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PUBLIC PARTICIPATION IN ENVIRONMENTALLY SOUND DECISION-MAKING: LEGAL ASPECTS

V.L.Mishchenko

Ecojuris Institute of Environmental Law

CONSTITUTIONAL AND LEGAL GUARANTEES

While speaking about guaranteeing the rights of citizens to participate in environmentally sound decision-making, one normally refers to Article 32 of the Constitution of the Russian Federation as the basic document. The article states, “Citizens of the Russian Federation have the right to participate in managing state affairs both directly and through their representatives.” Moreover, Article 33 of the Constitution ensures the right of citizens “to appeal in person and make individual and collective appeals to state bodies and bodies of local government.” Appropriate federal legislation has not been developed. It is uncertain whether it will ever be adopted, but existing legal provisions are insufficient.

Yet, the priority of human and civil rights as well as numerous guarantees of exercising these rights has already been guaranteed in the Russian Constitution and in some laws currently in force. To be sure, we should abandon a narrow academic approach to civil rights and start protecting them in practice.

The Institute of Environmental Law, hereinafter called Ecojuris, is a professional human rights organization. Ecojuris was the first in our country to start protecting environmental rights of citizens and nongovernmental organizations in practice, including the right to participate in the decision-making process. It seeks to accomplish this role on the basis of the following basic principles:



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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop PUBLIC PARTICIPATION IN ENVIRONMENTALLY SOUND DECISION-MAKING: LEGAL ASPECTS V.L.Mishchenko Ecojuris Institute of Environmental Law CONSTITUTIONAL AND LEGAL GUARANTEES While speaking about guaranteeing the rights of citizens to participate in environmentally sound decision-making, one normally refers to Article 32 of the Constitution of the Russian Federation as the basic document. The article states, “Citizens of the Russian Federation have the right to participate in managing state affairs both directly and through their representatives.” Moreover, Article 33 of the Constitution ensures the right of citizens “to appeal in person and make individual and collective appeals to state bodies and bodies of local government.” Appropriate federal legislation has not been developed. It is uncertain whether it will ever be adopted, but existing legal provisions are insufficient. Yet, the priority of human and civil rights as well as numerous guarantees of exercising these rights has already been guaranteed in the Russian Constitution and in some laws currently in force. To be sure, we should abandon a narrow academic approach to civil rights and start protecting them in practice. The Institute of Environmental Law, hereinafter called Ecojuris, is a professional human rights organization. Ecojuris was the first in our country to start protecting environmental rights of citizens and nongovernmental organizations in practice, including the right to participate in the decision-making process. It seeks to accomplish this role on the basis of the following basic principles:

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop The Constitution of the Russian Federation shall be used directly. Part 1 of Article 15 of the Constitution states that the Constitution “shall have supreme legal force and direct effect and shall be applicable on the entire territory of the Russian Federation.” Gaps, contradictions, and common and controversial points in the laws shall be interpreted in favor of the citizens. The heart of this principle is Article 2 and Article 18 of the Constitution. The first one proclaims: “Man and his rights and freedom shall be the supreme value.” The second one says: “Human and civil rights and freedoms shall have direct force. They shall determine the meaning, content, and implementation of laws, they shall determine the functioning of legislative and executive authority and of local government, and they shall be guaranteed by law.” Environmental rights (like any other human and civil rights) shall be fundamental and of high priority. State and local government bodies shall only be able to establish procedural norms for their execution and protection. This principle is based on the following articles of the Constitution: Part 1 of Article 3: “The bearer of sovereignty and the sole source of power in the Russian Federation shall be its people of many nationalities.” Part 2 of Article 17: “Basic human rights and freedoms shall be inalienable and shall be enjoyed by everyone from birth.” The above cited Article 18. The following principle is based on the very same articles of the Constitution: Opinions of the citizens on any activity to be carried out or on any object to be located on the territory where they live shall prevail and shall be disputed only in accordance with legal procedures. The right to participate in decision-making shall be a part of the human right to a favorable environment, that, in turn, shall be an inalienable element of the right to life. This principle emerges from the following complex of articles of the Constitution and other laws: Article 42: “Everyone shall have the right to a favorable environment…” Part 1 of Article 20: “Everyone shall have the right to life.” Part 1 of Article 9: “Land and other natural resources shall be utilized and protected in the Russian Federation as the basis of life and activity of the people living on the concerned territory.” Article 92 of the Law “On Protection of the Natural Environment”: “Everyone shall have the right to life in the most favorable environmental conditions.”

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop Articles 12 and 13 of the above law, guaranteeing environmental rights of the public. Information necessary for the exercise of citizens’ environmental rights, including the right to participate in decision-making, shall be of public interest. Classifying this information as limited access information (that is, state secrets or confidential information) shall be prohibited (Article 10 of the Federal Law “On Information and Protection of Information,” based on Part 4 of Article 29 and Article 42 of the Constitution). Environmental rights of citizens and nongovernmental organizations shall be ensured and protected by the whole body of laws currently in force—civil, civil-procedural, investment, information, nuclear, environmental, natural resources, and so on. We are successfully using these principles to protect the environmental rights of citizens and nongovernment organizations as well as to protect rights in related fields, such as the right to information, to participation in managing state affairs, and to legal protection. Ecojuris, in close cooperation with an organization it created, the Network of Russian Public Interest Environmental Lawyers, protects public interests, using the possibilities provided by the environmental legislation. These laws are rather progressive and, to some extent, pioneering in our country. Environmental lawyers-practitioners have made a substantial breakthrough in human and civil rights protection, adding environmental legislation with creative approaches to civil and civil-procedural law. In addition to the above general principles, when protecting environmental rights we use more specific fundamental approaches and provisions of Russian legislation: At the stage of obtaining preliminary agreement on location of a facility, bodies of local government shall be obliged to clarify the opinion of the population by means of local referenda and citizen meetings. Citizens, public associations, and bodies of local government shall have the right to participate in considering issues pertaining to exemptions and allotments of land plots of interest to the population (Article 28 of the Russian Federation Land Code). A scheduled economic or other activity that could be environmentally dangerous in the future shall be subject to mandatory state environmental examination (Article 3 of the Federal Law “On Environmental Examination”). As to an activity (regardless of the territory where it is carried out) that causes harm to the health or property of citizens, their households, or the

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop environment, citizens or organizations may turn to the courts to stop environmentally harmful activity (Article 91 of the Law “On Protection of the Natural Environment”). The danger of causing harm in the future may be grounds for filing a lawsuit to prohibit an activity creating such danger (Article 1065 of the Civil Code of the Russian Federation). Interests of citizens, nongovernmental organizations, and other persons may be represented in a court as well as in extra-juridical examinations of disputes by lawyers and other persons acting with a power of attorney in the traditional way (Chapter 5 of the Civil Procedural Code and Article 185 of the Russian Federation Civil Code). Besides, their interests may be represented in the above mentioned bodies on the basis of Chapter 50 of the Civil Code, “Actions without authority in the interest of another person.” Conditions of actions in the interest of another person are determined by Part 1 of Article 980 of the Civil Code: “Actions without agency, other instructions, or the prior consent of the interested person for the purpose of preventing harm to his person…or in his lawful interests shall be carried out based on their benefit or usefulness…” Part 1 of Article 981 establishes an obligation to notify the interested person of action in his interest: “A person acting in the interest of another person is obligated at the first opportunity to inform the interested person of such action and wait for a reasonable period of time for his ratification or non-ratification of the action undertaken…” Inasmuch as nature and its resources shall be the national property of the people of Russia as the natural basis of their social and economic development and well-being (Preamble of the Law “On Protection of the Natural Environment”), Article 980 of the Civil Code provides for the possibility of protecting interests not only of living people, but also of future generations. This innovative approach is being successfully used by Ecojuris. It has found support among the representatives of the Office of the Prosecutor General and has not met opposition among judges of the Supreme Court of the Russian Federation. The Civil Code does not establish definite forms of ratification of the actions undertaken in the interest of another person. So we have developed an application form (Table 1) for a person to implement the requirements of Article 981. This form can be used in case of representation of the interests of private citizens or groups of citizens. (Legal persons and nongovernmental organizations, in particular, fill out a similar application form, except the column on descendants.)

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop TABLE 1 An Application Form On Approval of Actions Undertaken by Ecojuris In accordance with the procedure established by Articles 980 and 981 of the Civil Code on protecting the lawful interest of another person (in case of appeal against the Government relating to transfer of the first group of forest lands into non-forest group lands for managing forests and using the forest fund, adopted in 1994–1998). Name, Post address Christian name, Patronymic (in full) Post address Agreed that my interests to be represented by Agreed that interests of my descendants to be represented by Date The right to participate in environmental decision-making along with other environmental rights pertains to personal non-property rights, that is to non-material values (Article 150 of the Civil Code). Therefore, in accordance with Article 208 of the above Code, legal limitations shall not be placed on the requirements of protecting these rights. In 2000, a possibility of actions in the lawful interest of another person was secured in the procedural legislation, namely in new wording of Article 42 of the Civil Code. Thus, in summary, rather vast legislation is currently in force in our country to be used in protecting public rights to participate in environmentally sound decision-making. Of course, one would like to have good special legislation concerning regulations under review. However, due to the poor quality of many new laws (issued by the “fluent pen” of the State Duma), serious anxiety exists that public rights would not be secured and extended but substantially limited. A relatively fresh example from the environmental sphere can be presented. The new Federal Law “On Sanitary and Epidemiological Well-being” was adopted in 1999, replacing the previous one with the same title (1991). (The Code of Laws of the Russian Federation, No. 14, 1999, Art. 1650). The latter had been adopted at the height of perestroika and became the first Russian normative act to secure the citizen’s right to a favorable environment as well as the right to participate in decision-making. Part 4 of Article 5 of the law stipulated that citizens “shall have the right to participate both directly or through their representative or public associations in developing, discussing, and making decisions by state government and

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop administrative bodies that aim at providing the population with sanitary and epidemiological well-being.” The public waited for the State Duma to update the wording of this provision and advance it in the spirit of the times. Instead, the provision was excluded in full from the law, and as a result the public received the toothless pre-perestroika right “to submit proposals.” It should be noted that for the last two or three years, attempts have been made by some groups of deputies and officials to submit new wording of the Federal Law “On Environmental Examination” to the State Duma for consideration, which has limited human and civil rights. My long-standing human rights activity is evidence that our country has unfortunately remained a state not governed by laws. “Under-regulation” of some relations and incoherence of some legal norms sometimes are better from the human rights standpoint than excessive “over-regulation” undertaken by incompetent and dishonest lawmakers. In spite of the absence of general unified mechanisms of participation in making decisions that can affect the environment and natural resources, citizens, nongovernmental organizations, and other strata of our society have “compensatory mechanisms” for such participation. This is public participation in evaluating the effect on the environment (EEE) in the environmental examination. An EEE is a stage of environmentally sound decision-making to be carried out before the environmental examination. A new regulation on evaluation of the effect of economic and other activity on the environment was adopted in 2000 with direct participation of the author of this article (approved by the order of the State Committee on the Environment on May 16, 2000, No. 372, registered in the Ministry of Justice on July 4, 2000, No. 2302). A pioneering attempt was made in this document to regulate more carefully the procedure of public participation in decision-making. The document considers public participation to be not only the basic principle of EEE, but also an “inalienable part” of this procedure. Notification and participation of the public as well as due consideration of its opinion shall be binding at all stages of EEE, beginning with preparation of the EEE technical design (paragraphs 2.5, 4.1, and others). In decision-making, public preferences must be revealed and taken into account. This shall be one of the results of EEE (paragraph 1.6). Part IV of the regulation is fully devoted to notification and participation of the public in the EEE procedure. It fixes the terms and order of notification, information content, and rules of collection and analysis of comments and proposals. Preliminary consultations, public discussions, and submissions of written comments shall be the main forms of citizen participation. All these procedures are regulated in the document.

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop For example, paragraph 4.9 stipulates that public hearings are to be arranged by local governments. All decisions related to public participation shall be documented. The advocate of an action shall arrange public hearings on a planned activity and keep the record. The main issues of discussion as well as disputes between the public and the advocate (if any) shall be clearly fixed in the record. The record shall be signed by representatives of local government, citizens, public organizations (associations), and the advocate. The record of public hearings shall be included in the final set of documents on evaluating planned economic activity and the effect on the environment. The new regulation, unlike the previous ones clearly stipulates the obligation to take into account information on comments and proposals of the public. A supplement of the regulation contains a list of documents to be included in the final set of EEE materials to prove the actual participation of the public in the decision-making process. All these materials shall be submitted for environmental examination (paragraphs 12.1–12.7). The following information shall be included in the materials of public hearings: Means of notification of the public on the place, time, and form of the public discussion. A list of public discussion participants, including names, and the names of organizations (if any), with their addresses and telephone numbers. A list of issues under consideration and abstracts of presentations, and records of public hearings (if any). All comments and proposals raised in the course of the public discussions, names of their authors, and materials of possible disputes between the public, local government, and advocate. Conclusions of the public discussion on the environmental aspects of a planned activity. A summary of public comments and proposals with the indication of those which have been or have not been taken into consideration and grounds for refusal. A mailing list of appropriate information to be sent out to the public at all stages of EEE. The principle of public participation in the environmental examination has been secured in Article 3 of the Federal Law “On the Environmental Examination” mentioned above. According to this article, any project can be a subject of state environmental examination beginning with drafts and ending with documentation justifying the license, agreement on division of production, and so on, depending on the nature and importance of a project (Articles 11 and 12 of the above law).

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop The state environmental examination is an obligatory measure to protect the natural environment. It should prevent economic decisions which can cause harm to the natural environment. A positive conclusion of the state environmental examination is necessary to finance and implement any project and programm (Parts 1 and 2 of Article 36 of the Russian Federation Law “On Protection of the Natural Environment”). The legal consequences of a negative result of the examination shall be a prohibition on implementing the project (Part 5 of Article 18 of the Law “On the State Environment Examination”). The right of public associations to carry out a public environmental examination of the same project before or at the time of the state environment examination is provided by Chapter 4 of the above law. Public examination findings shall reflect public opinion and shall be obligatory for consideration during the State decision on realization of the project. Of great importance for public rights is Article 14 of the Law “On the Environmental Examination” providing an obligatory submission of (1) EEE results and (2) results of citizen and public organization discussions organized by local government concerning the subject of the state environmental examination. In this case, the law considers the power of local government to organize public discussions, polls, and referenda among the population on economic activity as a power in the sphere of the environmental examination (Part 2 of Article 9). Thus, the above analysis of the federal law “On the Environmental Examination” and EEE Regulations clearly demonstrates (analysis of law and regulations) that a duplication, or “overdose,” of public discussions takes place in these documents. But given the great number of human rights violations in our country, this is not bad. To exercise one’s constitutional right to participate in managing state affairs (Part 1 of Article 32 of the Constitution), one must participate in decision-making at all stages of the process. If it doesn’t work at one stage, it may at another. Consequently, Russian land and environmental legislation gives the public some possibilities to express views in favor of or against placing a facility or carrying out an activity on territory of their residence as follows: By means of a local referendum or meeting to be held by local government at a stage of preliminary planning. By means of public hearings/discussions at the EEE stage organized by joint actions of local government and an investor on a federal, regional or local level according to the importance of the project. By means of a public discussion, as an integral part of the environmental examination, organized by local government. Thus, in accordance with the Constitution’s provisions, public opinion shall be decisive. State decisions that are inconsistent with residents’ opinions or

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop impede expressions of such opinions are violations of a number of constitutional rights that can be appealed to interstate bodies for the protection of human rights and freedoms, if all available internal means of legal protection have been exhausted (Article 46 of the Constitution). EXPERIENCE IN DEFENDING THE ENVIRONMENTAL INTERESTS OF SOCIETY Ecojuris is a nongovernmental organization seeking to execute public interest environmental law. The term “public interest environmental law” had not even existed in our country when we started our activity although some decades ago this term became popular in the United States, Canada, and other countries. Nevertheless, we succeeded in opening and introducing this direction in Russia. We began our work at the end of 1989 on the base of the Academy of Sciences’ Institute of State and Law. At that time, illegal construction of the North Thermal Power Station was underway in Moscow, organized without appropriate environmental examination. Later a similar problem arose in Southern Butovo (a district of Moscow). Having realized that it was impossible to continue our work without pooling efforts of many people, we set up Ecojuris; and in 1991 it was registered as a nongovernmental organization. Since that time it has re-registered more than once because of changes in legislation and in membership. As of now the name of our public organization is “The Institute of Environmental Law—Ecojuris.” Our experts carry out consultative-judicial practice as well as research, legal drafting, education, seminars, and training not only in Moscow, but also in the regions. We hold training courses for environmental lawyers. We are currently carrying out a lawyers’ training program on protecting national minorities’ rights for traditional uses of natural resources. For the first few years, Ecojuris had been the only nongovernmental organization in the USSR and Russia to protect public environmental interests and civil environmental rights. But now, about ten such organizations exist in our country. Most have been created with our direct involvement. Lawyers work for environmental organizations, such as Karelia’s Association of the Greens and Kamchatka’s League of Independent Experts. In 1994, it occurred to us that we should informally pool our efforts. Since that time we have been holding annual conferences of our organizations. To exchange experience and information, the informal Network of Russian Public Interest Environmental Lawyers was set up in 1997. It currently has more than forty members. In 2000, representatives from five countries of the former Soviet Union took part in our Seventh Annual Public Interest Environmental Law Conference for the first time. In addition to the Russian network, we have established the

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop Eurasian Public Interest Environmental Law Network to protect public environmental interests. Our colleagues from Azerbaijan, Moldova, Ukraine, Kazakhstan, Kyrgyzstan, and Uzbekistan have joined us. In each of these countries, there are one or two persons engaged in consulting, pleading cases, and other legal activities. Human rights lawyers from Belarus, Georgia, and Armenia have also expressed their wish to join the Network. Most of these countries have similar legislation and problems: the oil mafia, the fishing mafia, the timber mafia, and corruption, particularly among the highest and middle rank officials responsible for granting licenses and permissions to carry out different projects and use different kinds of resources. Conduct of rank-and-file officials is not immaculate, yet they have a long way to go to reach the standards set by “the highest echelons.” During all these years, we have been involved with law on behalf of the public. In the early 1990s, courts did not take environmental cases for examination at all. Judges did not know the environmental legislation. We brought them copies of appropriate normative acts. In such a manner, they learned about this information for the first time. To ensure that an original jurisdiction would take such a case for examination, we would sometimes have to appeal to the Supreme Court. We were the first who acquainted judges and other officials with the Constitutional right to a favorable environment and unlimited guarantee of protecting this right in court. What is more, they learned that a European Human Rights Court existed, and we could appeal to it. It was a revelation for them. Since the middle of the 1990s the judicial system has begun stirring. Judges and public prosecutors are displaying interest in our activity. They have started taking part in our seminars and delivering lectures for our trainees. Bodies dedicated to guaranteeing human rights have arisen. We won cases in Moscow and in the regions. To illustrate, in Chelyabinsk, a member of our Network in cooperation with Ecojuris has managed to gain psychological damage compensation for a child who is a third-generation radiation victim. At present, Ecojuris has a rather complex structure. It includes a consultative center for citizens and public organizations. Muscovites and Moscow Oblast residents are able to consult the Center. People from other parts of the country can send us written inquiries. Verbal inquiries center largely around citizens’ environmental rights in populated areas, including unlawful building, destruction of trees, infringement of sanitary and epidemiological norms, and neglect of environmental assessment and examination. Deforestation and unlawful construction in protected wetlands are common. It is these violations that upset people. In general, the inquiries show considerable variation, ranging from protection of domestic animals to complaints against housing quality to noise pollution. Apart from consultative assistance, Ecojuris continues dealing with public interest environmental law. In Moscow, Moscow Oblast, and adjoining oblasts, the consultative center pleads different cases, including sanitary and

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The Role of Environmental NGOs: Russian Challenges American Lessons - Proceedings of a Workshop epidemiological infringement, unlawful construction, and neglect of environmental impact examination on various projects. As a rule, about ten such small cases are under consideration by Ecojuris at any one time. More complicated cases of interregional and even All-Russian interest are also being handled by Ecojuris. Considerable advances have been made on these levels. In 1998–1999, Ecojuris won two cases against the Government on the illegitimate reclassification of pristine forest lands as non-forest lands. In September 1999, we won a case against the Government on its unlawful granting of permits for the discharge of drilling wastes into the Far East seas. These cases have been won at the level of the Supreme Court. To be sure, failures also occur. We try to see that a lost case does not turn into a conspicuous failure. Each case, even a small one, is normally accompanied by a public campaign and mass media support. Letters and requests are sent to the state bodies, including the office of the Prosecutor General. Here are some concrete examples. We actually lost the case on the St. Peterburg-Moscow high-speed railway project. The Supreme Court rejected our claim. But a large-scale mass media campaign was launched. More than three thousand supporters of our position were involved from different regions of the country. A great number of publications were issued. All TV channels broadcast reports on the matter, including on our lawsuit. We believe that this case made its contribution to stopping construction of this line. In our view, President B.N.Yeltsin reversed a substantial number of his decrees due to the threat presented by this very case. Though this case may have been lost in court, it should not be considered a failure. Ecojuris opposes President Putin’s edict of May 17, 2000, on abolishment of the State Committee on Ecology and Ministry of Forest Management. A great number of laws, from the Constitution to the environmental legislation, have been violated by this edict. The Presidential edict is a very important decision related to citizens’ environmental and human rights to a favorable environment, to information, and to participation in managing State affairs. We believe the edict to be undeniably unlawful. There is not a general unified procedure for public participation in environmental decision-making in our country. Consequently, so-called “compensatory” mechanisms should have been put into operation. This would imply, that in accordance with the federal Law “On the Environmental Examination,” the draft of this edict as well as the draft of the corresponding government decree adopted on the base of this edict should have undergone state examination with participation of the public. This procedure has not been observed. Therefore, we consider it to be a serious abuse of citizens’ rights. Nevertheless, the Supreme Court has ignored our claim, so we are now at the stage of appeal. We are currently developing a strategy of future actions, as we cannot let this case end without legal consequences.

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