Environmental Law Public Participation

Generally, public participation consists of attempts to influence law, policies, and individual decisions made by Governmental or regulatory bodies. It is suggested that the most interesting developments are those which seek to make people part of the decision-making process, rather than seeing the public as potential objectors. Indeed, a far wider group of people is now regarded as 'having an interest in' regulatory decisions on the environment. What the public knows or concerned about are changing categories. These observations deal particularly with interests, knowledge and ‘values'. One of the most important reasons for the significance of 'value' in environmental law is that immediate human interests rarely fully summarise the impacts of development.

The emphasis on values is taken up strongly in recent policy discussions on the issue of Genetically Modified Organisms. In particular, it was suggested that people's values should be incorporated, not only in the eventual decisions reached, but also in the way that 'policy questions are framed'. This should explicitly concern 'the values of citizens rather than compromises brokered between interest groups'. 

The role of the public has also been the subject of consideration in other aspects of regulation, particularly where risks are at issue. An obvious example perhaps is the Food Standards Agency, which was established as a response to repeated public 'scares' about food safety. The 'guiding principles' of the Agency are independence, transparency, broad consultation and openness. Although these goals are not incompatible with full citizen participation in decision-making, in its emphasis on consumer protection and consumer choice the Agency a long way from the value-based participatory processes.

The Importance of Deliberation

In the context of the environmental law ‘values’ are central. 'Deliberation' by public is meant to foster a reasoned form of communication about values, distinct from mere compromises between clashing interests and competing preferences, and in this way to allow resolution of the most difficult problems. An approach which gives priority to concrete interests (not values) is thus likely to accord less weight to environmental impacts than to the benefits of environmentally damaging or risky activity. The damage may be remote from any identified human interest and appear to be a question of amenity (the pleasantness of surroundings; the enjoyment of the continued existence of a species, and so on). Hence, a distinction between 'interest' and 'value' is essential to environmental law. In what other way could the importance of a forest, or a mountain, be represented than through the way that these were 'valued' by individuals? 

Further, it was suggested that for a newer generation many concerns, which have appeared to be essentially to do with 'mere' amenity, have proved (on further research) to be more concrete and to involve real questions of harm to human interests. Often, such harm is uncertain at the time of development. Species depletion provides an example, as does depletion of natural habitats. Many of the most pressing current environmental questions resemble these instances of uncertain future harm. As such, they are increasingly perceived to be related to 'risks'. Those risks are difficult to relate to particular concrete interests, for reasons of uncertainty.

As one would assume, risk assessments are carried out by sufficiently skilled decision-makers. However, there are huge discrepancies of judgement concerning the likely effects of development and likely consequences of any impact on the environment. An expert risk assessment can quantify the risks, but further deliberation is still needed given the remaining margins of uncertainty. 'Expert' risk assessment is only a partial solution, hence it cannot secure confidence that any given decision is a right one.

There are a number of solutions that citizens might offer to the decision-making process. Experts are frequently bewildered by the public's response to remote and uncertain risks but strong reactions to remote risks need not be irrational. Those might reflect strong views either about the content of the risk (what is risked), or about the value of what is to be gained from the risk-taking. For example, is it agreed that nuclear power, or genetically-modified crops, have great advantages to be weighed against their risks, as is urged?

Individuals who are closest to a problem and its effects may have a greater understanding of that problem than those ordinarily required to resolve it. This might be the case with citizens who can be referred to as 'affected parties' – the people who will feel the effects of environmental problems most closely. However, other groups may also provide the opposite and complementary virtue and breadth of reflection. These could be referred to as 'interested' parties. 'Interested' parties are often those who have reflected broadly about a particular set of problems, such as conservation or biodiversity, including non-governmental action groups such as environmental groups. So 'interested' and 'affected' parties are important components of the deliberating group, with almost opposing virtues to offer.

However, although there were and are many arguments in favour of greater access to environmental information, the development of the legislation was the subject of a vigorous debate. Objections are reflected in some of the exemptions from disclosure, which can be found in the Freedom of Information Act 2000 and the Environmental Information Regulations 2004. It was also alleged that increased openness would lead to mischief-making and an unacceptable level of interference by ‘activists’ or ‘interested’ parties, hence exemptions in legislation. One suggestion here is that the public through its very scepticism and willingness to question scientific claims may provide important decision-making resources which could enhance environmental protection. Yet, scientific claims upon which decisions are made are becoming increasingly closely associated with the industries which promote certain developments. This is not surprising provided that those industries pay for the research…

Legislation

The importance of the public having access to environmental information has been recognised for many years. However, it is only recently that there have been moves towards the broadening of the classes of available information in the UK. The two new statutory schemes – the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 – reflect a deeper understanding of the advantages that greater access to information brings. The reasons for this growing emphasis on access are many and varied, with European legislation and international initiatives playing a significant part in the process. The Environmental Information Regulations 2004 transpose and implement the provisions of the Directive 2003/4/EC whereas Freedom of Information Act 2000 promotes a general right of access to information held by public bodies. This new regime creates a new right to access environmental information held by public authorities.

Insofar the 2004 Regulations have transposed the 2003 Directive faithfully, thus giving effect to Aarhus Convention) and improved access to environmental information. However, on the negative side, the Regulations do not address 'high costs and long delays associated with the judicial review procedures'.  With regard to refusals to grant access, it was noted that information had occasionally been withheld even though its disclosure would not have undermined legitimate interests protected by Directive 90/313. This problem has been addressed insofar as legislation alone can address it: by requiring the public interest in disclosure to be considered; by establishing a presumption in favour of disclosure; and by explicitly narrowing the terms of certain exceptions such as that relating to commercial confidentiality. Unfortunately, only time will determine whether or not a change in the attitude of the officials has been effected.

Perhaps the most useful development under the Regulations is the publication of a Code of Practice, issued under Regulation 16 following consultation with the Information Commissioner. However, the Code itself does not actually form an integral part of the Regulations, as is made clear by paragraphs 7 and 11 of the Foreword. Worse still, certain provisions of the Foreword to the Code that could otherwise be regarded as 'key' provisions do not even form part of the Code itself.

The second piece of legislation – the Freedom of Information Act 2000 – provides a general right to access information from public authorities (subject to a list of exemptions). Environmental information is one of the two exceptions to the universal application of the Act. The role of the Freedom of Information Act in relation to environmental information is residual. Any access to the environmental information is governed by the Environmental Information Regulations 2004.

Today, the increasing complexity of legislation is exceeding the ability of the basic administrative structures to address all of the environmental issues we face. As a result of development of public’s understanding of environmental problems there is a growing reliance upon alternative mechanisms to secure environmental improvements, e.g. economic instruments, voluntary agreements. Frequently, fundamental concerns are now being addressed through concerted efforts by the different stakeholders, including the general public, by way of ‘shared responsibility’.

Conclusions

Recently, citizens and citizen groups have been highly active in urging that more issues be placed on the agenda, and that new solutions be added to the list of possibilities once the questions are asked. Governments are beginning to take this role more seriously, and this should be seen as highly significant.

Many of the problems encountered with the 1992 Regulations have been addressed through the clarifications found in the 2003 Directive and the transposing Regulations. The refining of certain definitions and extension of the scope and application of the Regulations in the light of experience should facilitate grater access. Nonetheless, although access to such information can communicate on a much wider basis now, it still has its limitation.

In this essay it has been suggested that there are justifications that environmental protection will be improved by public participation. This is not just because it will improve procedural legitimacy, but also because where issues of value are concerned – decision-makers and the government need the public. Public participation is an important element in the justification of 'environmental democracy'.

Word count: 2,200, excluding footnotes.

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Bibliography

• David Hughes, Environmental Law (4th Ed, Butterworths, 2002).

• Stuart Bell and Donald McGillivray, Environmental Law (6th Ed, OUP, 2006).

• ‘Improved Access Regime for Environmental Information and the Role of the Information Commissioner’, Christine Johnson, Enviro LR 6.4 (219).

• ‘Behind Closed Doors: The Use of Agreements in the UK to Protect the Environment’, Andrea Ross and Jeremy Rowan-Robinson, Enviro LR 1.2 (82).

• ‘Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach’, Jenny Steele, OJLS 2001.21 (415).

• ‘The Environmental Information Regulations 2004: Limiting Exceptions, Widening Definitions and Increasing Access to Information?’, Roy W. Davis, Enviro LR 8.1 (51).

• ‘Current Environmental Enforcement Issues: Some International Developments and their Implications for the UK’, Lynn Hagger, Enviro LR 2.1 (23).

• ‘Implementation of the Aarhus Convention Through Community Environmental Law’, Aine Ryall, Enviro LR 6.4 (274).

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