Voice and Choice: Opening the Door to Environmental Democracy

Joseph Foti with Lalanath de Silva, Heather McGray, Linda Shaffer, Jonathan Talbot, and Jacob Werksman

Based on the findings of The Access Initiative ii

Greg Mock Editor

Bob Livernash Co-editor

Hyacinth Billings Publications Director

April Osmanof Cover design

Maggie Powell Designs Inc. Report design and layout

Each World Resources Institute report represents a timely, scholarly treatment of a subject of public concern. WRI takes responsibility for choosing the study topics and guaranteeing its authors and researchers freedom of inquiry. It also solicits and responds to the guidance of advisory panels and expert reviewers. Unless otherwise stated, however, all the interpretation and fi ndings set forth in WRI publications are those of the authors. Copyright © 2008 World Resources Institute. All rights reserved. ISBN: 978-1-56973-687-6 Library of Congress Control Number: 2008929166

Voice and Choice: Opening the Door to Environmental Democracy Contents

List of Contributing Access Initiative Partners ...... v Acknowledgments ...... vii Foreword ...... ix Executive Summary ...... x Reader’s Roadmap ...... xx

iii 1. OPENING ACCESS ...... 1 Principle 10: A World Open to Change ...... 2 Environmental Governance and Environmental Democracy ...... 3 The Elements of Access ...... 4 A Brief History of Environmental Access Rights ...... 10 Turning Rights into Practice ...... 13 Approach ...... 16

2. STRENGTHENING THE ARGUMENT FOR ACCESS ...... 21 Access Rights are Human Rights ...... 22 The Measure of Good Governance ...... 25 Access Generates Public Beneﬁ ts...... 26

3. ACCESS HURDLES ...... 39 Uneven Progress...... 41 Managing Vested Interests and the Politics of Access ...... 42 Identifying the Gaps in Information Systems ...... 48 Fostering a Culture of Openness ...... 61 Investing in Access Capacity ...... 67

4. RECOMMENDATIONS ...... 77 Actions for Governments ...... 78 Actions for Access Proponents ...... 80 A Research Agenda to Explore Public Participation and Environmental Sustainability ...... 81

Sources ...... 83

Appendices 1. The Partnership for Principle 10 ...... 91 2. The Electricity Governance Initiative ...... 93 3. Case Studies...... 95 4. The Access Initiative: A selection of outcomes from 2002–2007 ...... 105 5. Glossary and Abbreviations ...... 107

About the Authors ...... 112 Boxes 1.1 Text of Principle 10 of the Rio Declaration of 1992 ...... 2 1.2 Are Access Principles Access Rights? ...... 3 1.3 The Access Initiative ...... 3 1.4 Mexico’s Federal Institute of Access to Public Information ...... 7 1.5 Steady Progress on Environmental Impact Assessment in Ghana ...... 8 1.6 The Mehta Trend ...... 9 1.7 The Access Initiative Strategy ...... 12 1.8 Closing the Gap and Voice and Choice ...... 15 1.9 Access and the Private Sector ...... 16 1.10 The Aarhus Convention: All Principle 10, All the Time ...... 18 1.11 The TAI Research and Advocacy Process, Step-by-Step ...... 20 2.1 Chile: Using the Inter-American Court of Human Rights for the Right to Information ...... 22 2.2 Forms of Public Participation ...... 26 2.3 Uganda: Sustaining Traditional Livelihoods in Pian Upe Wildlife Reserve ...... 28 2.4 Realistic Expectations of Public Participation ...... 32 iv 2.5 Implementing Broad Legal Standing ...... 38 3.1 Military Waste in Bulgaria ...... 45 3.2 The Growth of TAI: A Case Study in Coalition-Building ...... 46 3.3 Mexico: Cleaner Beaches with Information and Partnership ...... 48 3.4 Chile: Emergency Response Falls Short on Impact ...... 54 3.5 Solving a Water Contamination Mystery in Washington, D.C...... 57 3.6 State of the Environment, Hungary: The Importance of Usability ...... 61 3.7 Fighting for Access in Sri Lanka: The Southern Transport Development Project ...... 64 3.8 Cautious Optimism: Environmental Education in South Africa ...... 66 3.9 Sowing the Seeds of Access to Justice in Indonesia ...... 70 3.10 Latvia: Snapshot of a Growing Environmental Movement ...... 74 Tables 1.1 Common Environmental Management Tools Integrating Access ...... 11 1.2 Why Demand Access? ...... 15 1.3 How Governments Use Access ...... 16 1.4 How Organizations Enable Access ...... 17 1.5 TAI Assessment Method Topics ...... 20 2.1 The Basis of Access Rights in International Human Rights Law ...... 24 3.1 How this Chapter is Organized ...... 40 Figures 1.1 The Relationship Between Responsiveness and Accountability ...... 4 1.2 Freedom of Information Laws by Country ...... 6 1.3 Rankings of Access to Information Framework Laws and Public Participation Framework Laws ...... 12 1.4 Mean Rankings for Law and Practice Indicators ...... 14 1.5 Traditions and Intersections of an Access Movement ...... 17 1.6 Map of Parties to the Aarhus Convention ...... 18 3.1 Rankings of Access to Information Framework Laws and Public Participation Framework Laws ...... 41 3.2 Mean Rankings for Law and Practice Indicators for 26 Countries Surveyed ...... 42 3.3 Access to Information: Rankings for Reactive and Proactive Laws ...... 42 3.4 Access to Information: Rankings for Facility-Level Compliance Data ...... 43 3.5 Access to Information: Rankings for Facility-Level Compliance for Pollutant Release and Transfer Register Data ...... 44 3.6 Elements of Information Capacity ...... 50 3.7 Access to Information: Rankings for Environmental Emergencies ...... 53 3.8 Access to Information: Rankings for Air Quality Data ...... 56 3.9 Access to Information: Rankings for Water Quality Data ...... 59 3.10 Access to Information: Rankings for state of the environment reports ...... 60 3.11 Public Participation: Rankings for Public Participation at the Project Level ...... 62 3.12 Public Participation: Rankings for Public Participation at the Policy Level ...... 65 3.13 Capacity Building: Rankings for Capacity-Building for the General Public ...... 65 3.14 Capacity Building: Rankings for Capacity Building for Government Ofﬁ cials ...... 72 3.15 Capacity Building: Rankings for Framework Laws for CSOs ...... 73 3.16 Capacity Building: Rankings for Government Effort to Build CSO Capacity ...... 73

Voice and Choice: Opening the Door to Environmental Democracy List of Contributing Access Initiative Partners

Core Team Advocates Coalition for Development and Environment (ACODE): Uganda Corporación PARTICIPA: Chile Environmental Management and Law Association (EMLA): Hungary Iniciativa de Acceso-México (IA-MEX): Mexico Thailand Environment Institute (TEI): Thailand World Resources Institute (WRI): United States v Country Teams

BOLIVIA ECUADOR Asociación Boliviana Prodefensa de la Naturaleza (PRODENA) Centro Ecuatoriano de Derecho Ambiental (CEDA) Asociación de Ecológico Oriente (ASEO) Coalición Acceso Asociación de Organizaciones de Productores Ecólogicos de Bolivia Fundación Esquel (AOPEB) Centro Boliviano de Estudios Multidisciplinarios (CEBEM) EL SALVADOR Liga de Defensa del Medio Ambiente (LIDEMA) Amigos del Medio Ambiente de Sonsonete (AMAS) Sociedad Potosina de Ecología (SOPE) Oikos Solidaridad Oriente Viceministerio de Medio Ambiente Unidad Ecológica Salvadoreña (UNES) Vida Verde (VIVE) ¡Vamos! El Salvador Estonia BRAZIL Estonian Fund for Nature Associação Brasileira para o Desenvolvimento de Lideranças (ABDL) Estonian Green Movement Instituto Socioambiental (ISA) Stockholm Environment Institute Tallinn Centre (SEI-Tallinn)

BULGARIA HUNGARY Access to Information Programme (AIP-Bulgaria) Ecological Institute for Sustainable Development (Miskolc) Borrowed Nature Association Environmental Management and Law Association (EMLA) Hungarian Environmental Partnership (OKOTARS) CHILE University of Debrecen Centro de Derecho Ambiental de Facultad de Derecho de la Universidad University of Györ de Chile (CDA) Corporación para el Desarrollo Sostenible del Sur (CODESOSUR- INDIA SINERGIAS) Environment Support Group (ESG) Corporación Participa Recursos e Investigación para el Desarrollo Sustentable (RIDES) INDONESIA Indonesia Center for Environmental Law (ICEL) COLOMBIA Lembaga Penelitian dan Pengembangan Masyarakat Corporación Colegio Verde Villa de Leyva Grupo Semillas IRELAND Instituto Latinoamericano de Servicios Legales Alternativos (ILSA) Centre for Sustainability, Institute of Technology Sligo COMHAR, The Sustainable Development Council COSTA RICA The Law Faculty, University College Cork Cooperativa Autogestionaria de Servicios Profesionales para la Solidaridad Social, R.L. (COOPE SOLIDAR) LATVIA La Fundación para la Paz y la Democracia (FUNPADEM) Regional Environmental Center for Central and Eastern Europe (REC Justicia para la Naturaleza Latvia) LITHUANIA SOUTH AFRICA Community Atgaja Environmental Justice Networking Forum (EJNF) Environmental Center for Administration and Technology (ECAT) Environmental Law and Management Clinic of Technikon Kaunas Lawyers Association Vilnius University Sociocultural Institute SRI LANKA Centre for Environmental Justice (CEJ) MEXICO Green Movement of Sri Lanka (GMSL) National Team – Iniciativa Acceso Mexico The Law and Society Trust (LST) Centro Mexicano de Derecho Ambiental (CEMDA) Public Interest Law Foundation (PILF) Comunicación y Educación Ambiental. S.C. Cultura Ecológica TANZANIA AGENDA for Environment and Responsible Development (AGENDA) Presencia Ciudadana Mexicana Lawyers’ Environmental Action Team (LEAT) State-level Partners Legal and Human Rights Centre (LHRC) Colectivo Ecologista Jalisco, A.C. vi Círculos por una Comunidad Sustentable, A.C THAILAND Defensa Ambiental Del Noroeste, A.C. King Prajadhipok’s Institute Proyecto Fronterizo De Educación Ambiental A.C. (PFEA) Project Policy Strategy on Tropical Resource Base, under the National Red para la Sustentabilidad Social Human Rights Commission of Thailand Unión Ambiental Chiapaneca, A.C. Sustainable Development Foundation Thailand Environment Institute PERÚ Asociación de Consumidores y Usuarios (ASPEC) UGANDA CARE Perú Advocates Coalition for Development and Environment (ACODE) Centro de Investigación en Geografía Aplicada (CIGA) de la Pontiﬁ cia Agricultural Cooperative Development International (ACDI) Universidad Católica del Perú (PUCP) The Uganda Wildlife Society Consejo de la Prensa Peruana (CPP) Sociedad Peruana de Derecho Ambiental (SPDA) UKRAINE Council for Ukraine Productive Forces Studies POLAND EcoPravo-Kyiv Environmental Law Center (CPE) Institute of Sociology Institute for Sustainable Development (ISD Poland) Local Environmental Action NGO Local Activity Support Center (CAL) Ukraine Local Government Foundation Society for Nature and Man UNITED STATES PORTUGAL Environmental Law Institute (ELI) Grupo de Estudos de Ordenamento do Território e Ambiente (GEOTA) Ohio Citizen Action Instituto Marquês Valle Flor (IMVF) Silicon Valley Toxics Coalition (SVTC) Intercooperação e Desenvolvimento (INDE) Liga para a Protecção da Natureza (LPN) VENEZUELA Luso-American Foundation (FLAD) Asociación Civil Consorcio Desarrollo y Justicia OIKOS - Cooperação e Desenvolvimento Asociación Civil Justicia Alternativa Quercus - Associação Nacional de Conservação da Natureza Fundación Justicia de Paz Monagas Fundarbol (Fundación para la Conservación de los Árboles)

Voice and Choice: Opening the Door to Environmental Democracy Acknowledgments

vii

Voice and Choice: Opening the Door to Environmental Sylvia Bankobeza, United Nations Environment Pro- Democracy is the collaborative product of many people’s gramme; Jānis Brizga, Green Liberty, Latvia; Saikat efforts. The authors would like to thank the many col- Dutta, The Foreign and Commonwealth Offi ce of the leagues who contributed to the research and production United Kingdom; Patricia Flanagan, Coillte, Ireland; of this report. Mary Hobley, Hobley Shields Associates, UK; Tony Lowes, Friends of the Irish Environment, Ireland; Erika We are indebted to the hundreds of individuals and Lagzdina, Regional Environmental Center- Latvia; and partner organizations of The Access Initiative (TAI), Žaneta Mikosa, Ministry of the Environment – Latvia. who continue to evaluate access in their countries, to spread the network locally and globally, and, most Internal and external reviewers provided critical feed- importantly, to produce change on the ground. This back that improved the quality of this report. They report would not have been possible without their include: Jon Anstey, United Nations Environment investigations, insights, and support. Programme; Gernot Brodnig, United Nations Develop- ment Programme; Juan Carlos Carrillo, Centro Mexi- We especially want to recognize the following con- cano de Derecho Ambiental, Mexico; Olimpia Castillo, tributing writers: Valeria Enriquez, Cultura Ecologica, Comunicación y Educación Ambiental, Mexico; Diego Mexico; Sophie Kutegeka, Advocates Coalition for Cooper, Corporación Participa, Chile; Lisa Jordan, Development and Environment, Uganda; Nikolay Ford Foundation; Csaba Kiss, Environmental Manage- Marekov, Access to Information Programme, Bulgaria; ment and Law Association, Hungary; Sophie Kutegeka, Smita Nakhooda, World Resources Institute; Ravadee Advocates Coalition for Development and Environ- Prasertcharoensuk, NGO Coordinating Committee ment, Uganda; Silvana Lauzan, Corporación Participa, on Development, Thailand; David Turnbull, World Chile; Leida Mercado, United Nations Development Resources Institute; and Godber Tumushabe, Advocates Programme; Rene Nijenhuis, United Nations Environ- Coalition for Development and Environment, Uganda. ment Programme; Somrudee Nicro, Thailand Environ- Very special thanks are due to Gregory Mock for exten- ment Institute, Thailand; Yelena Panina, EcoPravo-Kyiv, sive writing and contributions to this report. Ukraine; Andrea Sanhueza, Corporación Participa, Chile; Tomas Severino, Cultura Ecológica, Mexico; In addition, we are grateful for the research assistance Olexander Steigny, EcoPravo-Kyiv, Ukraine and Godber provided by the following individuals: Sanjana Ahmad, Tumushabe, Advocates Coalition for Development and Sumia Ahmad, Arisha Ashraf, Isabella Johnson, Danielle Environment, Uganda. Rappaport, Orissa Samaroo, and Aiga Stoekenberga. We are especially grateful to the following World We would like to thank the following individuals who Resources Institute staff members who supplied invalu- offered their experience, expertise, and insight into able encouragement and constructive criticism. They the many aspects of environmental access: Jonathan are: Phil Angell, Manish Bapna, Robin Murphy, Janet Allotey, Environmental Protection Agency, Ghana; Ranganathan, Jesse Ribot, Dan Tunstall, and Peter Veit. Former staff members include David Turnbull, timely production and publication of this report. Spe- David Jhirad, and Amy Wiedeman. WRI is particularly cial thanks are due to Linda Shaffer and Monika Kerde- indebted to the work of Frances Seymour, the Insti- man for managing the research schedule and produc- tute’s fi rst Director of the Institutions and Governance tion process of this report. Program and Elena Petkova, TAI’s fi rst Director who, in collaboration with partners, fashioned the idea for TAI Finally, we wish to express our deep appreciation for from a common commitment to analytical excellence, the fi nancial support provided by the European Com- practical solutions, and a passion for accountability. mission, the Netherlands Ministry of Foreign Affairs, the Swedish International Development Cooperation We would also like to thank April Osmanof, Hyacinth Agency, and the Royal Danish Ministry of Foreign Billings, Robert Livernash, Maggie Powell, and the Affairs. entire External Relations team at WRI. They ensured viii

Voice and Choice: Opening the Door to Environmental Democracy Foreword

As humanity strains the limits of this fragile planet to ings. Capacity building of civil society, administrators, meet our growing demands, we will depend increas- legislators and judges, is needed to help parties produc- ingly on the capacity of our institutions to move us tively engage one another. towards outcomes that are widely accepted as fair and effective. Mitigating and responding to the impacts of Voice and Choice provocatively suggests that forces and global climate change, water scarcity, and dwindling interests in the environmental movement, the democ- natural resources will challenge governments and civil racy movement, and the human rights movement have society to manage inevitable trade offs at the local, converged in what might be the beginnings of a global national and global levels. This report fi nds hope and “access movement”. The authors call for alliances and ix insight that these trade offs will be possible in the work coalitions that can work effectively with governments of hundreds of individuals and institutions working to achieve real and lasting reforms. They emphasize around the world to bring the voices of the many to that governments are made up of individuals, including making the choices that will shape our common future. judges and members of legislatures; and that some of these offi cials will also be champions for access. Voice and Choice assesses progress towards a world of environmental democracy based on the principles of Access proponents in government, civil society, and the transparency, inclusiveness and accountability envi- private sector can use this volume as a resource for both sioned at the 1992 Earth Summit in Rio. Drawing on policy options and talking points as they work to over- the work of The Access Initiative (TAI), a remarkable come common hurdles to increasing access. Voice and global network of civil society organizations dedicated Choice highlights progress on specifi c tools – including to these principles, this report assesses over 200 case pollutant release and transfer registers, judicial train- studies and analyses of national law in 26 countries, ing, and online tracking of freedom of information and examines trends in implementing the internation- requests—that nearly any government in the world can ally recognized “access rights” to information, partici- embrace to improve access. It suggests that human rights pation and justice in government decisions about the arguments and international law can also be tools to environment. help build the participation of an informed public. It goes further, and examines the evidence for the legiti- The authors fi nd that transparency is not enough; macy, effectiveness, and effi ciency gains governments improving environmental outcomes depends on the can expect when they improve and maintain access. quality of participation, and on the availability of redress when things go wrong. While freedom of infor- Voice and Choice builds on WRI’s 2002 report, Closing mation laws have become something of a global norm, the Gap: Information, Participation and Justice in Decision- they have proven to be necessary, but insuffi cient, to Making for the Environment. That volume asked whether providing the basis of better decisions on environmen- access rights could be measured and if access could be tal issues. National state-of-the-environment reports are improved for environmental decisions. The answer to also useful, but have limited potential if not well pub- both questions was “yes.” This report now addresses the licized. Data on toxics in the soil or water mean much question, “How can we transform these insights into more if public education has prepared a population to action?” understand that data.

Governments’ duty to ‘supply’ access— through freedom of information laws and notices of public meetings—must be complemented by civil society’s capacity and interest to ‘demand’ access. This demand may take JONATHAN LASH the form of petitions to courts, ﬁ ling of requests for PRESIDENT information, or public presence at government meet- WORLD RESOURCES INSTITUTE Executive Summary

People have the right to participate in the decisions that affect their environment. To exercise this right they need BOX 1 THE ACCESS INITIATIVE STRATEGY access to the information upon which decisions rest, and the opportunity to voice opinions and to infl uence TAI developed a strategy to spread access rights around the world. choice among possible outcomes. Meaningful participa- The strategy has three elements: tion is guaranteed through “access rights”: the rights of 1. Develop an indicator-based tool to assess the performance of public access to information, to public participation in national governments on the implementation of Principle 10 of government decision-making, and of access to justice. the Rio Declaration and to identify gaps in the law, institutions, x and practice of access rights. In the 1992 Rio Declaration on Environment and 2. Empower civil society organizations (CSOs) to use the tool and Development, 178 governments pledged to open envi- support them to conduct independent assessments of access ronmental decision-making to public input and scru- rights in their countries. tiny. Access to information, public participation, and 3. Engage governments in a constructive dialogue to close access to justice are keys to more transparent, inclusive, gaps identifi ed in the national assessments, and encourage and accountable decision-making in matters affecting collaboration between CSOs and governments in the effort to the environment—what we call “environmental democ- realize access rights for all. racy”. Access to information motivates and empowers Voice and Choice presents TAI assessments from 2002-2005 of the people to participate in an informed manner. Participa- performance of 26 national or regional governments on access to tory decision-making enhances the ability of govern- information, public participation, and capacity building. ments to respond to public concerns and demands, to build consensus, and to improve acceptance of and TAI Assessments were carried out in: compliance with environmental decisions. Access to • Africa: South Africa, Tanzania, Uganda justice enhances the public’s ability to enforce the right • Asia: India, Indonesia, Thailand to participate, to be informed, and to correct environ- • Europe: Bulgaria, Estonia, Hungary, Ireland (limited study), mental harm. In turn, access depends on governments Latvia, Lithuania, Poland, Portugal, Ukraine and civil society having the capacity to operationalize • Latin America: Bolivia, Brazil, Chile, Colombia, Costa Rica, these rights. Ecuador, El Salvador, Mexico (national and three state-level: Baja California, Jalisco, Chiapas), Peru, Venezuela Voice and Choice: Opening the Door to Environmental • North America: United States (state-level: California and Ohio) Democracy assesses the progress governments have made in providing access to environmental decision-making and, in the hope of moving forward, evaluates what hurdles remain and how they might be overcome. It TAI Strategy, and Box 2, TAI Method). It brings these picks up where a previous WRI publication Closing the fi ndings together with academic literature on public Gap: Information, Participation, and Justice in Decision- participation in an attempt to further understand the Making for the Environment (Petkova et al. 2002) left link between the quality of public participation and the off and builds on its fi ndings and recommendations. impact of environmental decisions. This report is for “access proponents”— members of government, civil society, business, and intergovernmental organizations committed to promoting access, Findings and eager to learn what has worked and why. Voice Generally, Voice and Choice fi nds that governments and Choice captures the research fi ndings and practi- have made signifi cant progress in establishing the cal experiences of The Access Initiative (TAI)—the legal infrastructure of rights and opportunities for largest network of civil society organizations to assess “access”. Constitutions and laws now guarantee and promote transparency, inclusiveness, and account- freedom of information in more than 69 countries. ability in environmental decision-making (see Box 1, Many governments have enacted administrative pro-

Voice and Choice: Opening the Door to Environmental Democracy BOX 2 THE ACCESS INITIATIVE METHOD

The TAI assessment method evaluates national law LAW PRACTICE and policy regarding access to information, public State of Environment Reports participation, and access to justice, as well as the Compliance Data Facility-level Information capacity of the public, civil society organizations, Pollutant Release and Transfer Data and government ofﬁ cials to supply and demand Air Quality Regular Monitoring access. TAI assessments use a standardized set Water Quality

of indicators, research guidelines, and rankings. Access to Information Small-scale Emergency

Access to Information Law Emergency The method also surveys government practice Large-Scale Emergency in each of the three access rights using case Policy-level decision-making study analysis. The table below lists the topic

areas covered by TAI assessments. The full report Public Public xi

identiﬁ es limitations to the data. Participation Project-level decision-making Participation Law

Government-level agency capacity building Building Capacity Capacity Public capacity building Building Law

Denial of Access to Information 1 Denial of Public Participation Justice Access to Access to

Justice Law Environmental Harm 1. Access to justice was not included in this report. It has been included in TAI regional reports and will be the subject of future publications.

cesses, such as environmental impact assessments, Framework laws for freedom of information are more wide- that mandate public participation. Progress toward spread than framework laws on public participation. Assess- the implementation of these policies has, however, ments from the TAI network demonstrate that more been slower, reﬂ ecting the profound transformations countries have bedrock framework laws on information necessary to achieve a level of openness in which than framework laws supporting public participation. governments and civil society share a commitment to Figure 1 documents the results of TAI assessments that environmental democracy. seem to conﬁ rm this gap. Only 1 of 20 countries evalu-

FIGURE 1 RANKINGS OF ACCESS TO INFORMATION FRAMEWORK LAWS AND PUBLIC PARTICIPATION FRAMEWORK LAWS (number of countries)

Freedom of information acts (21) 1 10 10

Freedom of direct participation in public matters 6 7 11 (24)

Public participation in drafting legislation (19) 8 4 7

Public participation rules in administrative laws 5 8 6 relevant to environmental protection (19)

Weak Intermediate Strong Access to information on industrial facility pollution and FIGURE 2 MEAN RANKINGS FOR LAW AND PRACTICE compliance is particularly weak. There remain tremen- INDICATORS (value) dous barriers to accessing information on facility level industrial pollution. For the facilities studied, emissions compliance reports and pollutant releases and transfer registers (PRTRs) were unavailable. Access to information was also hampered by a failure to record data, weak mandates to report data, and excessive claims of commercial and security-based conﬁ dentiality.

The capacity for air quality monitoring was strong, but data was not disseminated. Access to information on air qual- xii ity demonstrates the divide between what is measured and what is made public. While most countries had an intermediate or strong capacity to actually monitor ated lacked a basic freedom of information law. Yet, of major problems with air quality, few demonstrated the the countries evaluated for framework laws on partici- commitment to publish and distribute that information pation, one quarter received weak rankings. to the public.

Practice lags behind laws. Implementation of informa- Water quality monitoring systems were generally weak. tion and participation laws has lagged far behind legal Findings for drinking water quality demonstrated both reform. Figure 2 shows the difference between law and weak collection and dissemination. Governments mon- practice in 26 countries as surveyed by TAI partners. itored fewer and less diverse parameters for water. Of 25 Causes for these differences vary. Implementation of countries assessed for available water quality monitor- framework laws may be hindered by a lack of detailed ing information on the Internet, 21 received a “weak” administrative rules and operational policies. In other ranking. Findings suggest weaknesses in all aspects of cases, laws may be in place, but public capacity to use information provision—collection, analysis, and dis- the laws or ofﬁ cial capacity to carry out the laws may semination—are pervasive across countries. be absent. Countries performed poorly in providing environmental information during and after emergencies. Improvements ACCESS TO INFORMATION in information management during emergencies, Rules providing access to environmental informa- especially emergency warning systems, have improved tion can take on a variety of forms. They include gen- greatly in recent times. A number of countries fared bet- eral freedom of information laws, pollutant release ter at releasing information during an emergency than and transfer registers (PRTRs), compliance reporting after. Most countries, however, failed to release relevant requirements, emergency information systems, state of environmental information on emergencies at all. Man- the environment reporting, and the release of regular dates to produce and disseminate such information monitoring of environmental quality. were generally weak.

Fewer laws require the proactive release of information. Most countries produced state of the environment reports of Meaningful access to environmental information generally good quality, but publicity was particularly weak. requires governments to proactively gather, analyze, and State of the environment reports, which present data on disseminate information. However, most information a country’s air, water, and land quality, were produced in laws require government agencies to release informa- most countries, but country-level assessments demon- tion reactively, only when that information is requested. strate that many had weak mandates to disseminate their Figure 3 shows that in the countries surveyed, govern- ﬁ ndings, and very few made attempts to publicize the ments have underinvested in proactive information results through the mass media or in a usable format. laws, which were seen as narrower and weaker than reactive information laws.

Voice and Choice: Opening the Door to Environmental Democracy FIGURE 3 ACCESS TO INFORMATION: RANKINGS FOR REACTIVE LAWS AND PROACTIVE MANDATES

Right to access to public interest information 5 4 17

(26 countries) speciﬁ c proactive general reactive

Freedom of information acts (21 countries) 1 10 10

Provisions for access to “environmental 5 10 10 information” in the public domain (25 countries)

Mandate to disseminate State of the Environment 18 14 2 reports to the public (34 reports) xiii Mandate for releasing monitoring information (52 air and water monitoring systems) 29 23

Mandate to disseminate information about environmental and health impacts to the public 11 10 2 during an emergency (23 countries) Weak Intermediate Strong

PUBLIC PARTICIPATION as to how concerns were or were not integrated into Public participation takes place largely, although not ﬁ nal policies and plans. This has the effect of weaken- exclusively, as a part of procedures to assess and to ing the ability of public participation to foster account- mitigate environmental harm, such as in preparation of ability. On the other hand, strengths included a general environmental impact assessments, and through policy availability of documents relating to the proposed making and planning bodies such as legislatures and policy. zoning boards.

Public participation has not been mainstreamed at the proj- CAPACITY BUILDING ect level in about half of the countries assessed. Findings Legal mandates are insuffi cient to ensure the imple- demonstrate that environmental impact assessments mentation of access principles. The government must and similar processes have yet to integrate public partic- have the capacity to supply access, and the public and ipation fully. Often, even where there are open partici- civil society organizations (CSOs) must have the capac- patory processes, there are hurdles to meaningful partic- ity to demand access. ipation, including insuffi cient lead time or unavailable project documents. Consultation is often held too late The majority of governments invested in building the capac- in the project development cycle to make a signifi cant ity of offi cials, but a signifi cant minority did not. Govern- difference in selecting outcomes. ment offi cials need knowledge of the legal framework, practical skills, and fi nancial resources for access. In Planning and policy processes do not consistently involve some countries assessed, some offi cials were trained but public participation. Those that did varied in terms of how not across all relevant ministries. Often, only the Min- well they facilitated involvement. Nearly half of policy istry of Environment had suffi cient training in imple- and planning processes studied were evaluated as hav- menting access; other parallel and sectoral ministries ing weak or no consultation at all. Those with stronger and agencies did not. In many of the poorly ranked consultation often gave inadequate lead time for public countries, ministries lacked mechanisms for public con- comment or involvement. In the majority of cases, the sultation. public did not receive a timely response from offi cials Governments generally had strong legal frameworks support- extraction of natural resources, pollution, and compli- ing civil society associations and freedom of association. In a ance with regulation. few cases, these laws were not enforced and civil society organizations suffered harassment. In most cases, how- Strategic alliances and coalitions can help to strengthen ever, governments were ranked as “strong” in laws carry- access in single issue cases and more broadly. Movements ing out basic rights such as freedom of association and for access rights require the involvement of many providing general tax breaks for CSOs, but made less actors. Pioneering offi cials, media outlets, environmen- effort to support the CSO sector through education on tal CSOs, community-based organizations, and com- access rights and offering seed grants. panies that depend on information about the environment are just some of the parties interested in fostering Environmental education is not yet fully integrated or sup- more transparent decision-making. Building issue-ori- ported in many public schools. While many countries ented strategic alliances and sustaining long-term coali- mandated environmental education, the quality of such tions can help overcome the hurdles that vested inter- xiv education and the support of teacher training often ests present. By its very nature, advocating transparency refl ected the state of education in the country more requires the coordination of the many—those who pay generally. In countries with strong education systems, the price of corruption and poor decision-making—to many teachers completed training in environmental oppose the few—those who benefi t from secrecy. education and had suffi cient materials. In other school systems, despite requirements in the curriculum, teach- Information by itself is not enough to initiate collective ers often lacked formal training in the subject and often action. Groups are more likely to respond to informa- went without textbooks or supplies. tion when it reveals a substantial departure from the status quo rather than a gradual change. This phenom- enon, this shift in perception, is often referred to as Hurdles “shock.” The implications for advocates of access are A number of political, legal, cultural, and capacity-re- that the timing and messaging of information can have lated hurdles stand in the way of more rapid progress in as crucial an impact on environmental and human fulfi lling access rights. Examining these hurdles serves health outcomes as the information itself. Informa- as a starting point to understand where access advocates tion by itself is not enough: it must be combined with might best deploy tools and arguments to spark reform. a clear, precise, and novel message about the state of Evidence from TAI assessments (including cases stud- affairs through culturally appropriate channels. Envi- ies) as well as TAI network member experiences served ronment advocates must decide how to release informa- to diagnose the problems in achieving access, and sug- tion strategically. gested the outline of prospective solutions.

IDENTIFYING THE GAPS IN INFORMATION SYSTEMS MANAGING VESTED INTERESTS AND THE POLITICS OF Access to information requires more than just a public ACCESS right to obtain information. Governments must be able In many policy processes, increasing access may to collect, analyze, and disseminate information in threaten those in power. Government offi cials may ways that are meaningful. Challenges in providing envi- stand to lose infl uence over decisions by increasing ronmental information vary across issues. For example, transparency, public input, and personal accountability. most countries assessed by TAI were able to monitor Public participation can shift control, at least in part, environmental indicators for air quality. While some from government offi cials to the public. This shift may had trouble analyzing the data to see larger trends, oth- be perceived as a cost to some, whose status or power ers had a hard time distributing the data in a useful for- may be premised on exclusive control of information mat that made larger environmental trends clear to the and decision-making. TAI assessments suggest signifi - consumers of that information: politicians, businesses, cant resistance to greater transparency. Specifi cally, and the public. An important step in developing effec- vested interests—those individuals, businesses, and tive advocacy strategies will involve targeting the prob- government agencies that benefi t from the control of lems unique to the particular environmental informa- information—seek to limit public knowledge about tion system. Figure 4 shows the elements of a complete environmental information system.

Voice and Choice: Opening the Door to Environmental Democracy FIGURE 4 ELEMENTS OF AN INFORMATION SYSTEM

FOSTERING A CULTURE OF OPENNESS independent from the state, family, and market—are Many offi cials in resource management agencies go the primary—although by no means the only—source xv through years of training in forestry, fi sheries, or other of organized demand for access. By supporting the resource management skills. Respect for technical skills growth of the CSO sector concurrently with other gov- can lead to a culture of decision-making that is closed to ernance reforms, governments can encourage transpar- public input. On the basis of their professional expertise, ency and accountability. offi cials may be genuinely concerned that “inexpert” public infl uence over resource management decisions In order to supply access, government offi cials need training. may result in choices that are worse for the environment, Government itself does not need to be the sole source of the public well-being, or both. Access rights can be seen capacity-building; it can be completed through partner- as compromising technocratic or data-driven analysis by ships with civil society and business. Experience from introducing more democratic processes aimed at balanc- case studies demonstrates that civil society can be an ing subjective and competing views. important source of education for judges and other offi - cials through training in environmental and access law. By seeking to improve particular aspects of the public participation process, offi cials can improve the quality of participa- Governments can take a number of steps to increase the tory decision-making. Public notice, advertising, and early independence and sustainability of CSOs, and conse- information can engender stakeholder interest, affect quently promote the power of this sector to advocate in social norms, and educate the public to understand the the public interest: problem better. Proactive recruitment of a variety of stakeholders, especially from underrepresented groups, • Freedom of association. Even in countries that will increase the likelihood of a wider range of possible allow people to freely associate and interact, solutions. CSOs face a number of obstacles to organization. Common limitations on freedom of association Governments can foster citizen participation and environ- include requiring sponsorship by local authorities, mental values through better public education campaigns. registration of individual members, or excessive tax Widely held environmental values are characteristic of burdens due to unclear nonprofi t status. Removing sustainable societies. To facilitate public participation, these legal obstacles would strengthen the ability of governments, CSOs, and international organizations CSOs to function. have created campaigns to ensure that citizens know • Building public domestic support. Governments can how to access environmental information, participate help build domestic support for CSOs by subsidizing in public hearings and consultations, and use justice or requiring public service announcements, mechanisms to safeguard the environment. encouraging philanthropy, or sponsoring publicity campaigns about public interest issues. INVESTING IN ACCESS CAPACITY • Seed grants. Governments can set up agencies Governments are the primary suppliers of access and responsible for setting forth transparent the gatekeepers to the information and processes neces- requirements and decision-making processes for sary to realize those rights. CSOs, those interest groups competitive grants to nonprofi t organizations. • Tax-exempt status. Governments could allow blocks for access. Various international and regional organizations registering as nonprofi t to receive human rights instruments establish these core rights of tax exemptions on income. Standards for such the individual to exercise freedom of expression and exemption should be transparent and subject to association, to take part in the conduct of public affairs, review by an independent authority. and to have these and other rights enforced by an independent and impartial tribunal. • Broadened standing for environmental harm. Environmental CSOs, in particular, require legal innovations from governments, such as broadened Access rights are also rooted in another category of standing in order to carry out litigation in the name human rights—so-called economic, social, and cultural of the public. (ESC) rights. ESC rights are refl ected in many international and regional human rights treaties and proclama- • Capacity building. CSOs unaware or incapable tions. They include the right to an adequate standard of of using access rights are less likely to foster living, including adequate food, clothing, and housing; xvi membership, attract publicity, or infl uence safe and healthy working conditions; and the highest environmental decisions. Governments should attainable standard of physical and mental health. include CSOs as a key target group in their larger educational efforts to increase public understanding Forging a strong link between environmental access of access. rights and human rights instruments can be an important dimension of strategies to promote and reform Advocating Access access law and practice for several reasons. Widely Access proponents must understand and deploy the recognized human rights are grounded in both treaty array of arguments in favor of access and overcome law and the equally binding rules of international hurdles to implementation. Access rights are inherently customary law. Human rights describe duties that human rights. Increasing access will advance the fulfi ll- a government has consented to or is bound by and ment of norms well-established in international and should therefore be a constructive part of its discourse national laws. Access allows society to tap the potential with civil society. Framing arguments in human rights of all of its sectors — the public and the private, govern- terms can also help environmental advocates to utilize ment offi cials and citizens — to contribute to the bet- international and regional human rights enforcement terment of public policy. machinery, as well as domestic constitutional courts, tribunals, and commissions. Finally, the universal appeal The fulfi llment of access rights confers substantial of human rights can draw support from civil society public goods to the benefi t of the governments and groups beyond the environmental fi eld. Evidence from communities that implement them. Access principles the TAI network suggests that when national govern- are associated with good governance. These practices, ments adapt the law to refl ect these international in turn, are associated with stronger economic growth. norms, they enable CSOs to use these rights to improve Through its connection with good governance, access environmental outcomes. may also promote sustainable development more widely. A growing body of research demonstrates the positive connection between the ability to govern and ACCESS TAPS SOCIETY’S FULL POTENTIAL the ability to manage natural resources sustainably. The provision of access can be understood as a dynamic of supply and demand. Governments are the primary suppliers of access rights, and the gatekeepers ACCESS RIGHTS ARE HUMAN RIGHTS to the information and processes necessary to realize Access rights are rooted in human rights. The primary those rights. Civil society organizations are the pri- purpose of access rights is to empower people to mary source of organized demand for access. However, advance the fulfi llment of substantive rights—the enti- access to decision-making by the government is essen- tlement of all people to the fundamental civil, political, tial for more than just civil society. Tables 1 and 2 give economic, social, and cultural conditions that are con- a broad view of the reasons different groups demand sidered necessary to ensure human dignity. The most access to information, participation, and access to jus- widely recognized category of human rights, known as tice. As Table 2 shows, governments themselves benefi t civil and political rights, provides the basic building from openness. An informed public is an essential ally

Voice and Choice: Opening the Door to Environmental Democracy tion, and access to justice, governments raise the quality TABLE 1 WHY DEMAND ACCESS? of decisions in multiple ways:

GOVERNMENT PUBLIC JUSTICE INFORMATION PARTICIPATION MECHANISMS Legitimacy. Participation by all interested parties in a decision process builds legitimacy and “buy-in” for • To monitor government • To increase • To ensure and private activity infl uence of enforcement of the resulting decision. Even in cases where there are through information civil society environmental laws winners and losers, the ownership built through the collected by the organizations • To enforce access government • To ensure fairness to information and participatory process can lessen opposition and con- • To assess and formulate of decisions participation fl ict when the decision is implemented. policies and practices • To foster • To resolve disputes Civil Society • To educate the public greater voice about existing policies and equity for Building Stakeholder Capacities. Through the participa- and practices underrepresented tory process, stakeholders gain skills and knowledge. groups They build relationships with one another, deepen their • To identify potential • To increase • To ensure fair resources—fi nancial, infl uence of the application of laws community’s democratic culture, and foster trust and xvii human, technological, private sector and regulations by social cohesion. All of these capacities may be resources and natural • To reduce risk to offi cials that enable better project and policy implementation, • To obtain market projects from the • To seek remuneration information consequences for harm from or they may be of value for activities unrelated to the • To ensure fair of low public damage to ecosystem decision process. Some authors consider the relation-

Private Sector approval services contracting practices ships built through public participation a good in and • To ensure consistent • To manage of themselves—a form of social capital. environmental and and predictable human risk interpretation of laws Better Implementation. Decisions made in a participatory manner are more likely to be fully implemented TABLE 2 GOVERNMENTS THEMSELVES USE ACCESS and sustained, in part because of enhanced legitimacy and reduced opposition. There may also be cost sav-

GOVERNMENT JUSTICE ings, especially in cases where stakeholder ownership INFORMATION PUBLIC PARTICIPATION MECHANISMS of the decision extends to the sharing of labor or other Purpose of access Purpose of access Purpose of access resources in the implementation phase. • To share responsibility • To gather information • To ensure monitoring for monitoring with civil from the public and enforcement of Improving the “Quality” of the Decision. In a participatory society • To disseminate regulation • To monitor fi scal information and educate • To protect minority process, the resulting decision will refl ect the special- expenditure the public interests and the ized knowledge and variety of perspectives that partici- environment • To monitor and analyze • To disseminate and pants bring to the table. This raises the substantive qual- management practice infl uence public opinion • To ensure consistent • To set taxation rates • To increase legitimacy and predictable ity of the decision relative to its intended outcomes. interpretation of laws and account for natural • To respond to public resource use • To resolve disputes pressure Making Decisions that Refl ect Stakeholder Values. When • To assess current between parties over • To generate and capture natural resources the public has the opportunity to infl uence a decision- practice wider ideas • To oversee other • To amplify minority making process, the resulting decision is more likely to government agencies voices refl ect public values and interests than if it were top- down. in government’s role as regulator, strengthening the incentive of regulated entities to police themselves. Recommendations Participatory processes such as public hearings raise awareness of—and can build public support for—gov- Realizing greater environmental democracy is clearly a ernment initiatives. long-term process. Evidence from TAI country assessments and case studies conducted thus far suggests that improvements in access have been achieved over the 16 ACCESS GENERATES PUBLIC BENEFITS years since the Rio Earth Summit, but that much more Findings from current governance literature show that, remains to be done. These recommendations come pri- by increasing access to information, public participa- marily from our research, and provide a starting point for improving public participation, raising the quality and accessibility of information, and increasing the avail- formats for ease of comparability over years, attention ability of judicial and administrative relief for citizens. to environmental trend data, and a minimum of jargon. Corresponding data should be available on the Internet Many of these recommendations echo those in the free of charge. Production, analysis, and distribution previous TAI global report, Closing the Gap. This simi- can be aided through partnerships between agencies, larity raises a question: how can we ensure continued the private sector, and CSOs. progress in the supply of access rights? Building on the fi ndings in this publication and the rapidly growing Information on Emergencies and Accidents body of information being gathered by the TAI network, Successful distribution of environmental information we present the following set of next steps, including requires clear legal mandates for reporting on impacts. instituting legal reforms, mainstreaming public partici- This involves clarifying responsibility and account- pation, building coalitions, and building the capacity ability for producing environmental reports during and of both government and civil society for better environ- after an emergency. It includes clarifying overlapping or xviii mental governance. nonexistent mandates and supporting responsible agencies with adequate budgets.

ACTIONS FOR GOVERNMENTS Public Participation at Policy, Planning, and Project Levels Legal Frameworks for Access to Information Earlier citizen involvement in policy and planning and Gaps can exist at different points of environmental improved notifi cation processes for public input can information systems. These may be at the collection, serve to inform stakeholders more adequately about analysis, or dissemination stages. Governments can participation opportunities. Comprehensive briefi ng address these gaps by strengthening specifi c legal codes materials, such as initial planning drafts or scoping cri- to mandate proactive information production mecha- teria can also be distributed. In particular, timely infor- nisms, including PRTRs, emergency response systems, mation on available technical, economic, and environ- regular air and water quality monitoring systems, state mental data may improve the quality of fi nal decisions. of the environment reports, and EIA codes. Adequate codes would encourage offi cials to produce and release Building the Capacity for Access information. Making clear which offi cials are answer- Capacity building for offi cials, CSOs, and the general able to the public will increase accountability for deci- public requires sustained support. This means increas- sion-making. ing and maintaining budgetary resources directed toward training government offi cials not only to be Information on Compliance and Industrial Pollutants aware of and comply with access laws, but to publicize Industrial facility reporting on pollution emissions and support opportunities for citizen participation, and needs stronger mandates. Facility reporting needs to solicit the involvement of affected parties. further standardization of monitoring and sampling techniques, as well as narrowed scope of confi dentiality claims. Establishment of a PRTR is one way to make ACTIONS FOR ACCESS PROPONENTS information available through the channels most likely Actors from all sectors and levels of society stand to to reach those affected. benefi t from increased access to information, public participation, and access to justice. Our fi ndings and Information on Air and Water Quality conclusions suggest that access proponents can take sev- Strong mandates to monitor air and water quality eral essential actions to bring about access reforms and require a robust slate of indicators, analysis of health address barriers to and gaps in the provision of public and environmental implications of this information, access. and availability of regularly released information in a • Access proponents can assert both the instrumental usable form. benefi ts of access rights and the human rights basis of access. As these advocates continue to place access State of the Environment (SoE) Reports rights on their national agendas, they can argue Strong mandates for SoE reporting require that reports that greater access to environmental decisions are released regularly. Because SoE reports are used has clear benefi ts on a number of levels. Because widely by the public, they should employ standardized access rights have their basis in international

Voice and Choice: Opening the Door to Environmental Democracy human rights, access advocates can deploy human laws and practice by TAI and others will play an rights arguments. This has particular potential in essential role. those settings where international mechanisms are available to enforce these rights. A RESEARCH AGENDA TO EXPLORE PUBLIC PARTICIPATION AND ENVIRONMENTAL SUSTAINABILITY • Access proponents must build and strengthen networks Research is needed to better understand when and how in order to push for greater transparency and public access most contributes to positive impacts and preven- infl uence. Access proponents can employ both tion of harm. Key questions include: strategic alliances and broad-based coalitions of like-minded groups in order to manage and • What are the key elements—legal, political, sustain policy reform. They can begin with those cultural and capacity-related—that enable public most affected by lack of access to environmental participation to have positive on-the-ground decision-making and spread out to those who impacts? have the greatest interest in a transparency • At what stages in the policy and project planning and democracy agenda. Networks—including xix process is access most benefi cial? members of civil society, government, and the private sector—may serve strategic purposes • What are appropriate guidelines for offi cials to different from CSO-only coalitions. As they decide what form of participation, information, and continue to work for incremental change CSOs justice forums are suitable for given circumstances? must capitalize on major opportunities that In particular, the following research could help improve present themselves unexpectedly or at short notice the policy environment for access rights: — such as constitutional reform or international treaties. • Systematic meta-studies of accumulated case studies. • Governments and civil society can work together • Comprehensive approaches to weighing the to build offi cial capacity. The proper training costs and benefi ts of participation (e.g. how to of government offi cials requires efforts in the include capacity-building benefi ts; how to apply legislative, administrative, and judicial branches. cost-effectiveness analysis, cost-consequences Civil society organizations can help in this approaches), especially those that would be usable at training, as they often have well-developed access a practical administrative level. expertise. • Advocacy for public participation should be supportive A Final Thought of representative government. Efforts to strengthen Access rights—and those individuals and institutions public participation should seek to support and that fulfi ll them—are at a moment of opportunity. New not undermine representative government. For freedom of information acts and a push for greater example, access advocates should strengthen transparency in decision-making have raised the profi le public participation in legislative processes. of access reforms. Yet improvement and institutional- • Researchers must continue to address gaps in the ization of access rights is not assured without continued public participation literature. This includes practical independent assessment and ongoing advocacy and col- research into how CSOs are selected to participate laboration. in national and regional policy-making, and mechanisms for downward accountability from “grasstops” CSOs to grass-roots community- based organizations. Continued research must address mechanisms to include the poor and socially excluded in the decision-making process and to limit capture of participatory processes by elites. Finally, the circumstances under which participation reinforces and strengthens other democratic institutions merits additional attention. Continued assessments of access A Reader’s Roadmap

The publication in your hands represents the culmina- Chapter 3 Access Hurdles presents and draws lessons tion of several years of research, experimentation, and from original research completed by the TAI network. reform by governments, civil society organizations, and Aggregated data from this research shows that while industry in implementing access to information, pub- access to information law and public participation law lic participation, and access to justice in decisions that have grown, implementation is still lacking. In order to affect the environment. Voice and Choice is an interim deal with this, the chapter identifi es hurdles to further report of the Access Initiative, and captures the results implementation of access rights and presents case stud- of the network’s fi rst efforts to assess the adoption and ies where access proponents have encountered, and in xx implementation of environmental access rights. As an some cases, overcome these hurdles. We group the sec- interim report, its main purpose is to begin to answer tions of this chapter under four headings: the questions, “Where are we?” and “Where do we go • Managing Vested Interests and the Politics of from here?” Access. Data from TAI country assessments and case studies suggests that vested interests play a signifi cant Chapter 1 Opening Access provides a theoretical role in controlling the fl ow of information and and historical background for access rights and the participation. We attempt to address this challenge relationship these rights seek to establish between by proposing strategies for overcoming these governments and people in the context of environ- interests through coalition-building and highlight mental decision-making. Reformers at the conver- the importance of messaging to engage the public. gence of agendas in environment, governance, and human rights have already made signifi cant inroads • Identifying the Gaps in Information Systems. Not in measuring, analyzing, and promoting more open all systems for releasing environmental information and transparent governance around natural resources. suffer from the same gaps. We look at the elements The chapter also presents The Access Initiative (TAI) of a complete environmental information system method for assessing government provision of access including collection, analysis, and dissemination. rights and shows a number of general results of these A series of case studies and fi ndings highlight the assessments. importance of ensuring the availability, publicity, and usability of information. Chapter 2 Strengthening the Argument for Access • Fostering a Culture of Openness. This section provides access proponents within and outside of gov- describes how opening participation to the public ernment a broad palette of arguments to use in order affects the ‘environmental quality’ of a decision. to spur reform in decision-making processes. The While not offering a defi nitive answer on the subject, chapter outlines three key arguments for access rights, lessons on how to reconcile the need for expert under the assumption that access proponents and gov- deliberation with the demand for public input. ernments will fi nd some arguments more compelling than others given their unique circumstances. First, • Investing in Access Capacity. Support for the chapter argues that access rights are human rights government offi cials and for civil society grounded in international law. Second, the chap- organizations to supply and demand access is ter briefl y touches upon the larger arguments other essential for environmental democracy. This section researchers have made about the positive relationship examines the extent and the sustainability of efforts between good governance and growth at the national to create this cycle of engagement. level. Third, the chapter looks at evidence about how public participation, access to information, and access Chapter 4: Recommendations culls lessons from the to justice affect the quality of decisions on the small previous chapters. The fi rst part of the chapters presents scale. next steps for governments in implementing access rights while the second section presents ideas for access proponents to use to promote these reforms more generally.

Voice and Choice: Opening the Door to Environmental Democracy 1

Opening Access

“People living in poverty have the least access to power to shape policies—to shape their future. But they have the right to a voice. They must not be made to sit in silence as ‘development’ happens around them, at their expense. True development is impossible without the participation of those concerned. All of us—rich and poor, governments, companies and individuals—share the responsibility of ensuring that everyone has access to information....And our starting point must be respect for individuals’ rights.”

—Nelson Mandela, 2006 Principle 10: A World Open to Change BOX 1.1 TEXT OF PRINCIPLE 10 OF THE 1992 RIO Nelson Mandela’s words and his actions inspire us to DECLARATION ON ENVIRONMENT AND DEVELOPMENT imagine a more open world in which access to information and the opportunity to participate enables even the “Environmental issues are best handled with participation of all most disempowered people to shape their own future. concerned citizens, at the relevant level. At the national level, At the 1992 Rio Earth Summit, the international com- each individual shall have appropriate access to information munity moved toward this goal by agreeing on a set of concerning the environment that is held by public authorities, principles aimed at ensuring that people everywhere including information on hazardous materials and activities would enjoy the right to understand and inﬂ uence in their communities, and the opportunity to participate in decisions affecting their environment. Principle 10 of decision-making processes. States shall facilitate and encourage the Rio Declaration sets out the necessary elements public awareness and participation by making information to achieve a more open and just world (see Box 1.1). widely available. Effective access to judicial and administrative It asserts that sound environmental governance and proceedings, including redress and remedy, shall be provided.” 2 effective environmental policies depend on providing people with access to information, opportunities for participation, redress for environmental harm, and Voice and Choice: Opening the Door to Environmental mechanisms to ensure that these rights are fulﬁ lled. Democracy assesses the progress governments have made to provide access to environmental decision making and, The rights of access to information, participation in in the hope of moving forward, evaluates the challenges decision-making, and access to redress and remedy form to access in order to identify points of opportunity. This the three basic pillars of Principle 10, which we refer to report is for “access proponents”—members of govern- collectively as “access rights”. Access rights are central to ment, civil society, business, and intergovernmental more representative, equitable, and effective environ- organizations committed to promoting access and eager mental decision-making. Access to information empow- to learn what has worked and why. Voice and Choice ers and motivates people to participate in a meaningful acknowledges that the contexts and priorities of individ- and informed manner. Access to participation in deci- ual countries and of individuals within those countries sion-making enhances the ability of a government to be will vary. Many of the opportunities and challenges will responsive to public concerns and demands, to build be familiar to readers regardless of locale, while others consensus, and to improve acceptance of and compli- may provide a new framing of well-known issues. ance with environmental decisions. Access to justice

Chapter 1: Opening Access allows people to hold government agencies, companies, This document is an interim report—a map of progress and individuals accountable. Meaningful participation toward fulfi llment of access rights and a guide to where requires access to the information that forms the basis we might head in the future. It includes stories of how for decisions, the opportunity to voice opinions, and the access has empowered people, transformed communi- ability to infl uence choice among possible outcomes. ties, and avoided or lessened environmental damage. Our starting point is Principle 10. (See Box 1.2). Voice Governments have made signifi cant headway establish- and Choice captures the research and practical experi- ing the legal infrastructure for access. Constitutions and ences of The Access Initiative (TAI), the largest network legislation now guarantee freedom of information in of civil society organizations dedicated to realizing Prin- nearly 70 countries (Banisar 2006). Many governments ciple 10 by assessing and promoting transparency, inclu- have enacted administrative processes, such as environ- siveness, and accountability in environmental decision- mental impact assessments, that mandate public partic- making. (See Box 1.3 for a further description of TAI.) ipation. Progress toward the implementation of public participation policy has, however, been slower, refl ect- In this chapter, several case studies capture glimpses of ing the profound transformations necessary to achieve a more open world, one where the right combination of actual openness, in which governments and civil society popular demand and political will have begun to put in share a commitment to environmental democracy. In place progressive and potentially transformative access other words, we now stand at the threshold of a half- rules and innovations in government. This section open door. Understanding the benefi ts that lie behind brings together general observations and specifi c exam- that door, and the hurdles that remain, will be essential ples from policy and practice that we believe describe to achieving a world open to change. the inspiring contours of a “Principle 10 World.”

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

available to society. Through this effort, we believe that BOX 1.2 ARE ACCESS PRINCIPLES ACCESS RIGHTS? environmental values will increasingly become part of the public debate. Our working hypothesis is that these When 178 governments signed the Rio Declaration in 1992, they added voices strengthen the democratic foundation for refrained from using rights-based language in Principle 10. Yet better environmental governance and, in so doing, will this report uses the term “access rights” throughout. There are generate better outcomes for human well-being and the several reasons. environment.

First, as refl ected in human rights law, access to information, At its core, Voice and Choice is about democratizing envi- public participation, and access to justice have the legal and ronmental governance. Petkova et al. (2002) review a moral force of rights. Governments must make efforts to respect, number of defi nitions of governance, including: to protect, and to fulfi ll these rights. By framing access principles as a series of rights for people and associated duties for • The set of values, policies, and institutions by which governments, we signal the expectation that governments take the a society manages economic, political, and social 3 proactive steps necessary to realize these rights. processes (Cheema 2000). Second, Chapter 1 shows that many countries have created rights- • The manner in which power is exercised in the based framework laws on freedom of information and most have management of a country’s economic and social framework laws on environmental impact assessment, including resources for development (World Bank 1992). rights to public participation. As described in Chapter 2, a range of international declarations and laws enshrine the rights to • The process of decision-making and the process by information, participation, and justice. We believe these laws form which decisions are implemented (UNESCAP 2002). a set of baseline duties of all states and rights of all people to • The framework of rules, institutions, and practices Chapter 1: Opening Access information, participation, and justice. that set limits and provide incentives for the behavior of individuals and organizations (UNDP 1999). Veit and Ribot offer a specifi c defi nition of environmen- BOX 1.3 THE ACCESS INITIATIVE tal governance as the distribution, exercise, and limits of power over decisions that affect the environment Started in 2000, The Access Initiative’s (TAI’s) fi rst assignment (Veit and Ribot 2008). For our purposes, the term can was to assess progress on implementing Principle 10 ten describe a broad range of policy-making processes— years after Rio, for the 2002 World Summit on Sustainable and actors—that might be more or less open to public Development in Johannesburg, South Africa. Since then, TAI input and, as a consequence, more or less responsive has become the largest global civil society organization (CSO) and accountable to public needs. network dedicated to ensuring that people have the right and ability to infl uence government decisions about the environment Strong feedback between the public and government and natural resources. The network now includes over 150 civil offi cials encourages responsiveness and accountability. society organizations and operates in over 40 countries. Six CSOs Figure 1.1 shows this relationship. In open, democratic from Asia, Africa, Latin America, North America, and Europe now systems, a well-informed public is able to observe spearhead TAI in their respective regions. The World Resources and measure the outcomes of policies. The public can Institute functions as the global Secretariat for TAI. receive this information through channels such as a free press, public education, civic associations, and offi cial reports. Individuals and organizations can express their policy preferences through public hearings, meetings Environmental Governance and Environmental with elected leaders, petitions, submitting research, Democracy holding referendums or initiatives, or staging boycotts The title of this report—Voice and Choice: Opening the or demonstrations. Holding government to account Door to Environmental Democracy—refl ects the objectives depends upon the ability to sanction public offi cials. of opening up decision-making processes affecting the (Veit et al. Forthcoming, 2008). The most effective environment by widening the range of voices heard and and peaceful means of sanctioning public offi cials is improving the quantity and quality of policy choices removal from offi ce by elections. range of policy options to choose from, including those FIGURE 1.1 THE RELATIONSHIP BETWEEN refl ecting environmental values. RESPONSIVENESS AND ACCOUNTABILITY Access rights thus form a core part of what we refer to as “environmental democracy.” A balance of representative and participatory decision-making, informed by public access, will most likely refl ect the will of those with an essential stake in the outcome, and most likely to bring environmental values into the policy-making process. Greater transparency and public participation increase the accountability and responsiveness of government offi cials. By allowing for public participation and access to remedy and redress, environmental values are more 4 likely to become part of the policy-making process.

Concurrent with signiﬁ cant advances in the institu- tionalization of representative democracy throughout the world, political reformers have begun to focus on

Source: Adapted from Veit et al. Forthcoming, 2008 increasing public participation in decision-making processes. For example, civil society groups and political leaders in Latin America have advocated institutionaliz- Despite its strengths, government by elected represen- ing participatory democracy. Regardless of differences in tatives has its shortcomings. If elections are the only ideology and ultimate goals, parties in these countries means of signaling policy preferences, minority opin- agree that representative democracy is not enough: pub- ions can be trampled by a majority. The views of those lic participation is essential to cultivate the infl uence less able to use electoral mechanisms will be under- of civil society (García-Guadilla 2002). This trend has represented. To address these weaknesses, democratic been most prominent in decisions for the environment. systems install a number of checks in order to protect In fact, public participation, freedom of information, minority opinions, and promote forms of participa- and access to justice seem woven into the fabric of the tory democracy that supplement the voices of elected modern environmental movement. and appointed offi cials. For example, constitutions Chapter 1: Opening Access can empower courts to overrule laws that infringe on Reforms focusing on participation, access to informa- minority rights, and can require legislatures to deploy tion, and access to justice are not the sum of environ- supermajorities to approve some types of legislation. mental democracy. Such reforms work best in combina- The requirement that major planning and policymaking tion with representative democracy, rather than in its processes be based on public hearings and public input place (see Box 2.4 for a discussion on the practical limi- can also provide participatory channels for minority tations to public participation). Even in non-democratic viewpoints. policy environments, increasing access to information can open new corridors for public expression. While Those espousing environmental values often fi nd not a substitute for free and fair elections, increasing themselves in the minority. In many societies, environ- opportunities for public participation in planning and mental movements are nascent, fragile, or marginal. In policymaking processes can lead to better outcomes. the absence of a strong environmental voice, offi cials may fail to value immediate environmental concerns or neglect longer term issues that refl ect the needs of The Elements of Access future generations. Lawmakers may not know how to The ability of affected people to infl uence decisions make decisions about natural resources when there is is shaped by many factors. A seat and a voice at the incomplete information or little public signaling about table is the defi ning feature of meaningful participa- preferences. By opening policy processes to public par- tion. People must have the appropriate information ticipation governments increase information fl ows both on which the decision turns if their infl uence is to be to and from offi cials and the public, and broaden the meaningful.

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

Accountability is also an essential factor in exert- uate the impacts of these decisions on themselves and ing infl uence. Accountability can be defi ned as, “the the environment. Transparency also has other benefi ts. obligation to explain and justify conduct” (Bovens It reduces the space for corruption and arbitrary or dis- 2006). Decision-makers are more likely to respond to criminatory decision-making. In so doing, it strengthens stakeholder concerns if they can be held accountable. the rule of law and increases accountability (Pope 2003; Accountability requires that decisions be scrutinized Gray-Molina et al. 1999; Alt and Lowry 2006). by independent third parties and that, based on this scrutiny, stakeholders can apply sanctions if they fi nd In a society where every person had access to envi- decision-makers wanting. Such sanctions can run the ronmental information held by the government, each gamut from simple reversal of a decision to loss of individual would be able to access that information decision-making power—perhaps by being removed in a timely and affordable manner. People would be or voted out of offi ce—to criminal sanctions and fi nes. aware of their right to information and would easily Transparency, participatory processes, and access to understand where to go, whom to meet, and how to remedies and redress are all important mechanisms to get that information. Each agency would advertise to 5 strengthen accountability (Ribot 2002). people the information it has and where, when, and how it could be obtained. Civil servants would see the public as the rightful owners of government-held ACCESS TO INFORMATION: TRANSPARENCY AND information, as a key source of information, and an OPENNESS indispensable ally in informed decision-making. Gov- Transparency describes the free fl ow of information ernment agencies would willingly bear a heavy burden about the decision-making process. Without informa- of proof when asserting any duty or privilege of gov- tion, participation is meaningless. People need access ernment secrecy, such as national security or public to all relevant information to understand the circum- safety. Furthermore governments would mandate and Chapter 1: Opening Access stances and context of decisions being made and to eval- support the production, analysis, and dissemination

Supporters of Andres Manuel Lopez Obrador, the candidate of the Party of the Democratic Revolution (PRD), in Zocalo Square, Mexico City. Over 250,000 people rallied to demand a recount of the votes in the presidential election of 2006, which PRD lost by a razor-thin margin. FIGURE 1.2 FREEDOM OF INFORMATION LAWS BY COUNTRY

Source: Banisar 2007

of information, and would build the capacity of the PUBLIC PARTICIPATION: A SEAT AT THE TABLE, A public to use that information. VOICE IN THE ROOM For participation to be fair and effective, a decision- The right of access to information is guaranteed in the making process should include a range of stakeholder constitutions of many countries. A growing number voices. Decision-makers should listen and, to the great- of countries have enacted freedom of information acts est extent possible, respond to these voices. Decision- (FOIAs) enabling people to obtain information held making can take many forms. At one end of the spec-

Chapter 1: Opening Access by the government. A 2006 survey identifi ed 69 coun- trum it can be direct—where stakeholders collectively tries with freedom of information laws (Banisar 2006), make a decision, either by majority or by consensus. and many other countries are considering such legisla- Each stakeholder exercises an infl uence equal to his or tion (see Figure 1.2 and the example of Mexico in Box her vote or veto power. At the other end of the spec- 1.4). Despite this progress, implementation of these trum is indirect decision-making, where a third party, laws has been weak and uneven. On the other hand, usually a government offi cial, makes the decision with there is a trend toward greater openness of government or without the participation of stakeholders. The third and the recognition that the right to information is a party could be an elected representative. It could also fundamental human right. That trend is a combina- be a judicial or administrative offi cer appointed by the tion of civil society demands for greater transparency government. (For more on this, see Box 2.2.) and the recognition by governments of the benefi ts of transparency. As a result, a number of governments A stakeholder’s infl uence over the decision depends on have engaged in constructive dialogue with civil society the ability to access the decision-maker and have his groups, resulting in successful legal, policy, institutional or her voice heard. That infl uence increases when there and practice reforms regarding access to information. is an ability to hold the decision-maker accountable both in the way the decision is made and in the merits of the decision itself (Uphoff 2005). Access rights are important to both direct and indirect decision-making. However, they are particularly important in the context of indirect decision-making, where elected or appointed offi cials can easily marginalize stakeholders and limit

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

BOX 1.4 MEXICO’S FEDERAL INSTITUTE OF ACCESS TO PUBLIC INFORMATION

In April 2002, Mexico passed its fi rst Freedom of Information Act. A June 2007 constitutional amendment ensured that all 32 states Mexico is now the only Latin American country with a government in Mexico would establish electronic information request systems agency devoted to freedom of information— the Federal Institute and appellate bodies like IFAI. The constitutional amendment will of Access to Public Information (IFAI in Spanish). IFAI is an guarantee to each person basic information rights and remedies both autonomous institution that consists of fi ve commissioners proposed at the federal and state levels. by the President and approved by the Senate. Citizens, academic When IFAI was established in 2003, only one in ten Mexicans knew institutions, business, and media can use IFAI to fi le requests for of its existence. In just four years, half the population had learned information held by any federal agency. of its existence. IFAI has used its public recognition to educate both Through June 15, 2007, citizens made over 218,000 requests for the public and government offi cials about the new right to access to information from 240 federal agencies. The large majority of requests information. came from citizens in Mexico City. Academics made about a third 7 Mexico has set an example for the world of how a middle-income of all requests, while the media, business and other government country can benefi t from access to information. In 2006, Human agencies made about half. SEMARNAT, the Ministry of Environment Rights Watch stated that “The transparency law may prove to be the and Natural Resources, received the fourth highest number of most important step Mexico has taken in its transition to democracy requests of any federal agency. since the 2000 election.” The World Bank has acknowledged Mexico’s IFAI has also processed 10,503 appeals by citizens against federal success, stating that it was “… particularly impressed by IFAI, agency decisions to withhold information. Of these appeals, IFAI the autonomous agency which gives ordinary citizens access to revoked or modifi ed government refusals about two-thirds of the public information… We would like to congratulate Mexico on these

time. In keeping with their commitment to open government, IFAI’s initiatives and applaud the strength of civil society in pushing for Chapter 1: Opening Access proceedings on appeals are public, transparent, and even broadcast this kind of increased transparency.” on the web. Media outlets regularly report on its work. Despite this, there is still room for improving Mexico’s transparency To fulfi ll its mandate to process requests and resolve disputes, IFAI laws. Without a strong archiving law, many offi cials often use the has developed a state-of-the-art Internet-based system for citizens excuse that they do not have particular records. Lack of document to use when requesting information. Called SISI, this information naming and classifi cation conventions allows offi cials to refuse to management tool handles 95 percent of all the information release information unless the requestor asks for the exact title. requests that fl ow through IFAI. While citizens can also make Like any country dedicated to implementing access rights, Mexico requests by mail or other methods, SISI provides an effi cient and is involved in an active learning process about the best means of accurate method for requesting information and keeping track of a reforming access to information. large number of requests. Sources: Trevino Rangel 2007; Romero Leon 2007. Direct quotes are Mexico’s access to information rights and the work of IFAI are from the same sources. transforming democratic politics and government decision-making.

their access. As has been described, electoral processes ample notice before the decision-making process begins that allow representatives to be held accountable by with access to relevant and easily understood informa- electors also increase responsiveness. Electoral processes tion on the decisions that are to be made. They would alone will not ensure fully responsive government (Hal- be able to communicate their concerns in written and vorsen 2003; Diamond 2005). oral submissions. Governments would be obligated to take public input into account and give reasons as to Full implementation of the right to public participation why they have or have not addressed relevant concerns. means that each person would know about their right to Participation would allow for governments to be more participate and have ample guidance on how, when, and accountable and responsive to their constituents. Deci- where to exercise that right. Access to decision-making sions would be publicized before implementation so would apply to national, regional, and local policy- that aggrieved people could seek remedies and redress making as well as at the project level. People would have BOX 1.5 STEADY PROGRESS ON ENVIRONMENTAL IMPACT ASSESSMENT IN GHANA

For Ghana, making public participation an integral part of decision- making has been a long process. Since the 1990s, a series of victories has served to strengthen the environmental impact assessment (EIA) process and to bolster the role of the public in inﬂ uencing environmental decisions. The case of EIA reform in Ghana suggests that, even when spread over a long period of time, small changes can result in major progress.

Among African countries, Ghana has always been an early mover on environmental issues. In 1973, the country set up its fi rst 8 agency with responsibility for the environment, the Environmental Protection Council. The Council served a primarily educational function, to familiarize government offi cials with the EIA process. participatory process. Initially, EIA documents were kept under lock The fi rst legislative recognition of the need for EIAs came with and key; eventually, a national EIA library improved availability Ghana’s National Investment Code (1981), which required the agency of environmental information. A further step was to make these responsible for investment to assess and mitigate for adverse documents available for the public in other regional capitals (Tunstall environmental impacts in the country. Yet these and other mandates 2008). Federal law requires that EIA processes be announced suffered from insuffi cient staffi ng and political will. As a result, EIAs ahead of time in a variety of ways, including newspaper ads and in Ghana remained underutilized, voluntary, overcentralized, and announcements on the national radio and television stations. Local largely closed to the public. Still, some progress was made: during media—such as the beating of the “gong gong”—are used in more this time, Ghana hosted several conferences regarding domestic and remote areas of the country, and paper notices must be posted in international efforts to promote EIAs (Ofori 1991). areas likely to feel the effects of the project. After public partipation, The 1990s were a watershed decade for environmental protection in an independent panel must collate comments and offi cially submit Ghana. The 1994 Environmental Protection Agency Act established fi ndings of the public hearings to the EPA. Other reforms proactively a ministry-level post for the environment and mandated EIAs for an encourage the participation of the public. The project proponent extensive set of activities, including mining and manufacturing. Yet must describe the project and the predicted environmental impact a framework law for public participation in EIAs had to wait until the in the local language. Members of the local community—including specifi cally invited leaders, farmers’ organizations, and NGOs—are

Chapter 1: Opening Access 1999 Environmental Assessment Regulations. The law also closed an important loophole when it became illegal for a project proponent to given time to air their opinions, and the project proponent is expected proceed without an approved environmental impact statement and to respond. Additionally, security is provided to ensure that the permit (Appah-Sampong 2004). The regulations also strengthened hearing is peaceful (Appah-Sampong 2007). the law by requiring publicly available environmental management The success of the EIA process is evident in a number of outcomes. plans within 18 months of completion of the project and every 3 years Public hearings have affected many decisions in Ghana, including the thereafter (UNECA 2005). size of a shopping mall, the siting of a Shell Company service station, and involuntary resettlement in six gold mining projects (Appah- The EIA process has gradually institutionalized public participation. Sampong 2007). In an internal survey, the government of Ghana Beginning in 1999, the government invested in increasing public found that 76.2 percent of government institutions used EIA data, and ofﬁ cial awareness in the EIA process. As a result, the number of and that 66 percent of those did so regularly, including in the siting, EIAs with public participation involved has tripled over the last 10 design, and implementation of projects (Appah-Sampong 2004). In a years (UNECA 2005). The government of Ghana has even been self- survey of 28 EIA frameworks in Africa, the United Nations Economic critical; an internal review of its EIA practices in 2001 found that the Commission for Africa ranked Ghana among the top three countries government’s engagement with the public was weak, but improving. surveyed, with “functional and relatively robust systems.” (South Most EIAs received a grade of “C or D.” Partially as a consequence Africa and Tunisia were the others.) The success of participation and of this study, the government established a 5-year comprehensive EIA-based project decision-making has spilled over into a strategic capacity development program (Appah-Sampong 2004). environmental assessment integrated into the 2004 Ghana Poverty Ghana has adapted the EIA process to meet the particular Reduction Strategy, that includes stakeholder conversations from needs of stakeholders. Reforms in transparency have fed the October 2003 to April 2004 (UNECA 2005).

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

if they wished. (Box 1.5 illustrates Ghana’s successful to justice.” Access to justice is thus a vital aspect of effort to strengthen public participation.) accountability as it provides the venues for the enforcement of procedural and substantive environmental rights and duties. ACCESS TO JUSTICE: REDRESS AND REMEDIES If environmental decision-makers are to be held A comprehensive system for access to justice provides accountable, people need access to procedures and procedural justice, that is, a fair and effi cient means institutions that provide redress and remedy when the of resolving confl ict. This depends on a number of government’s decisions are incorrect or unlawful. The factors. The fi rst is the right to bring cases to court, public needs mechanisms to ensure that their govern- or “legal standing.” Legal standing is often severely ment fulfi lls the right of access to information and the limited for environmental matters, even in countries right to participate. Additionally, laws and institutions where courts are frequently relied upon to adjudicate should provide the means to promote compliance with policy. (Box 1.6 tells the story of India’s broadening of environmental standards and enforce environmentally environmental standing.) Second, forums for confl ict 9 related rights. We refer to access to the rules, procedures resolution need to be geographically accessible and and institutions designed to fulfi ll these rights as “access readily affordable. The costs in time and money of

BOX 1.6 THE MEHTA TREND: INDIA AND BEYOND

For 350 years, the Taj Mahal in Agra, India stood as a symbol of Chapter 1: Opening Access an emperor’s undying love for his wife. Yet over the centuries, as industries sprung up around the Taj, their pollution contributed to enough acid rain to eat away at the once-pristine white marble. For decades, the authorities ignored the damage.

This began to change in 1980, when the Indian Supreme Court reformed the rules of the courts. Prior to these changes, only directly aggrieved parties could bring environmental cases to the courts. The new reforms broadened legal standing to allow public interest litigation (sometimes called “social action litigation”), allowing groups to sue for a cleaner environment. Indian Supreme Court dramatically changed the environmental law of In 1984, M.C. Mehta, an environmental lawyer, decided to do India. The Court handed down dozens of orders over a 20-year-period something about the slow destruction of the Taj Mahal. After six regulating pollution from these sources. months spent collecting data and talking with experts about the damage to the Taj, he fi led a landmark case in the Indian Supreme The seeds that were sown in New Delhi have taken root all over South Court to save the monument. The case lasted for 10 years. In the end, Asia. Public interest environmental lawyers in Bangladesh, Nepal, the Indian Supreme Court compelled hundreds of industries around Pakistan, and Sri Lanka have adapted Mehta’s arguments in cases the Taj to install pollution controls under threat of closure. brought before the highest courts of their respective countries. Judges in those countries accepted these arguments and broadened legal A year later, Mehta fi led a case alleging that India’s longest and standing; some even recognized that the right to life included a holiest river—the famous Ganges—was being polluted by 300 right to a healthy environment. The seeds have spread further still. municipalities and thousands of industries. Mehta argued that Public interest lawyers in Tanzania adapted the arguments to use in any concerned citizen should be able to access the courts and seek their own cases. The broadening of legal standing to access courts remedies for adverse impacts on the environment and public health. for environmental disputes is the fi rst step in creating a fabric of The Indian Supreme Court accepted this argument and decided that rights and laws that would allow citizens greater access to courts, any concerned citizen acting in good faith could activate the court. tribunals, and administrative agencies where they can seek remedies In other words, the Court broadened legal standing. It also decided for environmental harms and for enforcing access rights. that the right to life found in the Indian constitution included a right to a healthy environment. With these two decisions, Mehta and the Source: de Silva 1999 and that those advocating for those rights have impartial venues to resolve confl ict and obtain remedy.

Redress and remedy can be provided by a variety of institutions, including judicial, administrative and executive bodies. For example, a superior offi cer in a government agency can provide relief and remedy against an erroneous or unlawful decision by a sub- ordinate offi cer. Administrative redress and remedy can be provided by local authorities and offi cials with respect to local matters.

10 THE CAPACITY TO EXERCISE ACCESS RIGHTS The effective use of access rights depends, in part, on a supportive legal framework that creates the space and means for exercising those rights. In addition, civil society organizations require the funding and skills to assist the public in asserting their access rights. Public education and awareness about access rights is essential for people to understand and exercise their rights.

Governments can improve offi cial capacity to ensure public access to decisions. That includes providing adequate staff, equipment, briefi ngs on relevant laws and regulations, and training in participatory approaches. Suffi cient resources and clear standards People’s Court in session, Rangpur, India. Courts such as this one make are stepping stones to more transparent, inclusive, dispute resolution more accessible to a greater number of people. and accountable governance. Aid agencies can help by including in their portfolios programs to foster good using the forum should not pose a barrier to poorer governance reforms, especially those dealing with Chapter 1: Opening Access communities or individuals. Finally, the public must transparency. The following section outlines the efforts be made aware in clearly understandable terms of the proponents and governments have made to address procedural opportunities afforded by the justice sys- environmental issues and to build the capacity to inte- tem (Petkova et al. 2002). grate public demand.

Access to justice also entails substantive justice—the delivery of redress and remedy to the affected parties. A Brief History of Environmental Access Rights Here, institutions providing justice might order the For some time, environmental activists have relied on government to revisit or reverse its decision, require information release, public hearings, and use of the a polluter to halt its activities, or compensate victims. courts to bring environmental values into public policy. For example, a panel may rule that an EIA did not have While many of the modern EIA laws supporting these public participation, and so may order a halt to con- rights arguably have their roots in the United States, struction until such public participation takes place. A many other countries have modiﬁ ed, strengthened, and court may also rule on whether an involuntary resettle- streamlined the application of these laws. We group ment was in fact legal, or whether a displaced person them here into three overlapping phases. was compensated sufﬁ ciently. Constitutional courts can hear public claims based on denial of a right to a clean environment. Access to justice does not mean that the complaining party always wins, but that environmental rights and values are protected as provided for in law,

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

U.S. ENVIRONMENTAL LAW TABLE 1.1 COMMON ENVIRONMENTAL MANAGEMENT TOOLS The modern practice of public involvement in decisions INTEGRATING ACCESS affecting the environment has roots in U.S. federal laws of the 1970s and 1980s. Speciﬁ cally, the United Access to Freedom of information mechanisms Information States National Environmental Policy Act (NEPA, 1970) State of the environment reports Toxics release inventories/pollutant release and transfer sought to increase the legal ability of environmental registers CSOs and other concerned groups to inﬂ uence the Emergency warning systems policy-making process. NEPA mandated environmental Air and water quality monitoring systems impact statements and environmental impact assess- Public Environmental impact assessment ments (EIAs). Further amendments strengthened the Participation Strategic environmental assessment opportunity for citizen participation in identifying Planning and permitting hearings environmental hazards and in suggesting mitigation Legislative hearings (Rosenbaum 2008; Repetto 2006). Access Litigation to Justice Alternative dispute resolution 11 Administrative justice mechanisms (planning councils, etc.) A series of U.S. environmental laws also set early standards for access to information about natural resources. The 1970 Clean Air Act, 1972 Federal Water Pollution ADOPTION IN DEVELOPED COUNTRIES Control Act, and the 1974 Safe Drinking Water Act set While American access reforms were once ground- standards for air and water quality and required manda- breaking environmental law, they have slowed con- tory collection, analysis, and dissemination of related siderably, and in some cases, reversed (Rosenbaum data (Rosenbaum 2008; Repetto 2006). The 1976 Toxic 2008). Yet this has not impeded either active adoption Substances Control Act required the Environmental or innovation on environment and access in other

Protection Agency (EPA) to gather information on developed countries. Chapter 1: Opening Access the manufacture and distribution of toxic substances from all chemical manufacturers. The 1986 Superfund In the 1970s, for example, governments in Australia, Amendments and Reauthorization Act mandated the Canada, and New Zealand adopted environmental collection and publication of chemicals and toxics impact assessments but made a number of changes at industrial sites. Title III of the law, the Emergency based on learning from difﬁ culties in the U.S. system. Response and Community-Right-to-Know Act, allowed The level of participation varied widely by country. communities to request information on chemicals Whereas Canada’s law set aside funds to ensure the par- stored, processed, or manufactured by local companies ticipation of individuals and organizations in the pub- and to participate in the creation of emergency response lic review process, New Zealand’s original EIA process plans. Beginning in 1988, EPA mandated publication had little to no mandate to involve the public (Wood of toxics release inventories from all businesses (Rosen- 1997). baum 2008). When the European Commission investigated the EIA Courts also widened the interpretation of standing process in Europe in 1975, it found that many coun- and the right of citizens to bring suit on behalf of the tries already had elements of the process. Over the next environment. The landmark Scenic Hudson case (1965) decade, European Community (EC) member states har- sought to prevent the construction of a power plant in monized standards for EIAs, including provisions for New York State. The ruling’s ideas on standing made participation. Public involvement in EIAs, at least in the their way into NEPA, which expanded not only the right early years, was generally stronger in Northern Europe to sue on behalf of the environment, but also for viola- than in Southern Europe (Wood 1997). After the col- tions of procedure in the formulation of environmental lapse of communism in Central Europe, there was a rise impact statements (Rosenbaum 2008). in EIAs, but a lag in integrating public participation into the framework. The Aarhus Convention, which went into effect in 2001, sought to strengthen many of these gaps. (See Box 1.10, later in this chapter.).

The gradual adoption of EIAs by EC (now European Union) member countries allowed some countries ACCESS IN THE DEVELOPING WORLD BOX 1.7 THE ACCESS INITIATIVE STRATEGY The implementation of access rights in the developing world has varied, refl ecting the diversity of experience TAI developed a simple but effective strategy to spread access and relative openness of many countries and regions. rights around the world. The strategy has three elements: Broadly speaking, many developing countries intro- 1. Develop an indicator-based tool to assess the performance of duced tools for environmental management through national governments on the implementation of Principle 10 legal reform in the 1970s and 1980s, but many lacked and to identify gaps in the law, institutions, and practice of enforceability or strong provisions for access. (Table 1.1 access rights. provides a list of common environmental management 2. Empower civil society organizations (CSOs) to use the tool and tools which integrate access principles.) External actors support them to conduct independent assessments of access have driven—and continue to drive—adoption of many rights in their countries. of these tools, although domestic constituencies have 3. Engage governments in a constructive dialogue to close increasingly advocated for inclusion of information, 12 gaps identifi ed in the national assessments, and encourage participation, and justice as core principles. Arguably, collaboration between CSOs and governments in the effort to adoption of many environmental tools came as early realize access rights for all. in the developing world as in developed countries. The 1954 Equatorial Nile Project in Sudan is likely the earliest EIA (albeit under a different name) carried out to learn from the experience in the United States and in the developing world (Moghraby 1997). Colombia, other countries. After watching a proliferation of law- the Philippines, Thailand, and China have all adopted suits in the United States, many governments weakened some form of EIA process, although these reforms provisions that allowed suits to challenge poor EIAs, or largely lacked the strength to infl uence the development created special administrative courts to deal with con- process and only rarely had enforceable provisions for fl icts arising from the process (Wood 1995). Similarly, public participation and access to information (Wood many European countries realized that public participa- 1997). (See Box 1.5 on Ghana for one case study.) tion in individual project-level EIAs was insuffi cient. As a result, newer EIA laws have, at times, integrated public In response to international pressure—as well as civil participation into land-use planning procedures and society backlash against unpopular dam-building and policy evaluation. other large-scale projects—many bilateral and multi- lateral institutions tried to include public participation in development projects by introducing environmental Chapter 1: Opening Access and social safeguards. As a result, international fi nancial

FIGURE 1.3 RANKINGS OF ACCESS TO INFORMATION FRAMEWORK LAWS AND PUBLIC PARTICIPATION FRAMEWORK LAWS (n = countries)

Freedom of information acts (21) 1 10 10

Freedom of direct participation in public matters (24) 6 7 11

Public participation in drafting legislation (19) 8 4 7

Public participation rules in administrative laws relevant to environmental protection 5 8 6 (19)

Weak Intermediate Strong

Source: TAI Assessments

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

institutions increasingly mandated public participation to Box 1.7. For the method, see “Approach” later in this to be part of their planning process. A second trend was chapter.) the use of loan conditionality and technical transfer (or modeling) of EIA processes to borrowing countries. There are even larger gaps between law and practice Western European countries have poured a good deal of in the assessed countries. Implementation of laws has technical know-how and fi nancing into implementing lagged far behind legal reform. Figure 1.4 shows the participatory environmental reforms (Braithwaite and difference between law and practice in the countries Drahos 2000). Similarly, the United States has often surveyed. mandated access to information and public participation reforms in its environmental side agreements to There are many reasons for the apparent gaps between free trade agreements (Nauman 2006). Another trend is law and practice. These rankings refl ect a partial fulfi ll- the increasing use of participation in community-based ment of access rights. While the governments included natural resource management. here have taken steps to respect the right to information and the right of participation, they have not been 13 The adoption of participatory frameworks for decisions equally proactive in making sure that information and affecting the environment initially met with modest suc- participation have reached the public at the right time. cess, as most countries lacked a strong domestic demand For example, many countries have framework FOIAs for participatory processes (Wood 1997). Similarly, that cover environmental information, but they may reforms in access to justice and access to information not mandate the collection and distribution of data on began slowly, if at all in some countries (Nauman 2006). pollutants from industrial facilities. Experience shows that successful environmental regulation requires pro- Despite some setbacks, access reforms have gained a active information and consultation if environmental foothold in parts of the developing world. Reformers values are to come to the table. Chapter 1: Opening Access such as M.C. Mehta of India (see Box 1.6) devised novel ways of interpreting law to increase access rights. As a These observed gaps between law and practice cor- result of these types of innovations, lawyers and judges roborate the fi ndings of Closing the Gap. (See Box 1.8) in other contexts have benefi ted from cross-national The difference is that they now refl ect evidence from 26 citing of judicial and juristic opinions. Lobbying by countries, not just 9. The basic challenges, then, are to national and international CSOs, and occasionally the strengthen law and to turn law into practice. In order to integration of international standards into national achieve this agenda and to lay out the challenges ahead, laws have also strengthened access rights (Braithwaite the rest of this chapter identifi es key motivations for and Drahos 2000). demanding the fulfi llment of access rights and describes the Access Initiative’s method for identifying gaps in access provision. Turning Rights into Practice How far have governments come in fulfi lling access rights since Rio? The answer is mixed. While govern- ACCESS TAPS SOCIETY’S FULL POTENTIAL ments have made inroads to opening up decision- The provision of access can be understood in terms of making processes that affect the environment, much supply and demand. Governments are the primary sup- remains to be done. Assessments from the TAI network pliers of access rights and the gatekeepers to the infor- demonstrate that more countries have framework laws mation and processes necessary to realize those rights. on information than have framework laws supporting Civil society organizations are the primary—although public participation. (Assessments of recently intro- by no means the only—source of organized demand duced access to justice indicators were not available at for access. Table 1.2 provides an overview of the reasons the time of this writing, but will be presented in forth- both civil society and the private sector demand that coming reports.) Figure 1.3 documents the results of governments fulfi ll their right to access information, TAI assessments that seem to confi rm this gap. Only public participation, and justice. Of course, while no 1 of 21 countries evaluated lacked a basic freedom of single actor is likely to need access for all of the rea- information law. Yet, of the countries evaluated for sons stated below, the table demonstrates why different framework laws on participation, one quarter received actors might make use of access. weak rankings. (For a description of the strategy, refer The inclusiveness of Tables 1.2, 1.3, and 1.4 suggest that FIGURE 1.4 MEAN RANKINGS FOR LAW AND PRACTICE a larger group of actors may be interested in the provi- INDICATORS (VALUE) sion of access than typically assumed. All sectors can play a positive role in the promotion of supply, and all groups and individuals have an interest resulting in the demand for access rights.

Although most of the stories and examples in Voice and Choice focus on the interplay among the private sector, governments, and civil society, Box 1.10 and Appendix 1 focus on two international organizations that play a critical role in enabling the global provision of access rights. 14

TOWARD AN ACCESS MOVEMENT? Source: TAI Assessments Fuller implementation of access rights requires broad national coalitions and strong international support in order to succeed. The remarkable growth of access-ori- However, opening decision-making to the public is ented groups appears to refl ect a growing awareness of essential for more than just civil society and the pri- and demand for access rights. This growing momentum vate sector. (See Box 1.9 for information on the pri- has involved CSOs from a variety of traditions, as well vate sector.) Table 1.3 demonstrates that governments as government agencies, international organizations, themselves benefi t from openness, public infl uence, and private sector actors. These and many other efforts and justice mechanisms for environmental decisions. to increase the transparency, inclusiveness, and account- Government offi cials can benefi t from an informed ability of environmental decision-making may have and participating public. The public can be an begun to shape a global “Access Movement”. essential ally in the government’s role as regulator— strengthening the incentive of regulated entities to To date, access principles have been the shared inter- police themselves. In addition, the public and private est of three complementary traditions or movements: sectors often serve to enable particular individuals (1) the environmental movement, with its concern for Chapter 1: Opening Access and agencies within the government to monitor and environmental protection and natural resource manage- regulate the activities of other offi cials (Fox 2000). ment; (2) the democracy movement, with representa- Participatory processes such as public hearings raise tive government with free, fair and multi-party elections awareness and can build public support for govern- as its basis, but an emphasis on transparency, inclu- ment initiatives. In addition, justice mechanisms serve siveness, and accountability in government decision- a number of purposes, including interpretation of making; and (3) the human rights movement, which environmental law and confl ict resolution. seeks to universalize and realize human rights. An effective access movement could deploy arguments from This report does not limit the responsibility or credit for all three traditions and mobilize groups from all three creating a “culture of openness” to governments. In fact, movements to accomplish its goals. Figure 1.5 shows the supply side of access requires actors outside of gov- the linkages and the overlap in work and suggests that ernment as well. Governments, civil society organiza- organizations within these traditions might seek inno- tions, the private sector, and international organizations vative partnerships. For example, organizations might are essential in pushing for reform, building capacity ally to fi ght corruption in natural resource extraction, for government offi cials to provide access, and in help- might work to develop grassroots environmentalism as ing build the ability for other groups to demand access. a way to open local government, or might litigate on Table 1.4 describes the variety of activities each of these environmental issues based on human rights. groups undertakes in advocating for access. Each of these movements has a history and a set of associated policies, programs, and constituencies.

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

The environmental movement traces back well over 100 years. The modern democracy movement, which BOX 1.8 CLOSING THE GAP AND VOICE AND CHOICE increasingly advocates not just for elections but for better governance generally, has its roots in the post- In 2002, WRI published Closing the Gap: Information, colonial and social movements of the 1960s and 1970s Participation, and Justice in Decision-Making for the Environment and the recent emergence of new democracies, starting (Petkova et al. 2002). Closing the Gap asked whether progress on in Southern Europe and extending globally. This move- Principle 10 could be measured, and, if it could, what would be the ment has traditionally focused on the supply of institu- results? Using The Access Initiative’s method to evaluate the state tions—including free and fair elections, constitutions, of access rights in each country, the report showed that progress and government capacity—but more recently has been could be measured. associated with transparency, the control of corruption, Closing the Gap assessed progress in nine countries (Chile, and increased accountability. The contemporary human Hungary, India, Indonesia, Mexico, South Africa, Thailand, Uganda, rights movement has centuries-old roots; its modern and the United States). The fi ndings showed mixed results for genesis is the 1948 Universal Declaration of Human 15 access to environmental information, participation, and justice. Rights. Chapter 2 deals more fully with the relationship According to the report, low government capacity and weak civil between access rights and human rights. The goal of society capacity. poverty reduction—and more specifi cally, the idea of “livelihoods” (the goal of using environment for rural Voice and Choice builds on the fi ndings and recommendations of development)—has driven discussion and advocacy Closing the Gap. It measures progress in 26 countries and asks not for access rights as well. Many development specialists just how far access has come, but why progress has been limited, believe that empowerment and poverty reduction for and what a future agenda for implementation might look like. the poor requires a responsive government—access to information, participation, and justice—and a healthy Chapter 1: Opening Access environment (Narayan 2004). have been associated with initiatives related to natural A growing number of organizations are now demand- resource management such as the Extractive Industries ing transparent, inclusive, and accountable access to Transparency Initiative, which looks at the politics sur- decision-making that affects the environment. Recent rounding large, heavy industries such as oil. Tradition- initiatives by international civil society organizations ally conservation-focused organizations such as The represent one manifestation of this shift. Both the Open Nature Conservancy are working more frequently with Society Institute and the Ford Foundation, are large pri- local partners. Many environmental groups have found vate foundations with traditions of working to promote that they increase their own accountability and respon- civil society. The Open Society Institute has increasingly siveness to local priorities when they partner with local focused its energies on governance, especially on the organizations or work on the governance reforms neces- rule of law, with such programs as its Open Society Jus- sary to remove roadblocks that hinder on-the-ground tice Initiative. Similarly, traditional governance-focused reformers. Chapter 2 discusses further the convergence organizations such as Transparency International of human rights and environmental advocacy.

TABLE 1.2 WHY DEMAND ACCESS?

GOVERNMENT INFORMATION PUBLIC PARTICIPATION JUSTICE MECHANISMS • To monitor government and private activity through • To increase infl uence of civil society organizations • To ensure enforcement of environmental laws information collected by the government • To ensure fairness of decisions • To enforce access to information and participation • To assess and formulate policies and practices • To foster greater voice and equity for • To resolve disputes • To educate the public about existing policies and underrepresented groups Civil Society practices • To identify potential resources—fi nancial, human, • To increase infl uence of the private sector • To ensure fair application of laws and regulations technological, and natural • To reduce risk to projects from the consequences of by offi cials • To obtain market information low public approval • To seek remuneration for harm from damage to • To ensure fair contracting practices ecosystem services

Private Sector • To manage environmental and human risk • To ensure consistent and predictable interpretation of laws BOX 1.9 ACCESS AND THE PRIVATE SECTOR TABLE 1.3 GOVERNMENTS THEMSELVES USE ACCESS

The private sector has been involved in a number of voluntary GOVERNMENT PUBLIC JUSTICE INFORMATION PARTICIPATION MECHANISMS partnerships to increase transparency in matters affecting the environment. A number of industry initiatives have added Purpose of access Purpose of access Purpose of access environmental standards to their corporate social responsibility • To share responsibility • To gather information • To ensure monitoring for monitoring with civil from the public and enforcement of portfolios. Examples include: society • To disseminate regulation • To monitor ﬁ scal information and educate • To protect minority • The Global Reporting Initiative (GRI) is an international expenditure the public interests and the organization that has developed a tool for evaluating • To monitor and analyze • To disseminate and environment compliance with international law and standards as management practice inﬂ uence public opinion • To ensure consistent commitment to sustainable development. • To set taxation rates • To increase legitimacy and predictable and account for natural interpretation of laws • The Extractive Industries Transparency Initiative (EITI) is a • To respond to public resource use pressure • To resolve disputes 16 network of NGOs, companies, and countries working at the • To assess current between parties over • To generate and capture natural resources nexus of governance and the oil and gas sectors. Both countries practice wider ideas and companies can apply to see if they meet EITI standards for • To oversee other • To amplify minority government agencies transparency in reporting of revenues and activities. voices

A few observations are worthy of note. While there most fully formed of these organizations, The Aarhus seems to be growing convergence among these move- Convention Secretariat.) Environmental access propo- ments, many CSOs and coalitions continue to work in nents may thus fi nd fertile ground for alliances across a isolation, or in small local coalitions. Similarly, many variety of sectors. access advocates work only within their traditions. Envi- ronmental groups work with environmental groups and pro-democracy groups work with like-minded groups. Approach Yet some organizations have seen fi t to work across In addition to reviewing much of the current literature traditions. To provide an example, the TAI Chile coali- on access, Voice and Choice introduces new data on the tion includes both environmental CSOs and democracy implementation of access rights. Specifi cally, the report CSOs. However, in forming coalitions across these tra- presents and analyzes the fi ndings of the Access Initia- ditions, it is essential that an access to decision-making tive’s national and state coalitions in 26 countries. The Chapter 1: Opening Access theme remain central. As Brinkerhoff and Crosby TAI network assessed the performance of national (and (2002) warn, it is possible for coalitions to become too state-level) governments on access to information, pub- wide and to lose sight of their central goals. As access lic participation, and capacity building. The research coalitions expand, they must balance the advantages is based on original data generated at the national of breaking out of traditional molds with a respect for level through these independent assessments, using a original intent. framework that relies on legal research and case study analysis. Also, many successful access proponents have been advocates from outside any of the traditions in Figure A TAI assessment consists of two major components: 1.5 or have not been NGOs. Indeed, public health (1) an evaluation of national law, and (2) case studies advocates, social justice movements, and business to evaluate the practice of access rights. Research ques- groups have frequently worked at increasing the qual- tions address each of these components, using indica- ity of governance in their respective sectors, often with tors that divide Principle 10 into discrete, assessable broader consequences and often including decisions for characteristics. Following the framework of Principle 10, the environment. Organizations and individuals also the TAI indicators fall into the categories of “access to push for access at the community, regional, national, information,” “public participation,” “access to justice,” and international levels. International organizations and “capacity building.” and private industry, especially media and telecom- munications groups, can play a signifi cant role in a Each country coalition analyzed case studies in the converging access movement. (Box 1.10 describes the major areas of information provision, public participa-

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

TABLE 1.4 HOW ORGANIZATIONS ENABLE ACCESS

CIVIL SOCIETY INTERNATIONAL MEANS GOVERNMENTS ORGANIZATIONS PRIVATE SECTOR ORGANIZATIONS Legal reform Passing laws XX Creating institutions to implement laws XX Lobbying for access reform XXX Building demand capacity Providing funding for civil society XXX Training for demand (CSOs, public, private sector) XX X Interpret ofﬁ cial information for public XXXX Disseminate information XXXX17 Providing legal aid XX Providing judicial representation XX Alternative dispute resolution XXXX Enabling participation XX X Building supply capacity Training agencies to supply XXXX Drafting standards and guidelines for openness XXXX Chapter 1: Opening Access tion, and capacity building. (For information on access • Europe: Bulgaria, Estonia, Hungary, Ireland (limited to justice data, see “limitations of the data” below.) study), Latvia, Lithuania, Poland, Portugal, Ukraine The TAI method involves the application of a series of • Latin America: Bolivia, Brazil, Chile, Colombia, indicators to assess the quality of law and practice for Costa Rica, Ecuador, El Salvador, Mexico (national that particular issue by analyzing at least one case study and three state-level: Baja California, Jalisco, in each area of practice (see Table 1.5). For each indica- Chiapas), Peru, Venezuela tor, the TAI assessment framework provides research guidelines used by national coalitions to evaluate law and practice. Further guidelines for each indicator assist researchers in locating and evaluating a variety of relevant source materials, including interviews, documents, FIGURE 1.5 TRADITIONS AND INTERSECTIONS OF AN laws, statistics, or physical sites. When researchers have ACCESS MOVEMENT completed their work on an indicator, they rank government performance. The authors then classiﬁ ed these rankings as “weak,” “intermediate” or “strong” for ease of reference. Data and analysis throughout this publication represent those indicator values.

Most of the data in this report was collected from 2002 to 2005. Additional information comes from the nine pilot studies featured in Closing the Gap (see Box 1.8). In some cases, more than one assessment has been done in a country. In such cases, data from that country’s latest assessment is used. Data comes from TAI assessments in the following countries:

• Africa: South Africa, Tanzania, Uganda • Asia: India, Indonesia, Thailand BOX 1.10 THE AARHUS CONVENTION: ALL PRINCIPLE 10, ALL THE TIME

Although regional in scope, the signiﬁ cance of the Aarhus Convention is global. It is by far the most impressive elaboration of Principle 10 of the Rio Declaration, which stresses the need for citizen’s participation in environmental issues and for access to information on the environment held by public authorities. As such, it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.

— Koﬁ A. Annan

Six years after the Rio Declaration, the states present at the UNECE binding on states that ratify it. As of April 2006, 39 European Environment for Europe Conference adopted the Aarhus Convention, countries had ratiﬁ ed the convention (UNECE 2007a). The European which is known formally as the Convention on Access to Information, Commission acceded to the Aarhus Convention and approved it on 18 Public Participation in Decision Making, and Access to Justice in February 17, 2002. As a result, the European Commission and all Environmental Matters (UNECE 1998). The Convention is legally member states are now responsible for implementing the Convention.

Figure 1.6 Map of Parties to the Aarhus Convention Chapter 1: Opening Access

Source: UNECE 2007b

• North America: United States (state-level: California international organizations to assess law and and Ohio) practice, not to compare or shame particular countries in front of the international community. While the data aggregated in this publication represents When the TAI method was designed, its purpose was a major step forward in the evaluation of access imple- to assist individual countries to identify the gaps mentation and law, there are important limitations to in law and implementation within that country in the dataset. order to make recommendations, prioritize reforms, and allow CSOs to work with the government to • Data is country-speciﬁ c. The data is intended to improve access. In keeping with this spirit, Voice be a tool for domestic CSOs, governments, and

Voice and Choice: Opening the Door to Environmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

BOX 1.10 continued

Access to Information procedures with respect to specifi c (project-type) decisions subject The Convention recognizes each citizen’s right to information. It also to public participation requirements; and (c) challenges to breaches establishes obligations on state agencies to proactively collect and of environmental law in general. The inclusion of an access to justice disseminate environmental information. Authorities must also inform pillar both underpins the fi rst two pillars and also points the way to the public about the type and scope of government information held empowering citizens and CSOs to assist in the enforcement of the and how to obtain it. law. The procedures in each of the three contexts referred to above Public Participation are required to be “fair, equitable, timely, and not prohibitively expensive.” Decisions must be given or recorded in writing, and in The Convention sets out minimum requirements for public the case of court decisions, made publicly accessible. Implementing participation in various categories of environmental decision-making. agencies must consider assistance mechanisms to remove or reduce The public participation requirements include (a) timely and effective fi nancial and other barriers to access to justice (Waites 2002). notifi cation to the concerned public; (b) reasonable timeframes for 19 participation, including provision for participation at an early stage; In 2003, the EU adopted two directives concerning the fi rst and (c) a right for the concerned public to inspect information relevant second “pillars” of the Aarhus Convention. The directives required EU to the decision-making process at no cost; (d) an obligation on the member states to implement these laws decision-making body to take due account of the outcome of public participation; and (e) prompt public notifi cation of the decision, (European Commission 2003). While there are some provisions with the text of the decision and the reasons and considerations on for access to justice, a directive on access to justice is still in which it is based made publicly accessible. The “concerned public” preparation. is defi ned as “the public affected or likely to be affected by, or having

A September 2006 regulation called the “Aarhus Regulation” applied Chapter 1: Opening Access an interest in, the environmental decision-making.” It explicitly the Convention to EC institutions, bodies, ofﬁ ces, and agencies includes CSOs promoting environmental protection and meeting any established by the EC Treaty. The Aarhus Regulation also enables requirements under national law. environmental CSOs meeting certain criteria to request an internal Access to Justice review under environmental law of acts adopted, or omissions, by The Convention aims to provide access to justice in three contexts: Community institutions and bodies. The regulation required all (a) review procedures with respect to information requests; (b) review provisions to be in place by mid-2007 (European Commission 2006).

and Choice does not present individual country It is not coincidental that a signifi cant number of data, although that data may be downloaded in its countries whose research is included in Voice and original format at www.accessinitiative.org or at the Choice are middle-income countries. websites of various national coalition members. • Regional bias. Certain regions are underrepresented in • Country selection. TAI regional leaders select national this report. These include much of Africa, the Middle TAI coalitions based on a number of informal East, Central Asia, North America, and Western “readiness” criteria. (See list of partners for a list Europe. While the reasons for this vary, this absence of Core Team members.) These may include the strongly justifi es further investment for assessments presence of CSOs with suffi cient capacity to carry in these areas. out an assessment, the availability of funding, and • Access to justice indicators. Access to Justice is not the presence of professional connections. As a result, covered here, as the indicators were in pilot testing the TAI network has grown organically throughout at the time of assessment. While TAI now assesses each region. In Africa, this consideration is especially access to justice and has done so in 16 countries important, as the countries with TAI coalitions are at the time of this writing, those fi ndings will among the few African nations with freedom of be presented in a future volume. The fi ndings of information laws, and thus are not a representative newly published studies are available at www. sample of the region. Further, demand for the accessinitiative.org. TAI method has grown most quickly in countries undergoing bureaucratic reform, often with an In spite of these limitations, we believe the data is both emergent civil society and new environmental laws. suffi ciently broad and strong enough to demonstrate consistent, general trends in government provision of access. The strength of this data justifi es continued TABLE 1.5 TAI ASSESSMENT METHOD TOPICS investment in repeat assessments to identify trends in access law and implementation and the expansion of LAW PRACTICE – TOPICS OF CASE STUDIES the TAI method to underrepresented areas. (This pro- State of environment reporting cess is outlined in Box 1.11.) Facility-level information Air quality Regular monitoring Water quality

BOX 1.11 THE TAI RESEARCH AND ADVOCACY PROCESS, Legal Assessment Small-scale emergency Access to Information Emergency STEP-BY-STEP Large-Scale emergency

Policy-level decision-making 1. Forming a coalition. For each country that is to be assessed, Legal the TAI core team regional leaders (see list of partners) pick Public

Assessment Project-level decision-making Participation 20 organizations, including a lead organization, to complete the national assessment. Participants complete training on the TAI Government-level agency capacity building method. Legal Building Capacity Public capacity building 2. Forming an advisory panel. The national team assembles a body Assessment of scholars, government ofﬁ cials, and representatives from Denial of access to information civil society organizations to monitor the quality of the national Denial of public participation Legal Justice

report and to facilitate cooperation for future reform. Access to Assessment Environmental harm 3. Case study selection. The national team divides up the research tasks by individual researcher and selects representative or notable case studies for each of the topics. Most frequently, environmental lawyers or public interest law organizations will evaluate the legal indicators for each topic. Other indicators and topics are evaluated by contributors from a variety of academic and professional backgrounds, but usually with Chapter 1 in Summary expertise in government, environment, or both. All sectors of society beneﬁ t from government supply of access. 4. Identifying sources. Individual researchers conduct interviews, obtain documents, interpret laws, compile statistics, or visit Global convergence around environment, democracy, and human rights point to an ascendant “access movement.” physical sites to assess indicator values. Multiple sources are required for each indicator to ensure accuracy in assessment. The Rio Declaration (1992) established Principle 10 for

Chapter 1: Opening Access implementing access to information, public participation, and 5. Researching the indicators. Researchers evaluate how well access to justice. government performed for each of the indicators, assign a value Governments have made encouraging progress in the passage to the indicator, and complete an explanation. of laws supporting access rights, but must continue with major 6. Draft assembly and review process. Draft reports are sent out to reforms to successfully implement these rights. relevant TAI core team members and to the advisory panel for a Voice and Choice presents the data collected by The Access review of content and form. Initiative network in 26 countries, reviews the literature, and 7. Publication and advocacy. Coalitions publish reports in relevant presents case studies on access law and practice. languages and use them to engage governments and civil This report captures the efforts of “access proponents” in a variety society to improve environmental governance within countries. of sectors to implement and use access rights.

Voice and Choice: Opening the Door to Environmental Democracy 2

Strengthening the Argument for Access Access proponents have identifi ed an array of arguments in favor of access and have confronted hurdles to implementation. This chapter of Voice and Choice begins with two normative arguments: access rights are rooted in human rights, and increasing access will advance the fulfi llment of principles already well established in international law. Additionally, the report presents instrumental arguments for access rights, and outlines the substantial benefi ts they confer to those governments and communities that implement them. This chapter uses evidence from the literature on human rights and governance and the experiences of the Access Initiative partners to probe the theoretical and practical promise of access rights. 22 Chapter 2. Strengthening the Argument for Access commissions and tribunalsofemerging human rights, recognition by international,regional,andnational and theenvironment.This is contributingtoagreater advocates aremakingthelinkbetween humanrights A growing numberofenvironmentalandhumanrights are directlyandindirectlyadvancing ESCrights. in environmentalandsocialconditions, TAI partners rights todraw attentiontoandpressforimprovements Nations GeneralAssembly1966b).Byusingaccess able standardofphysical andmentalhealth(United and healthy working conditions;andthehighestattain- including adequatefood,clothingandhousing;safe include therighttoanadequatestandardofliving, tional andregionalhumanrightsinstruments. They (ESC) rights. ESCrightsarerefl human rights—so-calledeconomic,social,andcultural Access rightsarealsorootedinanothercategoryof ment-held environmentalinformation(seeBox2.1). right toexpressionincludesaofaccessgovern- Human RightsCourtandsuccessfullyarguedthatthe (CSO) inChile, broughtacasebeforetheInter-American rights. For example, TERRAM,acivilsocietyorganization rights springfromthesefundamentalcivilandpolitical est organizationshave successfullyarguedthataccess General Assembly1948,1966a).Many publicinter- independent andimpartialtribunal(UnitedNations and tohave theserightsandotherenforcedby an association, totakepartintheconductofpublicaffairs, the individualtoexercisefreedomofexpressionand human rightsinstrumentsestablishthesecoreof blocks foraccess. Various internationalandregional Civil andpoliticalrightsprovide thebasicbuilding essary toensuretheinherentdignityofeachindividual. social, andculturalconditionsthatareconsiderednec- people tothefundamentalcivil,political,economic, fulfi primary purposeistoempower peopletoadvance the Access rightsarelargelyprocedural innature. Their these rights. government hasadutytorespect,protect,andfulfi tice areintrinsictoevery individual, andthereforeeach right topublicparticipation,andtheseekjus- and respectsthoserights. The righttoinformation,the tled, regardlessofhow well theirgovernment protects fundamental rightstowhicheachhumanbeingisenti- Human rights—whichincludeaccessrights—arethose Access RightsareHuman llment ofsubstantive rights—theentitlementofall ected inmany interna- ll Voice and Choice: Access Initiativemethod. TERRAM, theCSOthatbroughtcase,helpedtodevelopThe receive publicinformation. also bynothavingalawthatguaranteestherighttorequestand information notonlybyrefusingtoprovidetheinformation,but Inter-American CourtruledthatChilehadviolatedtherightto right toincludeageneralofaccessinformation.The and “receive”information.Butthisnewdecisionexpandsthat recognized thatfreedomofexpressioncontainedarightto“seek” by nearlyeverynation.)Manycourtsaroundtheworldhave Universal DeclarationofHumanRights,whichhasbeensigned Convention. (Article13isalmostidenticaltoArticle19ofthe of theOrganizationAmericanStates(OAS)arepartiesto thought andexpression.Atpresent,24ofthe35memberstates Convention onHumanRights,whichguaranteesfreedomof The Court’s decisionisbasedonArticle13oftheAmerican the information. ruled inSeptember2006thattheactivistswereentitledtoreceive After yearsofreview, theInter-American CourtofHumanRights that theprojectwoulduseenvironmentallysustainablepractices. the nationalForeignInvestmentCommitteehadseenanyevidence project inTierra delFuego.Theactivistswantedtoknowwhether environmental reviewbeforeapprovinga$200-millionlogging what ithaddonetocomplywithnationallawrequiring On May6,1998,threeactivistsinChileaskedtheirgovernment BOX 2.1 CHILE:USINGTHEINTER-AMERICANCOURTOF HUMAN RIGHTSFORTHERIGHTTO Opening theDoortoEnvironmental Democracy

INFORMATION Voice and Choice: Opening the Door to Environmental Democracy

including a right to potable water and even a right to be a constructive part of its discourse with civil society. a healthy environment (Sands 2003; Organization of Framing arguments in human rights terms can also help American States 1988). environmental advocates gain access to international and regional human rights enforcement machinery, as well as to domestic constitutional and human rights HUMAN RIGHTS AND PRINCIPLE 10 courts, tribunals, and commissions. Finally, the univer- Despite the strong conceptual ties between access sal appeal of human rights can draw support from civil rights and core human rights, the Rio Declaration has society groups beyond the environmental ﬁ eld. been criticized for failing to place greater emphasis on human rights (Birnie and Boyle 2002). Principle 10 Human rights law sets an internationally respected does not use the term “rights” to describe the relation- standard for the relationship between a citizen or group ship among citizens, governments, and environmental and their government. It is designed in part to allow decision-making. It does, however, set out the three those mistreated by their own governments to take their access pillars in terms of a state’s duty to provide access cases to a higher authority. Therefore, much of the prog- 23 to information, participation, and justice for its citizens. ress in human rights law occurs through international Although the Rio Declaration is not a legally binding law and institutions. Even nonbinding “soft-law” agree- instrument, a number of its 27 principles, including ments can serve useful purposes that binding “hard Principle 10, have been reﬂ ected in international trea- laws” might not. For example, soft-law declarations of

ties and national law, and some are considered to refl ect human rights serve a normative purpose—they make Chapter 2. Strengthening the Argument for Access binding customary international law (UNEP 1992). clear both the expected rights of citizens and the corresponding duties of governments (Offi ce of the United Table 2.1 shows the relationship between human rights Nations High Commissioner for Human Rights 2002). law and access rights. The right to access information is Once these rights and obligations are made clear, advo- widely recognized as an inextricable part of the freedom cates for the relevant issues can employ rights-based of expression. The UN Special Rapporteur on Freedom arguments to bolster their cause, knowing they have the of Opinion and Expression, the Organization for Secu- weight of international governing bodies behind them rity and Cooperation in Europe Representative of Free- (Roht-Arriaza 2002). Soft-law declarations of human dom of the Media, and the Organization of American rights can evolve into hard laws as governments increas- States Special Rapporteur on Freedom of Expression ingly protect those rights (Shelton 2000). Over the long have issued a joint declaration to this effect (Ligabo et run, governments can be encouraged to adjust their al. 2004). Likewise, public participation is an essential local laws to refl ect the global legal norm. aspect of the rights of political participation, freedom of association and assembly, and freedom of expression. Many CSOs have succeeded by using an integrated The right of access to remedy and redress derives from approach to human rights and environment. Earth- the right to an effective remedy by a competent tribunal Rights International—a group of activists, lawyers, and for acts violating rights granted by the constitution or by teachers who operate in the United States and South- law (see, for example, Article 8 of the Universal Declara- east Asia—has sought to improve livelihoods through tion of Human Rights (UDHR)). It also extends from public education, litigation, and other legal means. the right to a fair and public hearing by an independent Similarly, the Argentine CSO, Center for Human Rights and impartial tribunal (see Article 10 of the UDHR). and Environment (CEDHA by its Spanish acronym), has advocated for nearly a decade at the intersection of human rights and environment. This has included THE SIGNIFICANCE OF ACCESS RIGHTS AS HUMAN advocacy for public participation at both the local and RIGHTS hemispheric levels (Jordan 2008; Centro de Derecho Forging a strong link between Principle 10 and human Ambiental et al. 2005). These are just two examples of rights instruments can be an important dimension of the many CSOs taking this approach. an access strategy for several reasons. Widely recognized human rights are grounded in both treaty law and the Expectations about human rights approaches to access equally binding rules of international customary law. need to be tempered. Although many human rights are They thus describe duties that a government has con- refl ected in international treaties and are thus consid- sented to or come to be bound by and should therefore ered hard law, the political will or capacity of many gov- 24 Chapter 2. Strengthening the Argument for Access Furthermore, humanrightslaw, likeotherareasofinter- beyond theresourcesofmany developing countries. fi efi positive obligationsongovernments toprovide ben- rights, particularlyESCandemergingrights, place ernments tofulfi nancial commitmentfrom governments thatcanbe TABLE 2.1 Source: * Emphasisadded ts suchashealthcareand education.Thisrequiresa REGIONAL HUMAN RIGHTS LAWS GLOBAL HUMAN RIGHTS LAWS RCDN CEST NOMTO ULCPRIIAINACCESSTOJUSTICE PUBLICPARTICIPATION ACCESSTOINFORMATION PRECEDENT STATUTE OR Stec2000 Laws Relevant (1948) (UDHR) Rights of Human Declaration Universal Law Relevant Other THEBASISOFACCESSRIGHTSININTERNATIONAL HUMANRIGHTSLAW ll thesedutiesisoftenlimited.Human Case Law: Rights Article 9oftheAfricanCharteronHumanandPeoples’ (Organization ofAmericanStates1969) Article 13oftheAmericanConventiononHumanRights (Council OfEurope1950) Article 10oftheEuropeanConventiononHumanRights was bindingasinternationalcustomarylaw. (Filartiga v. Pena-Irala1980):DecidedthattheUDHR Case law: regardless offrontiers.”* impart informationandideas opinions withoutinterferenceandto and expression; Article 19: on theenvironment.(Jagwanth2002) information abouthazardousactivitieswithanimpact The righttoinformationinArticle10grantsthe information onrisksoflivingclosetoachemicalplant. Human Rights)bynotprovidingtheapplicantswith and familylife(Article8ofEuropeanConventionon Rights ruledthatItalyhadviolatedtherighttoprivacy any democraticsociety.” freedom ofexpressionisparamountimportancein Republic ofKorea1995:Para.10.3):“Therightto UN HumanRightsCommittee Nations isconsecrated” the touchstoneofallfreedomstowhichUnited of informationisafundamentalhumanrightand... UN GeneralAssemblyResolution59(I) (Ratifi edby145nations,legallybinding) form ofart,orthroughanyothermediahischoice.”* of frontiers,eitherorally, inwritingorprint,the impart information this rightshallinclude “Everyone shallhavetherighttofreedomofexpression; Article 19(2) International CovenantonCivilandPoliticalRights (Organization ofAfricanUnity1981) Filartigav. Peña-Irala

“Everyone hastherighttofreedomofopinion Guerra v. Italy (United NationsGeneralAssembly1966a): this rightincludesthe andideasofallkinds,regardless freedom toseek,receiveand : TheEuropeanCourtofHuman (Tae-Hoon Parkv. throughanymediaand seek, receiveand (1946):“Freedom tohold through freelychosenrepresentatives.”* part inthegovernmentofhiscountry, Article 21(1): of hiscountry, either right toparticipatefreelyinthegovernment 13 (1) African CharterforHumanandPeoples’Rights Conference “EnvironmentforEurope” Declaration oftheSecondPan-European environment andparticipation Standing ConferenceofEuropeonregions, Council ofEuroperesolutionNo.171the (1980) Right ofInformationandPublicParticipation Salzburg DeclarationontheProtectionof the environment,includingparticipation. document toexplicitlyconnecthumanrightsand Environment, AnnexI Draft PrinciplesOnHumanRightsAndThe respect fortheirintegrity. peoples toprotecttheirrightsandguarantee employ publicparticipationofindigenous 169: 2(1) International LaborOrganisationConvention participation.” in timetopermiteffectiveconsultationand disclosed tothepublicbyappropriatemeans and activities;alloftheseelementsshallbe of theeffectsonnatureproposedpolicies inventories ofecosystemsandassessments conservation ofnature,theestablishment elements, theformulationofstrategiesfor planning shallinclude,amongitsessential UN World CharterforNature3(16) provisions ofthelaw.”* chosen representativesinaccordancewiththe Voice and Choice: that deﬁ ing. Becausetheyarebased oninternationalstandards mental accessagendacanbe provocative andpolariz- Strategies thatcombinehuman rightswithanenviron- strong oversight andenforcement mechanisms. national law, whilelegallybinding,isoften bereftof (1981):“Everycitizenshallhavethe (1989): Requiresgovernmentsto “Everyonehastherighttotake ne theduties ofstatestotheirown citizens, directly (1994): Firstgeneral Opening theDoortoEnvironmental Democracy orthroughfreely (1986) (1982): “All (1993) directly or charge againsthim.”* obligations andofanycriminal determination ofhisrights and impartialtribunal,inthe public hearingbyanindependent in fullequality Article 10: constitution orbylaw.” rights grantedhimbythe acts violatingthefundamental competent nationaltribunalsfor to aneffectiveremedybythe Article 8: across borders. environmental disputeresolution three rightsbutcreatedarightto Cooperation Agreement onEnvironmental Cooperation/North American Side AgreementonEnvironmental North AmericanFreeTrade Act, environmental matters. concerning accesstocourtsin (1993): Internationalrules Dangerous totheEnvironment Damage ResultingfromActivities Convention onCivilLiabilityfor Council ofEuropeLugano “Everyone hastheright “Everyoneisentitled (1993): Broadenedall toafairand and

Voice and Choice: Opening the Door to Environmental Democracy

human rights arguments can be perceived by govern- that is transparent, inclusive, participatory, accountable, ments as confrontational and threatening to state sov- and responsive, each an invaluable component of envi- ereignty. In the context of North-South discourse about ronmental democracy. development and good governance, a human rights approach could risk being characterized as a neocolo- A growing body of evidence from around the world nial agenda.Moreover, human rights advocates such as associates good governance with higher economic Amnesty International are often mobilizing pressure on growth rates. The World Bank Institute’s World Gov- issues generally perceived as “life and death,” involving ernance Indicators (WGI) project, one of the longest- imprisonment, torture, or extrajudicial killings. Poten- running efforts to evaluate the impact of governance tial allies could view environmental issues as secondary on development, suggests a relationship between to their concerns and as diluting their agenda. good governance and per capita GDP (Kaufmann et al. 2005). The authors cite evidence supporting a causal relationship in which better governance raises per cap- HUMAN RIGHTS-BASED APPROACHES AND TAI ita incomes, which they refer to as a “governance divi- 25 Access Initiative partners have been able to deploy dend” in economic growth rates (Kaufmann and Kraay human rights law to hold their national government 2002; Kaufmann et al. 2005). This is not a proven cor- accountable for providing access rights. TERRAM, a relation, however, and evidence suggests that a number CSO from Chile, held its government to account before of other variables may intervene. a regional human rights tribunal (see Box 2.1). The Chapter 2. Strengthening the Argument for Access TAI partner in Ukraine, Ecopravo Kyiv, brought a com- Research by Norris et al. (unpublished) found that few plaint against the government about a planned munici- of the indicators associated with the Millennium Devel- pal waste site, arguing that the site violated citizens’ opment Goals correlate well with governance measures rights to a healthy environment. The public responded at the national level. The authors conclude that, while strongly to this court case and won redress from the democratic governance is to be valued as an end in government, including resettlement of the affected fam- itself, there are no automatic linkages between good ilies (Zaharchenko and Goldenman 2004). governance and national development. Instead, they identify two broad “necessary conditions” for socioeconomic development: (1) empowerment of the poor and The Measure of Good Governance marginalized to participate in decision-making and (2) A growing body of research measures the connection effective state capacity to deliver public services. These between the ability to govern and the ability to improve are important arguments for the further spread of access peoples’ lives. The idea of “good governance” has rights since access principles are important compo- emerged as a central concept in the global discourse on nents of empowerment for the poor (Narayan 2004). sustainable development. The United Nations Millen- Strengthening state capacity necessarily requires the col- nium Declaration, for example, emphasizes that “we lection of information, and is increased through public must learn to govern better” if poverty reduction and the pressure to regulate effectively. other Millennium Development Goals are to be achieved (United Nations General Assembly 2000). The United Intriguing evidence suggests a relationship between Nations Development Programme (UNDP) has repeat- aspects of a nation’s governance and its environmental edly called for better, stronger governance to address a sustainability. The Environmental Sustainability Index host of development challenges (UNDP 2002). Multilat- (ESI) ranks countries according to a set of indicators eral and bilateral development agencies have launched measuring various aspects of environmental sustain- numerous initiatives focused on governance. ability. Produced jointly by the Yale Center for Envi- ronmental Law and Policy and Columbia University’s According to the United Nations Environmental and Center for International Earth Science Information Social Commission for Asia and the Pacifi c (UNES- Network, the ESI consists of a set of 76 variables that CAP), good governance is participatory, consensus- measure natural resource endowments, environmental oriented, accountable, transparent, responsive, effective history, pollution, and resource extraction rates, as well and effi cient, equitable, inclusive, and follows the rule as institutional mechanisms that may infl uence pollu- of law (2002). These elements are interrelated and tion and resource extraction (Environmental Sustain- interdependent. Voice and Choice focuses on governance ability Index 2005). 26 Chapter 2. Strengthening the Argument for Access For thatreason, thissectionpays particular attentionto infl participation isultimatelythe meansby whichcitizens tion. Whileallthreeaccess rights areessential,public at thebasisintheoryandexperience forthisassump- through environmentaldemocracy. Thissection looks nance andbetterenvironmentaloutcomesemerges tion thatapositive correlationbetween goodgover- The Access Initiative hasmoved forward ontheassump- Access GeneratesPublicBenefi ts governance generally. mental governance, butratherareindicatorsofgood mental governance arenotstrictlyfocusedonenviron- Many ofthevariables usedby ESItomeasureenviron- may alsoholdtrueforenvironmentalsustainability. (Kaufmann andKraay 2002; Kaufmann etal.2005) and growth foundintheWorld Governance Indicators nance fi Notwithstanding theindex’s newness, theESI’s gover- tional environmentalagreements. political institutions;and(5)participationininterna- mental governance; (3)government effectiveness; (4) the World EconomicForum survey rankingonenviron- These variables are(1)civilandpoliticalliberties;(2) lated withahighESIrankingallrelatetogovernance. Of theESI’s 76variables, thefi • • • BOX 2.2 uence government decision-making mostdirectly. Collaboration Consultation Information-sharing: and control.Collaborationmovesbeyondcollectingfeedbackto groups tobeinvolvedbutretainsdecision-makingauthority hearings. groups, nationalconferences,roundtables,andparliamentary participatory povertyassessments,townhallmeetings,focus feedback andreaction.Examplesincludebenefi ciaryassessments, views. Consultationinvolvessharinginformationandgarnering various kindsofdata,opinionsurveys,oranalyses. surveys; accessingtoll-freetelephone“hotlines;”andproviding government, examplesincluderespondingtoquestionnairesand broadcasts; orestablishmentofwebsites.Fromthepublicto local governmentoffi ces;pressconferences;radioortelevision newspapers, ormagazines;distributionofdocumentsfrom are disseminationofwrittenmaterialthroughoffi cialdocuments, and tobuildlegitimacy. Fromgovernmenttothepublic,examples sharing servestokeepactorsinformed,providetransparency, ndings suggestthatthelinkbetween governance FORMSOFPUBLICPARTICIPATION : atwo-wayfl owofinformationandtheexchange : jointactivitiesinwhichtheinitiatorinvitesother aone-wayfl owofinformation.Information- ve mostcloselycorre- Voice and Choice: access tojusticefollow. pation. Briefersectionsonaccesstoinformationand evidence fromtheliteraturesupportinggreaterpartici- Voice andChoice decision-making controlto stakeholders (seeBox2.2). range fromsimpleinformation sharingtofulltransferof Crosby (2002) identify fi tion asdirectandindirectparticipation.Brinkerhoff we describedthetwo endsofthespectrumparticipa- Public participationcantakemany forms. InChapter1 those outcomes. ers caninfl strongly affectsthetypesofdecisionsthatstakehold- and renewal (TAI 2003). Thetimingofparticipation stages: proposal,drafting,implementation,evaluation, in adecisionprocess. TAI dividesdecisionsintofi Public participationcantakeplaceatdifferentstages tion andoutlineevidenceofitsbenefi Here we elaborateonthemeaningofpublicparticipa- environmental values intodecision-makingprocesses. Public participationisakeyentrypointforintegrating BENEFITS OFPUBLICPARTICIPATION into fi • • Source: Empowerment Joint decision-making commissions ortaskforces. public-private partnerships,advisorycouncils,andblue-ribbon for achievingpolicyobjectives.Examplesarejointcommittees, external actor’s knowledge,capacity, andexperiencearecritical over decisionsmade.Shareddecision-makingisusefulwhenthe convened planningsessions. draft legislation,government-ledworkinggroups,andgovernment- monitoring andevaluation.Examplesincludepublicreviewsof involving externalactorsinproblem-solving,policydesign,and forms ofpartnerships,andcivilsociety“seed”grants. community empowermentzones,wateruserassociations,some Examples arelocalnaturalresourcemanagementcommittees, mandates withoutsignifi cantgovernmentinvolvementoroversight. autonomously andintheirowninterests,cancarryoutpolicy Empowerment takesplacewhenexternalactors,acting resources, andactivitiesfromtheinitiatortootherstakeholders. ve categories: BrinkerhoffandCrosby2002. uence andtheirabilitytohave animpacton : transferofcontroloverdecision-making, Opening theDoortoEnvironmental Democracy groupsthebenefi : collaborationwherethereissharedcontrol ve typesofparticipationthat ts ofparticipation ts. ve ve Voice and Choice: Opening the Door to Environmental Democracy

• Enhancing legitimacy. Participation by all interested Raising the Legitimacy of Decisions parties in a decision process builds legitimacy and Among the strongest arguments for the benefi ts of “buy-in” for the resulting decision. Even in cases public participation is that it builds trust in decisions where there are winners and losers, the ownership made by public offi cials. Numerous authors cite the built through the participatory process can lessen legitimacy of decisions as central to strengthening opposition and confl ict when the decision is implementation. (See, for example, studies reviewed in implemented. Brinkerhoff and Crosby 2002; Andersson 2005; Fritsch • Building stakeholder capacities. Through the and Newig 2006.) Stakeholders who believe a decision participatory process, stakeholders gain skills and was reached through a fair and inclusive process are knowledge. They build relationships with one less likely to oppose or obstruct its implementation, another, deepen their community’s democratic even when the decision itself is not completely to their culture, and foster trust and social cohesion. All liking. This can prevent project delays and other costs of these capacities may be resources that enable associated with litigation. better implementation, or they may be of value 27 for activities unrelated to the decision process. Recent literature points to the importance of “pro- Participatory processes may be a good in and of cedural justice” in public participation for decisions themselves—a form of social capital. affecting the environment. People prefer to participate when they feel as though they can infl uence the fi nal • Better implementation. Partly because of enhanced decision. Interestingly, when outcomes are unclear, par- Chapter 2. Strengthening the Argument for Access legitimacy and reduced opposition, decisions made ticipants place emphasis on the quality of the participa- in a participatory manner are more likely to be tory procedure, ranking values such as “voice,” “neutral- fully implemented and sustained. There may also ity,” and “respect” higher than the substantive justice be cost savings involved, especially in cases where outcomes (Markell and Tyler 2007; Webler et al. 2002). stakeholder ownership of the decision extends This seems to suggest that the quality and legitimacy of to the sharing of labor or other resources in the public participation may more strongly infl uence public implementation phase. acceptance of the outcome, lending credibility to the • Improving the “quality” of the decision. In a agency involved. participatory process, the resulting decision can refl ect the specialized knowledge and variety of By providing opportunities for public participation in perspectives that participants bring to the table. This decision-making, a government may demonstrate to raises the substantive quality of the decision relative citizens that it takes their opinions into account and to its intended outcomes. makes decisions transparently. This can build public trust in government and enhance the legitimacy of • Making decisions that refl ect stakeholder values. When specifi c decisions. Given the importance of trust and the public has the opportunity to infl uence a legitimacy for a functioning democracy, the enhanced decision-making process, the resulting decision is legitimacy of decision outputs can be a benefi t of par- more likely to refl ect public values and interests than ticipation (Putnam 1993). Communities with more if it were top-down. experience in making collective decisions and undertak- (Adapted from Brinkerhoff and Crosby 2002; Petkova et ing common projects build up a greater sense of trust al. 2002; World Resources Institute 2003; Zazueta 1995) (White and Runge 1995; Molinas 1998). Trust lowers transaction costs and risks in the everyday business of Each of these categories of benefi ts of participation government, ultimately leading to more effi cient execu- can aid in understanding the links between public tion of tasks (Levi 1998). involvement and the impacts for environment and development. The following sections discuss the evi- Building Stakeholder Capacities dence for each group of benefi ts and its role in pro- Public participation in a decision can generate more moting positive impacts. Box 2.3, which discusses tra- than just the decision itself. For example, a participatory ditional livelihoods in the Pian Upe Wildlife Reserve decision-making process may build public awareness in Uganda, shows how participation and the informa- about a particular issue, and individual participants tion it generates can empower a community to help may develop valuable new knowledge and skills. Partic- sustain livelihoods. ipation can also play a community-building function, 28 Chapter 2. Strengthening the Argument for Access uninhabitable. wildlife, especiallyinthedryseason,whenneighboringareasare for migratorybirdsandsustainsawidevarietyofplants in thesemiaridregion.Thereserveservesasanimportantroute total areaof2,043sqkmandharborstheonlypermanentwetlands second largestprotectedareainUganda(UWA 2002).Itcoversa Karamoja region,PianUpeisthelargestwildlifereserveand Located inthesouthwesterncornerofNakapiripitDistrict used byover200,000cattleand500,000localpeople(UWA 2002). The UgandaWildlifeAuthority(UWA) estimatesthatthereserveis and useitasameetingplacethelocationforcertainrituals. timber, fi rewood,fruit,honey, andmedicinalplantsfromthearea, a siteforgrazingandwaterduringthedryseason.Theyalsoharvest their animalshaveaccesstothereserveandrelyonit,especiallyas their livingbyraisingcattle,goats,sheep,anddonkeys.They The KaramojongpeoplelivingaroundPianUpeWildlifeReservemake BOX 2.3 the government.Themeetingsparked alastingpartnershipamong Upe andotherprotectedareas, tocreateanopportunitylobby dialogue wasintendedtobuildawareness oftheproblematPian government offi cials,membersofParliament,andotherCSOs.The Wildlife Societyhostedapolicydialoguemeetingattendedby With fundingfromCAREInternational,ACODEandtheUganda made withoutproperconsiderationforcitizens’rights. people fromresourcestheydependedupon,andthatthedecisionwas believed thatthedegazettementofreservewouldexcludelocal government, andwerealarmedbywhattheylearned.TheCSOs more informationabouttheprojectthroughcontactswithin of anenvironmentalimpactassessment(EIA).Theysoughtout media publicityfortheprojectrequiredbyUgandanlawaspart Uganda WildlifeSociety(UWS),learnedoftheproposalthrough Coalition forDevelopmentandEnvironment(ACODE)the National civilsocietyorganizations(CSOs),includingAdvocates linking theircommunitiestotherestofcountry. was alsoexpectedtoraisetheincomesofKaramojongbybetter for saletotheplant(EMAConsult2004).Infrastructuredevelopment create over5,000jobsfortheKaramojong,whowouldraisecattle settlements, andabeefprocessingplant,wasestimatedto million agro-industryproject.Theprojectwouldincludeanairstrip, for leasetoaLibyancompany, whichproposedtobuilda$77 the UgandaWildlifeAuthoritytoInvestment to usethelandfordevelopment.Thewasbetransferredfrom from legalprotection)mostofthePianUpeWildlifeReserveinorder In 2002,theGovernmentofUgandaproposedto“degazette”(remove Using ProtectedLandforEconomicDevelopment UGANDA:SUSTAINING TRADITIONALLIVELIHOODSINPIANUPEWILDLIFERESERVE Voice and Choice: Consult 2004). than the1,903squarekilometersrequested bythedeveloper(EMA that only442squarekilometersofthe reservebedegazetted,rather Environmental ManagementAuthority(NEMA)thereforerecommended water andpasturecouldincreaseconfl ictintheregion.TheNational too narrowformovementoflivestock,andthatrestrictedaccessto design wouldlimitpastoralistaccessinthereservetoastripofland loss ofbiodiversity. TheEIAalsofoundthattheproposedproject included dryingofthewetlands,pollutionwaterresources,and tourism destination.Negativeenvironmentalimpactsoftheproject integrity ofthearea,aswellitseconomicvalueapotential found thattheproposedprojectwouldcompromiseecological reserve landprovedtobeanothersourceofconcern.Theassessment The EIAconductedinpreparationforthedegazettementof at thedistrictlevel(Tumushabe andBainomugisha 2004). degazettement ofpubliclyheldlandshouldbemadebyboards ensure theprotectionofpublicinterest,anydecisionabout as theguarantorofpeople’s interests.TheCSOsarguedthat,to people ofUgandaownprotectedareas,withthegovernmentacting Constitution. UndertheConstitutionand1998LandAct, violated thepublictrustdoctrineenshrinedin1995Uganda of PianUpefromtheWildlifeAuthoritytoInvestment A keycontentionbythecivilsocietycoalitionwasthattransfer Who DecidesAboutResourcesHeldinPublicTrust? Upe proposal. local communities,andforlobbyingthegovernmentaboutPian coalition becameanimportantvehicleforinformingandmobilizing ACODE, UWS,andalocalgroup,theKaramojaCulturalTrust. This Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

BOX 2.3 continued

However, NEMA failed to publicize the EIA fi ndings or to hold UWA The fi nal victory was, in some ways, bittersweet for the Karamojong. accountable for them in its decision about Pian Upe. Community On the one hand, they maintained their traditional rights of access members knew little about the planned project or its impacts, and to Pian Upe and its resources, and they forced the government to felt excluded from the decision process. One Karamojong elder said, comply with due process for degazettement under the law. Moreover, assertion to the right of public participation in decision-making “We are worried that people in Kampala make decisions without in this case prevented harm to resources within the reserve that consulting the community. This place is used as a safe haven for sustain the community. But just when the local people won the power our animals. The people of Pian stand to lose if they do not make to decide on the fate of the reserve, the opportunity that needed a the right decision” (EMA Consult 2004). decision disappeared. And the Karamojong remain poor. While it Outreach By All: CSOs, Local Elites, and the Media is of course better to win than to lose, NGO players express some regret that access did not lead to a “win-win” in this case: it was The CSO coalition used the EIA fi ndings in their outreach efforts 29 impossible to negotiate a more modest, less harmful development to the communities around Pian Upe. As the results of the EIA project in the area. became more broadly known, opposition to the project grew. In addition, it became clear that the project design did not clarify Lessons from Pian Upe how communities would be compensated for their loss of access One of the challenges in looking at the concrete impacts from to resources in the reserve; only compensation of UWA was covered implementation of Principle 10 is that in any one case, there may Chapter 2. Strengthening the Argument for Access in the agreement with the investor. This further turned public be multiple problems that need to be addressed. In the case of Pian sentiment against the project. Upe, the primary impact from the success of citizen “access” was maintenance of the status quo. The reserve has retained its original Local politicians and other Karamojong elites became key players size and presumably provides the same ecological and economic in the debate over Pian Upe’s future. Some of them had been benefi ts as before. The Karamojong communities around the reserve consulted about the decision previously, and had consented to the still have access to their traditional resources; however, they are degazettement; however, as additional information became available, also still quite poor. Is there any way the Karamojong could have they grew to oppose the plan. These leaders had been the initial found a “win-win” situation? What would it have taken for local targets of CSO outreach, and subsequently became the main conduits leaders to negotiate a more modest development project that would of information from the CSOs and the media to their communities. have created new jobs, but not have excluded citizens from reserve They also took over from the CSOs as the primary advocates to the resources? national government.

Media attention to the Pian Upe degazettement also grew over time, and played a signifi cant role in the mobilization of public sentiment against the development plan. Local and national newspapers and radio programs gave powerful coverage to the CSO reports and other activities, strengthening the position of those who opposed the degazettement. Local Hands Hold the Reins, but the Developer Departs Ultimately, pressure from local leaders, national CSOs, and the press combined to force the national government to devolve authority over the degazettement to the District Councils. It also issued a directive in support of a smaller degazettement in alignment with the EIA fi ndings. The District Councils then adopted a resolution to hold the Pian Upe land in trust for the public, and took responsibility for Village in Karamoja, Uganda negotiating with the investor on behalf of the community. At that point, the investor pulled out of the project, citing the decrease in the This case was written by Sophie Kutegeka and Godber Tumushabe size of the degazettement, as well as EIA fi ndings that the area was (ACODE- Uganda). too dry for the intended activities. 30 Chapter 2. Strengthening the Argument for Access approaches totheirwork. where staffmoraleimproved becauseofparticipatory which theywork. Andersson(2005) even citesexamples fi holders may bringthemnewknowledge abouttheir decision-making. Engagementwitharangeofstake- ers whosecapacitiesarebuiltthroughparticipatory Government employees areamongthestakehold- to makethedecision. social status, self-reliance, andsatisfactionfromhelping may buildthroughparticipation,includingconfi (2005) alsociteslesstangiblebenefi learning opportunities, orotherresources. Andersson government services, businessopportunities, additional Additionally, theymay helpconnectparticipantsto other realmsofdemocraticpractice(Putnam1993). in theirown rightandlikelyhave spillover effectsinto ing trustandsocialcapitalcanbeconsideredbenefi ships throughinvolvement intheprocess. Theresult- interacted witheachothermay develop newrelation- in thatstakeholderswhootherwisemightnothave supply. Participation canhelptoexpandcapacityforself-government.InthisvillagemeetingfromMaharashtra,India,mendiscusspla eld orraisetheirawareness ofthebroadercontextin ts thatindividuals dence, ts Voice and Choice: edge, orrelationships developed through thedecision- is neededforeffective implementation.Skills, knowl- also extendtothoseareaswhere stakeholderaction The capacitybuildingbenefi increase confl trust by underminingparticipants’expectations, oreven of participantsmay misinformstakeholders, diminish ships. Aninequitableprocessoraninappropriatemix help inthedevelopment oflastingskillsorrelation- time, andengagementingoodfaithby allparticipants tation, equitableopportunitiestoparticipate, suffi that may bebuiltthroughparticipation.Effective facili- make asignifi stances ofagiven decisionprocessanditsparticipants local citizennetworks. Moreover, thespecifi urban planningledtothelonger-termdevelopment of Weiland (1998)provide anexamplewhereintegrated ily raiseawareness andbuildknowledge. Lustigand while information-sharingandconsultationprimar- likely toleaddeepertransformationsforparticipants, tive formsofparticipationlistedinBox2.2aremore capacity-building functions. Themoreactive, collabora- Of course, notallparticipatoryprocessesfi ict. cant differenceforthekindofcapacities Opening theDoortoEnvironmental Democracy ts ofparticipationcan ns forapipeddrinkingwater ll thesame c circum- cient Voice and Choice: Opening the Door to Environmental Democracy

making process may enable participants to serve more leads to improved implementation. Even if the tech- effectively, for example, as co-managers, monitors, or nical quality of the decision outputs may be lacking, advisors. In some cases, the critical capacity developed the success of the project improves. This conclusion is through the process is simply familiarity with the deci- corroborated elsewhere (Lemos 1998; Hofman 1998). sion itself. Coenen (1998) adds that the presence of public participation made it easier for target groups and local govern- Promoting Better Implementation ments to coordinate their actions. As noted above, increased legitimacy and capacity are benefi ts of participation that can improve decision Project Sustainability. A World Bank (1994) review of implementation. Implementation of a project or policy participation in 21 development projects found that can be broadly broken into four aspects: effi ciency, participation reduced staff costs during implementa- effectiveness, equity, and sustainability. Each of these is tion, improved project effectiveness and maintenance, examined in turn. and was the most important factor overall in deter- mining the quality of project implementation. A wide 31 Effi ciency. Effi ciency means that the input into making a review of the literature on community-based natural project participatory is outweighed by the incremental resource management projects by Mansuri and Rao improvements to the project. (2003) showed that participation increased project sustainability where there was strong institutional sup-

One way in which participation can increase efﬁ ciency port, including funding and stafﬁ ng. Another study Chapter 2. Strengthening the Argument for Access is through cost-sharing. Often engaged communities (Sohn 2007) highlights the crucial role that the prac- donate labor, supplies, wages, or forego activities that tice of “free, prior, and informed consent” can play would compromise a project. A study by Katz and in reducing risks to large-scale investments in natural Sara (1997) suggests that communities invest more resource extraction, construction, and manufacturing. resources when they have greater control over how the This emphasizes the need for staff and public capacity, funds will be used.

The evidence that participation reduces staff costs is inconclusive. Based on a statistical study of outcomes for 42 participatory World Bank projects and a control group of non-participatory projects, Reitbergen-Mc- Cracken (1996) found that participation reduced staff costs. These fi ndings are also supported by an analysis of 64 community-driven projects (Carroll et al. 1996). Aycrigg (1998), however, points out that further studies by the World Bank have not corroborated these fi ndings. Lustig and Weiland (1998) argue that the participatory process increases the diffi culty of management. Hentschel (1994) estimated that preparation and super- vision costs in participatory projects increased by 10 to 15 percent, but argues that this cost was compensated for by improved decision quality. Although the preparation and implementation of participatory strategies may require more staff time. This should be weighed against other costs and benefi ts.

Effectiveness. “Effectiveness” refers to whether a project or policy has met its goals. Fritsch and Newig (2006) evaluated the outcome effectiveness of participation in a review of 15 cases involving environmental impact assessments. The public tends to accept decisions made by participatory processes. The authors found that this Public hearing on food security issues in Kelwara village, India, 2004. 32 Chapter 2. Strengthening the Argument for Access (Lemos 1998). public participationforums may level theplaying fi general publicisopposedto specialinterestgroups, table tonegotiate. Incertain cases, especiallywhere the this sense, participationmay bringmoregroupsto the and forcecompromise(BalducciFareri 1998).In lic participationforumscanserve toreducegridlock different groupscannotmakecollective decisions, pub- stakeholders varies widelyby context.Incaseswhere ity ofdecisionoutputsforthepoororotherexcluded Equity decisions aremaintained. as well asfollow-through onfundingtomakesurethat about thepolicies,plans,andactionsofoffi cials,ithelpsensure public participationincreasesinformationfl owstothepublic but byitselfcannotprovideaccountability. Public participationispartofholdingoffi cialsaccountable, outcomes. decision-making processesaswellthequalityofdecision and are abletofi eldandsolicitdiverseinputfor policiesandprojects; public participationworksbestwhen(1)electedorappointedoffi cials not normallyparticipatetohavetheirsayinpublicdecisions.Thus, two isthatregular, free,andfairelections allowthosewhomight the wealthyandpowerfulaswell.Yet, the differencebetweenthe to participation;representativesystemsareoftendominatedby confi denceinspeakingoranalyticalskills. Thisproblemisnotunique to participate.Itcanalsobeduefearofretribution,orlack in publichearings.Thismaybeduetolackoftimeorresources Often, thepowerlessorpoorrefrainfromtakinganactiverole The loudestvoiceintheroomcandominatedeliberativeprocess. ballot. but cannotguaranteeequalityandisthusnotasubstituteforthe voices, participationcanservetoilluminatethechoicesbemade equal votingrights.Indecision-makingprocessesthatrequire which usesasecretballotforelections,andwhereeachpersonhas voice forallcitizens.Thisisincontrasttouniversaladultsuffrage Participatory processescannotclaimtohaveuniversalandequal Public participationisnotasubstituteforone-person-one-vote. however, thatparticipationhasitslimits. range ofpossiblepolicyoptions.Itisimportanttoacknowledge, between thepublicandgovernmentaswellincreasing Public participationisbestatincreasingthefl owofinformation BOX 2.4

(2) thoseofﬁ cialscanbeheldaccountable forthequalityof . Whetherpublicparticipationincreasesthequal- REALISTICEXPECTATIONS OFPUBLICPARTICIPATION

To theextentthat eld

Voice and Choice: for thewholeofenvironmentaldemocracy. strengthen oneanother. Itiswiththiscombination thatwecanstrive in concertwithstrongelectoralsystemsandthetwocanbeusedto at thebeginningof Taken asawhole,theselimitationsreiterate theviewpointstated participation ismostlikelytoimpactdecisions. Access proponentsmightthereforeconsiderwhereandwhen be carriedoutbyacombinationofelectedandappointedoffi cials. most ofthebusinesspolicy-makingandprojectplanningmust time. Evenwithstronglocalgovernmentandacivic-mindedpublic, parties cannotparticipateineverydeliberativeprocessallofthe Direct democracycannotbetakentoscale. that representativebodiesareincreasinglylessimportant. repeatedly, thesetypesofconsultationsmaysuggesttothepublic its capacity, andtoexerciseitspowerchecktheexecutive.Ifdone bypassed anopportunityforthelegislaturetouseitspowers,build processes. Inthissense,large-scalepublicconsultationsmayhave more representative,accountable,andpossiblyreform-oriented in placeoflegislaturesunderminedwhatlikelywouldhavebeen international fi nancialinstitutionstousenationwideconsultations Nicaragua, Dijkstra(2005)suggeststhata“consciousdecision”by to otherpolicysettings.EmployingcasesfromBolivia,Honduras,and the experienceofpovertyreductionstrategiesmightbegeneralized legislative bodies. Over-reliance onpublicparticipationcanunderminetheroleof projects (Scott1985). revolt, pettytheft,foot-dragging,andactivedestructionofongoing unsatisfi edpublicwilloftenrelyon“weaponsoftheweak”—open or otherformsofcensure,however, adissentingorotherwise accountability. Withoutthethreatofpeacefulremovalfromoffi ce decisions. Theyfoundthatparticipantsdoaddnew contributions ofparticipants inarangeofparticipatory Amin. 2006). BeierleandCayford (2002) evaluated the human healthoutcomes(Pretty 1998;Chowdhury and public participationleadsto moresustainableand suggest that,asaresultofthisinformation,increased 1995; Uphoff1986;Narayan 1998).Otherstudies and monitoringofprogramsprojects(Chambers mation fl number ofauthorshave suggestedthatincreasedinfor- great extentdependsonhow “quality”ismeasured.A stantive qualityofadecisionoutputismixed,andto Evidence thatpublicparticipationimproves thesub- Improving theQualityofDecision ows amongstakeholdersimprove planning

One critiqueofpublicparticipationcomingfrom Voice andChoice Opening theDoortoEnvironmental Democracy . Publicparticipationisbest

All concernedoraffected Voice and Choice: Opening the Door to Environmental Democracy

information and ideas to decision processes, and can ues. However, the question remains: how representative also improve decisions by reframing issues. They cite are these values? In Beierle and Cayford’s study, partici- examples where this has led to more holistic problem- pants’ socioeconomic background did not represent the solving, rather than a very narrow focus, as when a deci- wider public in the majority of cases for which data was sion about building a dam shifts to a broader focus on available. In only 39 percent of cases did participants ﬂ ood control and land-use planning. consult the wider public.

Fritsch and Newig (2006), on the other hand, looked Other research suggests that the values inserted into at the “environmental effectiveness” of the decisions decision-making via participation may not always in meeting the intended environmental goal. Their 15 be broadly held in society. A number of authors case studies found that decisions arrived at through have found that actors who will gain directly from a participatory processes often generated lower environ- decision process are those most likely to engage in mental standards. On the other hand, as noted earlier, it (Fritsch and Newig 2006; Rydin and Pennington they found better compliance with standards arrived at 2000). Likewise, powerful actors with a greater abil- 33 through participation, leading to what might have been ity to invest resources in participation are more likely better overall outcomes had participation not occurred. to participate than those with less time, energy, and income (Turner and Wieninger 2005). These forms of To look only at the environmental elements of a deci- self-selection mean that participation does not neces-

sion output is to judge the decision in an inappropri- sarily inject a high level of representativeness into a Chapter 2. Strengthening the Argument for Access ately narrow way. From a sustainable development per- decision process. Box 2.4 sets out realistic expectations spective, almost any participatory process requires the of participation in the hope that policy makers and resolution of multiple—and sometimes competing— advocates will seek to couple public participation with objectives. This means that decision quality must be other practices which also encourage representativeness judged from a broader perspective. In their review of 69 and accountability. community forestry case studies, Padgee et al. (2006) note that very few researchers evaluate decision-making In their survey of 15 European and American case stud- from the perspective of more than one intended out- ies, Fritsch and Newig (2006) fi nd that the level of par- come. This tendency entirely misses the point of com- ticipants’ environmental consciousness plays an impor- munity forest management, which aims explicitly for tant role in shaping the environmental impacts of the dual environmental and socioeconomic outcomes. resulting decision. Like Padgee et al. (2006), they note that the environment is rarely the only value at play in Making Decisions that Refl ect Stakeholder Values a participatory decision process, and discourage blanket The argument that participation helps decisions to bet- claims that participation always leads to better envi- ter refl ect stakeholder values does not ring as resound- ronmental outcomes. As this report pointed out earlier, ingly as others do. As currently practiced, participation participation (and access more broadly) allows environ- often fails to represent the complexity and spectrum of mental values to enter more easily into the discussion. stakeholder values (although it arguably does so better Increasing options, however, does not guarantee that than would the absence of any participation). Findings those values will always trump others. suggest that public participation can be co-opted by interest groups. A prime growth area for the art of man- BENEFITS OF ACCESS TO ENVIRONMENTAL aging public participation will be to ensure that partici- INFORMATION pation, when it occurs, is broadly and representatively Early legislation and activism aimed to obtain access to inclusive; poorly executed participation is not a substi- environmental information and employed a normative tute for broadly representative deliberation. argument: citizens had the right to know what was hap- pening in their environment (Hadden 1989). Beyond In a review of 239 cases of public participation in deci- this, however, there are strong arguments that increased sion-making related to the environment in the United access to information also serves an eminently practical States, Beierle and Cayford (2002) found that partici- purpose in protecting natural resources. pants substantially infl uenced the decision output in a majority of participatory processes. Participation did indeed lead to decisions that refl ected participants’ val- 34 Chapter 2. Strengthening the Argument for Access well aswheretofi ndit. Government andNGOsinChileworked togethertocreatemapsandguidesinformthepublicaboutavailable environmentalinfor Voice and Choice: Opening theDoortoEnvironmental Democracy mation as Voice and Choice: Opening the Door to Environmental Democracy

Increasing Accountability for Public Offi cials and Government given limitations of cost, technology, and human capa- Processes bilities. This is particularly true for developing coun- Readily available information about public decisions tries. Fire alarm oversight, on the other hand, allows the should make offi cials more accountable. Transparency public, the media, or any number of agencies to spend subjects elected offi cials to greater scrutiny from their their time reviewing environmental information and to constituencies, and therefore potentially to censure at raise an alarm when there are major violations of laws the ballot box. Transparency also reduces the opportu- or norms. In this sense, governments are likely to have nities for corruption within the much larger unelected increased quality of environmental protection while apparatus of the state—the bureaucracy—and provides lowering their direct costs. conditions necessary for better decision-making and oversight. A growing body of literature supports this Enabling Nongovernmental Means of Regulation assertion (Islam 2003; Stiglitz 1999; Pope 2003). When a government provides timely public information, it also allows for other forms of enforcement to Dispersing the Costs of Environmental Monitoring occur. Rather than directly regulating a polluting indus- 35 In most countries, the inability (or refusal) of the gov- try or activity, the government plays the role of inform- ernment to monitor and regulate polluting facilities ing the public. Interested parties, once informed, can makes environmental protection diffi cult. Public access choose to respond through other government agencies to information can help overcome this shortcoming, (courts or legislative reform), the market (shareholder

allowing for what McCubbins and Schwartz (1984) call reactions, consumer boycotts, changing consump- Chapter 2. Strengthening the Argument for Access “ﬁ re-alarm” oversight in place of “police patrol” over- tion patterns), or civil society (often spurred by nega- sight. Police patrol oversight involves the active search tive press coverage) to ensure environmental quality, for violations and sanctioning of violators by govern- even where legislation might not exist. In this way, the ment agencies. While this is an effective method of pro- informing agency has enabled a number of alternative tecting the environment, it is impossible to maintain means of enforcement (Stephan 2002).

The Lagos State Mobile Court, Nigeria. 36 Chapter 2. Strengthening the Argument for Access ovich hadwontheelectionbyfraudulentmeans.Thepeaceful‘OrangeRevolution’ledtoresultsbeingthrownout. A demonstratorreadsamorningnewspaperinKiev’s”tent city”.Ukrainianscalledamassprotestafterallegationsthatpresiden and collective actionwhentheypresent information ferent manner, governments alsospurpublicresponse pertinent publicinterestgroups andindustries. Inadif- coverage, offi tric damencouragespublic discussionthroughmedia providing publichearingsonaproposedhydroelec- urgent andencourageapublicresponse. For example signal whichenvironmentalissuesareimportantor By providing informationtothepublic,governments Changing PublicExpectationstoSpurParticipation individuals withacommoninterest(Grant1997). cal power anddiffi enable theseactorstoovercome differencesinpoliti- information tothelattergroups, agovernment can or relatively poorgroups. Byproviding environmental (industries, lobbying groups)andpoliticallydispersed inequality between powerful andunifi mation, government agenciesreduceinformation By monitoring,subsidizing,anddisseminatinginfor- Balancing theRelativePowerofPoliticalGroups cial websites, andraises theprofi culties inorganizinguncoordinated ed politicalactors le of Voice and Choice: institutions, including thejudicialbranch ofgovern- Redress andremedycanbe provided by several different Access tojusticeistherightredressandremedy. BENEFITS OFACCESSTOJUSTICE 1998; Goldberg2002). press, andtheabsenceofviolence(MartinFeldman ciary, systems ofmasscommunication,freedomthe participation andaccesstojustice, anindependentjudi- when combinedwiththeotheraccessrightsofpublic as thisandotherreportsmakeclear, itismosteffective the public,governments, andprivate industry. However, Access toinformationprovides abundleofbenefi a catalyst forpublicparticipation. action (Stephan2002). Publicinformationcanserve as civil society, otheragencies, andtheprivate sectorinto can fosterasenseofurgencyand“shock,”spurring just makinginformationmoreavailable, government “acceptable” level ofpollution.Inthissense, morethan that contradictspeoples’priorexpectationsaboutan Opening theDoortoEnvironmental Democracy tial candidateViktor Yanuk- ts to Voice and Choice: Opening the Door to Environmental Democracy

ment, special administrative forums in the executive Increasing Accountability and Responsiveness of Public Offi cials branches of government, extra-governmental dispute in Environmental Enforcement resolution mechanisms, and even traditional forms of Access to justice allows the public to hold offi cials mediation. Broadly speaking, access to justice serves accountable for carrying out proper procedures in four principal purposes in the context of environmental environmental decision-making and enforcement. decision-making. First, it strengthens the freedom of With increased public access to redress and remedy, information, allowing civil society to press governments the public can ensure greater accountability from both for information they were otherwise denied. Second, elected and non-elected offi cials beyond election years. access to justice allows citizens the means to ensure that Access to justice also sets precedents, which guide pub- they participate meaningfully and are appropriately lic offi cials in the course of procedural and substantive included in decision-making on environmental matters. environmental decision-making, reduce arbitrary deci- Access to justice also levels the playing fi eld by empower- sion-making, increase consistency and predictability in ing groups that may not have infl uence in legislative pro- decision outcomes, and ensure that offi cials are appro- cesses or may not have the ear of government ministries priately responsive to stakeholder concerns and input. 37 to seek redress in the courts and other forums. Finally, access to justice increases the public’s ability to seek Spreading Costs of Enforcement by Encouraging Public redress and remedy for environmental harm (Stec 2000). Enforcement of Environmental Law Access to justice provides an opportunity for the pub- Supporting Access to Information and the Right to Participate lic to hold corporations and individuals liable for Chapter 2. Strengthening the Argument for Access In the context of this report, the principal purpose of environmental harm. This means that environmental access to justice is to ensure that the public can hold protection agencies do not have to bear the full costs offi cials accountable for procedural and substantive fail- of enforcement as some of these will be taken on by ings in the provision of information and opportunities citizens and citizen interest groups. Furthermore, in for participating in environmental decision-making. contrast to constant monitoring, a court case can have

Lawyers in Haryana, India, discuss a case while a temporary court is in session in an adjacent police station. Justice on Wheels is an experimental program that delivers legal redress to the disenfranchised. Remote areas often suffer from lack of access to justice. 38 Chapter 2. Strengthening the Argument for Access have accesstoinformationandparticipationinenvironmentalmatters. press. Ombudsmanpositionscanserveavitalroleinensuringthatcitizens Slovenia’s appointedOmbudsman,ZdenkaCebasekTravnik, speakstothe- means ofprotestandredress(Santhakumar2003). ceived asmorespeedyandeffi and suffi only functionsifthecourtsthemselves areindependent fi opportunity tonon-majoritygroupsinfl as alocalefordisputeresolution,ideallypresentingthe erwise protected.Incivillaw societies, thecourtsserve under thelaw wheretheirrightsmay nothave beenoth- that may notserve theirinterestandtoseekprotection tion) allow minoritygroupstostrikedown legislation forms ofdisputeresolution(mediationandarbitra- venues. Incommon law societies, courtsandalternative erwise beignoredinlegislative orpublicparticipation tion orrelative politicalpower) whosevoices mightoth- venue forminoritygroups (whetherintermsofpopula- Administrative andjudicialforumsprovide analternate Leveling thePlayingFieldforMinorityGroups Xavier 2005). broadly lower thecostsofaccesstojustice(Raja and actions, publicinterestlitigation may actuallyserve to consistent regulatoryfailures, andlimitationsonclass with highcostsandlow rewards forprivate litigation, litigation undercertaincircumstances. Incountries ies pointtotheeconomiceffi to monitorandrestricttheirown activities. Newstud- a demonstrationeffect—pushingpollutingindustries ente yRecursos Naturales2001). come thecollective actionproblem(FundaciónAmbi- environmental harms. Broadlegalstandinghelpsover- and remedies, countriescanassistthoseaffectedby organizations andpublicinterest groupstoseekredress ernmental ombudspersonsorallowing civilsociety broad legalstanding(seeBox2.5),providing forgov- than thosewhoaredirectlyharmed.Byintroducing much lesstimeandenergytodefendtheirposition that aredegradingtheenvironmentoftenhave tospend that canhirelawyers relatively easily. Therefore, groups wealth onasmallgroupofpeople, oronorganizations ties thatdegradetheenvironmentbestow concentrated tion tocoordinatelargercollective action.Often,activi- viduals andfamilieswholackthemeansorinforma- ment isthatthosemostaffectedcanbeseparateindi- One ofthekeydiffi Overcoming CollectiveActionProblemsthroughBroadStanding nal outcome. Ofcourse, thisaspectofaccesstojustice ciently freeofpoliticalinfl culties inprotectingtheenviron- ciency ofpublicinterest cient thanextra-judicial uence andareper- uence the Voice and Choice: Source environmental matters. CSOs withenvironmentalobjectivestostandinforthepublic ombudsperson insomecountries.Finally, someconstitutionsallow interest onbehalfofthepublic,suchasAttorneyGeneralor particular governmentagencywithamandatetoprotectpublic violation ofcertaincollectiverights.Thesecondistherolea interest environmental standing.Thefi rstistheprovision of There havebeenthreemainroutesaroundtheproblemof methods ofestablishinglegalstandinginenvironmentalaffairs. Because ofthis,manygovernmentshavelegislatedalternate that theyhavebeendirectlyharmedbyenvironmentaldegradation. the righttoahealthyenvironment,manypeopleareunableprove Environmental standingisparticularlydiffi cultbecause,evenwith and suffi cientcausefordefendingtheirright. damaged. Inthissense,theindividualisconsideredtohavejust good (life,dignity, liberty, property, etc.)isbeingthreatenedor to property, etc.,theindividualmustprovethattheirvalueor individual rights,suchastherighttolife,dignity, toliberty, a mattertoallowhimorherbringclaim.Whendefending is theabilityofapersontoshowsuffi cientlegalinterestin realm isthequestionofwhohaslegalstanding.Legalstanding One oftheproblemswithaccesstojusticeinenvironmental BOX 2.5 Increasingaccess makesmorelikelythatenvironmentalvalues Accessrightshavetheiroriginsincivilandpoliticaland, Accessrightsarehumanrights. Thereisavarietyofargumentsforaccess.Advocates willneedto Researchintoaccessrightsingeneralandpublicparticipation stakeholder values. certain circumstancesmaymakedecisions thatmorerefl ect the environmentaloreconomicquality ofdecisions,andunder open todebatearethepropositionsthataccessmayimprove successful implementationofenvironmentaldecisions.More legitimacy ofdecision-making,stakeholdercapacities,and in particularsuggeststhataccessispositivelyrelatedtothe are consideredinthedecision-making process. international mechanismsandincorporatedintonationallaws. law. Asaresult,theyarelikelytobeincreasinglysupportedby over time,havegainednormativestrengthininternational decide whichargumentsworkbestindifferentpoliticalcontexts. : FundaciónAmbienteyRecursosNaturales2007 ortherightofanyindividualinpolitytosuefor IMPLEMENTINGBROADLEGALSTANDING Opening theDoortoEnvironmental Democracy Chapter 2inSummary public 3

Access Hurdles Even as access proponents make progress, they will inevitably encounter resistance: some will argue that access invites confrontation, access delays development, access can be prohibitively expensive to implement, or access can needlessly complicate processes. To better prepare proponents for these arguments, this chapter considers the successes and the shortcomings of past efforts to improve access and suggests some new and promising directions. 40 Chapter 3. Access Hurdles • • • We have organizedthisdiscussionintermsof“hurdles”: Usability Participation Culture of Building a Demand Access Capacity to Building Publicity Action Spurring Public Supply Access Capacity to Building Addressing AccessCapacity Popular Views Technical and Uniting Unlocking theCultureofSecrecy Availability Assessing InformationCapacity Transparency CENTRALQUESTION Building The PoliticsofTransparency THEME HOWTHISCHAPTER ISORGANIZED TABLE 3.1 another. Investing inpublicawareness and scientifi decision-making canoftenpitdifferentvalues— Fostering aCulture ofOpenness advocacy onthechokepoints ininformationfl same weaknesses. Carefullyanalysis canhelptotarget environmental informationsystems sufferfromthe Identifying GapsinInformation Systems prevail over thosebenefi and strategicalliancescanhelpthepublicinterest business asusual.Organizingbroad-basedcoalitions information andpower, especiallywhenitthreatens Vested interestsmay actively resistsharing Managing Vested Interests andthePolitics ofAccess c, popular, andeconomic—againstone a formthatthepubliccanuse? Is environmentalinformationin use access? ensure thattypicalcitizenscan What cangovernmentdoto enable CSOstouseaccess? What cangovernmentsdoto enough? environmental informationnot When ispassiveavailabilityof that demandssolutions? transparency leadtoapublic When doesincreased to buildgovernmentcapacity? What canaccessproponentsdo and scientifi csolutions? the needfordemocraticinput How cangovernmentsbalance availability? to increaseinformation for transparencybeimproved How canthelegalframeworks pro-transparency movement? How cancitizensbegintobuilda ting fromsecrecy. . Environmental State oftheEnvironmentReports Access toInformation: Capacity-building: Public Capacity-building: Water-quality monitoring Access toInformation: Air-Quality Monitoringdata Access toInformation: Government Offi cials Capacity-building: Public participation: Public participation: Emergency information Environmental Access toInformation: Release andTransfer Registers Compliance dataandPollutant Facility-Level Information– Access toInformation: SESET AESUISLESSONS CASESTUDIES ASSESSMENTS EVIDENCE FROMTAI . Notall ow.

General Public . Policylevel Project level

Voice and Choice: data andcasestudies. Goals forresearchandadvocacy concludes withlessonslearnedfromtheliterature, TAI resentative casesalsoaccompany thetext.Eachsection and analysis fromthefi hurdles separately. Eachsectionpresentsrelevant data advancing theaccessagenda, we exploreeachofthese After abriefreviewoftheuneven progressmadesofar • these actors. capacity canbesharedthroughpartnershipbetween society todemandaccess. The costsofbuildingthis governments tosupplyandinthecapacityofcivil requires signifi Investing inAccess Capacity technocratic anddemocraticdecision-making. engagement canhelpbridgethedividebetween Education Optimism inEnvironmental South Africa– Environment report Hungary – Movement Growing Environmental Latvia – Washington, DC Contamination Mysteryin USA – Mexico - Project Transport Development Sri Lanka– Seeds ofAccesstoJustice Indonesia – Response Chile – Coalition building TAI Network– Bulgaria SolvingaWater Emergency –MilitaryWaste CenrBahsTiming andurgency impacthowthepublicuses CleanerBeaches Snapshot ofa Stateofthe Sowingthe The Southern Cautious Opening theDoortoEnvironmental Democracy cant investment inthecapacityof ndings ofTAI assessments. Rep- expanded toimproveenvironmentalgovernance. Public environmentalandciviceducationcanbe targeting informationtousergroups. Governments canimproveinformationaccessby participation indecision-making. reforms inordertoinsuregrowingcivilsociety Governments canprioritizeanumberof appropriate publicity. Making informationavailablerequiresculturally public input. and earlyinvolvementmayimprovethequalityof early notice,provisionofpublicdocuments, Improvements inpublicparticipationsuchas information. capacity-building processthroughpartnerships. Civil societyandgovernmentcanaccelerate the information. Stronger lawswilldriveoffi cialstoproducebetter incentives. Alliance andcoalition-buildingdependson transparency hurdles. Alliances andcoalitionscanovercome . Meaningfulaccess Voice and Choice: Opening the Door to Environmental Democracy

are suggested, as well as strategies that access propo- the general public and for civil society organizations nents might adapt to their national situation. Table 3.1 (CSOs) as well as the range and types of information outlines the structure of this chapter. the law restricted. Rankings on access to information depended on how well a law fulfi lled the right to information in terms of procedures for exercising that right, Uneven Progress who is entitled to the right, and limits on the right. All TAI national assessments demonstrate two major but one country had a national freedom of information trends: (1) general access to information laws are more law (TAI 2003). common than either general public participation laws or capacity-building laws; and (2) practice falls behind TAI assessments of public participation law found laws. These two general observations are the starting mixed results. Coalitions assessed the extent to which points for this analysis. the constitution, national-level legislation, administrative orders, or major court cases provided for direct TAI assessments demonstrate that laws requiring public public participation in public matters. Countries with 41 participation are common in the countries surveyed, “strong” rankings had a general public right to partici- but not as common as general access to information pation, or had clearly and strongly worded guarantees laws. The disparity in occurrence between information for public participation in specifi c affairs (for example, and participation law raises a question as to why some permitting the siting of an industry or waste disposal countries have strong laws enabling public participa- facility or the enactment of laws and regulations), tion, while others have weak laws. including guarantees of the right to be notifi ed, submit written or oral comments, question experts, and receive Figure 3.1 shows that, according to TAI assessments, gen- reasons for a decision (TAI 2003). eral framework laws on access to information—such as Chapter 3. Access Hurdles freedom of information laws or acts (FOIAs)—received While TAI assessments demonstrated that framework rankings of “intermediate” or “strong” more often than laws for environmental information were generally framework laws on public participation such as national strong, legal frameworks regarding public participa- environmental impact assessment mandates or provi- tion and capacity building for CSOs, offi cials, and the sions for public comment on pending legislation. broader public received lower rankings generally (see Figure 3.2). For all categories, actual practice received What does the data on access to information frame- lower rankings than the legal framework. This was works entail? TAI coalitions assessed national informa- especially true for information: while most govern- tion laws based on how well each law provided access ments evaluated had “reactive” information systems to to a wide spectrum of information for any member of respond to requests, far fewer proactively provided well-

FIGURE 3.1 RANKINGS OF ACCESS TO INFORMATION FRAMEWORK LAWS AND PUBLIC PARTICIPATION FRAMEWORK LAWS (n = countries)

Freedom of information acts 1 10 10 (21)

Freedom of direct participation in public matters (24) 6 7 11

Public participation in drafting legislation (19) 8 4 7

Public participation rules in administrative laws relevant to environmental protection 5 8 6 (19) Weak Intermediate Strong

Public participation laws lag behind freedom of information laws 42 Chapter 3. Access Hurdles is partlyaresultofthegapbetween generalframework tice? Thegapinon-the-groundaccesstoinformation What causesthisgeneralgapbetween law andprac- ing data,andduringenvironmentalemergencies. transfer registers, regularairandwater qualitymonitor- state oftheenvironmentreports, pollutantreleaseand publicized andusableenvironmentalinformationin FIGURE 3.2 FIGURE 3.3 information” inthepublicdomain Mandate todisseminateStateoftheEnvironment environmental andhealthimpactsto thepublic Mandate forreleasingmonitoringinformation Right toaccesspublicinterestinformation Mandate todisseminateinformation about MEANRANKINGSFORLAW ANDPRACTICE ACCESSTOINFORMATION: RANKINGSFORREACTIVEANDPROACTIVELAWS Provisions foraccessto“environmental (52 airandwatermonitoringsystems) (value) INDICATORS FOR26COUNTRIESSURVEYED during anemergency reports tothepublic Freedom ofinformationacts (25countries) (23countries) (21 countries) (26 countries) (34reports) 1 5 5 Voice and Choice: ek nemdae Strong Intermediate Weak Access Managing VestedInterestsandthePoliticsof information l ability fortheirdecisions. Ifitworks well, publicpar- transparency, publicinput,andpersonalaccount- stand toloseinfl threaten thoseinpower. Government offi In many policyprocesses, increasingpublicaccessmay overcome. the political,legal,andcapacity-relatedhurdlescanbe Once identifi these two categoriesofinformation law. 3.3 stilldemonstratesconsiderabledifferencesbetween interpretation of“reactive” and“proactive” l tion offi lists ofavailable documents, andresponsibleinforma- various dutiesofgovernments topublicizeprocedures, reactive laws have “active” provisions describingthe tion ofenvironmentalinformation.Notably, even most laws mandatetheproactive productionandpublica- upon request.Morespecifi to provide onlyforthereactive releaseofinformation remain rare. Generalframework informationlaws tend 1) andspecifi 18 11 4 29 10 cers. However, even ifwe allow foraloose 10 ed, thesekindsofgapscanberemedied,if c environmentallaws andcodes, which aws, aws, Opening theDoortoEnvironmental Democracy uence over decisionsby increasing which areontherise(seeChapter c environmentalinformation 17 14 10 10 23 10 cials may aws, aws,

2 Figure general reactive speciﬁ c proactive c speciﬁ reactive general Voice and Choice: Opening the Door to Environmental Democracy

ticipation will shift some control over decisions from BUILDING TRANSPARENCY government offi cials to the public. This shift may be Most of the time, forward leaps in access are not the resented by some offi cials, whose status or power may work of an individual, but of a broad range of actors. be premised on exclusive control of information and Pioneering offi cials, media outlets, environmental decision-making. CSOs, community-based organizations, and companies depend on information about the environment and Access to information is essential in fostering mean- natural resources. Consequently, they are some of the ingful public involvement. Without relevant and parties interested in transparent decision-making. We usable information, the public, offi cials, and compa- defi ne “coalitions” as groups of like-minded individuals nies are left to surmise what is reality from a mix of and organizations seeking long-term change and shar- facts, innuendo, and hunches. Increased transparency ing strategies and resources. “Strategic alliances,” on the increases the information on which decisions can be other hand, are organizations and individuals seeking based, and reduces the opportunity for corruption, solutions to immediate problems. These can be useful abuse, and misuse of power in public agencies. Com- methods for overcoming weak accountability and poor 43 panies engaged in polluting processes are less likely to transparency. Evidence from evaluations of facility-level push costs downstream onto local communities (see information and the case of a citizen alliance working Chapter 2, “Benefi ts of Access to Environmental Infor- to combat duplicitous environmental decisions suggest mation”). strategies to tip the balance in favor of transparency. (See Box 3.1) Despite these benefi ts, many gaps appear in the practice of information provision. TAI assessments suggest Access to information: Facilities that, in some cases, there is signifi cant resistance to TAI case studies of 65 industrial and waste facilities greater transparency when it leads to more account- found that, almost universally, companies, whether Chapter 3. Access Hurdles ability and public infl uence. Specifi cally, vested inter- state-run or private, guarded or failed to produce infor- ests—those businesses and government agencies that mation on toxic and hazardous effl uents and emissions. benefi t from the control of information—seek to limit The data gathered from these facilities—ranging from public knowledge about environmental information nuclear and coal-burning power plants to ports, from on extraction of natural resources, pollution, and regu- textile factories to free trade zones, from mines to log- latory compliance. ging companies—suggest active resistance to transparency and accountability. Few areas of environmental

FIGURE 3.4 ACCESS TO INFORMATION: RANKINGS FOR FACILITY-LEVEL COMPLIANCE DATA (n = facility case studies)

Claims of conﬁ dentiality regarding compliance 55 10 with regulations on discharges of pollutants to air and water (65)

37 15 Types of compliance data reported - mandate (52)

48 6 Compliance reports available on Internet (54)

Quality of information accessible to public in 24 7 compliance reports (31)

23 10 19 Timeliness of compliance report data (52)

Weak Intermediate Strong

Compliance data faces problems of confi dentiality claims, narrow scope, limited availability, and poor information. 44 Chapter 3. Access Hurdles and theEnvironmentalSideAgreementtoNorth to thecombinationofdomesticcivilsocietypressures sions by nationallegislationdeveloped inresponse example isMexico.Required totracktoxicsandemis- ing theproductionofPRTRsortheirequivalent. One Some countrieshave madesteadyprogressinrequir- fi ings of“weak” forthequalityofinformationin on theInternetandalmostthreequartersreceived rank- received a“weak” ranking.NonepublishedthePRTRs PRTRs. Threeinfi fered fromexcessive claims ofconfi ance data.Thirty-nineofthe42facilitiessurveyed suf- release inventories (TRIs) in comparisonwithcompli- pollutant releaseandtransferregisters(PRTRs)ortoxics TAI assessmentsfoundeven fewer facilitiesproduced date toreportawidevariety ofdata. Internet). Only15of52facilitiessurveyed hadaman- as pooravailability (withonly1in9available onthe confi suffered fromclaimsofcommercialandsecurity-based ance reports(seeFigure3.4).Facility-level information facilities studiedreceived strong rankingsforcompli- emissions andpollutantreleases. Inmostcountries, few well aparticularcompany ismeetingregulationsfor Mandatory compliancereportscandemonstratehow level information. access faredasdismallyacrossassessmentsfacility- nal report(seeFigure3.5). Pollutant releaseandtransferregistersare sometimesavailable,butsufferfromexcessiveconfi dentiality, weakmandates,lim FIGURE 3.5 dentiality (morethan4in5were weak) aswell ACCESSTOINFORMATION: RANKINGSFORFACILITY-LEVEL COMPLIANCEFORPOLLUTANT RELEASEANDTRANSFER REGISTER DATA ve facilitiesdidnotproduce PRTRsor ek nemdae Strong Intermediate Weak 15 25 11 (n =facilitycasestudies 39 dentiality regarding 36 6 ) 17 Voice and Choice: pursuit ofaccess. lessons aboutstrategicalliancesandcoalitionsinthe ics differacrosscontexts, successstoriesoffergeneral moments forincreasedtransparency. Whilethedynam- tions ofaccessproponentscanleverage historical example doessharewithothercontextsisthatcoali- Such historicalmomentsarerare. WhattheMexican of civilsocietyattheendone-partyrule. environmental standards, coincided withthefl NAFTA, whichrequiredpartiestoharmonize certain strategic opportunities—inthiscase, thesigningof example demonstratestheimportanceofrecognizing facility-level information(Naumann 2005). Mexico’s gradual development ofMexico’s system foraccessto cates have alsoplayed anindispensableroleinthe release inventories. At thesametime, domesticadvo- the UnitedStates—canspurdevelopment oftoxics between countries—inthis caseMexico,Canada,and 2006). Thissuggeststhatcooperative capacity-building tion ofthestate-owned nuclear facility(TAI -Mexico emissions andeffl signifi ties assessedby theTAI Mexicancoalitionshowed a American FreeTrade Agreement (NAFTA), thefacili- they have anything tohide. Insomeareas, this “culture refuse todiscloseinformationregardlessofwhether Our researchsuggeststhatgovernment offi Transparency andAccountability Lessons: FormingStrategicAlliancesandCoalitionstoPromote 8 4 cant degreeofcompliancewithinthecountryon 3 1 Register data Timeliness ofPollutantReleaseandTransfer ant ReleaseandTransfer Registerreports Quality ofinformationaccessibletopublicinPollut- available ontheInternet Pollutant ReleaseandTransfer Registerreports Registers orequivalent Production ofPollutionReleaseandTransfer and transferregisters Claims ofconfi dentialityregardingpollutantrelease Opening theDoortoEnvironmental Democracy uent release reporting,withtheexcep- (29) ited availability, andpoorquality. (42) (43) (36) cials may (15) owering Voice and Choice: Opening the Door to Environmental Democracy

• Because the benefi ts of secrecy often accrue to BOX 3.1 MILITARY WASTE IN BULGARIA powerful individuals, but the costs accrue to a more dispersed public, strategic alliances and coalitions In 2002 and 2003, Bulgarian citizens faced a situation where can add strength to the efforts of transparency offi cials resisted informing the public about a potentially harmful proponents. government action. • Strategic alliances are best formed with groups that In the process of decommissioning obsolete Cold War military have an immediate material interest in protecting equipment, government offi cials assured the public that they environmental assets. were taking the necessary steps to prevent harm while disposing • The “government” is rarely monolithic. Usually, of old rocket engines. Contrary to their public assertions, offi cials there are agencies or offi cials open to change, set in motion a plan that ran counter to available evidence about willing to release information, or to seek alternative environmental impacts. They made the plan secret, and then solutions. CSOs, government offi cials, and denied its existence. members of the public should seek these allies 45 when attempting to gain access to environmental information or decision-making.

Coalitions are not as expedient as strategic alliances, but have the potential to sustain reform efforts for longer periods. Johnston and Kpundeh (2004) offer a set of useful analyses of coalitions to promote transparency. Using Wilson’s (1973) typology of incentives that motivate participation in organizations, the authors suggest Chapter 3. Access Hurdles that a variety of interested parties demanding access to information can overcome the diffi culties of sustained action when they believe they are directly receiving benefi ts from their association. These benefi ts may be A number of civil society groups and local offi cials learned of the material incentives (money, goods, or jobs), purposive proposed disposal, leading to protests in two different regions, incentives (accomplishing the goal of an organization), Stara Zagora and Montana. The public would not have become specifi c solidarity incentives (rewards from exclusive suffi ciently informed if there had not been civil society groups membership given to individuals such as offi ces or and individuals within the government pressing for the release of individual honors), or collective solidarity incentives information under the new Freedom of Information Act. Through (benefi ts enjoyed by the entire group such as prestige, a concerted effort, these individuals, aided by active protest fellowship, or exclusivity). Among coalitions demand- by Bulgarian citizens, were able to ensure that not only was ing transparency, the differences in success are not sim- information released, but also that disposal of the rocket engines ply functions of how loudly or eloquently a group can protected both human health and the environment. trumpet its cause. Rather, an individual coalition’s success is also a function of how well it can use different The full story can be found in “Appendix 3: Case Studies”. incentives to encourage allies and to overcome hurdles.

The Bulgarian story offers an example where an alli- of secrecy” remains entrenched despite new laws and ance of access proponents garnered the benefi ts of systems designed to promote transparency and account- their action (safer toxic waste disposal) immediately, ability. The story of how Bulgarians found a better way so it is of limited value in explaining coalitions seeking to destroy hazardous military waste (Box 3.1) suggests sweeping reform. Coalitions demanding reform at the that information and environmental impact assessment national level must be able to sustain action for longer laws, even if new, can provide leverage to strategic alli- periods of time without immediate material rewards ances and coalitions to protect human health and the (Brinkerhoff and Crosby 2002). These alliances can environment. A few lessons about strategic alliances rarely support their active members and allies solely and coalitions: through purposive incentives. However likely transparency coalitions are to achieve their goals, the purposive rewards for advocacy often remain distant and diffuse, 46 Chapter 3. Access Hurdles traditionally worked together, suchasadvocacy CSOs ment. Thismay includegroupsthatmightnothave immediately fromincreased transparencyandinvolve- can formstrategicalliances withgroupsthatbenefi One implicationforaccess proponents isthatthey Solidarityrewards for individuals • from JohnstonandKpundeh2004): employed inpasttransparencycampaigns(adapted The following incentives have beensuccessfully pro-transparency actorswillbepushedtothemargins. particularly challengingincorruptenvironments, where that requirefewer strictlymaterial incentives. Thisis desperate forfunding,mustfi need. Asaresult,mosttransparencycoalitions, often publicity, research,andfacilitiesthataccessproponents and enhancedruleoflaw do notpay forthestaffi equity, transparentpoliticalandeconomicdecisions, tives suchasreform,better governance, greatersocial operating asa“purepublicgood.”Long-termobjec- • Material incentives Solidarity rewards for groups • – – – – – – – – – CSOscanoffertechnicalinformation,legaladvice, Informationincludingassessmentsofoffi “Corruptioninsurance” schemesforbusinesses. Fellowship, suchasthrowing apartyafter Enhancingtheautonomy ofthepress, opposition Prestige, suchasallowing exclusive membership Access toexclusive orearlyinformationproduced Honorsandrewards foraccesschampions Awarding offi for supportfrombusinesses. about mattersfortheenvironmentinexchange judiciary, ornews onupcomingdecision-making themselves) (useful forcivilsociety, businesses, andoffi and trainingon corruption to insureoneanotherfortheconsequencesof Businesses canpoolmoneyasinsuranceinorder campaign orwork accomplished can supportoneanotherifmemberisjailed leaders, orcivilsocietygroups;forexample, groups to acoalitionforCSOsorgovernment agencies sympathetic membersofthepress) by theorganization(especiallyimportantfor commitment topublicaccess positions, forexample)who have demonstrated ces toallies(boardofdirectors :

accessing information,usingthe nd meanstoreward allies : : cials cials ng, t Voice and Choice: of thenetwork. TAI partnersaremotivated by theparticularincentives an internationalcoalition.Past experiencesuggeststhat Box 3.2pointstotheexperienceofTAI network as when theymeettheimmediateneedsoftheirmembers. access advocacy. Thesenetworks aremostsustainable for membership,sharingresources, andtheprestigeof coalitions throughinnovations thatprovide incentives nents shouldseektostrengthennetworks andbuild contracts. Asecondimplication isthataccesspropo- and certainbusinesseswhowant openbiddingfor polluter profi relationships between environmentalinformationand 2007). Stephan(2002) citesliteratureshowing the throughout theenvironmental movement (Singh The “shameandblame”tactic hasbeenusedwidely den revelations takenupby thepublicandmedia. Similarly, fi know ratherthanagradualchange(Stephan2002). represents asubstantialchangeinwhattheyalready viduals arelikelytorespondinformationwhenit The notionof“shock”impliesthatgroupsindi- galvanized totakeactionandproposeanalternative. sive healtheffectsoftheproblemthatcommunityis basis, butitisnotuntilastudydemonstratestheperva- mill rainsashdown ontheirneighborhoodadaily For example, acommunitymay know thataparticular of “shock”isanecessaryconditionforpublicaction. (White andRunge 1995).Moreoftenthannot,asense in ideasabouthow thingsareorhow theyoughttobe information. Collective actionusuallyrequiresachange only whenthepublicunderstandsandactsonthat Access toinformationwillspurpublicparticipation SPURRING PUBLICACTION detail. “Appendix 3CaseStudies”describestheseincentivesingreater benefi tsforbothindividualsandthepartnerorganizations. These incentivesincludematerialbenefi ts,aswellsolidarity because ithasbeenabletoprovideincentivesitsmembers. Similar tostrategicalliances,however, TAI hasgrowninthepast and onlyhascivilsocietyorganizations(CSOs)asmembers. formation. Incontrasttoastrategicalliance,TAI islonger-term The AccessInitiative(TAI) servesasacasestudyincoalition BOX 3.2 THEGROWTHOFTAI: ACASESTUDYINCOALITION- BUILDING rms andorganizationswillrespondtosud- ts. Stock pricestendtofallinresponse to Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

47 Chapter 3. Access Hurdles

University students in Athens, Greece march for improved education. the sudden disclosure of negative environmental infor- Lessons: The Importance of Timing in Public Information mation (Badrinath and Bolster 1996; Hamilton 1995; In the short term, economic and environmental goals Lanoie and Laplante 1994; Moughalu et al. 1990), and may not always be compatible. In these cases, advocates companies tend to improve environmental perfor- for the environment must decide strategically on how mance in response to falling stock prices (Khanna et al. to release information to the public: 1998; Konar and Cohen 1997). In addition, national capital markets across income ranges respond to infor- • In cases where the public—in this case, tourists and mation about the environmental performance of listed the business community—is likely to react strongly companies (Wheeler 1999). to information, it may be necessary to release environmental data to spur public action. The implications for advocates of access are that the timing and messaging of information can have as much • In cases where there is likely to be signifi cant impact on environmental and human health outcomes backlash from the release of information, it is as the information itself. Information by itself may not essential to build the capacity of the decision-making be enough: it must be combined with a clear, precise, and problem-solving apparatus—including business, and novel message about the state of affairs. Box 3.3, civil society, and government—as early as possible. which describes the impact of seawater quality report- • Businesses that may initially be opposed to making ing in Mexico, demonstrates that the quality of report- information publicly available may change their ing by public offi cials affects the interplay of public stance once they are engaged in the practical ideas about pollution and the consequent business problem-solving aspects of participation. response. 48 Chapter 3. Access Hurdles data onwidely recognizedhigh-riskpollutants. Simi- water qualitymonitoring,forexample, shouldcollect tors thatallow themonitoringofperformance. Air and to athirdparty. Inallcases, datashouldincludeindica- company, (asin thecaseofPRTRs),orcontractedout of databy thegovernment, whetherit’s reportedby the Collection. multiple government agencies. 3.6) Suchasystem may requiretheparticipationof analyze anddisseminatedataproactively. (SeeFigure information systems thathave thecapacitytocollect, Meaningful implementationofaccessrightsrequires rather thansimplysupplyinformationuponrequest. which theyencourageproactive informationprovision on informationdisseminationvary inthedegreeto Freedom ofinformationactsandotherframework laws Identifying theGapsinInformationSystems played apartinhowquicklystakeholdersdealtwiththeproblem. access rights.Thequalityandtimingofoffi cialinitiativesundoubtedly government receivedgenerallygoodrankingsforitseffortstopromote In thiscasestudyfromthesecondTAI assessmentforMexico,the coastal communitiesandthelivelihoodsofmanyMexicans. vacation. Coastalwaterqualityisthereforecriticaltotheeconomiesof increasingly well-informedandhealth-savvytouristsawayfromabeach of gastrointestinaldiseasesandrespiratoryinfections—canturn seawater—which damagesmarinespeciesandincreasestherisk tourism thethirdlargestindustryincountry. However, polluted 11,000 kilometersofwhite,sandybeachesandturquoisewatermake Mexico’s vastcoastlineisacentralassettoitseconomy. Itsmorethan BOX 3.3 beaches inVeracruz, Oaxaca,andGuerrero. report provideddamninginformationonseawaterqualityatseven released ittothepublicjustbeforehigh-touristseason.The document theextentofbeachpollution.InApril2003,heboldly did notexist.Sohecommissionedanationalreporttosystematically Lichtinger knewthenecessarypoliticalwillforsuchcollaborationjust agencies atmultiplelevelsofgovernment. require thecollaborationofbothprivatesectorandnumerous say nothingofpublichealth.Butsolvingthepollutionproblemwould beach culture—andamajorchunkofitsnationalincome—atrisk,to brewing onMexico’s beaches.PollutionhadputMexico’s treasured Natural Resources(SEMARNAT), knewthataseriousproblemwas In 2002,Victor Lichtinger, Mexico’s SecretaryofEnvironmentand Seawater Quality:AKeyEconomicResource MEXICO:CLEANERBEACHESWITHINFORMATION ANDPARTNERSHIP Access toinformationrequiresthecollection Voice and Choice: even askedtherepresentativeofPROFEPA (thefederalMinistryfor economic damage.Guerrero’s governor, RenéJuárezCisneros, against thefederalgovernmentandMinisterLichtingerforpotential monitoring, localauthoritiesinGuerrerothreatenedtofi lealawsuit tourists. WhenSEMARNAT unveiledplansforfurtherwaterquality publicly thatbeachesinthesestatesdidnotrepresentahazardto The governorsofGuerreroandVeracruz denouncedthereport,stating blamed thereportratherthanpollutionfortheireconomicloss. including Acapulco,wereoutraged.Otherstateandlocalauthorities shifted tootherlocaleswithinMexico.Theaffectedcommunities, outcry. Inresponsetothereleaseofpollutionreport,tourism canceled fl ights,andthepressgavevoice to anationwidepublic predicted itsseverity. Localoffi cialsclosedthebeaches,tourists While thereactiontoreportcouldhavebeenpredicted,few A BacklashagainstTransparency unraveling complicated legislation,data, anddocu- companies spendagreatdeal oftimeandresources such asCSOsandprivate fi might beperformedby independentorganizations, can beperformedby governments themselves orthey ments shouldbeamenabletoanalysis. Thesefunctions Analysis. than regularorannouncedinspections. likely torepresenttheactualpracticeofafacilityrather example, unannouncedinspectionsandauditsaremore may requirespecialmeasures. InthecaseofPRTRs, for ers have incentives tohide ordistortinformation,this also beaccurateandfreeofinfl as environmentalemergencies).Informationmust or shouldfollow quicklyafterone-timeevents (such vals (inthecaseofwater orairqualitymonitoring), larly, informationshouldbecollectedatregularlyinter- Data anddocumentationcollectedby govern- Opening theDoortoEnvironmental Democracy rms. AnumberofCSOsand uence. Wherepollut- Voice and Choice: Opening the Door to Environmental Democracy

BOX 3.3 continued

Environmental Protection) in Guerrero to resign. The ofﬁ cial honored his request, stepping down from the position.

The picture was different at the federal level, where ofﬁ cials continued to focus on the pollution itself. Minister Lichtinger called on several federal entities to propose solutions to solve the seawater problem. The National Water Commission (CONAGUA) had already developed a proposal—outlining a platform for collaboration among federal, state, local, and private entities—to holistically address beach water quality. This proposal was the seed for a “Clean Beaches Program.”

Stakeholder Collaboration for Clean Beaches 49 In coordination with a number of organizations, the Mexican government implemented the Clean Beaches Program. The main with guidance from the Ministry of Health. The monitoring data objective of Clean Beaches was to promote the sanitation of beaches, is now regularly published on the SEMARNAT website (SEMARNAT basins, sub-basins, and other water sources, as well as to prevent and 2007). Additionally, a 32-million peso fund was opened to encourage address the pollution issue in order to protect and preserve Mexican research and development and studies to classify, monitor, and clean beaches. Other goals included protecting users’ health; increasing Mexican beaches. the quality of life of the local population; and strengthening tourism, Information and Action competitiveness, and environmental quality at Mexican beaches. The seawater monitoring program has proved to be a controversial The program also sought to educate citizens and to promote more Chapter 3. Access Hurdles element of Clean Beaches. Some industry, state, and local offi cials environmentally benign activities at coastal areas in order to protect remain skeptical about the broadcasting of water quality information. natural resources and keep facilities clean for the benefi t of all sectors. Furthermore, the accuracy of data remains suspect and needs Representatives of six cabinet-level ministries formed several Clean continual refi nement. Fortunately, an increasing number of actors Beaches Committees aimed at implementing sanitation programs, have participated in Clean Beaches’ cooperative process, thus monitoring seawater, developing monitoring capabilities, building increasing its legitimacy. Reviews of the monitoring program by the infrastructure, and developing the “Guide to Organizing and Senate have shed light on its fl aws and have identifi ed opportunities Operating the Committees of Clean Beaches, Mexico.” for improvement. Consequently, the Senate called on SEMARNAT to increase the proportion of beaches that are monitored. In the The Clean Beaches Committees are led by local residents and are summer of 2006, Greenpeace and several other environmental groups comprised of representatives from corresponding state and municipal demanded improvements in posting water quality information at governments, civil society organizations (nonprofi t organizations and beaches. chambers of commerce) and private industry (hotels, restaurants, and tourism services). Clean Beaches Committees have the power Bacteriological monitoring since 2003 shows that, on a yearly to validate, direct, and certify local sanitation programs. These basis, the percentage of beaches exceeding pollution limits has innovative initiatives represented a signifi cant budgetary investment decreased. Several important tourist destinations have drastically and required the coordination of three government levels and private improved their water quality, including Acapulco, Bahia de Banderas, industry. For example, 1.17 billion pesos were invested from 2003–05 Puerto Vallarta, and La Paz. Improvements are primarily due to the to build, rehabilitate, and expand the hydro sanitary infrastructure, construction of treatment plants and the implementation of massive including better drains and water treatment plants (Comisión cleaning programs. In La Paz and Los Cabos, for example, an existing Nacional del Agua 2007). Beach owners interested in earning a trust was used to acquire four-wheelers and tools to clean the high-quality beach certifi cate could apply for it through a beach beaches 3–4 times a day. At the time of publication, the construction certifi cation program coordinated with local committees. of three major treatment plants is underway in Puerto Vallarta on its three most polluted beaches. Building capacity for monitoring was a key element of the program. With the creation of the National System of Information on the Quality This story was written by Tomas Severino and Valeria Enriquez of Water at Mexican Beaches, health laboratories in each one of the (Iniciativa Acceso Mexico). 17 coastal states carried out sampling and analysis of seawater, 50 Chapter 3. Access Hurdles tion ofthereport. tion,” istheprimaryfocusofremainderthissec- This lastelementofinformationprovision, “dissemina- about how tointerprettheinformationforpublic. training schoolteachers, librarians, CSOs, andjournalists advertising, training,orholdingconsultations, aswell as the publicthatsuchinformationexists. Thismay mean tion usable, governments have aresponsibilityto tell proactive dissemination.Inadditiontomakinginforma- improved notonlythroughanalysis, butalsothrough mental matters. Theavailability ofinformationcanbe only oneaspectofaccesstoinformationforenviron- Dissemination. 2007). have thenecessaryfundstoperformthisfunction(Fox In thesecases, itiscrucial that “interpreters”ofdata ments, even aftersuchinformationismadeavailable. stances helpto clarifytrendsinbehavior. cies areparticularlyillustrative becauseextremecircum- the broaderproblemsofinformation access. Emergen- ing environmentalemergencies willshedsomelighton information tothepublicin atimelymanner. Examin- face whendecidingwhethertoprovide meaningful and examinestheincentives anddisincentives offi information obtainedonenvironmentalemergencies emergencies, thissectionprovides anoverview of the from TAI studiesonabroadrangeofenvironmental proactive productionofinformation.Usingevidence is oftentheresultoflimitedorweak mandatesforthe political priorities. Limitedavailability ofinformation issues, butalsoamatteroflegalrequirementsand tion arenotjusttechnical,fi ronmental informationnecessaryforpublicparticipa- The production,analysis, anddisseminationofenvi- AVAILABILITY OFINFORMATION FIGURE 3.6 ELEMENTSOFINFORMATION CAPACITY Theavailability ofpublicinformationis nancial orhumanresource cials Voice and Choice: Vaisutis-White 1994;Rosenthal andKouzmin 1997). ical crises. (Hewitt1983;JarmanandKouzman. 1994; environmental disastersaremorepredictablethanpolit- and developed countriesshow that,onthewhole, many gencies moremanageable. Studiesfrombothdeveloping fi Advances inscientifi Access toInformation:EnvironmentalEmergencies environmental information. environmental informationlawinChina mayleadtobetterpublicaccess A citizeninYunnan, Chinareads thelocalnews.Recentpassageofan rst responsehave helpedmake environmentalemer- Opening theDoortoEnvironmental Democracy c understanding,riskplanning,and Voice and Choice: Opening the Door to Environmental Democracy

51 Chapter 3. Access Hurdles

This mural in Sierra Leone dramatizes codes of conduct for non-governmental organizations and UN agencies working with the public in an accessible medium.

Signifi cant improvements in information management 2. Prevention/preparation for the crisis—what can be done during emergencies, especially emergency warning to prepare for its occurrence systems, have occurred in recent years. Planning and a. Public information on emergency procedures prediction tools have also greatly increased government b. Public information on possible public health capacity to respond to environmental problems. During effects environmental emergencies, however, governments may 3. Containment—efforts to limit the duration and area not be as effective in providing access to information. of the crisis Early planning and establishment of information protocols can greatly aid the public, relief workers, offi cials, a. Public information on emergency procedures and businesses, CSOs, and agencies involved in emer- b. Public information on the type of hazards present gency response. (water, soil or air contamination and particular effl uents or emissions) In addition, a key aspect of access rights is the ability of 4. Recovery—restoring order and normalcy governments to provide information about decisions a. Public information on health and environmental and planning, as well as about the underlying processes consequences of environmental emergency for decision-making and planning. An environmental b. Where to seek treatment emergency plan emphasizing access to information should include the following elements (Pauchant and c. Where to seek information on compensation Mitroff 1992; Jin et al. 2006): 5. Learning—evaluating and incorporating lessons from the crisis 1. Detection of the crisis—looking out for warning signs a. Detailed reporting on health and environmental a. Information on data collection activities consequences of the emergency b. Distribution of analysis and fi ndings to relevant b. Information on the location and timing of future audiences planning to prevent recurrence 52 Chapter 3. Access Hurdles • Poor coordination. Limitedoroverlappingmandates. • include: viding accessduringemergenciesvarybycause.These ships betweentheorganizations.Weaknessesinpro- ronment. Theyareoftenemblematicoftherelation- responders, healthoffi strengthened inallrelevantactors,includingemergency ties duringemergencies.Informationcapacitymustbe capacity contributesgreatlytoinformationdiffi as resistancetotransparencyandaccountability.Poor due tomajorhurdlesaccess—poorcapacityaswell the faceofenvironmentalemergenciesfaredpoorly TAI fi weak; after:4in5caseswere weak). regarding theemergency(during:nearlythree-fourths tenth were weak) andeffortstoreachthemassmedia all butonequarterofcasesrankedasweak; after:one include postingofinformationontheInternet(during: ment publicityalsoreceived weak rankings. These tors thatrankedtheeffortandeffectiveness ofgovern- roughly threequartersofthecasesrespectively. Indica- after-the-fact investigation—received weak rankingsin to thepublic—bothduringemergencyandinan that measuredthequalityofinformationavailable information duringemergencies. Thetwo indicators had weak ornonexistentmandates toprovide public cury poisoning.Three-fourthsofthecountriessurveyed epidemics (birdfl ricane Mitch,agriculturalrunoffandcontamination, (urban, landfi fl broad rangeofenvironmentalemergencies, including emergencies. (SeeFigure3.7.) TAI partnersstudieda to meettheinformationchallengesofenvironmental demonstrated neitherthecapacitynorplanning Governments assessedby TAI coalitions, onthewhole, should beopentopublicinputandwell publicized. Such aplan—andtheprocessofformingplan— ooding, sewage leaks, chemicalandoilspills, fi may notexploittheircomparative advantages in benefi gathered databecausethey might notrealizethe information provision. contradictory mandatesaboutresponsibilitiesfor involved inanemergencymay have overlapping or public. Insomecases, thedifferingagencies the mandatetomakeenvironmentalinformation ndings suggestthatgovernmentperformancein ts oropportunitiesofdoing so.Agencies ll, forest,industrial,andexplosions),Hur- u andcholeraoutbreaks),mer- At times, agenciesmay notshare cials, andministriesoftheenvi- Agencies oftenlack cul- res Voice and Choice: ronmental emergenciesand morebroadly. disincentives toproduceinformationbothduringenvi- rective action,itisusefultounderstandincentives and understand systemic hurdles toaccessandbegincor- appropriate, timelyaccesstoinformation.Inorder environmental emergenciesisnotenoughtoensure changing thescopeofactivitiesfordealingwith Simply investing inemergencywarning systems and 2007). cies andtheemergencyresponseteam(UNEP/OCHA center, whowould coordinatewithparticipatingagen- cies (see specifi relief workers, withacommunityofpracticededicated Web, aclearinghouseforinformationhumanitarian humanitarian reliefworkers. OneexampleisRelief tion duringemergencies. Most oftheseoriginatefrom guidelines, tools, andweb resourcesforpublicinforma- provision, emergencyprofessionals have developed To respondtothesecommonweaknesses inaccess Poor contingencyplanning. • Poor response capacity. • tion offi guidelines suggestthegovernment assignaninforma- alarm throughmisinformation.Inanemergency, the should alsoreducethepossibilityofundueconcernor on publicinformationhelpstoensurecooperationand being takentocopewiththeproblem.Anopenpolicy tion onthenatureofincidentandstepsthatare supplying thepublicwithtimelyandaccurateinforma- major pollutionincidentoccurs, theguidelinessuggest for anationalenvironmentalcontingencyplan.When OCHA hasdeveloped modelguidelinesoninformation In thecontextofmajorpollutionincidents, UNEP/ time alertsystems, andmappingtools( tool featuringmediamonitoring,thecontrolofreal- of HumanitarianAffairs(OCHA).Thisisaweb-based oped by theUnitedNationsOffi Virtual On-SiteOperationsCoordinationCentredevel- ocha.unog.ch/virtualosocc/ available, publicized,andusable(Nijenhuis2008). appropriate stepsinplanningandmakingplans environmental emergencies. collection, analysis, anddisseminationduring technology, orskillstocarryoutinformation partner agencies. collection, analysis, ordisseminationprovided by cally toinformationprovision duringemergen- cer toestablish anews deskatthefi http://www.reliefweb.int/hin/ Opening theDoortoEnvironmental Democracy Someagencieslackthefi ) Some agenciesdonottake (Nijenhuis2008). ce fortheCoordination ). Anotheristhe http://www. eld response nance, Voice and Choice: Opening the Door to Environmental Democracy

FIGURE 3.7 ACCESS TO INFORMATION: RANKINGS FOR ENVIRONMENTAL EMERGENCIES (n = emergency cases)

Mandate to disseminate information about 17 5 1 environmental and health impacts to the public during an emergency (23)

Information about the eamergency available on the 31 9 1 Internet (41)

Efforts to reach mass media during the emergency 27 12 (39)

Quality of information accessible to the public 35 6 during an emergency (41) 53

Quality of information provided in ex post 30 8 4 investigation report (42)

Information about an ex post investigation available 38 4 on the Internet (42)

ex post during Efforts to reach mass media after the emergency 31 7 (38) Chapter 3. Access Hurdles Quality of information accessible to the public about 31 6 ex post investigation (37) Weak Intermediate Strong

Poor access to information during emergencies suggests weak collection, analysis and dissemination capacities worsened by poor accountability.

Government offi cials and polluting industries may Emergencies also present more opportunistic offi cials operate routinely in fear of prosecution or retribution with the chance to make public policy decisions with- from releasing information. As a result, they are willing out accountability. Two factors contribute to this. First, to expend large amounts of energy to conceal infor- during emergencies, the typically departmentalized mation. These tendencies become more pronounced decision-making of public bureaucracies must adapt in the chaos of environmental emergencies. Budgets rapidly, emphasizing coordination over its typical spe- and mandates face increased pressure as a result of cialization (Rosenthal and Kouzmin 1997). This often public alarm, a hurried time frame for decisions, and means that specifi c individuals receive expanded pow- the demand for accountability. The fear of retribution ers. Second, offi cials often possess better quality infor- (loss of electability, appointment, or work conditions) mation than their constituents and, as a result, are able is greater during these moments than otherwise. In to make decisions without public scrutiny. At times, emergency situations, offi cial decision-making must offi cials will abuse the political mandate temporarily be done based on incomplete information about the granted to their respective agencies during emergencies, practicality of responses, as well as public opinion con- rewarding well-placed constituents and special interests cerning response options (Congleton 2005). Box 3.4 (Congleton 2005). features two case studies from the TAI Assessment in Chile where offi cials, while ahead of most others in the In order to remedy the tendency for offi cials to hoard, countries surveyed, still dragged their feet on informa- distort, and suppress information, and instead to place tion release. human and environmental health in the forefront of emergency management, it is crucial that governments 54 Chapter 3. Access Hurdles receiving arankingofintermediate. three inquiriesandbeyondthefour-week periodimposedbythelaw, was notavailableontheInternetandmadeonlyafter intermediate ranking.Thereportcompleted the costofnotreportingpossibleimpacts,resultinginsame repeated themistakeofoveremphasizingcauseswreckat health impactsoftheevent.Afterfact,offi cialinvestigation because itfocusedonlyontheeventsandnotenvironmentalor websites. Thequalityoftheinformationwasrankedasintermediate of outletsforinformation,includingnewspapers,television,and due tothelargeamountofdatacollectedandnumber During theemergency, accesstoinformationwasrankedasstrong two pointsintime—duringtheemergency concerning theemergencyontwocriteria, The AccessInitiativeteaminChilerankedinformationaccess assume directresponsibilitybeyondtheroleoffi nancier. of informationtothecommunity. ThegovernmentofChiledidnot responsible foranyinterventions,investigations,anddissemination responsibility fortheeventfellonTRANSAP, whichwastherefore injuries. AccordingtothecontractbetweenCODELCOandTRANSAP, any greaterdispersion.Fortunately, noonediedorreportedany into anewlyplowedfi eld.Thesoilabsorbedmostoftheacid,avoiding cars, 4overturnedontothesideofhighway, spillingtheircontents waste hadbeencontractedtotheTRANSAPCorporation.Of11 state-owned companyCODELCO.Responsibilityformovementofthe transported wasthebyproductofelTeniente minerunbythe 11 railcarstransportingsulfuricacidderailed.Thematerialbeing At 1:10AMApril1,2003,onRouteG-78(theoldcoastalhighway), Large-Scale Emergency:TRANSAPSulfuricAcidSpill assessment: two disasters. in informingthepublicaboutpotentialproblemsduringandafter environmental emergencies.Chile,however, showedsomepromise rankings of“weak”forinformationprovisionbothduringandafter Most countriesthatwereassessedusingtheTAI methodreceived BOX 3.4 sewer, creatinggasvaporsanddirectlyimpactingneighboring to theterrain,gasolineeventually fl owedundergroundintothe The leakwasduetoafaultycontainmentsysteminthetanks.Due gasoline leakinsideofagrouphousesneartheCOPECGasStation. National CommissionfortheEnvironment(CONAMA)thattherewasa Electricity andCombustibles(SEC)notifi edtheEmergencyUnitat On January21,2003,theRegionalDirectorofSuperintendent los Lagos Small-Scale Emergency:GasolineLeak,Panguipullí,Regionde CHILE:EMERGENCYRESPONSEFALLS SHORTONIMPACTS The followingtextistranslatedfromtheChileanTAI quality and ex-post aftertheemergency. and by TRANSAP accessibility, at Voice and Choice: Source: TAI -Chile2006 requested. Across allagencies,informationwasnotreadilyavailablewhen were initiallyexcellent,buteventuallywaned. responsibility orcausesforevents.Effortstodisseminateinformation environmental andhealthimpacts,preferringtofocuson All agenciesconsistentlyunder-investigated andunder-reported gaps incurrentenvironmentalemergencyinformationsystems. countries atreportingemergencies,thesecasesrevealimportant Despite thefactthatChileisbetterthanmostAccessInitiative Disseminated Too MuchFocusonBlame,NotEnoughInformation and qualityaftertheemergency. government receivedarankingofintermediateinbothaccessibility but thesessionitselfnevercameabout.Asaresult,Chilean planning meetingforapublicinformationsessionhadtakenplace, the public.OnlyCONAMAgaveaninterview, whichrevealedthata three governinginstitutions,nonehadinformationontheeventfor environment, anddidnotidentifythecausesofaccident.Of the incident,butdidnotdescribeimpactsonpublicor quality. ONEMI’s singlepressreleaseidentifi edthosetoblamefor an intermediaterankingfor impacts oftheincident,receiving larger healthorenvironmental lacked anyevaluationofthe emergency, theinvestigation was notcarriedout.Afterthe that themandateexistedbut and qualityduetothefact rankings inbothaccessibility government receivedintermediate information wasprovided,sothe During theemergency, nooffi cial (ONEMI). National Offi ceofEmergencies case wereCONAMA,SEC,andthe mandate tointerveneinthis The entitieswithaninstitutional have occurredtothecommunity. reference toanyharmthatmight press releasesdidnotmake reported. Atthetime,relevant houses. Nodeathsorinjurieswere Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

55 Chapter 3. Access Hurdles

Journalists at a press conference in Puntland, Somalia. Reporters play a critical role in making sure that government information is publicized. undertake reforms in planning, information distribu- • Clarify mandates and roles for information collection, tion systems, and incentive structures. analysis, and dissemination within each agency. Establish or strengthen head offi ces of information Lessons: Building Incentives for Information Availability to serve as single points for information distribution In order to promote public access to information to media, relief workers, and to the broader public. before, during, and after environmental emergencies • Strengthen and centralize capacity for information (and in other situations), access proponents must push sharing by assigning an express mandate for to implement reform at each stage of planning, fol- information production within agencies and for low-up, and recovery. As has been shown, emergencies sharing between agencies. test the extreme vulnerability created by the combination of weak capacity and poor transparency. Prepared- • Build response capacity. Broaden investment in ness requires addressing both challenges. The case study both technology and human resources necessary from Chile (Box 3.4) represents the typical outcome to carry out information collection, analysis, and of defi cits in capacity and transparency when offi cials’ dissemination during environmental emergencies. incentives do not favor production of information. Make better use of existing environmental emergency guidance materials. In order to address capacity issues, governments must • Improve contingency planning. Develop contingency invest in best practices for information systems dur- plans with strong information components. Ensure ing environmental emergencies. The following reforms public availability of planning processes and the might help respond to the capacity problems listed at decisions resulting from those processes. Integrate the beginning of this section: information management into national contingency plans. 56 Chapter 3. Access Hurdles Introducing penaltiesfor concealmentanddistortion. • Subsidizing governmentinformation systemsthrough • Rewarding information production anddissemination. • recommendations areadaptedfromWagner (2004): public offi for accessproponentsistochangetheincentives of these problemsofaccessaremostexposed.Onelever tion; emergenciesmerelyrepresentcircumstanceswhen offi Environmental emergenciesarenottheonlycasewhere public moneytoaccess. Air qualityinformationwasstrongonthenumber anddiversityofmonitoredparameters,butoftensufferedfromaweakmandate FIGURE 3.8 cials have incentives toconcealordistortinforma- information, particularlyinemergencysituations. for offi Appropriate legalreformwould introducepenalties around potentialenvironmentalemergencies. government orthird-partyresearchandplanning externality throughleviesusedtodirectlysubsidize could correctforinformationasymmetry and polluting orhigh-riskindustries, thegovernment “information asymmetry”taxes. information available tothepublic. offi protection actsshouldprotectandreward those all relevant agencies. Inaddition,whistleblower that performancestandardsareclearlypostedin fi information productionintotransfer, hiring, distribution ofdata.Thisrequiresmainstreaming Agencies shouldreward the collection,analysis, and ring, andpromotionstandardsmakingsure cials whomakerelevant environmental Monitored informationavailableontheInternet Number anddiversityofmonitoredparameters Mandate forreleasingmonitoringinformation cials attemptingtoconcealordistort cials throughlegalreform.Thefollowing four ACCESSTOINFORMATION: RANKINGSFORAIRQUALITYDATA Free publicaccesstomonitoringreports Inthecaseofheavily (25) (23) (25) (26) 6 10 10 Voice and Choice: ek nemdae Strong Intermediate Weak level informationandregular resourcemonitoring. reforms mustnecessarilybeaccompaniedby facility- those whomay standtolose. Environmentalemergency differently andislikelytoencounterresistancefrom Implementation ofreformsineachcountrywillproceed Creating standards for environmental emergency data. • monitoring capacityforawiderangeofpollutants. information systems aremoresophisticated,withstrong may leadtocitizenconcernaboutairquality. Other ity duetoairpollution.However imperfect,suchsystems and days whenthepublicshouldavoid strenuousactiv- major citiesinformlocalnews stationsof“smogalerts” on airqualityarenotuncommon.For example, many cessful examplesofusableandpublicizedinformation of publicparticipationandoffi information in Governments distributeandpublicizeenvironmental participation by makinginformationwidelyavailable.” shall facilitateandencouragepublicawareness and ernment’s dutytorespond. Principle10 s the public’s righttoobtain informationandthegov- Access toenvironmentalinformation ismorethanjust PUBLICITY motivate offi lack thepoliticalortechnicalbackingsuffi many countries, thesestandardsdonotexistor produced duringanenvironmentalemergency. In a standardsetoftargetsfordataandinformation In ordertomakepenaltieseffective, theremustbe 15 (n =airqualitymonitoringsystems cials togatherthedata. ways ways Opening theDoortoEnvironmental Democracy that aremeaningfulandsupportive 6 20 on release,and,attimescostthe 14 cial accountability. Suc- 10 ays, ays, 7 ) “States “States cient to 1

Voice and Choice: Opening the Door to Environmental Democracy

BOX 3.5 UNITED STATES: SOLVING A WATER CONTAMINATION MYSTERY IN WASHINGTON, D.C.

A weakness in data dissemination put the public at greater risk for November. Water regulations required WASA to place a very specifi c lead poisoning in Washington, D.C. Even in a country with robust notice on each affected customer’s water bill stating: scientifi c and technical expertise, as well as strong environmental “SOME HOMES IN THIS COMMUNITY HAVE ELEVATED LEAD LEVELS information systems, rigidity in information distribution resulted in IN THEIR DRINKING WATER. LEAD CAN POSE A SIGNIFICANT RISK TO widespread public outcry. YOUR HEALTH.” A January 31, 2004 article in The Washington Post created a stir However, the notice that WASA sent out in November downplayed the with a story about a strange environmental mystery: “Tap water in seriousness of the problem. It left out key required phrases, including thousands of District houses has recently tested above the federal “in their drinking water” and “signifi cant.” limit for lead contamination.” Authorities were “baffl ed” by the problem and had no idea how such a serious contaminant had Similarly, national law required WASA to conduct public meetings to become so widespread in the city’s water. Yet subsequent Post inform people of the health risk and the actions they could take to 57 articles, public hearings, administrative reviews, independent avoid lead exposure. However, their advertisements for the meeting investigations, and a class action law suit documented that the did not reveal the lead problem. Instead, they simply stated that the problem actually had not been discovered “recently.” The Washington meeting would “discuss and solicit public comments on WASA’s Safe Water and Sewer Authority (WASA) had been detecting unhealthy Drinking Water Act projects.” levels of lead in city drinking water for over two years. However, the As a result of the lack of urgency in WASA’s public communications, public was not informed of the problem, and in other cases was residents were slow to take action. Some residents who received the told too late to take appropriate action, or with too little urgency to notices began buying bottled water, and discussed the issue with convey the seriousness of the health risk. Washington residents thus

their neighbors, or shared information about it via e-mail. Many had Chapter 3. Access Hurdles faced not one, but two mysteries. How did so much lead get into the neglected the mailings, however, or didn’t understand them. One drinking water? And how could the government have known about it resident later told a reporter she had received a letter informing her for so long without addressing the problem? that the lead in her water tested as “higher than the federal action Although WASA’s survey found high lead contamination during the level,” but she wasn’t sure if that was a good or bad result. previous summer, WASA failed to notify residents of the risk until continued, next page

The diffi culties faced by governments in collecting assessed received average rankings. These middling information vary by sector. TAI assessments demon- rankings mask a more complex picture. The majority of strated that most countries were able to monitor air and countries received rankings of “strong” in the number water quality, but had trouble disseminating the data in and diversity of pollutant parameters measured. Yet meaningful ways to the public. This section examines only one monitoring system received a “strong” ranking the general trends in access to information on air and for releasing the information on the Internet. Thus, dis- water quality monitoring. It presents a case study of semination of air quality information was signifi cantly Washington, D.C., where, despite suffi cient monitoring, weaker than data collection on air quality. the water quality system failed to publicize data in a way that would bring environmental health concerns to TAI fi ndings for water quality demonstrated the same the public’s attention (see Box 3.5). gap between collection and dissemination as air, but all indicators relating to practice scored poorly (see Figure Access to Information: Monitoring Air and Water 3.9). The number and diversity of monitored pollutant While most assessed countries had an intermediate or parameters for water was lower, with less than a third of strong capacity to monitor major problems with air cases receiving a “weak” ranking and only a third receiv- quality, few demonstrated the commitment to publish ing “strong” (compared to no cases and three-quarters and distribute that information to the public. Figure of cases respectively for air quality). Meanwhile, dis- 3.8, an aggregate of indicators for collection and dissemination was far worse than for air quality data. Of semination, shows that more than half of countries 25 countries assessed for availability of water quality 58 Chapter 3. Access Hurdles • role ofaccessrights: contamination crisisprovides several lessonsonthe information thatwas notusefultothepublic.Thewater tion, butfromalackofappropriatepublicityand water debacledidnotarisefromanabsenceofinforma- it mustbebothpublicized accountability. Even whereinformationis available, public participationmorediffi lic accesstothatinformationisabsent,whichmakes with excellentcapacitytomonitorwater quality, pub- Collection ofdataisnotenough.Even inthoseplaces Lessons: PublicizingEnvironmentalInformation in water qualitymonitoring. collection, analysis, anddissemination—arepervasive weaknesses inallaspectsofinformationprovision— “weak” ranking.Taken together, thesedatasuggestthat monitoring informationontheInternet,21 received a effectively notifyresidentsoftheproblemwasmorediffi cultto impacts. Yet thequestionofhowgovernment hadfailedto Fortunately, EPA studiesshowedthatthere werefewpublichealth no moreletters,”saidCole(Spencer2004). the situationforpublic,governmentneedsto“knockondoors, replacement, andcompensatetheplaintiffsfordamages.To clarify notifi cationtoaffectedresidents,paythefull costofleadpipe activist, JimMeyers,whocalledonthegovernmenttogiveclear against WASA byayounglawyer, ChrisCole,andaneighborhood Citizen 2004).AlsoinMarch,aclassactionlawsuitwaslaunched took partinaprotestatCityHallledbyCSOcoalition(Public had activelycovereduptheproblem.OnMarch18,nearly100people Community organizationsandelectedleadersconcludedthatWASA org. Neighborhoodmeetingsalsowereheldtodiscusstheissue. launching InternetsiteslikePureWaterDC.com andWaterForDCKids. public organizedtoshareinformationandcirculatepetitionsby messages emergingfromWASA andotherpublicagencies.The Expressions ofpublicfrustrationgrewinresponsetothemixed residents shouldtaketoprotecttheirhealth. other andcreatedconfusionaboutwhowasatriskwhatsteps communications fromWASA andotheragenciescontradictedeach tap watertobetestedforleadcontamination.Successivepublic and overwhelmedwatertestinglaboratorieswithrequestsfortheir changed rapidly. ResidentsinundatedWASA’s waterhotlinewithcalls Months later, whentheissuebecamefront-pagenews,situation BOX 3.5 quality datalag farbehindmonitoringcapacity. Analysis anddisseminationofregularairwater

continued

and useful cult, inturnlessening . Washington’s Voice and Choice: • • • • Studies”. The fullstory, includingsources,canbefoundin“Appendix3:Case and canactupon. communicated totheminamediumandsettingtheyunderstand across contexts,andthatpeopleneedenvironmentalinformation to-face communication,suggestingboththatsituationsareunique that provedmostproblematicinthissituation,butalackofface- This casedemonstratesthatitwasnotanabsenceoftechnicaldata inquiry intoEPA’s ownoversightfailures. as EPA administrativeorderscensuringWASA, andacongressional commissioned bygovernmentandcivilsocietyorganizations,aswell to theleadcontaminationresultedinindependentinvestigations answer. Thepublicoutcryaboutthegovernment’s initialresponse were discoveredinthedrinkingwater. Citizens inWashington, DCdemandanswersafterhighlevelsoflead sustained engagementby many stakeholders. that hadallowed theissue tobeneglectedrequired However, movement ontheinstitutional problems became urgent,even withlittlepublicinvolvement. contaminated water moved forward rapidlyonce it In theWashington case, atechnicalsolution tothe in thelong-termthanforaddressingemergencies. may bemoreimportantforpreventing problems Without adequatepreparation,publicparticipation delay andneglectinsolvingimportantproblems. Lack ofcoordinationamongagenciescanleadto individuals andgovernment players. sense ofurgencythatcanpromptactionfromboth The mediacanplay animportantroleinfosteringa individual citizensaretotakeeffective action. urgency ofgovernment informationmattersif not sufﬁ Simply providing informationtothepublicis cient toprotectpublichealth.Clarityand Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

FIGURE 3.9 ACCESS TO INFORMATION: RANKINGS FOR WATER QUALITY DATA (n = water quality monitoring systems)

Mandate for releasing monitoring information (25) 14 13

Number and diversity of monitored parameters (26) 7 10 8

Monitored information available on the Internet (25) 21 2 2

Free public access to monitoring reports (23) 18 3 2

Weak Intermediate Strong 59

The quality of regular water quality monitoring information varied in the number and diversity of monitored parameters. Legal mandates were weak for information release, and likely as a consequence, the public had little access to public information.

Individuals responsible for motivating the public issue; (c) the news media and secondary channels of would likely meet with more success by disseminating communication (teachers, CSOs, local governments); environmental and public health information through and (d) those who need to change their practices to channels most appropriate to the particular culture solve environmental problems (adapted from Jin et al. Chapter 3. Access Hurdles in which they are working. This might mean visiting 2006). houses of worship, going from house-to-house, or com- municating through soap operas, street theater, or other Agencies responsible for public education need to use popular means. specifi c mediums of communication and techniques to disseminate information, especially to socially excluded USABILITY groups. Many factors can play a role in how a given Data is useful by itself. But without suffi cient techni- target audience will receive, comprehend, and employ cal expertise or explanation it is meaningless for the environmental information to their advantage. These broader public. At times, governments amass impres- include levels of literacy; television ownership; access sive quantities of data of high quality and considerable to computers; Internet and cell phone use; language completeness. Yet if the material remains unusable by barriers; and the level of education about environmen- the public, it will be of practical value to fewer individu- tal issues. Here we present evidence from state-of-the- als and organizations. The use of appropriate media environment reports demonstrating a common short- outlets, formats, and content to target specifi c audiences, coming: even in those countries with otherwise strong foster wider public interest in environmental issues, and collection capacity, “data” are often not transformed ensure public health depends on governments putting into “information.” In other cases, no effort is made to a high priority on communication. Some governments gather that data. contract preparation and presentation of environmental information out to private advertising or education Access to Information: State of the Environment Reports fi rms and others coordinate with environmental educa- Many governments produce state of the environment tion CSOs. Either way, the usability of environmental (SoE) reports. At times, these are comprehensive, information is crucial if it is to have an impact. including air, water, soil, biodiversity, and quality of life indicators. Others are issued by individual ministries or There are several key audiences for environmental infor- departments and cover their respective sectors or man- mation to support public participation, including (a) dates. Government departments may issue SoE reports local residents directly affected by environmental degra- focusing on different areas of practice. Still others con- dation or improvement; (b) government staff required tract out the work of reporting to independent monitors to carry out work regarding a particular environmental such as CSOs or universities (TAI 2003). 60 Chapter 3. Access Hurdles using avariety ofgraphictoolstohelpreaders under- such analyses tosectoralpoliciesandprojects, and cation ofanalyses basedonmonitoringdata,linking state oftheenvironmentreports, emphasizingpubli- what mustbedonetoimprove thequalityofexisting The TAI regionalreportforEuropemakesacase presented tothepublic. strong rankingsinhow well thefi “rankings” inoutreachtothemedia,andonlyonehad mation theycontained.Nonewas judgedtohave strong reports hadstrongmandatestodisseminatetheinfor- information showed thegreatestgaps. Onlytwo SoE collection andanalysis capabilities. Disseminationof were ranked“weak,” demonstratinggenerallysuffi tors, andtrendsetspresented,whilelessthanathird “strong” rankingsinthenumberofdatasets, indica- In theTAI assessments, fewer thanhalfofSoEsreceived reports were poorlydisseminated. second categoryofcountrieshadSoEreports, butthe to disseminateSoEsfrommorethanoneministry. A number isconservative; somecountrieshave mandates mandate todisseminateSoEreportsthepublic.This shows thisgap,withover halfofcountrieslackinga nated, ornoagencyissuedareportatall.Figure3.10 In others, reportswere producedandpoorlydissemi- cases, someministriesproducedthereportsvoluntarily. national-level mandatesrequiringSoEreports. Inthese fell intotwo categories. Afi National SoEreportingreviewed by TAI coalitions FIGURE 3.10 collect data. Assessments ofstatetheenvironmentreportsoftenshowedweakmandatestodisseminateinformationandmediocrepresentation Number ofcoredatasets,indicators,andtrend Mandate todisseminateStateoftheEnvironment State oftheEnvironmentreports,howwellis sets providedinstateoftheEnvironmentreport Quality ofinformationaccessibletopublicin Efforts toreachmassmediawithlaunchof information presentedtothepublic ACCESSTOINFORMATION: RANKINGSFORSTATE OFTHEENVIRONMENTREPORTS State oftheEnvironmentreport reports tothepublic rst setofcountrieslacked nal informationwas (34) (30) (27) (29) cient 7 8 ek nemdae Strong Intermediate Weak Voice and Choice: improved. situations (Hungary),thelevel ofusabilitycouldbe Box 3.6shows thateven inoneofthebestperforming 2006). stand environmentaltrendsandconditions(Kissetal. specifi Signifi public istobecomebettereducatedandmoreengaged. ply having dataavailable isnotenoughifthegeneral most affectedby decisionsaboutnaturalresources. Sim- efforts toprioritizedelivery ofinformationtothose it isneededmost.Governments shouldmaketargeted issues facingeachsocietyendsupinthoseplaceswhere information onthegreatvariety ofenvironmental governments arenotproactive intryingtoensurethat public. According toTAI assessments, however, many time makingtheinformationusableforgeneral capacity tocollectinformation,stillothershave ahard regard toinformationcapacity. Whilesomelackthe Different countrieshave very differentneedswith Lessons: MakingInformationUsefulandUsable of theseaudiences. explicit informationcampaigns thataddresstheneeds time andenergyidentifying targetaudiencesandcreate carry thisout,governments would needtodedicate staff data behindproposedpolicies andprojects. Inorder to educating theyoung, orhelpingvoters understandthe include reportsaimedatinvolving particularindustries, 18 c informationforspecifi cant reformscouldmandatetheproductionof 23 8 Opening theDoortoEnvironmental Democracy 19 (n despitegenerallygoodabilityto c audiences. Thismight =reports 14 13 ) 7 2 1 Voice and Choice: Opening the Door to Environmental Democracy

BOX 3.6 STATE OF THE ENVIRONMENT, HUNGARY: THE IMPORTANCE OF USABILITY

“Everybody is entitled to get to know the facts, data concerning the environment, thus especially the state of environment, the extent of environmental burden and use of environment, that of environmental pollution, the environmental activity, projects and programs, as well as the environmental effects produced on human health.” — Paragraph (1) of Article 12 of the Hungarian Act on Environmental Protection

The form, frequency, and scope of state of the environment (SoE) reports vary from country to country. In Hungary, these reports 61 are largely statistical and include three publications: State of the Environment Indicators, The Environmental Data Compendium, and Danube River ﬂ oods city streets in Budapest, 2006. The Statistical Compendium (a joint publication of the Statistical Ofﬁ ce with several ministries). While some countries contract out TAI coalition found no effort by the Ministry of Environment and the task of preparing such reports to CSOs or the private sector, Water to make the information understandable to the general Hungary’s SoE report is the responsibility of the Ministry of the public. This could include thematic posters; brochures; articles; or Environment and Water. studies for different target groups, such as industry, students, and environmental CSOs as well as the general public. The Ministry of the Environment and Water designates a team of

scientists and specialists to gather the data speciﬁ cally for the The SoE report notwithstanding, few of the relevant ministers Chapter 3. Access Hurdles SoE reports. Relative to many other countries, this team is given showed willingness to invest time and money in the “usability” of considerable freedom. Interestingly, and perhaps as a consequence environmental information—to make it more accessible or more of its autonomy from other agencies and its integration into attractive to the public, according to the Hungarian TAI report. When the government, Hungary received the highest marks in the TAI the Hungarian coalition interviewed staff at one of the environmental assessment indicator “Number of core data sets, indicators, and inspectorates, the interviewees considered the supplementary trend data sets provided in the SoE report.” materials reasonable and useful, but also said they lacked the public relations personnel to handle the task of creating and disseminating While Hungary SoE reports have been largely successful, its this information. dissemination can be improved. Although the report is published in full book form, an abbreviated version, and a CD, the Hungarian Sources: TAI - Hungary 2004b; Anderson et al. 1999

Fostering a Culture of Openness ects they think will enhance the well-being of their Often, both elected and appointed offi cials, with the constituents, aid economic growth, or improve their best interest of the public and the environment in chances of re-election or reappointment. Participatory mind, see environmental decision-making as a tradeoff processes sometimes risk arriving at a “lowest common between a technical, data-driven analysis and a more denominator decision.” Such decisions can leave many democratic, opinion-driven process (Snell and Cowell stakeholders dissatisfi ed and a number of problems 2006). While many may attempt to strike a balance unresolved. between these two extremes, such hesitation slows the rate at which public participation will be widely inte- In a study of decisions made during environmental grated into public decision-making. impact assessments in the United Kingdom, Snell and Cowell (2006) found that planning offi cials saw them- The concerns of planners and policy-makers are under- selves as balancing two extremes: a participatory, open standable. The time required for effective participatory approach on the one hand and a technical and effi cient decision-making may be seen as an unacceptable cost method on the other. As a result, their behavior was by politicians who are in offi ce for limited periods of mixed. While many offi cials included environmental time. They may seek quick turnaround times for proj- concerns out of fear of legal action, a signifi cant num- 62 Chapter 3. Access Hurdles of trustandcooperation amongstakeholders. Active participation processitselfcan increasethelikelihood stand theproblemathand. Educationaboutthepublic social norms, andeducatethepublictobetterunder- information canengenderstakeholder interest,affect making process. Publicnotice, advertising, andearly Public offi ments forAccess” discussesthesethemes.) however, remain.(“Chapter2:StrengtheningtheArgu- improve theprocessesby whichthepubliccontributes, tive basisforpublicparticipationandtheimperative to In certaincases, thismay infactbetrue. Thenorma- of thepublicdiminishesoddsqualityoutcomes. almost seemintuitive thatthelower technicalexpertise made throughpublicparticipationarenotnew. Itmay Concerns aboutthequalityofenvironmentaldecisions UNITING TECHNICALANDPOPULARVIEWS processes. the mechanicsandcontextofopendecision-making requires publicadministratorstotakeacloserlookat justify abandonmentofpublicparticipation.Infact,it Frustration withthesepossibilities, however, doesnot (d) risksofcausingconfusion. need forearlyfi on groundsof(a)decision-makingeffi ber oftendismissedpublicparticipationrequirements FIGURE 3.11 Public participation,aspracticed,doesnotmeetthenecessaryconditionstocreateaninformedpublic. ( Lead timefornotifi cationofdraftprojectdocuments Existence andavailabilityoflocalpermitsother project documents(e.g.vagreements,contracts)at populations potentiallyaffectedbyproposedproject Consultations onproject-leveldecisionsheldwith Quality ofinformationsupportingparticipationin Degree ofexternalconsultationindefi ningthe cials canimprove outcomesofthedecision- PUBLICPARTICIPATION: RANKINGSFORPUBLICPARTICIPATION AT THEPROJECTLEVEL parameters orscopeoftheproject ling ofdocuments, (c) fearofdelay, and n = project-level decision-making project-level casestudies public registries/records ciency, (b)the (27) (31) (34) (32 (29) ) ) Voice and Choice: ek nemdae Strong Intermediate Weak and socialsustainabilityoftheultimatedecision. ity ofinformationgreatlyimpactstheenvironmental to endorsement,rejection,orrevision.Finally, thequal- involvement suggeststhatparticipantswillcontribute options foragiven policyorprojectwhilelaterpublic lier publicparticipationshouldincreasethediversity of ity andimpactofdecisionoutcomes. Presumably, ear- The timingofparticipationmay alsoinfl a widerrangeofpossiblesolutions. underrepresented groups, willincreasethelikelihoodof recruitment ofavariety ofstakeholders, especiallyfrom no casedemonstrated “strong”publicparticipation in a projectwas uncommon(onethirdofcaseshadit); for quality).Earlyconsultation inthescopingphaseof or decision-making(7in10 received “weak” rankings ity thatwould contributetobetterpublicunderstanding lead timeofdraftprojectdocuments)ornotaqual- advance notice(7in10 received “weak” rankingsfor mation was unavailable tothepublicwithsuffi TAI assessmentsof34localprojectssuggeststhatinfor- tions andpublicmeetingsdidoccur, evidencefrom whatsoever withtheaffectedpublic.Whereconsulta- by TAI coalitions inthisreporthadnoconsultation pation attheprojectlevel. Halfoftheprojectsevaluated bypassed. Figure3.11 refl contribute tothequalityofdecisionoutputsareoften As thecasessuggest,considerationsthatwould likely Public ParticipationattheProjectandPolicyLevels 16 17 19 19 24 Opening theDoortoEnvironmental Democracy ects thestateofpublicpartici- 12 10 6 10 uence thequal- 10 4 4 cient 2 Voice and Choice: Opening the Door to Environmental Democracy

these early phases. Just over half of the cases did not public input might begin by informing the public about have relevant documentation—local permits and other opportunities for participation. project documents such as concessionary agreements or contracts at public consultations—available for public BUILDING A CULTURE OF OPENNESS review during the decision-making process. Costs to the public of participating in decision-making can be signifi cant. Often, participants must invest sub- At the policy level, there was signifi cantly more oppor- stantial time and resources in gathering information, tunity for the public to participate, but the conditions formulating positions, attending meetings, drafting that would likely lead to policies that were both tech- communications, and monitoring or contesting deci- nically sound and legitimate were frequently lacking. sions. Especially for the poor, the need for such invest- Figure 3.12 demonstrates that in 29 of the 51 cases ment can severely discourage participation. studied by the TAI coalitions, the lead time for notifi - cation of the draft was insuffi cient. The quality of the Governments intent on encouraging participation often information about the public participation process attempt to lower the costs and the risks of participation 63 and the timeliness of reports on the outcomes of the for the public. This might mean reductions in travel process received rankings of weak in three-fi fths and time, costs, or risks due to travel. Where appropriate, nearly three quarters of the cases respectively. Three the quality of participation can be improved by a num- fourths of cases surveyed showed that draft policies ber of elements, such as (a) electronic participation were available beforehand. The majority of cases also mechanisms, (b) ensuring that participation takes place had some participation, although two in fi ve had weak in a safe area, (c) scheduling participation around work or no participation. Similarly, just under half of cases and family schedules, and (d) making mothers with had weak or no consultation during the early phases children welcome. This requires minimizing threats of of policy-making. violence and reprisal for participants. Finally, and per- Chapter 3. Access Hurdles haps most importantly, all individuals make a cost-ben- Box 3.7 discusses a situation in Sri Lanka in which a efi t analysis when they decide whether to participate. In technical decision to change a roadway without con- other words, individuals must weight the chance they sulting many of the affected parties led to protracted have of infl uencing the outcome over the cost of par- confl ict between citizens and the government. ticipating. Therefore, those participatory processes that help inform and hold offi cials accountable are likely to Lessons: Technical Bias, Quality of Information, and the Timing of be well-attended. Public Participation Cases studied fell into two broad categories with regard Additionally, if participation is to refl ect environmen- to public participation. The fi rst category described tal values, then those values must be part of the public situations where project planning lacked public par- discourse. Public school systems are a key site for cul- ticipation altogether. These cases may be due to gaps tivating the values and knowledge to promote fair and in the law concerning public hearings or consultation effective decisions affecting the environment. Govern- in environmental impact assessment, or they may rep- ments interested in cultivating active citizens could resent violations of the law, situations where enforce- train teachers to instruct students on the uses of access ment of public participation is lax. The second category principles. This might mean that students would learn of cases did not often constitute those “best practices” not just about national laws, as they do in many coun- that would improve both the quantity and quality of tries, but about how decisions are made at the local public decision-making—such as early, available, pub- level, especially for those issues affecting the day-to-day licized, and usable information about a project and quality of life—choices about land use, waste disposal, early consultation with affected groups. It is diffi cult public transportation, agriculture, livelihoods, and air to argue that public input is of a generally lower qual- and water quality—and where they can participate in ity than expert input when evidence from TAI assess- those decision-making processes. ments strongly suggest that few attempts are made by decision-makers to provide the public with informa- Capacity Building: General Public tion and opportunities for infl uence at an early enough TAI reports included in Voice and Choice looked at the stage to ensure meaningful and thoughtful participa- absence or presence of teacher training and materi- tory decision-making. Efforts to improve the quality of als on environmental education. Teacher training in 64 Chapter 3. Access Hurdles route despitelegalrequirementsto doso. consultation) afterthenewproposal forthedeviationofapproved supplementary EIAprocesshadbeen carriedout(includingpublic recognized methodsofpublicparticipation. Finally, nonew lacked suffi cientskillsandtrainingtocarryoutdocument addition, thereportstatedthatstaffinvolvedinresettlement crowded publicbuildingsorontheindividualhouseholdlevel.In inadequate atthevillagelevel.Allmeetingshadbeenheldin The ADB’s compliancereviewalsofoundthatconsultationswere documents werealsounavailable. Maps ofplannedroutesandrelevantsummariesgoverning entitlement packageswereunavailableinthevernacularSinhalese. Documents suchasthecompensationmatrixandindividual more detailsandtransparencybeforeagreeingtocompensation. had actedrudely, intimidatingandthreateningthosewhorequested during theprocessoflandacquisitionforhighway, theauthorities participation. AccordingtotheADB’s internalcompliancereview, their ownstandardsinregardtoaccessinformationandpublic The GovernmentandtheAsianDevelopmentBankfailedtomeet the disruptionofcommunitysocialstructures. the handsofoffi cials,thedestructionofwetlands andholysites, involuntary resettlement,inadequateinformation,mistreatmentat of publicparticipation,thepetitionersincasecomplained their propertytobegintakingmeasurements.Inadditionlack learned abouttheplanwhenSurveyDepartmentoffi cersarrivedon approved routeandmostresidentsaffectedbythedeviationonly public hadnotbeenconsultedinthedecisiontodeviatefrom agencies inchargeovertwodeviationsthechosenroute.The Interest LawFoundation,broughtasuitagainstthegovernment Colombo-Matara Highway, supportedbyaTAI member, thePublic themselves TheJointOrganizationoftheAffectedCommunitieson In March2000,acoalitionofcommunity-basedorganizationscalling of civilsociety—hadchosenonetwoproposedroutes. process leadinguptothis,offi cials—havingconsultedwithmembers Colombo, toanumberofsouthwesterncities.Duringtheplanning to constructa128kmmulti-lanehighwayfromthenationalcapital, International Cooperation,andtheSriLankanGovernmentagreed In November1999,theAsianDevelopmentBank,JapanBankfor laws. continued needforreformandenforcementofexistingparticipation the constructionshowsimportanceofaccesstojusticeand participation law, highwayconstructioncontinued.Thelawsuittohalt in project-leveldecisions.Despitenumerousviolationsofpublic This storydemonstratestypicalhurdlestopublicparticipation BOX 3.7 FIGHTINGFORACCESSINSRILANKA:THESOUTHERNTRANSPORTDEVELOPMENTPROJECT Voice and Choice: OHCHR. International CovenantonCiviland PoliticalRights.” communications inadmissibleundertheOptionalProtocolto 2006. United NationsInternationalCovenantonCivilandPoliticalRights. Sri Lanka. Public InterestLawFoundation.2007. Manila: AsianDevelopmentBank. Facilitator ontheSouthernTransport DevelopmentProjectSriLanka. Asian DevelopmentBank.2005. Sources: cannot expecttoresolvetheirdemandsincourt. ahead oftime,thismeansthatconsiderablenumbersthepoor petitioners whocannotfi ndlawyersoffering voluntery equal totheaverageannualincomeinSriLanka:$850.Giventhat claimants, thecostsofbringingasuit,includinglegalfees,are were inEnglish.Furthermore,accordingtointerviewswiththe language ofthosemostdirectlyaffected.Mostthesedocuments few ofthecourtdocumentsorproceduraldocumentationwerein had littleaccesstoregularinformationfromthecourt.Additionally, rights. Thegovernmentalsoperformedpoorlybecauseclaimants to makesurethatthepublichadadequatecapacityexercisetheir bring thecaseandtoappealthatcase,butscoredpoorlyinefforts case scoredwellonbasiclawssuchasavailabilityofaforumto Appeals. AnalyzedintheSriLankaTAI Assessment,thisparticular In August2002,thepetitionersbroughttheirclaimstoCourtof “Decisions oftheHumanRightsCommitteedeclaring Unpublished. Opening theDoortoEnvironmental Democracy Final reportoftheSpecialProject The AccessInitiativeReport:

Geneva, UN work mustpay

Voice and Choice: Opening the Door to Environmental Democracy

FIGURE 3.12 PUBLIC PARTICIPATION: RANKINGS FOR PUBLIC PARTICIPATION AT THE POLICY LEVEL (n = policy-making process case studies)

Lead time for notiﬁ cation of draft policy, strategy, 29 18 4 plan, program, or legislation (51)

Quality of information supporting participation in policy, strategy, plan, program, or legislation 23 15 2 (40)

Existence and availability of policies, strategies, plans, programs, and laws at 12 23 12 public registries/records (47)

Degree of external consultation in deﬁ ning the parameters or scope of policy, strategy, plan, 18 18 8 65 program, or legislation (44)

Comprehensiveness of consultation at drafting stage of policy, strategy, plan, program, 19 21 3 or legislation (43)

Timeliness of information given to the public about outcomes of consultations in development of policy, 29 9 4 strategy, plan, program, or legislation (42)

Weak Intermediate Strong Chapter 3. Access Hurdles

environmental education seems to be proceeding well environmental education in their curriculum. Some in a number of countries, but still requires growth integrated environmental education with social studies, in others. Forthcoming TAI assessments will include highlighting the importance of human use of natural a broader range of indicators on environmental and resources. None of the TAI reports, however, found civic education. that any of the curriculums surveyed explicitly taught students how to use access rights—for example, how While many governments require civic education and to prepare a petition to their local government or a many also make environmental education compulsory, freedom-of-information request. In still other countries, few integrate the two subjects. Box 3.8 provides a prom- those with “weak” rankings, an environmental curricu- ising example of such integration in South Africa. Of lum was required or under development by the govern- course, education systems vary widely and must ﬁ t the ment, but training and textbooks were not available to needs and aspirations of local populations. TAI partners teachers at the classroom level (see Figure 3.13). measured the quality of environmental education in their countries. According to TAI studies, 71 percent of With respect to civic education, however, few if any of national educational systems surveyed include some the curriculums surveyed included education on how

FIGURE 3.13 CAPACITY BUILDING: RANKINGS FOR CAPACITY-BUILDING FOR THE GENERAL PUBLIC (n = countries)

Public capacity — Teacher training and materials 7 13 4 for environmental education (24) Weak Intermediate Strong

Efforts to provide environmental education vary widely by country. 66 Chapter 3. Access Hurdles governed nation. cal knowledge theyneedtobegoodcitizensinawell- not necessarilyequipthem withthevalues andpracti- the courts. Teaching studentsaboutgovernment does ing orhow tochallengeagovernment decisionbefore pate inalocalgovernment planningcommitteehear- in decision-making.Few studentslearnhow topartici- individuals canaccessthegovernment andparticipate Source: TAI -SouthAfrica2002 of EEatthecommunitylevelispossible. government andsupportfromtheprivatesector, extensivedelivery them. Withongoingcommitmentfrombothnationalandprovincial they arebothrelevanttoallsectorsofsocietyandusedby and programsavailable,whileatthesametimeensuringthat in meetingthetwinaccesschallengesofmakingEEresources provincial government)andtheprivatesectorhaverolestoplay appear tobeinplace.Boththegovernment(particularly The structuresandprocessesfordeliveryofEEinSouthAfrica The WayAhead them, orbecausetheydonotseethemasrelevanttotheirlives. access toEEresources,eitherbecausetheydonotknowabout in someprovincesandmanymarginalareas,whodonothave Cautious: provinces. nongovernment representativesengagedinEEallnine Affi rmative: South Africa?”,theanswermustbeacautiousaffi rmative. the publichaveunrestrictedaccesstoEnvironmentalEducationin nongovernment supportforEE.Inanswertothequestion“...Does Cape, seemtohaveahealthymixofbothgovernmentand other provinces,notablyKwaZuluHatal,GautengandWestern there isadearthofprivatesectorsupportforthem.Bycontrast, EE specialistsinplacetoprovideprogramsthepublic, the provinces.Whileallprovinceshaveprovinciallyemployed support forEEprogramsandresourceproductioninsomeof A signifi cantconcernrelatestothedistributionofnongovernment organizations. EE iswellsupportedbybothgovernmentandnongovernment among the[SouthernAfrican]countriesanditappearsthat the mostenvironmentaleducation(EE)programsandresources There isampleevidencethatSouthAfricaasawholehasbyfar From the BOX 3.8 CAUTIOUSOPTIMISM:ENVIRONMENTAL EDUCATION

Becausetherearestillmanycommunities,particularly TAI AssessmentforSouthAfrica IN SOUTHAFRICA Because therearemanygovernmentand : Voice and Choice: are criticalinbuildinglong-termcitizenparticipation. Students inMalawiclassroom.Environmentaleducationandcivic governance values. zens whoaredemocratically aware andpracticegood community service)willcontribute todeveloping citi- and theneighborhood(social serviceorganizationsand newspapers), peers(includingyouth organizations) and theavailability ofeducationalresourcessuchas classroom, andschoolculture),home(parentinterests ing inthestructureofschooling(includingcurriculum, good citizenship.Embeddinggovernance learn- and adolescentslearningaboutgoodgovernance and resources, peers, andschoolsallcontributetochildren according toTorney-Purta etal.(2001). Families, home thinking andactioninthesocialpoliticalworld,” school serve asa‘nested’contextforyoung people’s day lives ofyoung peopleinhomes, withpeersandat attitudes (Torney-Purta andAmadeo2004). “Theevery- have generallyfailedtoimprove democraticvalues and improving thecivicknowledge ofstudents, butthey Civic educationprogramshave hadsomesuccessin Lessons: BuildingaCultureofParticipation Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

A 2002 study by USAID examined both adult and • address barriers to regular participation in the school-based civic education programs in several coun- program and design around those obstacles; tries (Hansen 2002). The study sought to measure the • use as many participatory methods as possible; impact of these education programs on key aspects of democratic behaviors and attitudes. First, the study • build opportunities for participation directly into the showed that adult civic education contributed to “sig- program through CSOs and political engagement; nifi cantly greater rates of political participation among • focus on themes that are directly relevant to program participants, especially at the local level.” participants’ daily lives, such as piggybacking Second, the programs led to “moderate, but still signifi - learning on active live problems that lend themselves cant, differences in participants’ knowledge about their to political solutions; political system and about democratic structures and institutions in general.” Third, they contributed to “a • invest in training the trainers; greater sense of political effi cacy.” • use voluntary associations for recruiting participants since these are more ready for learning; 67 While these positive gains were considerable, the educa- • pay attention to gender issues and where possible tion programs appeared to have “little effect on chang- take steps to address connected gender-related ing democratic values, such as political tolerance and barriers; sometimes negatively affected some values such as trust in political institutions.” Civic education encourages • keep expectations of political institutions at critical thinking about political problems and defi - reasonable and realistic levels; and ciencies in existing institutions. To the extent that this • involve parents, teachers, and school administrators builds pressure for reform, this factor can be turned to and do as much as possible to help them practice good effect. A short-term decline in trust in government Chapter 3. Access Hurdles these values in their homes, community, and the institutions could be a fi rst step in understanding where school environment. political institutions need to be strengthened. Beyond public schooling for children and young adults, The study also showed that men tend to receive greater governments must necessarily promote education for benefi ts from civic education than women. It suggests adults through public media, especially advertising that “increasing women’s participation is considerably campaigns, radio, and television. A combination of more diffi cult than simply changing attitudes or a sense improved civic education programs, space at the fam- of empowerment.” In most countries, women face more ily and local levels for the culture of participation and obstacles to political participation than men. These democracy to take root, and more participation oppor- include lack of resources and cultural barriers, espe- tunities opened up by governments in key decision- cially in the developing world. To reduce this gender making processes can contribute to access. gap, programs to address these barriers are needed in addition to civic education. Investing in Access Capacity Course design and quality were critical to the success of As discussed in Chapter 1, access is, in its simplest form, civic education programs for adults and students alike. a situation of supply and demand between government Such programs are most effective when: and civil society. If access is to foster greater policy choices and to allow environmental values in decision- • there are more than three sessions; making, both government and civil society capacity • methods are participatory, such as the use of need to be strengthened. breakout groups, dramatizations, role-playing, problem-solving, activities, simulations, and mock Fostering meaningful public participation in decisions political or judicial activities; and that affect the environment will always require funding. • teachers are knowledgeable and inspiring. As government agencies and civil society organizations work to provide and operationalize access rights, they Good civic education programs promoting good gover- must prioritize reform and innovation. Broadly speak- nance would: ing, the cost of access falls on governments, the public, and on regulated entities. In order to supply greater 68 Chapter 3. Access Hurdles • • lowing activities: decisions, governments mustbearthecostoffol- appropriate informationhelpsthepublictoinfl public accesstodecision-making,andmakesurethat justice. One oftheworkshopsEnvironmentalLawTraining programforjudgesinIndonesia.Coursessuchasthisarenecessarytop – – Public Participation: – – – – – Access toInformation: providing information neededforeffective public notifi improving thequalityandusefulnessof traininginformationoffi disseminatinginformationby mail,throughthe analyzing information collectingandmaintainingoffi participation for input,aswell asdecisions information forthepublic responses toinformationrequestsandappeals media, viapublicconsultations, andothermeans; databases cation ofproposalsand opportunities cers cial documentsand uence Voice and Choice: due totheneedunderwrite theparticipationofpoor ties areinvolved, government costsmay alsoincrease of stakeholders. Whenpoorormarginalizedcommuni- jurisdictions orengagement ofaparticularlybroadset may alsorequirecoordinationamongadministrative logically appropriatescales(forexample, watersheds) analysis, orcommunications. Makingdecisionsateco- cal complexityoftennecessitatesspecializedtraining, related mattersthanforotherdecisions, sincetechni- Many oftheabove costscanbegreaterforenvironment- • – – – – – Access toJustice: – – – enforcing decisions providing legalaid processing claims maintainingjudicialor administrative facilities trainingjudgesandlawyers analysis andresponsetopublicinput processingwrittenand oralcomments holdingpublichearings Opening theDoortoEnvironmental Democracy

rovide greateraccessto Voice and Choice: Opening the Door to Environmental Democracy

participants, as well as the need to communicate in a BUILDING CAPACITY TO SUPPLY ACCESS manner that is more effective for the poor. To implement access rights effectively, government offi - cials require knowledge of legal frameworks, practical An oft-noted cost of participation is the length of time skills, and fi nancial resources. In order to carry out and it takes to conduct a more inclusive decision-making fulfi ll the obligations outlined in Principle 10 of the Rio process. Stakeholders need to be notifi ed of an impend- Declaration, both elected and appointed offi cials must ing decision with enough time given to prepare their understand the duties and procedures involved with input to the process. This means time to gather and each access right. analyze information, consult with constituents and experts, and digest and discuss decision options. Some- At the most basic level, legislatures must be able to times a decision will require several rounds of consul- develop legal codes that guarantee access to informa- tation, or multiple consultation processes in order to tion, public participation, and access to justice. For engage the full spectrum of stakeholders. Government example, parties to the Aarhus Convention are obli- staff will need time to process, analyze, and respond to gated to incorporate these principles into legal codes 69 public input, and then to incorporate it into the fi nal and often receive technical assistance. Other national decision. In the most inclusive forms of participation, legislatures benefi t from outside assistance from inter- additional time may be required for the organic and national bodies or domestic access proponents. In unpredictable processes of negotiation, coalition-build- addition, instituting such reforms at the national level ing, and power-sharing. is often much easier than carrying out the necessary reforms at the local level, where decentralized decision- The time required for meaningful participation is some- making often falls prey to local elite interests (Ribot times viewed by corporations, investors, and govern- and Larson 2005). Legislatures must be both techni- ment offi cials as “delays.” Many may see this time as cally capable and legally empowered to write, pass, and Chapter 3. Access Hurdles delaying development, reducing profi ts, and increasing revise laws to protect access rights. project costs. However, these costs should be weighed against the increased legitimacy and time savings that The tasks involved in supplying access range from estab- can come from participation once a decision enters its lishing freedom of information specialists in executive implementation phase. Sohn et al. (2007) and much of agencies to improving archiving systems to make sure Chapter 2 make the case that increased information and that offi cial information is stored and easily retrieved. inclusive dialogue are requisites to reducing fi nancial, Ensuring meaningful public participation is even physical, operational, and reputational risks to compa- more challenging. Given the broad range of activities nies and governments engaged in communities. that fall under the rubric of public participation (see Box 2.2), public offi cials must know how to conduct The costs described thus far are all transaction costs, consultations and surveys, develop consensus among which can be reduced, managed, shared, or borne by stakeholders, and resolve disputes among parties. Also governments in the interest of transparent, inclusive, critical is the ability of public administrators to ensure and accountable decision-making. Other costs are that socially excluded parties are involved in the public political. These costs and risks, however, are less tan- participation process and are able to safely and inde- gible, and may pose more fundamental challenges to pendently voice their opinions. the implementation of access rights and the quality of their outcome. In the near future, we hope that access Access to justice obligates governments to develop dis- proponents will be able to share cost-effective innova- pute resolution mechanisms capable of resolving dis- tions that serve to strengthen capacity to demand and agreements over the availability of public information use access. Here we present the extent to which govern- as well as ensuring that the procedures for decision- ments and civil society organizations have progressed making follow protocol. Exactly how this is carried out in building capacity and have even shared the costs of can vary greatly from context to context. Some countries doing so, often across sectors. will need to set up independent forums or tribunals to ensure access to environmental justice, whereas others will be able to resolve these disputes through established courts. In countries where environmental disputes take place in remote locales, typical forums may 70 Chapter 3. Access Hurdles ruption canunderminethe independenceofoffi infl funding. Stillothersfi ered toprovide accessordonotreceive suffi than technicaldiffi Some legislatures, agencies, andjudiciarieshave more porate existinginstitutionsintomoremodernones. local disputeresolutionmechanismsorseektoincor- Consequently, training musttargetthoseinvolved in tional disputeresolutionmechanismsmay benecessary. not suffi offered inJakartaandmanyregionalcentersacrossthearchipelago. individuals, includingalmost1,000judges,attendedbasicprograms conducted inAustraliainvolved136participants.InIndonesia,1,386 programs inbothcountriestwolanguages.Theeight Australian andIndonesiantrainersworkedtogethertodeliver Sydney, workingwithpersonnelfromIASTPandICEL(TAI partner). and theAustralianCentreforEnvironmentalLawatUniversityof School ofInternationalBusinesstheUniversitySouthAustralia The trainingprogramsweredevelopedanddeliveredbystafffromthe academics werealsoincluded. made acompulsorysubjectinthelawdegreecurriculum,university nongovernmental organizations.Whenenvironmentallawwas lawyers, representativesofregionalenvironmentalagencies,and enforcement. Later, theprogramexpanded toincludepoliceoffi cers, of judgesandprosecutorsonenvironmentallawformoreeffective The legaltraininginitiallyfocusedonenhancingskillsandknowledge University. of theAustralianAgencyforInternationalDevelopmentbyMelbourne this programoperatedfrom1998to2004.Itwasmanagedonbehalf offi cialsandprivatecommunitysectors.Thesecondphaseof Government, theprogramaimedtofi llskillsgapsamongIndonesian government inIndonesia.InitiatedattherequestofIndonesian institutions promotingdemocratic,effi cient,andeffective aid programoftheAustralianGovernmentfocusedonstrengthening Indonesia AustraliaSpecializedTraining Project(IASTP),isaforeign The EnvironmentalLawTraining program,conductedunderthe making processesarefairandfullycomplywiththelaw. and educationthatwillbenecessarytoensurepublicdecision- Environmental Law(ICEL)demonstratesoneofmanyeffortsatreform governance. ThiscasestudyfromTAI partnerIndonesianCenterfor CSOs haveplayedanincreasingroleinbuildingthesupply-sideof BOX 3.9 uence fromvested intereststhroughoutsociety. Cor- ce; legalinnovations orrecognitionoftradi- GREENINGTHEJUDICIARY ININDONESIA culties. Many arenot legallyempow- nd themselves subjecttoundue cient cials. Voice and Choice: nisms forself-regulationto maintainsatisfactoryinter- subsidiary governments must buildsuffi from excessive interference, judiciaries, legislatures, and tion orincompetence. In ordertoprotectthemselves other branchesofgovernment onthebasisofcorrup- removal. Executives often justifytheirinterferenceinto lawsuits foroffi teria forjudicialadvancement, judicialimmunityfrom independence includeguaranteedtenure, objective cri- authorities. Structuralsafeguardstopromotejudicial from excessive censureby ministerialandexecutive In otherinstances, parliamentariansandjudgessuffer Thefi rstclassactionstobebroughtwere onbehalfofvictims • Withtheassistanceofsomeenvironmentallawtrainers • Therehavebeenanumberofsuccessfulprosecutionsforillegal • TheChiefJusticeofIndonesiaissuedadirectivethatonlyjudges • Thenetwork,throughitsmoralandpracticalsupportofcolleagues, • Analumniassociationconsistingof1,300traineeswasset • The outcomesfromthesetrainingprogramshavebeenencouraging: emphasized casestudiesandfi eldtrips. included goodgovernanceandaccessrights.Ahands-onapproach for 18membersoftheIndonesianSupremeCourt.Thecurriculum attended thebasiccourses.Atwo-daysymposiumwaspresented About adozenadvancedcourseswereofferedtothosewhohad issued adecisioninfavorofthevictimsandenvironment. Mandalawangi. InSeptember2003,apanelofIndonesianjudges of themajorJakartafl oodsof2002andthe landslideonMount circumstances.) class ofotherdefendantswhoseclaimsariseoutthesame one ormorepersonspursueaclaimforthemselvesanddefi ned action procedurein2002.(Aclassisaproceedingwhich and graduates,theIndonesianSupremeCourtadoptedclass completed thetraining. logging setinmotionbyprosecutorsandheardjudgeswhohave hear environmentalcases. who haveundertakentheenvironmentallawtrainingcourseshould degradation. sector whosecompanieshavebeeninvolvedinenvironmental has helpedjudgesdealwithpowerfulpersonalitiesinthebusiness developments inenvironmentallaw. keep incontactwitheachotherandtoshareinformationabout up inMarch2003.Thenetworkofalumnihelpedtraineesto cial actionandprotectionfromarbitrary Opening theDoortoEnvironmental Democracy cient mecha- Voice and Choice: Opening the Door to Environmental Democracy

nal conduct and must have control over their budget and coordination of resources. Although governments (American Bar Association 2007; Hall et al. 2002). The are ultimately responsible for fulfi lling access rights, signifi cance of these diffi culties is that capacity is more meeting public demand necessitates coordination than technical and is the product of larger institutional among civil society, business, and multiple branches of contexts. government. Aid agencies and fi scal bodies interested in building the capacity of environmental administrations Capacity Building: Governments must coordinate their activities across traditional sec- TAI assessments measured the degree to which public tors. Building institutions will likely require consider- offi cials were trained in the implementation of access able donor harmonization. As an example, the demand principles. Findings included in these studies varied for access to justice can only be successful where courts in the emphasis they placed on fi nancial support, are able to enforce their decisions. CSOs, the media, frequency, and scope of trainings. Forthcoming TAI and businesses must continue to demand fairness in assessments will incorporate separate capacity-building courts and administrative forums. rankings for each individual access pillar, as well as the 71 outcomes of those training programs. If they are to strengthen institutions such as courts or the media, individuals within these institutions will Despite methodological limitations, TAI assessments need to build up constituencies to advocate the imple- suggest that investment in access institutions often mentation and extension of access rights. Consequently, needs improvement. TAI partners measured the degree moving the access agenda forward will require new and to which each country had invested in training its offi - innovative strategic alliances and coalitions. The priori- cials to comply with legal guidelines. Figure 3.14 shows ties and binding constraints to fuller access will vary these results. Box 3.9 provides an example of one CSO greatly in each individual country. Some may already that sought to change this through helping to build the have strong courts that are able to enforce access rights. Chapter 3. Access Hurdles capacity of judges. Other countries have relatively powerful executive ministries, which may serve as the ideal venue for advocacy. Lessons: Meeting the demand for good environmental governance Access proponents would fare well by focusing on those Meeting the demand for access to decisions that affect leverage points that will open the door to greater public the environment will require a signifi cant investment participation.

TAI-Himalaya coalition of NGOs receives training on evaluating access in northern India. NGOs play a key role in building one another’s capacity. 72 Chapter 3. Access Hurdles within alocal context. each CSO, thiswillmean navigating auniquepath fundraising) andremaining loyal totheircause. For the territorybetween sustainingactivities(especially Given theseconcerns, itis crucialthatCSOsnegotiate zations totheirdomesticconstituents(Biekart1999). may lessentheaccountabilityofpublicinterestorgani- credibility ofdomesticreformers(Biekart1999)and ety asawhole. Foreign funding may underminethe funds orstaffcanmeanalossincapacityforcivilsoci- on foreignsourcesoffundingornothaving suffi sponsoring agencies. Conversely, dependingtooheavily ernments, CSOsmay fi their independence. Iftheyaretoodependentongov- constantly balancesustainabilityofCSOactivitiesand mote thegrowth ofcivilsocietyorganizationsmust Because ofthis, CSOsandoffi authoritarianism (Wiarda2003). particularly acuteincountriesrecentlyemergingfrom bring itincreasinglyundertheirsway. Thisproblemis cies wishtopromotecivilsocietywhileothersseek At thesametime, somegovernment offi rally fi with andimprove government performance, they natu- CSOs faceapeculiarbind.Whilemany wishtowork show thatanenvironmentalharmisuniquetothem. unable tobringclaimsfruitionbecausetheycannot on theirstandingincourtsandmay fi range ofinterests. Inothercases, CSOsfacelimitations and policyprocedurescanbecomeclosedtoabroad decision-making, CSOscanbeleftoutofproceedings government documentsandpublicparticipationin Without justicemechanismstoenforcetheirrights express theiropinionsinordertoshapepublicpolicy. access rights. Theyrequire informationandvenues to Public-interest CSOsaretheprimarydemandersof ACCESS BUILDING ORGANIZATIONAL CAPACITYTODEMAND Many countriesfailedtofollowuplegalreformwithsuffi cient investment. FIGURE 3.14 nd themselves inopposition topowerful offi CAPACITYBUILDING:RANKINGSFORBUILDINGGOVERMENTOFFICIALS 13 ek nemdae Strong Intermediate Weak nd themselves atthemercyof cials wishingtopro- nd themselves cials andagen- cient 12 cials. Voice and Choice: ment intheiractivities. ect levels, andcanincrease localsupportandinvolve- power ofdomesticCSOs over policy-makingandproj- In total,thesereformscanincreasethebargaining • Capacity building. Broadened standingfor environmental harm. • Tax exemptstatus. • • Seed grants. Building publicdomesticsupport. • Freedom ofassociation • of this“ThirdSector”toadvocate inthepublicinterest: ability ofCSOs, andconsequently promotethepower reforms thatfavor boththeindependenceandsustain- Nevertheless, thereareanumberofstandardsandlegal environmental decisions. membership, attractpublicity, ortoinfl of usingaccessrightsarelesslikelytofoster carry outlitigationinthenameofpublic. innovations suchasbroadenedstandinginorderto Environmental CSOs, inparticular, requirelegal and subjecttoindependentreview. Standards forsuchexemptionshouldbetransparent nonprofi competitive grantstononprofi requirements anddecision-makingprocessesfor publicity campaignsaboutpublicinterestissues. donations toCSOstaxdeductible, andsponsoring or requiringpublicserviceannouncements, making help builddomesticsupportforCSOsby subsidizing status. or excessive taxburdensduetounclearnonprofi (McGray 2007), registrationofindividualmembers, include requiringsponsorshipby localauthorities Common limitationsonfreedomofassociation often faceanumberofobstaclestoorganization. people tofreelyassociateandinteract,CSOs 3 t canreceive taxexemptions onincome. and participation( with lawsandregulationsonaccesstoinformation Government capacity—investmentincompliance Governments cansetuptransparent Opening theDoortoEnvironmental Democracy Organizations registeringas CSOs unaware oforincapable . Even incountriesthatallow 28 ) t organizations. (n Governments can =countries uence

) t Voice and Choice: Opening the Door to Environmental Democracy

FIGURE 3.15 CAPACITY BUILDING: RANKINGS FOR FRAMEWORK LAWS FOR CSOs (n = countries)

Freedom of association (23) 3 8 12

The right to a clean environment (21) 6 6 9

Tax conditions for non-governmental organizations (21) 8 12 1

Weak Intermediate Strong

Legal indicators show basic rights in place, but only moderate tax incentives. 73

Capacity Building: Civil Society Organizations highest court or national laws guaranteeing the right TAI assessments observed generally favorable condi- to a clean environment (receiving a ranking of “inter- tions for CSOs in a variety of countries. This concurs mediate”). The remaining 9 had explicit constitutional with broader fi ndings on the global growth of civil provisions guaranteeing the right to a clean environ- society (Ottaway and Carothers 2000). A key area ment. On a smaller scale, 62 percent of countries for improvement is increasing the capacity of CSOs surveyed had a general tax exemption for nongovern- to demand and use access to information and jus- mental organizations (not-for profi ts). Two in fi ve TAI tice mechanisms for the public interest where they assessments showed that NGOs face excessive taxation, Chapter 3. Access Hurdles exist. Figure 3.15 shows that 87 percent of countries and in some cases suffer extortion or harassment by assessed had “strong” or “intermediate” freedom of public offi cials. association laws, which allowed individuals to freely form organizations or meet in public or in private. Figure 3.16 suggests that governments can support the The three countries receiving “poor” rankings had capacity for CSOs to use access rights. While the major- limitations on the formation of political parties, trade ity of governments did publish information about man- unions, or CSOs. These countries had broad excep- dates to provide access to information, public participa- tions to the freedom of association, such as very loose tion, and access to justice, three in fi ve environmental defi nitions of “acts of terrorism,” which included agencies surveyed did not provide grants or subsidies to peaceful assembly, or clauses preventing association help support NGO activities. that might threaten “public morality.” While TAI assessments found that 6 of 21 countries surveyed had Box 3.10 presents the example of Latvia, which has no express right to a clean environment in their legal recently made strides in civil society capacity building. code (ranked “weak”), 6 others had rulings from the

FIGURE 3.16 CAPACITY BUILDING: RANKINGS FOR GOVERNMENT EFFORT TO BUILD CSO CAPACITY (n = countries)

Public capacity - Government funds and earmarked 20 7 4 subsidies to support non-government organization (NGO) activities (31)

Public capacity - Information about mandate and 9 12 3 point of contact (24) Weak Intermediate Strong

Basic information about government mandates to provide access and to domestic governmental funding sources leave signifi cant room for growth. 74 Chapter 3. Access Hurdles suffi must actively temperthissupportwitheffortstoremain an active roleingoverning naturalresources. Yet CSOs empower CSOstositatthe bargainingtableandtake ments cancreateenablingenvironments toinviteand tal movement andcivilsocietyasawhole. Govern- tremendous impactonthehealthofenvironmen- limitations facedby CSOscan,intheaggregate, have a this sectionhasdemonstrated,thefi tion isfamiliarwithconstantbudgetconstraints. As Anyone withexperienceinanot-for-profi Sustainability intheCSOSector Lessons: MatureRelationshipstoBalanceAutonomyand especially trueforthecountry’s nascentenvironmentalmovement. still facesquestionsofsustainabilityandpopularsupport.Thisis small parttofavorablereforms,Latvia’s civilsocietyhasgrown,but nurtured thegrowthofcivilsocietyincountry. Today, dueinno (EU) membership,lessrestrictivelawsandsteadyforeignfunding After independence,duringLatvia’s longrun-uptoEuropeanUnion came increasingliberalizationandhard-wonfreedomsofassociation. but, asthe1980sprogressed,alongwith Latvian citizenssufferedlimitationsonorganizingunderSovietrule, Much haschangedforcivilsocietyinLatviathelast20years. BOX 3.10 government grantshavebeenoneofthefewavailablesources have. Giventhelowleveloffundingbyprivatesector, guaranteed bythe2005LawonNon-GovernmentalOrganizations growth morethantaxexemptionsoreventhefreedomofassociation European EconomicZone(EEZ)grantshavestimulatedrecentCSO of TAI partnerREC-Latvia(RegionalEnvironmentalCenter),EU/ survival inLatvia.AccordingErikaLagzdina,countryoffi cedirector Favorable taxconditionsmaynotbeenoughtoguaranteeCSO Changing PatternsofFunding are tax-exempt. indirectly includegenerationofincomeorcapital,mostLatvianCSOs tax codeexemptsorganizationswhosegoalsneitherdirectlynor Latvia todevotemoreresourcestheiractivities.BecauseLatvia’s have grantedtaxexemptionsandreductions,helpingCSOsin government, butalsohighlightsfuturechallenges.Recently, laws experience illustratesthesuccessofincentivesprovidedbystate tax conditions,seedgrants,andprovisionoftraining.Latvia’s of CSOs.Tools forbuildingthecapacityofCSOsincludefavorable autonomy byprovidingproperincentivesencouragingthegrowth Governments caneffectivelysupportcivilsocietysustainabilityand An EnablingEnvironment—NecessarybutNotSuffi cient ciently independent tocarryouttheir missions. LATVIA: SNAPSHOTOFAGROWINGENVIRONMENTAL MOVEMENT glasnost nancial andlegal t organiza- and perestroika

Voice and Choice: than twoyearsago,mostworkonlargerprojectsaffectingmorepeople. interests oftheCSOsthemselves.Andwhiletherearefewertoday activities andinfl uenceforthelastfewyears,oftenlimitedonlyby legal reform.Latviancivilsocietyhasenjoyedwideopportunitiesfor government bodiesthatsupportthemwillneedmorethanjust and theconstantbattletosustaintheiractivities,CSOs decades, yetchallengesremain.Beyondthechangesinfunding There hasbeensignifi cantgrowthincivilsocietyoverthelasttwo administrative orders. or publicentities;mostconcernshavebeenhandledthrough taken judicialroutesforresolvingtheirclaimsagainstprivate are strong.However, environmentaland otherCSOshaverarely obstacles inLatvia.Someofthefundamentalsaccesstojustice Access tojusticeforcivilsocietyorganizationshasnotbeenwithout Access toJustice;Legalstatusandbroadenedstanding civil societyandthegovernment. start ofmoreinterdependentandsustainablecooperationbetween of independencefromthestate;onother, itmayrepresentthe local governments.Ontheonehand,thismayjeopardizebenefi ts CSOs tobeginraisingmoneybyworkingfornational,regional,and relationship betweenCSOsandthegovernment.Thishasledmany municipalities. ThisshiftinfundingLatviahaschangedthe for providingconsultingservicestogovernments,including on theabilityoforganizationstocompeteforgrants,particularly The long-termvitalityofthe“thirdsector”inLatviawilllikelydepend Consulting services:Workingfororwiththegovernment? with mostTAI partners. However, many TAI partners reform process(Wadell 2005). Thisisgenerallythecase between governments andCSOsarecentraltothe model,” whichimpliesthat conversation andexchange as basedona“change and dialoguedevelopmental fl must bewillingtoengageinconstructive lawful con- do exist,orwhenlitigationistheonlypath,CSOs often work together. Whensubstantive disagreements ships” necessitatethatthegovernment andcivilsociety and thegovernment. These“politicallymaturerelation- cessful reformrequirespushandpullbetween CSOs The experienceoftheTAI network hasshown thatsuc- for long-termplanningandfundraising. since thevastmajorityofCSOslackcapacityandskillsnecessary the nongovernmentalsectorinLatviawouldbeseriouslythreatened, CSO sectorfunding.Withoutgovernmentgrants,theexistenceof ict withthegovernment. A2005 reportdescribed TAI Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

have been successful using largely confrontational tactics. In Europe, for example, Environment-People-Law Chapter 3 in Summary (Ukraine) and Environmental Management and Law Association (Hungary) have brought a number of law- Findings from the TAI assessments show that political, legal, suits. Yet, members of each of these CSOs, were elected cultural, and capacity-related hurdles stand in the way of more rapid progress in implementing laws and establishing practices to the Aarhus Compliance Committee by State Parties that fulfi ll access rights. Examining these hurdles serves as a to the Aarhus Convention—the body that judges and starting point to understand where access advocates might best acts on citizen complaints about Aarhus member states’ leverage reform. compliance. Resistance to transparency initiatives is often met through the formation of coalitions of interested parties. Specifi c issue-based activism may employ strategic alliances, often across sectors. Several conclusions can be drawn from this section. First, governments must make efforts to support the Access to information, by itself, does not spur public action. Timing and message are critical. viability of the CSO sector while allowing for signifi cant independence. Second, CSOs advocating access rights Many societies lack the technical capacity and legal framework to 75 enable public participation. Remedies include an understanding must constantly negotiate the degree to which they of where gaps in the provision of environmental information collaborate with and are independent from the govern- are occurring, targeting information to specifi c audiences, and ment. correcting offi cial incentives to produce information. For the public to play a better role in working with offi cials on technical solutions, access to information regarding public participation must be improved. Innovations in capacity-building include CSOs helping to train offi cials to implement access rights, broadening the ability of CSOs to sustain themselves independently, and educating the public to use the organs of government for environmental Chapter 3. Access Hurdles decisions. Governments can take steps to provide an enabling environment for civil society growth. Likewise, CSOs can help build government capacity

Recommendations Achieving greater environmental democracy is a long-term process. Evidence from The Access Initiative country assessments and case studies suggests that improvements in access have been achieved over the 16 years since the Rio Earth Summit, but that much more remains to be done. While Voice and Choice is replete with suggestions and recommendations, this chapter presents priority areas for action that we believe—if heeded by governments, civil society groups, international organizations and businesses— will lead to improvements in access laws and immediate gains in the exercise of access rights. 78 Chapter 4. Recommendations better environmentalgovernance. the capacityofbothgovernment andcivilsocietyfor pation, buildingcoalitionsandalliances, andbuilding instituting legalreforms, mainstreaming publicpartici- recommend nextstepstostrengthenaccess, including body ofinformationgatheredby theTAI network, we the fi is adistinctneedforstrategieschange. Buildingon about sustainablechangetoensureaccessrights?There the fi (TAI), previous reportonthefi Many oftheserecommendations echothoseinthe cial andadministrative relief forcitizens. of information,andincreasingtheavailability ofjudi- public participation,raisingthequalityandaccessibility our research,provide astarting pointforimproving These recommendations, which springprimarilyfrom ACTIONS: LEGAL FRAMEWORKSFORACCESSTOINFORMATION Actions forGovernments • • to information. information arenecessarytoimprove publicaccess production andpublicationofenvironmental are notenough.Laws requiringregularproactive public accesstoenvironmentalinformation,they Even wheretheselaws formanimportantbasisfor The majorityofcountriesintheworld stilldonot. information suchasfreedomofacts. commonly hadframework laws onaccessto Problem: Mandateproactive informationproduction Enactframework laws onaccesstoinformationin ndings inthispublicationandtherapidlygrowing ndings raisesacriticalquestion:how canwe bring context withinthecountry. support, aswell asadaptationtothespecifi EIAs. Thesemechanismsneedappropriatebudget systems, stateoftheenvironment reports, and systems, regularairand water qualitymonitoring facility compliancereports, emergencyresponse mechanisms, includingbutnotlimitedtoPRTRs, defi defi countries thatdonothave them.Suchlaws must Closing theGap ne limitationsofsuchrightsnarrowly. ne accesstoinformationrightsbroadlyand

The countriesstudiedin (2002). Thesimilarityinmany of ndings ofTheAccess Initiative Voice andChoice c

Voice and Choice: POLLUTANTS INFORMATION ONCOMPLIANCEANDINDUSTRIAL ACTIONS: threat topublichealthandsafety. compliance withpollutionregulationsorifitposesa has noway ofknowing whetheranearby facilityisin The resultisthatinmany communitiesthepublic about sourcesandquantitiesofindustrialpollutants. Transfer Register thatroutinelyinformsthepublic nations stilldonothave aPollutant Release and of theirpollutantreleasedata.Inaddition,most claimed conﬁ the facilitiesexaminedinTAI countryassessments regarding theirenvironmentalreleases. Almostallof cases, facilitieshave arighttoconﬁ required toreleasethisdatathepublic.Inmost required tomonitortheirreleases, theyarerarely releases. Incaseswhereindustrialfacilitiesare require thesefacilitiestomonitororreporttheir standards forindustrialfacilities, many donot Problem: • • • • Strengthenlegalcodestoencouragethe Identifygapsinthecurrentprovision of Makethisdataavailable tothepublicon-line Establishmandatoryrequirementsforreporting information productionanddissemination. protection; andrewarding andpromoting environmental data;strengtheningwhistleblower standards forcollectionanddistributionof and distortionofdata;creatingwidelypublicized include: introductionofpenaltiesforconcealment how well theydischargetheseduties. Reform may and adjustingtheircompensation—basedon descriptions andassessingtheirperformance— related dutiesby including theseintheirjob government staffaccountablefortheiraccess- production ofinformationby governments. Hold analysis, anddissemination environmental information,includingcollection, needed toaddressthegapsuniqueeachtool. codes andadministrative and judicialmanualsare pollution releasesintheirarea. to obtainbothalocalandmacro viewofthe and Transfer Registry thatallows thepublic affected, preferablyaspartof aPollutant Release and throughchannelsmost likelytoreachthose sampling techniquestoensurehigh-qualitydata. facilities, usingstandardizedmonitoringand pollution emissionsordischargesfromindustrial

Although mostnationsadoptpollution Opening theDoortoEnvironmental Democracy dentiality regardingthepublication . Stronger speciﬁ dentiality c legal Voice and Choice: Opening the Door to Environmental Democracy

• Narrow the scope of confi dentiality claims so that • Collaborate with other partners and the media to exceptions to the public reporting requirement ensure that SoE information is widely available, are rare. Specify which classes of information publicized, and usable. must be placed in the public domain and which can remain confi dential in order to reduce INFORMATION ON EMERGENCIES AND ACCIDENTS administrative discretion in releasing information. Problem: Public access to information about environmental emergencies and accidents is INFORMATION ON AIR AND WATER QUALITY surprisingly poor in most countries assessed. Problem: In many countries there is still no Both the timeliness and quality of information government or agency mandate to monitor air on chemical spills or other potentially dangerous or water quality and provide the results of this incidents is usually inadequate to protect public monitoring to the public. Even where monitoring safety, to ensure accountability for the incident, is required, there is usually no obligation to or to help establish legal liability. Currently, most disseminate the information widely in a form that environmental accidents go unreported unless they 79 is easily understandable. In addition, when data is are observed by the public. While governments available, there may be a charge to obtain it. often do attempt to inform the public of emergency ACTIONS: evacuations or other public safety responses, there is generally no mandate to proactively make Establish or strengthen the mandate to monitor • information available as to the extent or cause of air and water quality using a robust slate of the incident, or even to ensure that emergency indicators, and include a requirement to analyze information is accurate and delivered effectively to the health and environmental implications of this the affected public. information. Chapter 4. Recommendations ACTIONS: • Require regular public release of air and water quality data and analysis and provide this data • Establish a legal mandate for timely reporting free of charge. on environmental emergencies and accidents; encourage the creation of specifi c standards for • Invest funds to increase the human, fi nancial, information content and timeliness in emergency and physical resources necessary for a robust reporting that leads to expectations of proactive monitoring system. provision of accurate information to the public. STATE OF THE ENVIRONMENT REPORTS • Establish emergency broadcast systems and Problem: Many countries still do not require their protocols for their use. Such systems should environmental ministries to compile and release take into account the latest communications information on national environmental conditions technologies—such as cell phones and text and trends. These state of the environment (SoE) messaging—in addition to conventional reports tend to be useful documents, but the agencies emergency broadcast technology and traditional responsible for producing them often do a poor job communication methods and systems. of dissemination, with limited efforts to reach out to • Establish a list of toxic substances and specifi c the news media to make their fi ndings public. hazardous substances that, if accidentally released ACTIONS: or encountered, require immediate notifi cation of nearby residents using established emergency • Establish a mandate for periodic SoE reporting— protocols. at least once every three years, if possible. • Develop clear responsibility and accountability for • Encourage the use of a standardized format for environmental reports both during and after an ease of comparability over years, and give greater emergency. This includes clarifying overlapping or attention to environmental trend data. Make these nonexistent mandates and supporting responsible data available on the Internet free of charge. agencies with adequate budgets. • Reduce jargon and improve the readability of SoE reports through greater use of graphics and other visual devices to represent data. 80 Chapter 4. Recommendations ACTIONS: PROJECT LEVELS PUBLIC PARTICIPATION AT THENATIONAL AND Problem: BUILDING THECAPACITYFORACCESS • participatory processes. of stakeholdersisaseriousshortcomingmost local development projects aredecided,theexclusion scope andgeneraloutlinesofnationalpolicies making andprojectplanning.Sincethisiswherethe effectively barredfromthe formative stagesofpolicy- process ispoorornonexistentandthepublic opportunities tocontributeearlierintheplanning the availability andtimelinessofinformationon policy formulationorprojectplanning.Frequently, levels isusuallyconfi in decision-makingatboththenationalandproject Problem: programs areoftenmissing. resources toundertakelarge capacity-building help citizensdevelop theseskills, thefi environmental decisions. Whilemany CSOscould or seekremedieswhentheyaredissatisfi information theyneed,andmakecomplaints to participateeffectively, demandandcollect the unaware oftheirrightsandlacktheskillsneeded possible. At thesametime, citizensareoften accountability fortheirroleinmakingaccess with thespiritandpracticeofaccess, aswell as instances, offi help thepublicexerciseitsaccessrights. Insome participation practices, hamperingtheirabilityto understanding ofaccesslaws andpublic members ofthejudiciarydonothave athorough • Adjust thenotifi Specifi fi environmental datamay improve thequalityof on available technical,economic,and scoping criteria.Inparticular, earlyinformation materials, suchasinitialplanningdraftsor and canreceive morecomprehensive briefi informed ofearlyparticipationopportunities participation sothatstakeholdersareadequately initial phases. opportunities forstakeholderstocontributeinthe in policyandplanningby wideningthe nal decisions. Theopportunityforthepublictoparticipate Many government offi cally targetearliercitizeninvolvement cials lackacultureofcompliance cation processforpublic ned tothelaterstagesof cials including nancial ed with ng Voice and Choice: ACTIONS: access. address barrierstoandgapsintheprovision ofpublic eral essentialactionstobringaboutaccessreformsand conclusions suggestthataccessproponentscantakesev- participation, andaccesstojustice. Ourfi benefi Actors fromallsectorsandlevels ofsocietystandto Actions forAccessProponents • • • • • • • Strengthenfreedomofassociation,build Develop inter-agencypartnershipsand Buildpartnershipswithandprovide seedmoney Increasebudgetaryresourcesdirectedtoward Access proponents mustbuildandstrengthen networks Access proponents canassertboththeinstrumental Provide greaterbudgetsupporttocitizen t fromincreasedaccesstoinformation,public mechanisms. access toinformation,justice, andparticipation for environmentalharm,andtrainCSOsin grants domestic awareness ofCSOs, provide seed usable andpublicized. ensure thatcomplexenvironmentaldatabecomes partnerships withbusinessandcivilsocietyto environmental matters. organizing andeducationaroundcivic to CSOsthathave experiencewithcommunity affected parties. participation andtosolicittheinvolvement of laws, not onlytobeaware ofandcomplywithaccess training government offi infl in order topushfor greater transparency andpublic are available toenforcetheserights. those settingswhereinternationalmechanisms rights arguments. Thishasparticularpotentialin human rights, accessadvocates candeploy human access rightshave theirbasisininternational has clearbenefi that greateraccesstoenvironmentaldecisions rights ontheirnationalagendas, theycanargue access. benefi and thatmainstreamenvironmentalvalues. education programsthatbuildparticipationskills of like-minded groupsinordertomanage and strategic alliancesandbroad-based coalitions uence. ts ofaccessrightsandthehumanbasis but topublicizeopportunitiesforcitizen , As theseadvocates continuetoplaceaccess grant tax-exemptstatus, broadenstanding Access proponentscanemploy both Opening theDoortoEnvironmental Democracy ts onanumberoflevels. Because cials includingjudges ndings and

Voice and Choice: Opening the Door to Environmental Democracy

sustain policy reform. They can begin with those A Research Agenda to Explore Public most affected by lack of access to environmental Participation and Environmental Sustainability decision-making and spread out to those who Research is needed to better understand when and how have the greatest interest in a transparency access most contributes to positive impacts and preven- and democracy agenda. Networks—including tion of harm. Key questions include: members of civil society, government, and the private sector—may serve strategic purposes • What are the key elements—legal, political, different from CSO-only coalitions. As they cultural and capacity-related—that enable public continue to work for incremental change CSOs participation to have positive on-the-ground must capitalize on major opportunities that impacts? present themselves unexpectedly or at short notice • At what stages in the policy and project planning — such as constitutional reform or international process is access most benefi cial? treaties. • What are appropriate guidelines for offi cials to • Governments and civil society can work together 81 decide what form of participation, information, and to build offi cial capacity. The proper training justice forums are suitable for given circumstances? of government offi cials requires efforts in the legislative, administrative, and judicial branches. In particular, the following research could help improve Civil society organizations can help in this the policy environment for access rights: training, as they often have well-developed access • Systematic meta-studies of accumulated case studies. expertise. • Comprehensive approaches to weighing the • Advocacy for public participation should be supportive costs and benefi ts of participation (e.g. how to of representative government. Efforts to strengthen Chapter 4. Recommendations include capacity-building benefi ts; how to apply public participation should seek to support and cost-effectiveness analysis, cost-consequences not undermine representative government. For approaches), especially those that would be usable at example, access advocates should strengthen a practical administrative level. public participation in legislative processes. • Researchers must continue to address gaps in the A Final Thought public participation literature. This includes practical research into how CSOs are selected to participate Access rights—and those individuals and institutions in national and regional policy-making, and that fulfi ll them—are at a moment of opportunity. New mechanisms for downward accountability from freedom of information acts and a push for greater “grasstops” CSOs to grass-roots community- transparency in decision-making have raised the profi le based organizations. Continued research must of access reforms. Yet improvement and institutional- address mechanisms to include the poor and ization of access rights is not assured without continued socially excluded in the decision-making process independent assessment and ongoing advocacy and col- and to limit capture of participatory processes laboration. by elites. Finally, the circumstances under which participation reinforces and strengthens other democratic institutions merits additional attention. Continued assessments of access laws and practice by TAI and others will play an essential role.

Voice and Choice: Opening the Door to Environmental Democracy

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Voice and Choice: Opening the Door to Environmental Democracy

Appendix 1 The Partnership for Principle 10

The Partnership for Principle 10 (PP10) is a global Ecuador – Civil Servant Education initiative that supports transparent, inclusive, and Centro Ecuatoriano de Derecho Ambiental (CEDA) accountable decision-making at the national level. has worked with partners in Ecuador to train more The Partnership provides a venue for governments, than 1000 civil servants (in both central and local civil society groups, and international organizations to governments), representatives of civil society, and work together to promote the accelerated implemen- academics. CEDA has worked with more than 2500 91 tation of Principle 10 so that decisions that impact citizens, in more than 68 capacity building workshops the environment are more equitable and sustainable. and 5 national forums and has also developed and Motivated by the belief that increased public access to published three training manuals (one for each access information, participation in decision-making, and right), a civil society guide, and several brochures to access to justice lead to fairer and environmentally help spread awareness of Principle 10. sound development, PP10 promotes learning across Appendix 1: The Partnership for Principle 10 national borders and encourages voluntary account- Promoting Legal Reform ability among members. For more information please Uganda – Access to Information Legislation see www.pp10.org The Government of Uganda has enacted Access to Information legislation and has established a one- PP10 members include 9 governments, 4 international stop information and documentation center to agencies, and more than 35 civil society organizations. provide the public with key government policy and Below is a sampling of recent accomplishments of PP10 other information. partners. Thailand – Drafting a Constitution The Thailand Environment Institute (TEI) has Promoting Capacity to Demand Access contributed to the drafting of the new Thai Australia – Moving Information Closer to People Constitution, and worked with King Prajadhipok’s The Australian Environmental Defense Organization Institute and the Union of Civil Unity to draft key (ANEDO) is now providing legal advice and language that would encourage public participation environmental law education directly to regional in environmental matters. TEI is also working communities who would otherwise not have direct with the Constitution Institute to establish an access to such services. ANEDO has also employed environmental court in Thailand. an Indigenous Engagement Offi cer to improve access Ecuador – Consultation Laws to justice, information, and public participation for In 2006, ECOLEX, a civil society organization, indigenous communities engaging in environmental completed its work with the government, which issues. signed into law the “Regulation of Previous Mexico – Regional Collaboration Consultation about Environment Government Mexican Federal Institute for Access to Information Decisions”. The regulation was the result of (IFAI) is building on the success of its national offi ces two years of citizen discussion led by ECOLEX and rapidly establishing offi ces in each state where involving representatives of businesses, industries, local citizens may request information. At the regional governments, CSOs, and indigenous groups. level, IFAI is working with other national governments and CSO’s to promote public access to information and create common agendas across borders. 92 Appendix 1: The Partnership for Principle 10 International –PuttingLegalandPolicy Information Online Hungary –Strengthening Contacts Chile –MappingAccess Promoting CapacitytoSupplyAccess 2004. Thesiteiscontinuouslyupdated. available freeofchargeatECOLEX.orgsinceearly decisions, andlegalpolicyliteraturehave been Ecosystem Assessments, nationallegislation,court resources ofthepartnersMillennium Organization (FAO). Thecombinedinformation and theUnitedNationsFood andAgriculture United NationsEnvironmentalProgramme(UNEP) Conservation Union(IUCN)inpartnershipwiththe law informationoperatedby TheWorld expansion ofECOLEX,thegateway toenvironmental has beenenhancedthroughthemaintenanceand laws andpoliciesrelatingtosustainabledevelopment Readily accessibleknowledge andinformationon by theMOE. endorsement andpublicationofaPP10 commitment Meeting ofTAI Europeanpartners, andtothe Aarhus Focal Point atthe2006 OctoberRegional leading toEMLA’s active involvement intheMOE the MinistryofEnvironmentandWater (MOE), Association (EMLA)strengtheneditscontactswith During 2006, Environmental ManagementandLaw both government offi regional level. Thesemaps arebeingusedtoeducate different typesofenvironmentalinformationatthe that sharecommitmentstoPP10 areresponsiblefor maps showing whichgovernment agenciesinChile Chile partnerstodesignandproduceaseriesof CSO CODESOSUR-SINERGIAS worked withPP10 cials andthepublic. Voice and Choice: Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

Appendix 2 The Electricity Governance Initiative

Principle 10 in the Electricity Sector stand. Public access to detailed analysis of demand- Policy-makers, regulators, citizens, and the interna- supply scenarios can allow people to understand the tional community are grappling with the challenges of basis on which approaches to meeting energy needs are providing access to reliable and affordable electricity, chosen. Transparency about the general terms of power and addressing major environmental issues. Through purchase agreements and public consultation as part of their advocacy, civil society groups have drawn atten- their approval can be especially helpful. Such improve- 93 tion to concerns such as affordability, access to energy, ments can also make a valuable contribution to helping and renewable energy in the electricity sector, but have curb corruption in the electricity sector. been hampered by highly restricted access to decision- Effective regulation requires more than just the right making. The Electricity Governance Initiative (EGI) is a rules, and it is vital to operationalize provisions for

collaborative effort by WRI (USA), Prayas Energy Group Appendix 2: The Electricity Governance Initiative access to information. Legal provisions—such as (India), and the National Institute of Public Finance requirements to disclose information to the public— and Policy (India), working with civil society and elec- need to be complemented with practical measures and tricity sector actors to promote inclusive, transparent, systems to make these provisions operational. These and accountable systems of governance. In 2004, EGI include databases that help citizens identify and access developed a toolkit of research questions that indicate documents, ensuring that these documents are available areas of relative strength and weakness in electric- at a reasonable cost, and that regulators make some ity decision-making processes. The indicators address effort to publicize the availability of this information. public participation, transparency, accountability, and capacity related to electricity policy and regulatory processes, with an emphasis on environmental and ACCESS TO PARTICIPATION social considerations. The toolkit was used to complete Opportunities for public participation in policy pro- assessments of electricity governance in India, Indone- cesses remain quite limited, and when consultations sia, Thailand, and the Philippines in March 2006. The are conducted, they are not taken seriously by policy- assessments suggest the following overarching trends in makers. In some cases, such as India, efforts have been implementation of Principle 10 in the electricity sector: made to collect public input on policy matters, which represents a signifi cant step forward. But this input has had little impact on the fi nal decision because effective ACCESS TO INFORMATION mechanisms to incorporate this information were not In general, very little information about the basis for in place. Under such circumstances, public participa- new policy initiatives is shared with the public. There tion—which takes no small effort or expense to coordi- is inadequate transparency about critical issues, such nate—has limited value. as the goals of electricity reform efforts and the role of independent power producers. The lack of informa- Particularly in the electricity sector, where the serious tion available about the role of consultants is a serious environmental and social impacts of electricity genera- shortfall, given that private-sector consultants have tion and transmission projects may be seen as “getting undertaken critical tasks such as preparing the eco- in the way” of economic development, stronger EIA pro- nomic analyses that justify decisions to corporatize, cedures with greater public participation are necessary. privatize, or restructure the sector, or draft new electricity laws. There is limited public input in electricity planning processes; governments need to make proactive efforts More disclosure is necessary around issues often con- to reach out to stakeholders who will represent environ- sidered too “technical” for the general public to under- mental and social interests. 94 Appendix 2: The Electricity Governance Initiative fi latory commissioninThailandhasbeenanimportant India andthePhilippines. Establishinganinterimregu- A robustlegalframework for regulationisemergingin the FreedomfromDebtCoalition. increases ontheinitiative of consumergroupssuchas has consideredandupheldrequeststoappealtariff abuse ofpower. InthePhilippines, theSupremeCourt with confl groups, andconcludedthat theprocesswas fraught of Thailandinresponsetoaclaimfi for corporatizingtheElectricityGeneratingAuthority land undertookanindependentreviewoftheprocess decisions. InThailandthe Administrative CourtofThai- tunity toappealfundamentalpolicyandregulatory groups aswell aselectricity industryactorstheoppor- independent andaccessible, allowing bothcivilsociety In allfourcountries, thecourt systems were foundtobe ACCESS TOJUSTICE rst steptothisend. icts ofinterestanddidnotprotectagainst led by consumer Voice and Choice: Source: confl decision-making, designingadequatesafeguardsagainst sive sectorwhereconfl appointment ofseniorstaffdoexist.Inacapital-inten- tive inpractice, despitethefactthatformalcriteriafor undermine theindependenceofelectricityexecu- Confl various levels ofgovernment andutilities. and thereislittlecoordinationcoherenceacross processes frequentlylackbothcredibilityandresources, ations, existingsystems areoftenweak inpractice. These for mainstreamingenvironmentalandsocialconsider- While planningprocessescanbeanimportantlever larly inthetechnicalaspectsofEIAs. staff cangettraininginenvironmentalissues, particu- administrative hierarchy. InIndonesia,energyexecutive ronmental sustainabilityinordertomove upwithinthe requires seniorstafftoacquireknowledge aboutenvi- cerns. InthePhilippines, theDepartmentofEnergy resources andbudgetarycapacitytoaddressthesecon- tutions arebeginningtoinvest inbuildinghuman and socialconsiderationsremainweak. Theseinsti- systems toencouragemainstreamingofenvironmental to environmentalandsocialconsiderations, although Electricity executive agencies areincreasinglysensitive CAPACITY icts ofinterestisasignifi icts ofinterestandpoliticalinterferencecan Nakhoodaetal.2007 Opening theDoortoEnvironmental Democracy uence ofinteresthasdominated cant challenge. Voice and Choice: Opening the Door to Environmental Democracy

Appendix 3 Case Studies

Bulgaria: Military Waste in Gabrovnica Village REACTIONS TO THE EXPERTS’ OPINION In October 2002, under the cover of street protests, activist By August 2002, BAS scientists completed their report. Petar Penchev found his way into a military base near the The study, however, was not fully released to the pub- village of Gabrovnica. He confi rmed what he and the other lic. In response, experts from BAS and the University protestors had suspected: the Bulgarian military was storing of Chemical Technology and Metallurgy, on their own obsolete missile engines, preparing them for illegal incinera- initiative, wrote a public letter based on their fi ndings, 95 tion. For Penchev, president of the environmental group expressing their disapproval of the proposal to burn Ecoglastnost (“Environmental Transparency”) Montana, the missile engines. They were specifi cally apprehensive this represented the beginning of a long campaign to expose about the health and environmental impacts from the government duplicity around the disposal of these hazards. release of harmful gases during incineration, stressing In the following days, weeks, and months Penchev and his that since the United States had long rejected similar environmental organization, as well as the organizers of the burning of missile engines, the practice was an unac- demonstrations, the Gabrovnica Citizens’ Committee, would, ceptable disposal method in Bulgaria. through an array of public tactics, denounce the secrecy of In response to the letter, citizens demanded both pub-

government plans to harbor toxic waste near their commu- Appendix 3: Case Studies nity. Their persistent activism—letters, street protests, meet- lic discussion of the report and the completion of an ings with the media, FOIA requests, and direct engagement environmental impact assessment (EIA). Government of offi cials—over the course of nearly two years, would main- response to these requests was ambiguous at best. In tain the momentum of public demands for information and, contrast to her prior comments, Minister Arsenova in the end, pressure offi cials to let out the truth. failed to make a clear statement on the BAS report. Moreover, the Ministry of Defense declared that the BAS report was classifi ed as a state secret. Progress was fur- VESTIGES OF THE COLD WAR ther hindered by provisions in Bulgaria’s Environmen- The toxic troubles in Gabrovnica had their roots months tal Protection Act which did not require EIAs for proj- before the protests, in Bulgaria’s NATO accession talks in ects related to national security. In conjunction with November 2001. At that time, the Bulgarian government this secrecy over the report, the Defense Ministry tried decided to destroy obsolete rockets and missiles left over secretly to move the missile engines to the abandoned from the Cold War. Initial Defense Ministry plans called base near Gabrovnica. for the SS-23 and SCUD missile systems and FROG rocket systems to be burned. This was particularly prob- lematic because they contained fuel residue—destroying A COMMUNITY MOBILIZES them would likely release large quantities of dioxins and At fi rst, no one could be certain that the missile other toxins into the surrounding air. engines had been moved to Gabrovnica. Citizens grew suspicious, however, when large military trucks began In response to early public outcry against the plans, arriving at a nearby unused military base loaded with Defense Minister Nikolay Svinarov repeatedly heavy equipment. In an emergency meeting held on announced that the engines would not be destroyed October 29, 2002, the local council of the nearby city until an independent expert committee of the Bulgarian of Montana adopted a declaration demanding that Academy of Sciences (BAS) had assessed environmental the Bulgarian Cabinet and the President give a written and health risks. The Minister of Environment and Water, explanation by the end of the day as to whether these Dolores Arsenova, also said that she would oppose plans activities were related to the planned destruction of to destroy the missile engines within Bulgarian territory the missile engines. Their declaration did not receive a if the process would cause any deviation from accepted response. levels of air or water quality (Arsenova 2006). 96 Appendix 3: Case Studies As we shallsee, theDefenseMinisterhadbeentrue to the DefenseMinistrycontinue towithholdinformation? destroy themissiles inasaferway, why would BAS and yet happened,andtheplanswere now inmotionto Ecoglastnost Montanaanditsallies. Ifnothingbadhad The minister’s mixedresponsescreatedapuzzlefor ronment inGabrovnica. BAS reportorinformationaboutthestateofenvi- kia. However, hecontinuedtorefusereleasethefull afoot todisposeoftheequipmentmoresafelyinSlova- ful disposalhadnotyet takenplaceandthatplanswere from theDefenseMinister. Heinsistedthattheharm- prompting furtherpublicoutcryandahastyresponse the informationpublishedinlocalandnationalmedia, of thewaste. EcoglastnostMontanaimmediatelyhad would resultfromtheproposedmethodofdisposing ernment was fullycognizantoftheseriousharmsthat ters oftheBulgarianArmy) demonstratingthatthegov- anonymous fax(probablyfromtheGeneralHeadquar- The casebegantoturnafterPenchev’s offi sophisticated disposal. where amilitarybasewas alreadyequippedformore that themissileenginesbedestroyed inSlovakia, Defense Ministerwithaspecifi requests went unanswered. Penchev alsowrotetothe court claimsunderthePublicInformationAct when and theBulgarianAcademy ofSciences, andtwicefi try ofDefense, theMinistryofEnvironmentandWater, number offormalinformationrequeststotheMinis- course ofthenextseveral months, Penchev madea Exposing thehazardsproved tobediffi THE LONGROADTOTRUTH (Kamenarski 2002). for sometimebeforetheyuncovered a“smokinggun” The activistswould have tocontinuetheircampaign did notsway thegovernment intochangingitsplans. and saw themissileengines. Buthiseyewitness account that Petar Penchev gainedaccesstothemilitarybase tary cargo.Itwas onthesecond day oftheseprotests physically blockingtwo trainsfromdelivering themili- attention withwidelycirculatedphotosofprotesters their village. Thetwo-day protestreceived muchmedia to opposethedestructionofmissileenginesnear Citizens’ CommitteeofGabrovnica andledaprotest At thesametime, residentsofGabrovnica formedthe c disposalproposal: cult. Over the ce received an led Voice and Choice: atmosphere. Thefi ited inactivated cokefi the dioxinsandotherharmfulchemicalswere depos- Academies ofSciences. Thefacilitiesusedensuredthat kia underanarrangementmadeby BAS andtheSlovak In theend,missileengineswere destroyed inSlova- and theenvironment. facilities fordestructionwithoutrisktopublichealth they shouldbemoved toanothersitewithadequate siles couldnotbesafelydestroyed inBulgaria,andthat fi results oftheBAS reportwere released.Thereportcon- right toinformationbeforetheSupremeCourtthat Penchev warned thathewas preparedtodefendhis to theDefenseMinisterandBAS. Itwas onlyafter ronmental ProtectionAct to fi and theinformationprovisions ofBulgaria’s newEnvi- Ecoglastnost continueditscampaign—usingbothFOIA served littlefunctionotherthantofosterpublicmistrust. the “culture ofsecrecy”withintheBulgariangovernment this, given prioruntruthsandobfuscation.At thispoint, Penchev andhiscolleagueshadlittlereasontobelieve his word aboutseekingbetterdisposalmethods, but 1. ThisinformationwasreceivedbyPetar PenchevinapersonalmeetingwithBAS Access toInformationProgramme,Bulgaria. This casestudyisbasedonresearchbyTAI partnerNikolayMarekovofthe of properlyandlocalswould have bornethecosts. tary, theengineswould likelynothave been disposed including theanonymous whistleblower inthemili- level, inthemedia,localgovernment, andeven the actionofabroadrangealliesatcommunity is amatterofspeculation.Whatclearthatwithout not Penchev’s proposalwas thesourceofthisoutcome rmed whatcitizenshadlongsuspected:thatthemis- Director Yuchnovski. Opening theDoortoEnvironmental Democracy lters were laterburied. lters ratherthanreleasedintothe le informationrequests 1

Whether or Voice and Choice: Opening the Door to Environmental Democracy

The Growth of TAI: A Case Study in Coalition- able to communicate with the Aarhus Convention Sec- Building retariat (United Nations Economic Commission for The rapid expansion of The Access Initiative (TAI)— Europe), especially on issues of access to justice. from 9 countries in 2002 to over 40 in 2007—can serve to inform the reader about coalition-building to pro- Learning – Some TAI coalitions report that they learn mote transparency, inclusiveness, and accountability. from the process of doing the TAI assessments, creating While much of the material for Voice and Choice comes “homemade lawyers” out of people without formal or from TAI reports, here we use the network itself as a case with limited legal training. In this sense, the process of study. Although TAI is an international coalition, and learning the method helps to develop NGOs and their therefore differs from the national coalitions discussed staff’s capacity, or their volunteers, to address environ- in the main body of the text, useful observations can be mental access principles more generally. drawn from the experience of the network. Like other networks or coalitions, TAI’s rapid growth to this point Information sharing – The TAI network serves to inform is due in large part to the convictions and enthusiasm members that there are reformers of similar stripes in 97 of its members, but also to the rewards membership countries across the world. Currently, there have been confers. The specifi c benefi ts received by TAI partners regional meetings in Europe, Latin America, Africa, and are grouped into material incentives, solidarity rewards Asia. One of the next major steps for the network will for individuals, and solidarity awards for groups. be the development of online “communities of prac- Finally, the section concludes with “next steps,” innova- tice” where the public may learn about access-related tions currently under way that will lower the costs and activities and TAI partners may communicate strategies increase the benefi ts of participating in TAI. and obstacles they are facing and can offer solutions or suggestions to one another (see below). Appendix 3: Case Studies Side benefi ts of other reforms – Most, if not all, TAI part- MATERIAL INCENTIVES ners are “multi-issue” advocates or CSOs, active in pro- Funding – As might be expected, consistent and expand- moting other environment, civil society, or democracy- ing funding has enabled TAI to continue to grow. As related causes. Successful advocacy of access-related country coalitions’ activities move beyond assessment reforms (such as FOIAs or public participation prac- and coalition-building, funding has moved to enable tices), facilitates policy advocacy generally. For example, coalitions to advocate for policy reform based on rec- if a TAI partner involved in environmental advocacy is ommendations from TAI assessments. This has allowed able to improve information release in the forestry sec- TAI coalitions to remain active well after assessment. tor, this will likely help them with later campaigns or cases they bring in court around forest issues. Research method – By developing a common research method and creating consistency in analysis, TAI has made it easier for environment and access advocates to SOLIDARITY REWARDS FOR INDIVIDUALS more clearly examine the legal and practical obstacles Camaraderie – Of course, like most networks and coali- in environmental governance in their country. Com- tions, the TAI network serves a social function where mon terminology also facilitates communication both like-minded individuals from across contexts can meet within and between coalitions. to share work, experience, and successes—a community of practitioners. This function is served through global Strengthening regional platforms – The growth of the TAI and regional meetings, through email conversations, network has enabled those areas of the world with the and, in the future, will be served by enhanced internet greatest TAI membership to strategize on a regional communications spaces. level. This is especially true for Latin America, where TAI has had its most extensive success and, to a lesser extent for the European region. The TAI network has SOLIDARITY REWARDS FOR GROUPS given Latin American partners the opportunity to share Brand – The TAI brand is controlled through a process stories, strategies, and lessons, and has enabled them of peer reviews and by the approval of the TAI Core to lobby regional organizations such as the United Team, which makes decisions relating to method devel- Nations Economic Commission for the Caribbean and opment and application and the approval process for Latin America. Similarly, European partners have been TAI assessments. This keeps up the quality of the intel- 98 Appendix 3: Case Studies tion andsharingofresourcesmorelikely. have asharedhistory, perhapsmakingfuturecoopera- grow strongerwithincountries andNGOsinvolved other competenciesorinterests. Asaresult,networks NGOs, ofteninotherregions ofthecountryorwith work andsharethelaborof theassessmentwithother it beginsitsassessment,many partnersnecessarilynet- partner mustformacoalitionwithotherCSOsbefore Side benefi access rights. port ofalargeinternationalnetwork whichsupports because theyareabletoclaimthathave thesup- successful innegotiationswithgovernment offi Prestige – feeds intonetwork members’ prestigeandreputation. lectual productswithinthenetwork, andconsequently in theiradvocacy work. developing asetofadvocacy toolstoassistTAI partners aging thesepolicyreforms, theTAI network iscurrently assessments. Inordertoassistwithinstitutingandman- recommendations thatderive fromtheirnational Advocacy tools– to usesimilarlanguagedescribeproblems. in tandemwithadvocacy tools, shouldhelpthenetwork ments, aswell ashurdlestoimplementation,thisreport, identifying thestrengthsandweaknesses ofaccessargu- is todevelop asharedvocabulary foraccessadvocates. By Developing ashared vocabulary– information andpublicityforinvolved partners. active withinthenetwork aswell astoprovide exclusive access rights. Thisshouldincreasetheincentive tostay of practiceforaccesspractitionersandthoseadvocating the network, TAI isestablishinganonlinecommunity Community ofpractice – egy, andthedevelopment ofnewmethodsandpractices. back andspecializedtofocusonglobalfundraising,strat- leaders. TheroleoftheTAI Secretariathasbeenscaled not exclusively, theprovenance ofCore Team regional peer reviewofTAI assessmentreportsareincreasingly, if Secretariat (WRI)suchasrecruitment,regionalmeetings, means thatmany tasksformerlyperformedby theTAI 2006, theTAI network beganformallydecentralizing.This Decentralizing/ Furtheringindependence– NEXT STEPS ts ofcoalitions TAI partnersreportthattheyhave beenmore All TAI coalitionswriteasetofpolicy Inordertohelplearningwithin –BecauseeachnationalTAI One function of this report One functionofthisreport Beginning in cials Voice and Choice: (Nakamura 2004c). tested above thefederallimitforleadcontamination” “Tap water inthousandsofDistricthouseshasrecently with astoryaboutstrangeenvironmentalmystery: A January31, 2004 and asettingtheyunderstand andcanactupon. ronmental information communicatedtotheminamedium are uniqueacross contexts, butalsothatpeopleneedenvi- to-face communication,suggesting notonlythatsituations proved mostproblematic inthissituation,butalackofface- Interestingly, itwasnotanabsenceoftechnicaldatathat information distributionresulted inwidespread publicoutcry. systems demonstrated thatpoor transparency andrigidityin nical expertise, aswellstrong environmental information ington, DC.Here, acountrywithrobust scientifi tion putthepublicatgreater riskfor leadpoisoninginWash- This storydemonstrates how aweaknessindatadissemina- Mystery inWashington,DC United States:SolvingaWaterContamination mation Center).Butthe to highleadlevels (Washington D.C.EmergencyInfor- nant women—can beaffectedby even shortexposures nesses. Thoseathighestrisk—young childrenandpreg- effects—brain damage, kidneydamage, andotherill- Lead exposurecanlead,over time, toserioushealth DANGER: LEADINCITYDRINKINGWATER problem? known aboutitforsolongwithoutaddressingthe drinking water? Andhow couldthegovernment have but two mysteries. How didsomuchleadgetinto the Thus, residentsofWashington, D.C.faced notone, ness ofthehealthrisk. action, orwithtoolittleurgencytoconvey theserious- and inothercaseswas toldtoolatetotakeappropriate ever, thepublic oftenwas notinformedof theproblem, of leadincitydrinkingwater forover two years. How- Authority (WASA) hadbeendetectingunhealthy levels “recently”. TheWashington DCWater andSewer that theproblemactuallyhadnotbeendiscovered a classactionlawsuit thatfollowed them—documented administrative reviews, independentinvestigations, and Subsequent widespread inthecity’s water. idea how suchaseriouscontaminanthadbecomeso authorities were “baffl Post Opening theDoortoEnvironmental Democracy articles—andthepublichearings, Washington Post ed” by theproblemand hadno Post articlewent ontosay that articlecreatedastir c andtech- Voice and Choice: Opening the Door to Environmental Democracy

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 ﬁ ndings, 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 contamina- 99 tion during the summer, WASA failed to notify residents of their risk until November. Water regulations required WASA to place a very speciﬁ c 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.” Appendix 3: Case Studies

However, the notice that WASA sent out in November FRONT PAGE NEWS downplayed the seriousness of the problem. It left Months later, when the issue became front page news, out key required phrases, including “in their drinking the situation changed rapidly. Residents inundated water” and “signiﬁ cant” (United States Environmental WASA’s water hotline with calls and overwhelmed Protection Agency (US EPA) 2004). water testing laboratories with requests for their tap water to be tested for lead contamination (Nakamura Similarly, national law required WASA to conduct pub- 2004c; Cohn 2004b). District elected ofﬁ cials imme- lic meetings to inform people of the health risk and the diately called for an emergency public meeting, and actions they could take to avoid lead exposure. How- established an inter-agency task force to investigate and ever, their advertisements for the meeting did not reveal manage the problem. The task force included WASA, the lead problem. Instead, they simply stated that the the Department of Health, the Washington Aqueduct, meeting would “discuss and solicit public comments on and representatives of eight other government bodies. It WASA’s Safe Drinking Water Act projects.” (Nakamura became the primary government vehicle for responding 2004a) to the crisis.

Because of the lack of urgency in WASA’s public com- Within four days of the initial news report, WASA itself munications, residents were slow to take action. Some worked with the federal Environmental Protection residents who received the notices began buying bottled Agency to establish a Technical Experts Working Group, water, and discussed the issue with their neighbors, or bringing together national experts to study the problem shared information about it via email. Many, however, and identify a solution. Meanwhile, the inter-agency had neglected the mailings or did not understand them. task force swiftly implemented programs to provide One resident later told a reporter she had received a free water fi lters, water testing, and blood testing for letter informing her that the lead in her water tested as residents at risk of lead contamination. It wrote letters “higher than the federal action level,” but she wasn’t to residents, established a hotline, conducted 23 com- sure if that was a good or bad result (Reel and Cohen munity meetings, met with leading local organizations, 2004). and produced a range of outreach materials. 100 Appendix 3: Case Studies service linesaswell. water ofasignifi quent water testingfound highlevels ofleadinthe in residenceswithleadservicelines. However, subse- health advisorytopregnantwomen andsmallchildren Similarly, earlyWASA communicationslimitedthe changed to10 minutes(Nakamura2004b). tion Agencydemandedthattherecommendationbe But duringthesameweek, theEnvironmentalProtec- a halftoreduceleadlevels beforedrinkingorcooking. ing theyfl WASA sentaletterinFebruary toallresidentssuggest- dents shouldtaketoprotecttheirhealth.For example, confusion aboutwhowas atriskandwhatstepsresi- and otheragenciescontradictedeachcreated exposé, successive publiccommunications fromWASA However, over thesixweeks following theinitial CONFLICTING MESSAGES 2004). “knock ondoors, nomoreletters,” saidCole(Spencer the situationforpublic, thegovernment needsto and compensatetheplaintiffsfordamages. To clarify residents, pay thefullcostofleadpipereplacement, the government togive clear notifi neighborhood activist,JimMeyers, whocalledon against WASA by ayoung lawyer, ChrisCole, anda Also inMarch,aclassactionlawsuit was launched at CityHallledby aCSOcoalition(PublicCitizen). On March18,nearly100 peopletookpartinaprotest ABC7 2004). had appealed( a legalclaimofimpropertermination,whichthecity lead contamination,lostherjobin2003. Shehadwon had repeatedlywarned WASA andEPA offi was disclosurethataWASA employee, SeemaBhat,who lem (Nakamura2004b). Adding tothepublicmistrust concluded thatWASA hadactively covered uptheprob- issue. Communityorganizationsandelectedleaders Neighborhood meetingswere alsoheldtodiscussthe such asPureWaterDC.com andWaterForDCKids.org. tion andcirculatepetitionsby launchinginternetsites public agencies. Thepublicorganizedtoshareinforma- the mixedmessagesemergingfromWASA andother Expressions ofpublicfrustrationgrewinresponseto THE PUBLICORGANIZES ush water throughtheirtapsforaminuteand Washington Post cant numberofresidenceswithcopper Editorial 2004; WJLA- cation toaffected cials ofthe Post

Voice and Choice: fi period ofleadcontamination(DCWASA). Withthis found noidentifi Agency (USEPA) 2006b). Moreover, bloodscreenings and ahalf(UnitedStatesEnvironmentalProtection remained withinnationallymandatedlimitsforayear By July2006, leadinWashington DC’s water had orthophosphate (Cohn2004a). system toincludeananti-corrosionadditive called accelerating planstofurtherrevisethewater treatment levels todecreaseimmediately. Theyalsorecommended when areturntotheoldtreatmentprocesscausedlead supply. Theirhypothesis was confi lead toleachfrommunicipalwater pipesintothewater water treatmentprocessintroduced in2001 hadcaused of theelevated leadlevels. Theyconcludedthatanew vened by WASA andtheEPA hadidentifi Meanwhile, theTechnical ExpertsWorking Groupcon- A TECHNICALSOLUTION This casestudywaswrittenbyDavid Turnbull andHeatherMcGray (WRI). Agency (USEPA) 2006a). responsibility (UnitedStates EnvironmentalProtection was createdtocoordinatetheseplayers andcentralize Department ofEnvironmentwithintheDCgovernment communications amongagencieswere rarelyclear. A all involved, linesofauthority, accountability, and Engineers, Congress, andtheDepartmentofHealth with WASA, EPA, theCityCouncil,Army Corpsof management andoversight inWashington DC.What with theinstitutionalarrangementsforwater quality The investigations alsoidentifi Columbia Offi revise nationalleadandcopperregulations(Districtof replacement ofleadwater pipesandanEPA proposalto a multi-milliondollarinvestment by WASA inthe Signifi gressional inquiryintoEPA’s own oversight failures. EPA administrative orderscensuringWASA, andaCon- government andcivilsocietyorganizations, aswell as led toindependentinvestigations commissionedby ernment’s initialresponsetotheleadcontamination complex toanswer. Thepublicoutcryaboutthegov- effectively notifyresidentsoftheproblem,was more The questionofhow thegovernment hadfailedto NEW LAWS, NEWPIPES,INSTITUTIONS nding, partofthemystery was solved. cant outcomesfromtheseinvestigations include cial Code2005). Opening theDoortoEnvironmental Democracy able publichealthimpactfromthe ed seriousproblems rmed inMay 2004 ed thecause Voice and Choice: Opening the Door to Environmental Democracy

Latvia: Snapshot of a Growing Environmental when given to associations registered as “public benefi t Movement organizations”. CSOs also do not need to register as value-added tax (VAT) payers, and so may recover VAT Much has changed for civil society in Latvia in the last levied on grant money. 20 years. Latvian citizens suffered limitations on organizing under Soviet rule, but, as the 1980s progressed, along with glasnost and perestroika came increasing lib- CHANGING PATTERNS OF FUNDING eralization and hard-won freedoms of association. After Yet, favorable tax conditions may not be enough to independence, during Latvia’s long run up to European guarantee CSO survival. According to Erika Lagzdina, Union (EU) and European Economic Zone (EEZ) mem- Country Offi ce Director of TAI partner REC-Latvia bership, less restrictive laws and steady foreign fund- (Regional Environmental Center), National EU/EEZ ing nurtured the growth of civil society in the country. grants have stimulated recent CSO growth more than Today, due in no small part to favorable reforms, Lat- tax exemptions or even the freedom of association guar- via’s civil society has grown, but still has a way to go. anteed by the 2005 “Law on Non-Governmental Orga- This is especially true for the country’s nascent environ- 101 nizations.” Given the low level of funding by the private mental movement. sector, government grants have been one of the few available sources of CSO sector funding. Without gov- The vast majority of the country’s citizens, following ernment grants, the existence of the nongovernmental pre-independence traditions, typically distance them- sector in Latvia would be seriously threatened, since the selves from governance and regulation processes. Due vast majority of CSOs lack capacity and skills necessary to the lack of effective communication and feedback for long-term planning and fundraising. mechanisms between government institutions and the nongovernmental (NGO) sector, Latvian civil society organization (CSO) involvement in national policy- Appendix 3: Case Studies DIMINISHING GOVERNMENT FINANCE making remains low despite an otherwise favorable Financing programs administered by the national gov- legal framework. Latvian NGOs face additional dif- ernment are diminishing in importance, yet the overall fi culties: most environmental CSOs do not have wide available fi nancing amount is steady. This year, the situ- membership among the Latvian public or a large youth ation could change—fi nancing levels could be much following as in many other countries, and there is little lower. Of CSOs with different interests, the activity of support from private foundations or businesses. Addi- environmental organizations has decreased the most tionally, concentration of CSO activity in the capital, over the past two years. Riga, means that CSOs in outlying areas remain under- developed.

GROWING IMPORTANCE OF THE EU/EEZ AN ENABLING ENVIRONMENT – NECESSARY BUT NOT Since EU accession, direct fi nancing from individual SUFFICIENT EU country governments (especially Norway) and pre- Governments can effectively support civil society sus- accession funding from the EU itself have become more tainability and autonomy by providing proper incen- important. CSO activities have increasingly refl ected tives that encourage CSOs to grow. Tools for building shifts in donor priorities in Latvia as well. Perhaps as the capacity of CSOs include favorable tax conditions, a consequence, the funding quotas of the EEZ/Norwe- seed grants, and provision of training. Latvia’s experi- gian governments have so far seemed to favor Latvia’s ence illustrates the success of incentives provided by the regional CSOs over those based in Riga. Environmental state government, but also highlights future challenges. CSOs have, in the past few years, shifted their focus as national funds become unpredictable, directly engag- Recently, laws have granted tax exemptions and tax ing in EU-level projects that provide fi nancing oppor- reductions, helping CSOs in Latvia to devote more tunities; however, such involvement has typically been resources to their activities. Because Latvia’s tax code short-term. The EU/EEZ currently fund 80-90 percent of exempts organizations whose goals neither directly nor the Latvian CSO sector activities, while co-fi nancing by indirectly include generation of income or capital, most the national government amounts to only about 10-20 Latvian CSOs are tax-exempt. The law also provides a percent. tax deduction of 85 percent of the money or property 102 Appendix 3: Case Studies as consultants—most ofthematthenational level. For- ronmental NGOscanengage incompetitionsandwork expenses. Consequently, onlyafewprofessionalenvi- delegated servicetenders—if onlytocover itsbasic expertise tosuccessfullycompete forgovernment- particular CSOoftenmust demonstrate very specifi other fundingsourcesforbasicexpensesarescarce, a The benefi Fund (LatvijasVidesAizsardz expenses throughtheLatvianEnvironmentalProtection relies ongrantfi stability inthelastfewyears. Yet GreenLibertystill this CSOhasimproved itsfi istry on“GreenProcurementPrinciples.” Asaresult, mental CSOstodevelop recommendationsfortheMin- Environment. GreenLibertywon atenderforenviron- tender competitionsorganizedby theMinistryof unconditional fundingtoworking throughgrantand Liberty, anenvironmentalCSOhasgonefromdirect including greenoffi well asby working forprivate businessesonprojects environment by pursuinggovernment consulting,as tal fi spend ondirectserviceoradvocacy. Intheenvironmen- environmental CSOshave lesstimeandenergyto The shifttoproviding consultingservicesmeansthat civil societyandthegovernment. interdependent andsustainablecooperationbetween state; ontheother, itmay representthestartofmore may jeopardizethebenefi regional, andlocalgovernments. Ontheonehand,this CSOs tobeginraisingmoneyby working fornational, between CSOsandthegovernment. Thishasledmany shift infundingLatviahaschangedtherelationship services togovernments, includingmunicipalities. This pete forgrants, particularly forproviding consulting likely dependontheabilityoforganizationstocom- The long-termvitalityofthe“thirdsector”inLatviawill GOVERNMENT? CONSULTING SERVICES:WORKING FORORWITHTHE to infl ministers, thethirdsector is notcurrentlyakeyvehicle Society inLatvia”, agendas. According tothedocument,“ increased publicfamiliaritywithandtrustinCSO tions may increaseinimportance, butwilllikelyrequire Funding forCSOsfromtheprivate sectororfounda- PROSPECTS FORPRIVATE SECTORSUPPORT eld, someCSOshave adaptedtothenewfi uence government decisions. ts ofcontractinghave beenlimited.Because nancing fornon-administrative project writtenundertheguidanceofseveral ce development. For example, Green ts ofindependencefromthe nancial independenceand ī bas Fonds). Integration of nancing c Voice and Choice: sector. funds have notbeendedicatedtotheenvironmental mean suchopportunitiesarestillscarceand,sofar, vices. Tightmunicipaland regionalbudgets, however, their work toCSOs, andinfundingCSO-provided ser- are becomingmorecomfortableindelegatingsomeof tunately, regionalgovernments andtown municipalities formance” (Civic Alliance—Latvia2005). capacity oftheCSOsforeffi ernmental sectorand,most importantly, to “strengthen the legalandfi munication withpublicauthorities. Itaimstoimprove center forCSOs, representingtheirinterestsincom- CSOs andprivate members. It umbrella CSObasedinRiga,unitingmorethan60 and adviceonlaw andaccounting.TheAllianceisan another importantsourceofbothcapacitybuilding The CivicAlliance—Latvia(Pilsonisk institutions. training programsforenvironmentalCSOsandstate the EU,hasalsobeenproactive inorganizingvarious mental MinistriesoftheBalticStates, Germany, and joint technicalassistanceprojectbetween theEnviron- the Environment.TheBalticEnvironmentalForum, a Protection Fund,astateagencyundertheMinistryof mental Forum throughtheLatvianEnvironmental ment hasprovided fi environmental CSOsadvocate forchange. Thegovern- Forum (BaltijasVidesForums) have worked tohelp (Latvijas VidesForums) andtheBalticEnvironmental ernmental groups—LatvianEnvironmentalForum the capacityofenvironmentalgroups. Nongov- CSOs have partneredwiththegovernment tobuild administrative procedures. ing ongrant-proposalwritingandgrantapplication and theLatvianNatureFundhave benefi in Latvia.EnvironmentalCSOssuchasGreenLiberty mote betterintegrationofcivilsocietyandgovernment Fonds) isapublicorganization withamissiontopro- The SocietyIntegrationFund(Sabiedr demands. tives, anddedicatedfundshasattemptedtomeetthese combination ofsupportingCSOs, government initia- and “results-orientation”asprioritiesfor2005-2014. A capacity building,diversifi The SocialIntegrationCouncilhasidentifi TRAINING ANDCAPACITYBUILDING nancial environmentfor thenon-gov- Opening theDoortoEnvironmental Democracy nancing totheLatvianEnviron- cation offundingforCSOs, cient publicadvocacy per-

acts asanationalsupport ā ī Alianse)is bas Integr ted fromtrain- ed CSO ā cijas Voice and Choice: Opening the Door to Environmental Democracy

LEGAL STATUS AND BROADENED STANDING the Latvian state by fi ling a suit at the supra-national Ideally, CSOs would be able to use the courts and level. The Club expressed concern about the conserva- administrative forums to address environmental harms tion of dunes on a coastal stretch in the Gulf of Riga, and to challenge denials of access to information and with specifi c allegations against the Mayor of Mērsrags, public participation. Yet access to justice for civil society a coastal town, in order to halt illegal building (Vides organizations has not been without obstacles in Latvia. Aizsardzības Klubs v. Latvia 2005). In its fi nal ruling in the case, the European Court of Human Rights decided Indeed, in Latvia some of the fundamentals of access to the Club had rightfully exercised its role as a “watch- justice are strong. Any CSO can fi le a suit for violations dog” under the Environmental Protection Act. such as denial of access to information about environmental quality and violation of state environmental laws. Environmental and other CSOs in Latvia are given LATVIAN CIVIL SOCIETY: SET FOR A TAKE-OFF? adequate legal status and have opportunities to defend Latvia has seen a growth in civil society over the last their rights and agendas in court. two decades—that much is clear. Yet challenges remain. 103 Beyond the changes in funding and the constant battle However, environmental and other CSOs have rarely to sustain their activities, CSOs and the government taken judicial routes for resolving their claims against bodies that support them will need more than just legal private or public entities, and most concerns have been reform. Latvian civil society has enjoyed wide opportu- handled through administrative orders. According to nities for activities and infl uence for the last few years, the Aarhus Convention Implementation Report for Latvia, often limited only by the interests of the CSOs them- this is due for the most part to the serious fi nancial selves. And while there are fewer CSOs today than two implications of taking legal action to protect the envi- years ago, most work on larger projects which affect more people. ronment. Appendix 3: Case Studies

Despite this, some CSOs have taken their complaints all the way to the European Court of Human Rights. After Sources: Lagzdiņa 2007; Mikosa 2007; Brizga 2007; failing to receive a favorable ruling in the Court of First Vējonis 2007. Instance, the Latvian Environmental Protection Club Aiga Stoekenberga and Jonathan Talbot (WRI) wrote this case study. used its legal standing to voice its complaints against

Voice and Choice: Opening the Door to Environmental Democracy

Appendix 4 The Access Initiative A selection of outcomes from 2002–2007

2007 2006 – Cameroonian TAI Advisory Panel increases – Thai Government involves affected fi shing Government –CSO dialogue by establishing Country communities in decision-making and greens Seafood Advisory Panel (CAP) chaired by the Government Bank in response to TAI Assessment. Partner: NGO and consisting of Government environmental Coordinating Committee on Development, Thailand and human rights Agencies, CSOs, sub-regional – TAI toolkit showcased and incorporated into 105 organizations and academia. Partner: The Access Clearinghouse for Environmental Democracy of the Initiative, Cameroon UNECE Aarhus Convention. – Chilean and Ecuadorian TAI partners work together – TAI fi ndings convince Hungary’s Ministry of to successfully develop material and train public the Environment to designate “green points” offi cials in Ecuador on access. Partner: Centro information network. Partner: EMLA Ecuatoriano de Derecho Ambiental, (CEDA) – TAI Philippines Case Study triggers investigation of 2005 government offi cials and copper mining company – The Access Initiative approach was recognized and

offi cials regarding their conduct in relation to Appendix 4: TAI Outcomes supported at the second Meeting of the Parties of the process damage claims arising out of the Boac River Aarhus Convention in Almaty in May 2005. TAI and environmental disaster of 1996. Partner: The Access PP10 were showcased as successful partnerships in the Initiative, Philippines offi cial documentation and several countries, notably – TAI Uganda mobilizes public against government the UK, Estonia, Italy and Ireland, publicly endorsed giveaway of Mabira Forest for use as sugar the TAI approach in their country statements. plantations. Partner: ACODE – TAI partner in Zimbabwe prepares judges training 2004 course on environmental issues. Access issues is – National Commission for the Environment (CONAMA) an important step in improving access to justice (Chile), and two NGOs—RIDES and Corporación on environmental matters. Partner: The Zimbabwe Participa—developed an access to environmental Environmental Law Association (ZELA) information guide and workshop for public offi cials. Partners: RIDES and Corporación Participa – TAI partner in Zimbabwe works to register community based environmental groups with the – United Nations Environment Programme’s African authorities so that they have legal recognition and Experts Workshop on Rio Principle 10 promotes TAI capacity to manage their own affairs and fosters approach. community environmental groups to improve access literacy. Partner: (ZELA) 2002 – As a result of a TAI Case Study, TAI partner in – Closing the Gap – published by the World Resources Ukraine successfully litigates and obtains access Institute based on fi ndings of The Access Initiative in to information on hunting permits and a ruling 9 countries. that such permits are subject to EIA laws. Partner: – Access Initiative-Mexico publishes CD-ROM EcoPraovo-Kyiv containing results of assessment and citizens’ guide to public participation in environmental decisions – NGO coalitions in nine countries (Chile, Hungary, India, Indonesia, Mexico, South Africa, Thailand, Uganda, and the United States) published assessments of access to information, participation, and justice based on The Access Initiative framework.

Voice and Choice: Opening the Door to Environmental Democracy

Appendix 5 Glossary

Access In the context of Voice and Choice, “access” refers to the ability or right to obtain or make use of information, opportunities for participation, and mechanisms for justice in ofﬁ cial decisions.

Access Initiative, The A global coalition of civil society groups working together to promote access to information, participation, and justice in decisions affecting the environment. See www.accessinitiative.org for more information.

Access Principles Refers to the three cornerstones of The Access Initiative (TAI): access to information, participation, and access to justice. 107 Access Rights The rights of citizens to information, participation, and justice in environmental decision-making. See also “access principles.”

Access to Information The ability of citizens to obtain environmental information in the possession of public authorities. “Environmental information” includes information about air and water quality and information about whether any hazardous chemicals are stored at a nearby factory.

Access to Justice The ability of citizens to turn to impartial and independent arbiters to resolve disputes over access to information Appendix 5: Glossary and Abbreviations and participation in decisions that affect the environment, or to correct environmental harm. Such impartial arbiters include mediators, administrative tribunals, and courts of law, among others.

Advisory Group/Panel For the purposes of Voice and Choice, a selection of individuals representing both civil society (including academia) and government that oversees, reviews, and helps to guide a TAI assessment in a given country. It is the responsibility of the TAI Coalition within a country to invite individuals to serve on the advisory group/panel.

Assessment/ In the context of Voice and Choice, “assessment” refers to the process of ranking a country’s performance in TAI assessment providing access to information, participation, and justice, including collecting data to answer selected research questions. The term also refers to the product of such research.

Capacity Building The efforts to improve a country’s human, scientiﬁ c, technological, organizational, institutional, and resource capabilities. According to Agenda 21, capacity building consists of mechanisms, efforts, or conditions which enhance effective and meaningful public participation in decisions affecting the environment. Types of capacity building include educating civil servants to implement access rights, creating a supportive legal and administrative situation for civil society organizations, and ensuring Internet access for the general public.

Case Study In TAI assessments, “case study” refers to a study of an example used for assessing speciﬁ c laws and government effort and effectiveness in providing access to information, participation, or access to justice. A case study may be about an event (such as an environmental emergency), a decision-making process (such as development of an environmental impact assessment), or a particular judicial claim. Case studies are also referred to as “cases”. They are each examined using a prescribed set of TAI indicators.

Civil Society Civil Society Organizations include organizations that are neither part of the private (for proﬁ t) nor governmental sectors. They include nongovernmental organizations (NGOs) and community-based organizations (CBOs).

Coalition An association of individuals or organizations united for a common purpose. In the context of Voice and Choice, Organizations (CSOs) “coalition” refers to a group of organizations and individuals within a country who have agreed to work together to create policy and practical outcomes over an extended period. Compare to “strategic alliance.”

Compliance Adherence to a particular law, regulation, guideline, or standard. In the context of Voice and Choice, “compliance” refers to adherence by facilities to laws, regulations, guidelines, or standards on emissions to air, discharges to water, and other environmental impacts.

Conﬁ dentiality State of keeping information secret.

Customary International Consists of rules of law resulting from the consistent practice of States followed out of the belief that the law Law required them to act in that way. Customary International Law is not based on a treaty or written agreement. 108 Appendix 5: Glossary and Abbreviations Monitoring Method/TAI Method Law Indicators Justice Interested parties Information Act (FOIA) Assessment (EIA) Indicator Inclusiveness Governance Freedom ofInformation Forum Facility Environmental Impact Environmental Governance Environmental Emergency access toinformation,participation,justice,andcapacitybuilding. research tools(includingguidelinesonsourceselectionanddocumentation) usedtoconductaTAI assessmentof their environmentalimpacts,andplansorprogramsaffectingnaturalresources. factors, includingairandwaterquality, environmentalemergencies,generaltrends,facilitiesand “information” referstofacts,knowledge,explanations,justifi cations,data,andresourcesonenvironmental detect andgivewarningofchange. situation anditschangeovertime. Monitoringmaybeusedtodeterminethelevelofcompliancewith lawsorto Periodic orcontinuoussurveillance, datacollection,and/ortestingtoobservetheconditionofaresource or In thecontextof require researchinconstitutionallaw, courtdecisions,regulations,andlegislativeprocess. Indicators thatassessthelegalframeworksupportinganaccessright orcapacitybuilding.Theseindicators such mechanisms. mediators, alternativedisputeresolutionmechanisms,administrative courts,formalcourtsoflaw, andother remedies andredressforenvironmentalharm.Thetermincludes andremediesfacilitatedorgrantedby the caseofaviolationrightsincludingtoinformation,participation, andaccesstojustice.Itincludes context of The upholdingofwhatisjust,especiallyfairtreatmentandduerewardinaccordancewiththelaw. Inthe Participants inalegalordecision-makingprocessthathaveaninterestareaffectedbytheoutcome. Knowledge ofaspecifi ceventorsituation;acollectionoffactsdata.Inthecontext their answers. public participationsystem).Theterm“indicator”isusedasshorthandtoreferbothresearchquestionsand in implementationofaccesstoinformation,participation,justice,orcapacitybuilding(the In thecontextof have thepoliticalspacetoparticipateinandinfl uencetheoutcome. Inclusiveness isastateinwhichallpersonsinterestedoraffectedbydecisiondecision-makingprocess and EnvironmentalDemocracy”inChapter1of and howtheyareheldaccountable.Forfurtherdefi nitionsseethesectionentitled“EnvironmentalGovernance property owners,farmers,andconsumers.Inshort,itdealswithwhoisresponsible,howtheywieldtheirpower, charge.” Itrelatestodecision-makersatalllevels--governmentmanagersandministers,businesspeople, Governance isabouttheprocessofmakingdecisions.Itexerciseauthority;being“in Many countrieshaveenactedFOIAsdescribedbyvarioustitles. mechanisms forexercisingthatright,andresolvingdisputesaroundtheexerciseofright. A laworregulationgoverningtherightofaccesstogovernmentheldinformation,limitsthatright, courts, tribunals,independentpanelsandsuchinstitutionsaswellenvironmentalcourts. In thisreportandinthecontextofTAI assessments,aforumisjudicialorquasi-judicialbody. Itincludes commercial landfi lls. refi neries,smelters,mills,mines,chemicalmanufacturingcomplexes,offshoreinstallations,andmunicipal particular industry’s productionprocessesorservicedelivery. Commonfacilitiesincludeplants,factories, All buildings,equipment,structures,orotherstationaryitemsfoundatasinglelocationandusedin activity, includinganevaluationofenvironmentallylessdamagingalternativestosuchdevelopment. The systematicexaminationofthelikelyimpactsproposeddevelopmentonenvironmentpriortoany Governance andEnvironmentalDemocracy”inChapter1of managing theenvironmentandnaturalresources.Forfurtherdefi nitionsseethesectionentitled“Environmental The rangeofinstitutionsanddecision-makingprocesses(includingbutnotlimitedtogovernments)engagedin radiation fromamalfunctioningreactorareexamplesofenvironmentalemergencies. Accidental chemicalspillsoroilspills,damagefromhurricanesearthquakes,theescapeofnuclear An emergencysituationcausedbyahumanornaturalagencythathasenvironmentalhealthimpacts. Voice andChoice Voice andChoice Voice andChoice , “justice”referstothegrantingofadequateandeffectiveredress and remedyin , “method”referstotheframeworkofresearchquestions,indicators, and , “indicator”referstoanassessmentofaparticularaspectperformance Voice and Choice: Voice andChoice Voice andChoice Opening theDoortoEnvironmental Democracy . . Voice andChoice , Voice and Choice: Opening the Door to Environmental Democracy

Nongovernmental Any civil organization or group, including voluntary groups, community groups, charities, trade unions, Organization (NGO) campaigns, and almost any other group that is not part of the government. Businesses and other proﬁ t-making entities are not included in this deﬁ nition. While not exclusive of local efforts, NGO has a connotation of meso- and international-level activism and association in contrast to community-based organizations.

Participation The act of taking part or sharing in something. In the context of Voice and Choice, “participation” refers to informed, timely, and meaningful input and inﬂ uence in decisions on general policies, strategies, and plans at various levels and on individual projects that have environmental impacts. See Table 2.2 of this report for types of participation.

Partnership for Launched at the World Summit on Sustainable Development, the Partnership for Principle 10 provides a way Principle 10 (PP10) for governments, civil society organizations, and international organizations to work together to implement practical solutions to provide the public with access to information, participation, and justice for environmentally sustainable decisions. See www.pp10.org for more information. See also Appendix 1 of Voice and Choice for a more detailed description of PP10.

Policy A plan or course of action, as of a government, political party, or business, intended to inﬂ uence and determine 109 decisions, actions, and other matters. In the context of Voice and Choice, “policy” refers to a broad statement of intent that focuses the political agenda and sets a decision cycle in motion. The term is also sometimes contextually used in this report to include laws and regulations enacted in pursuance of a policy.

Principle 10 Part of the Rio Declaration made at the Earth Summit in Rio de Janeiro, Brazil in 1992. (For the full text of Principle 10, see Box 1.1.) Principle 10 embodies the ideals of the Access Initiative and is the foundation of the Aarhus Convention (UNECE) and the Partnership for Principle 10. Appendix 5: Glossary and Abbreviations Project-Level Decisions A project-level decision usually relates to a speciﬁ c, localized, one-time decision. Examples include the building of a dam, an application for a pollution permit, the restoration of a wetland, and the granting of a forest concession. A project may be part of a broader program, such as one designed to improve sanitation services in municipalities throughout the country.

Pollutant Release and A PRTR is an environmental database or inventory of potentially harmful releases to air, water, and soil as well as Transfer Register (PRTR) wastes transported off site for treatment or disposal.

Public Refers to the people or any individual, alone, with others, or as one of a community.

Regulatory Decisions Decisions of a regulatory nature usually made by a government agency or ofﬁ cer and having the object of ensuring that an individual, group of individuals, or corporation complies with a law, regulation, guideline, or standard. Regulatory decisions include enforcement actions, investigations, reviews, and reporting particularly concerning the activities of the private sector. Such decisions are generally made in the public interest.

Standing/Legal Standing/ The legal right to pursue a claim before a judicial, administrative, or alternative forum.

State of the Environment A document (electronic or paper) that is: (a.) concerned with environmental and natural resource issues; (b.) supported by numerical data, and charts, tables, and maps; (c.) countrywide or regional in coverage; (d.) useful to policy-makers and others concerned with development planning; and (e.) publicly available at reasonable cost.

Strategic Alliance A working relationship in which organizations and individuals seeking solutions to immediate or short-term Locus Standi problems come together. Compare to “coalition.”

Transparency The quality or state of being transparent. In the context of Voice and Choice, transparency refers to the sharing (SoE) Report of information and acting in an open and accountable manner. Transparency allows stakeholders to gather information that may be critical to uncovering abuses and defending their interests. Transparent systems have clear procedures for public decision-making and open channels of communication among stakeholders and ofﬁ cials, and make a wide range of information accessible. 110 Appendix 5: Glossary and Abbreviations EIA EGI EE EC DANIDA CSO CONAMA CONAGUA CODELCO CEDHA BuZa ADB ACODE MDG IFAI IUCN ICEL ICCPR IBRD IASTP GDP FPIC FOIA EU/EEZ EU ESI ESC ERT EPA EMLA EITI EIS Environmental Education European Commission European Union EnvironmentalImpactAssessment EnvironmentalSustainabilityIndex EnvironmentalImpactStatement ElectricityGovernanceInitiative EmergencyResponseTeam EconomicSocialandCultural EnvironmentalProtectionAgency ExtractiveIndustriesTransparency Initiative FederalInstitute forAccesstoInformation(Mexico) CivilSocietyOrganization AsianDevelopmentBank GrossDomesticProduct MillenniumDevelopment Goal IndonesianCenter forEnvironmentalLaw FreedomofInformationActs Free,PriorandInformedConsent TheInternational UnionfortheConservationofNature andNaturalResources InternationalBankforReconstructionandDevelopment NetherlandsMinistryofForeignAffairs EnvironmentalManagementandLawAssociation IndonesiaAustralia SpecializedTraining Project InternationalCovenantonCivilandPoliticalRights CenterforHumanRightsandEnvironment(Argentina) AdvocatesCoalitionforDevelopmentandEnvironment EuropeanUnion/EuropeanEconomicZone RoyalDanishMinistryofForeignAffairs NationalCommissionfortheEnvironment(Chile) NationalCopperCorporation(Chile) NationalCommissionforWater (Mexico) List ofAbbreviations Voice and Choice: Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

NAFTA North American Free Trade Agreement NEMA National Environmental Management Authority (Ghana) NEPA National Environmental Policy Act (USA) NGO Non-Governmental Organization OAS Organization of American States OCHA Offi ce for the Coordination of Humanitarian Affairs 111 ONEMI National Offi ce of the Minister of Emergencies (Chile) OSC On Scene Coordinator OSCE Organization for Security and Co-Operation in Europe PP10 Partnership for Principle 10 PROFEPA Federal Prosecutor for Protection of the Environment (Mexico) Appendix 5: Glossary and Abbreviations PRTR Pollutant Release and Transfer Registers REC Regional Environmental Center SEC Superintendent of Electricity and Combustibles SEMARNAT Secretary of Environment and Natural Resources (Mexico) SIDA Swedish International Development Cooperation Agency SISI Information Request System (Mexico) SoE State of the Environment TAI The Access Initiative TRI Toxics Release Inventories UDHR Universal Declaration of Human Rights UNDP United Nations Development Programme UNECA United Nations Economic Commission for Africa UNECE United Nations Economic Commission for Europe UNEP/OCHA United Nations Environment Program/ Offi ce for the Coordination of Humanitarian Affairs UNESCAP United Nations Economic and Social Commission for Asia and the Pacifi c USAID United States Agency for International Development UWA Uganda Wildlife Authority UWS Uganda Wildlife Society WASA Water and Sewer Authority (Washington, DC US) WGI World Governance Indicators (World Bank Institute)

WRI World Resources Institute 12 11 About the Authors LALANATH DESILVA JOSEPH FOTI About the Authors LINDA SHAFFER HEATHER MCGRAY America andAfrica.Thisincludescultivating new public accessinnationalagendas. LindaistheSecretariatliaisonforTAI activitiesinLatin international organizationstoestablishtime-bound,measurable goalsthataimtoincrease assessments andbuildawareness intheircountries. Shealsoworks withgovernments and port andtrainingtoNGOpartnersusingtheonlineTAI methodologytoconductnational communications andadministrative armfortheinternationalnetwork. Sheprovides sup- Resources Institute. Sheworks toensurethattheGlobalSecretariatfunctions asaneffective Management fromYale University andaBachelor’s degreeinBiologyfromOberlinCollege. programs fortheYale-China Association.Ms. McGray holdsaMaster’s ofEnvironmental an urbaneducationanddevelopment network; andmanagementofeducationalexchange China; researchandnegotiationsonISO14000environmentalstandards;coordinationof McGray’s professionalexperienceincludedresearchonenvironmentalmanagementin research andcivilsocietytraininginChina’s Yunnan Province. PriortojoiningWRI,Ms. ency, participation,andaccesstojusticeinaddressingenvironmentalproblems, including work, withinWRI’s InstitutionsandGovernance Program,focusedontheroleoftranspar- WRI’s projectonvulnerabilityandadaptationtoclimatechange. Ms. McGray’s previous Initiative (TAI). Lalanath joinedtheWorld Resources Institute(WRI)in2005 astheDirectorofTheAccess restore andcompensateforenvironmentaldamageresultingfromthe1991 GulfWar. helped processthelargestwar reparationsclaimshandledby theUNCCtomonitor, assess, Commission (UNCC)inGeneva. Together withasmallgroupofinternationallawyers, he as aLegalofﬁ depleting substances, and ambient airquality, amongothers. From2002-2005 heserved sible fordraftingandenactingnumerousregulatoryprovisions addressingnoise, ozone Consultant totheMinistryofEnvironmentandForests. Duringthattimehewas respon- organizations. Healsoworked fortheSriLankangovernment fortwo years astheLegal ka’s leadingenvironmental casesonbehalfofvictims, communitiesandnon-governmental growth ofpublicinterestlaw intheareaofenvironment,heappearedallSriLan- omy fromTheGeorgeWashington University. a candidatefortheM.A.inInternationalDevelopment Studiesfocusingonpoliticalecon- and Civicsfor4years inBaltimore, Maryland.HeholdsaB.A. fromAntiochCollegeandis WRI, Josephassistedinresearchonelectionlaws inLatinAmericaandtaughtMath,History, the University ofChile, andaB.A. inInternational Relations fromAmericanUniversity. focused onLatinAmerican infrastructure. SheholdsanM.A.inInternationalStudies from ment objectives. Beforejoining WRI,Lindaworked withanInternetstart-upcompany that strategic planningtosupport, challengeandencouragealignmentofcommondevelop- of thiswork involves critical thinkingabouttheimpactofnetwork activitiesandrequires and sharelessonslearnedthroughonlinetools, stakeholdermeetingsandtraining. Much isanassociatewithTheAccess Initiative (TAI) atWorld Resources Institute. Priortojoining istheProjectManagerforTheAccess Initiative (TAI) GlobalSecretariatattheWorld isaSeniorAssociateinWRI’s ClimateandEnergyProgram.Shecurrentlyleads was apublicinterestlitigator andadvocate forover two decades. Pioneeringthe cer intheEnvironmentalClaimsUnitofUnitedNationsCompensation Voice and Choice: ways ways for partnerstoengageindialogue Opening theDoortoEnvironmental Democracy Voice and Choice: Opening the Door to Environmental Democracy

JONATHAN TALBOT leads strategic communications planning and media outreach for WRI’s Institutions and Governance Program. He holds a master’s degree in Science & Medical Journalism from the Knight Center at the College of Communication of Boston University, and a bachelor’s degree in Science & Technology Studies from the College of Arts & Sciences of Cornell Uni- versity. Prior to his work at WRI, he interned or worked in communications for several non- proﬁ ts including the Marine Biological Laboratory at Woods Hole, Defenders of Wildlife, the EarthSave Foundation, the Union of Concerned Scientists, and the National Association of Hispanic Journalists. He lives in Silver Spring, Maryland. 11 3 JACOB WERKSMAN, an international lawyer specializing in environmental and economic law, directs the Institutions and Governance Program at the World Resources Institute. He served as associate director in the Global Inclusion Program of the Rockefeller Foundation. From 2002 to 2004, he was environmental institutions and governance adviser to the United Nations Development Programme in New York. From 1991 to 2002 he served as a lawyer, program director, and, for four years, as managing director of the Foundation for International Envi- ronmental Law and Development. He is an adjunct professor of law at New York Univer- sity and at Georgetown University and an active member of the State Bar of California. He is editor or coeditor of the 2001–2003 Yearbook of International Environmental Law (2002,

2003), The Earthscan Reader on International Trade and Sustainable Development (2002), Green- About the Authors ing International Institutions (1996), and Improving Compliance with International Environ- mental Agreements (1996). He holds degrees from Columbia University (AB, 1986, English literature), the University of Michigan (JD, cum laude, 1990), and the University of London (LLM, 1993, public international law).

About WRI

The World Resources Institute (WRI) is an environmental think tank that goes beyond research to ﬁ nd practical ways to protect the earth and improve people’s lives. Our mission is to move human society to live in ways that protect Earth’s environment and its capacity to provide for the needs and aspirations of current and future generations. Because people are inspired by ideas, empowered by knowledge, and moved to change by greater understanding, WRI provides—and helps other institutions provide—objective information and practical proposals for policy and institutional change that will foster environmentally sound, socially equitable development. WRI organizes its work around four key goals: • People & Ecosystems: Reverse rapid degradation of ecosystems and assure their capacity to provide humans with needed goods and services. • Access: Guarantee public access to information and decisions regarding natural resources and the environment. • Climate Protection: Protect the global climate system from further harm due to emissions of greenhouse gases and help humanity and the natural world adapt to unavoidable climate change. • Markets & Enterprise: Harness markets and enterprise to expand economic opportunity and protect the environment. Photo Credits

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