public communications from WASA and other agencies contradicted each other and created confusion about who was at risk and what steps residents should take to protect their health. For example, WASA sent a letter in February to all residents suggesting they flush water through their taps for a minute and a half to reduce lead levels before drinking or cooking. But during the same week, the Environmental Protection Agency demanded that the recommendation be changed to 10 minutes.

Similarly, early WASA communications limited the health advisory to pregnant women and small children in residences with lead service lines. However, subsequent water testing found high levels of lead in the water of a significant number of residences with copper service lines, as well.

The Public Organizes

Expressions of public frustration grew in response to the mixed messages emerging from WASA and other public agencies. The public organized to share information and circulate petitions by launching internet sites like PureWaterDC.com and WaterForDCKids.org. Neighborhood meetings also were held to discuss the issue. Community organizations and elected leaders concluded that WASA had actively covered up the problem. Adding to the public mistrust was disclosure that a WASA employee, Seema Bhat, who had repeatedly warned WASA and EPA officials of the lead contamination, lost her job in 2003. She had won a legal claim of improper termination, which the city had appealed.

On March 18, nearly 100 people took part in a protest at City Hall led by a CSO coalition (Public Citizen). Also in March, a class action lawsuit was launched against WASA by a young lawyer, Chris Cole, and a neighborhood activist, Jim Meyers, who called on the government to give clear notification to affected residents, pay the full cost of lead pipe replacement, and compensate the plaintiffs for damages. To clarify the situation for the public, the government needs to “knock on doors, no more letters,” said Cole.

A Technical Solution

Meanwhile, the Technical Experts Working Group convened by WASA and the EPA had identified the cause of the elevated lead levels. They concluded that a new water treatment process introduced in 2001 had caused lead to leach from municipal water pipes into the water supply. Their hypothesis was confirmed in May 2004 when a return to the old treatment process caused lead levels to decrease immediately. They also recommended accelerating plans to further revise the water treatment system to include an anti-corrosion additive called orthophosphate.

By July 2006, lead in Washington D.C.’s water had remained within nationally mandated limits for a year and a half. Moreover, blood screenings found no identifiable public health impact from the period of lead contamination. With this finding, part of the mystery was solved.

New Laws, New Pipes, New Institutions

The question of how the government had failed to effectively notify residents of the problem was more complex to answer. The public outcry about the government’s initial response to the lead contamination led to independent investigations commissioned by government and civil society organizations, as well as EPA administrative orders censuring WASA, and a Congressional inquiry into EPA’s own oversight failures. Significant outcomes from these investigations include a multi-million dollar investment by WASA in the replacement of lead water pipes and an EPA proposal to revise national lead and copper regulations.

The investigations also identified serious problems with the institutional arrangements for water quality management and oversight in Washington DC. What with WASA, EPA, the City Council, the Army Corps of Engineers, Congress, and the Department of Health all involved, lines of authority, accountability and communications among agencies rarely were clear. To coordinate these players and centralize responsibility, a Department of Environment within the D.C. government was created.

This case study was written by Dave Turnbull and Heather McGray of the World Resources Institute, and is an excerpt of a forthcoming publication of The Access Initiative (TAI) on the role of public participation in government decisionmaking about the environment. Full citations can be found in the final version of the book, to be printed in hardcopy and posted online, later this year.

Related Links

Greenwatch Uganda Champions Information Rights

By Lalanath de Silva (Posted: March 4, 2008)

Laws alone are not enough to ensure environmental protection. Civil society organizations often play a critical role in bringing those laws to life. In Uganda, Greenwatch has done exactly that for the country’s laws on access to environmental information, the first of which passed in 1998.

Under Ugandan environmental law, the public has several opportunities to make its voice heard about new development projects. Projects that might affect the environment of Uganda have to be approved by the National Environment Management Authority (NEMA). Before such projects are approved the developer must perform an Environmental Impact Assessment(EIA), which studies the environmental impacts and examines environmentally friendly alternatives. The law requires that the press announce that the assessment has been performed and that the written results are made available to the public for comment. If comment shows that a project is controversial, NEMA must hold a public hearing.

The public can also challenge NEMA decisions in the Ugandan courts, and that’s where the civil society organization Greenwatch, Uganda (Greenwatch) has distinguished itself. As early as 1999, the organization began suing the government to honor the regulations requiring the assessments.

Although the court refused to stop the signing of the agreement, Greenwatch and other advocates of greater public participation consider the case a partial victory: for the first time, a Ugandan court recognized that concerned advocates could bring a case to vindicate environmental laws. Justice Richard Okumu Wengi of the High Court of Uganda also declared that an assessment and NEMA approval were required before the project could go forward.Greenwatch’s first court challenge of a NEMA decision was to a hydro-electric project funded by the International Finance Corporation and other banks. A utility company – AES Nile Power – was attempting to sign a power purchasing agreement with the Government of Uganda, but the company had not performed an assessment nor had it obtained NEMA approval.

(Citation: NAPE VS AES Nile Power Ltd High Court Misc. cause No. 26 of 1999)

AES Nile Power then proceeded to perform an EIA, and NEMA approved the project. Yet when Greenwatch requested information on the project and the power purchase agreement, the Ugandan Government refused. Review of the power purchase agreement would tell the public if the electricity produced would be affordable and would ease the burden on the environment. Greenwatch sued the Attorney General of Uganda to obtain the document. The court decided that the power purchase agreement and all connected documents were both public documents and therefore ought to be made available to the public.
(Citation: Greenwatch Vs AG & UETCL)

A recent UN report concludes that while Uganda has made remarkable progress in the application of EIA procedures, there is a need to improve key aspects of its application. The report states that there is a “need to further develop approaches to ensure effective public participation in EIA, as well as need to create and strengthen regional and sub-regional EIA networks to complement national efforts for promotion of EIA.”

Greenwatch has also successfully used the space provided for public participation at EIA public hearings to stop the spraying of herbicides on Lake Victoria – the second largest lake in the world and the largest in Africa. Greenwatch produced convincing evidence to show the dangers of pesticide spraying. Greenwatch also showed that the entire operation might not be financially viable because the Ugandan company’s parent company in the U.S.A was bankrupt.

Greenwatch continues to advocate in the public interest today. Most recently, it obtained an interim order against Warid Telecom (U) Ltd., stopping the construction of a telecommunication tower in a residential area. The company had failed to perform an EIA and the residents had fears of a cancerous gas affecting them and the construction noise creating a nuisance. Warid Telecom has challenged these allegations saying that there is no scientific basis for any of them. The application for a temporary injunction will be heard soon.

Greenwatch has been closely associated with The Access Initiative coalition in Uganda and has blazed a trail championing citizen rights of access to information, public participation and access to justice (“access rights”) in environmental matters. It also works closely with the Government of Uganda to train public officers and judges in environmental law.

“Every person has a right to information under the Ugandan Constitution,” says Kenneth Kakuru, the Director of Greenwatch, Uganda. “An Environmental Impact Assessment is a public document.”

Resources and Legal Citations:

Full Judgments and more information can be obtained from the Greenwatch website, www.greenwatch.or.ug.

Freedom of Information Victory in India

By Lalanath de Silva (Posted: January 28, 2008)

For the first time in its ten-year history, the National Environmental Appellate Authority* (NEAA) has overturned a decision by the Government of India, quashing an environmental clearance granted by the Ministry of Environment and Forests. In its decision, the Appellate Authority cited a failure of public participation and access to information.

On December 19, 2007, the NEAA quashed environmental clearance for the Polavaram Multipurpose project granted by the Ministry of Environment and Forests. The project, which would have displaced close to 3000 families (totaling about 200,000 people) in the States of Andhra Pradesh, Orissa and Chattisgarh, was to have included a hydroelectric power component of 960 MW and irrigation facilities. The project was proposed by the State of Andrah Pradesh.

The project was opposed by civil society organizations on the grounds that the required Environmental Impact Assessment had been performed inadequately, and the Ministry of Environment and Forests had failed to conduct any public hearings in the affected States of Orissa and Chattisgarh.

During the hearing, both States contended that the legally required environmental clearance was granted by the Ministry of Environment without considering the opinion of the states though they were affected by submergence.

Immediately after the Appellate Authority’s decision, the State Government (Andrah Pradesh) filed a petition for the Andra Pradesh High Court (the highest court in the State) to review the case. The Court has now temporarily suspended the decision of the Appellate Authority and fixed a hearing for February 11.

The NEAA found that:

  • People to be affected by the project had no access to the executive summary in the notified place
  • People to be affected by the project had no opportunity to participate in public hearings and express their view on the likely environmental impact of the construction of the project

The Appeal against the clearance was filed by Dr R. Sreedhar of Academy for Mountain Environics and represented by Ritwick Dutta. Dutta is a leader of the TAI network in India, and is preparing to launch a formal, TAI assessment of access to justice, public participation, and access to information in Northern India.

*The National Environmental Appellate Authority is the only competent Authority set up by Parliament through an Act to hear appeals from aggrieved/ affected persons against the grant of environmental clearances by the Ministry of Environment and Forests to different projects across the country.

Links