The Usual Suspects? Public Participation Under the Aarhus Convention
| Published date | 01 January 2003 |
| Date | 01 January 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6601004 |
LEGISLATION
The Usual Suspects? Public Participation Under the
Aarhus Convention
Maria Lee
n
and Carolyn Abbot
**
Introduction
Something of a consensus on the importance of public involvement in
environmental decision-making has been achieved in recent years. The emphasis
on public involvement is one of a range of responses to a certain disillusionment
with the authority of the state (or the EC) to regulate for environmental
protection, and is increasingly reflected in international, European and domestic
environmental law.
1
The Aarhus Convention, the Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters,
2
referred to by the UN Secretary-General as ‘yby far the
most impressive elaboration of principle 10 of the Rio Declaration’,
3
is perhaps
the most significant international innovation in this area.
4
The purpose of this article is to examine, from the perspective of the Aarhus
Convention, mechanisms for public involvement in English environmental law.
Although this area has traditionally been relatively closed to outside influence, the
introduction of the public into decision making fits within a trend towards the
‘proceduralisation’ of environmental (and other) regulation, which has been much
n
Lecturer in Law, King’s College London.
nn
Lecturer in Law, University of Manchester.
We are grateful to Anthony Ogus, Benjamin Richardson and Joanne Scott for comments on an
earlier draft.
1 Although we will not discuss the experience in the United States in any detail here, the long-
standing experience with public involvement in decision making in that jurisdiction will be well-
known to readers. See in particular M. Shapiro, Who Guards the Guardians? (Athens, GA:
University of Georgia Press, 1988); and R. Stewart, ‘The Reformation of American
Administrative Law’ (1975) 88 Harv L Rev 1669.
2 Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters (Aarhus, 25 June 1998) available at ohttp://www.unece.org/
env/pp/documents/cep43e.pdf4
3 K. Annan in S. Stec and S. Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide
(New York and Geneva: United Nations / Economic Commission for Europe, 2000), foreword.
Rio Declaration on Environment and Development, 13 June 1992, adopted by the UN Conference
on Environment and Development (UNCED) at Rio de Janeiro. UN Doc. A/CONF.151/26
(vol. 1) (1992). Principle 10 states that ‘Environmental issues are best handled with the
participation of all concerned citizens, at the relevant level. At the national level, each individual
shall have appropriate access to information concerning the environment that is held by public
authorities yand the opportunity to participate in decision-making processes. States shall
facilitate and encourage public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings, including redress and
remedy, shall be provided.’
4 International law on public participation is discussed in G. R. Pring and S. Y. Noe
´, ‘The
Emerging International Law of Public Participation Affecting Global Mining, Energy and
Resources Development’ in D. Zillman, A. Lucas and G. Pring (eds), Human Rights in Natural
Resource Development: Public Participation in the Sustainable Development of Mining and Energy
Resources (Oxford: Oxford University Press, 2002).
rThe Modern Law Review Limited 2003. (MLR 66:1, January). Published by Blackwell Publishing Ltd.,80
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
remarked upon recently.
5
‘Public participation’ in environmental law and policy
could range from the basic democratic right to vote in European, national and
local elections, to possible rights to express a view, vote on or even veto a
particular project. We do not propose to attempt to define public participation,
nor is it defined in the Convention. Broadly, however, we are concerned here with
mechanisms that allow the public to evaluate, comment on or influence regulatory
decisions, at a broad policy level or in respect of individual projects.
We begin this paper with an analysis of some of the aims of public participation.
John Dryzek examines mechanisms of public involvement (including access to
information, consultation, dispute resolution) as a particular environmental
discourse, ‘democratic pragmatism’.
6
Although we will not be examining discourse
analysis in this article, Dryzek’s approach allows us to see participation as an
alternative to more traditional autonomous bureaucracy, providing a response to
actual and perceived failures of expert regulation by the public administration.
7
Dissatisfaction with the performance of existing regulatory arrangements might
question both the effectiveness and quality of decisions, and the democratic
legitimacy and fairness of those decisions.
8
A turn to increased public involvement
for a solution can be compared with a market-based response to regulatory
failures (for example, taxing, pricing, privatising
9
), which, at least as currently
practised, may tend to exclude the public from decision-making.
10
After discussing some possible rationales for public participation, we turn to the
Aarhus Convention itself. The Convention has received a generally positive
response from NGOs and governments.
11
Although it is a fairly weak legal
document, given its quite vague and permissive
12
character and the absence of
adequate enforcement mechanisms, the Convention makes a potentially powerful
5 See J. Black, ‘Proceduralizing Regulation’ (2000) 20 OJLS 597 and (2001) 21 OJLS 33; J. Steele,
‘Participation and Deliberation in Environmental Law: Exploring a Problem-solving Approach’
(2001) 21 OJLS 415; J. Scott, ‘Flexibility, ‘‘Proceduralization’’, and Environmental Governance
in the EU’, in J. Scott and G. de Bu´ rca (eds), Constitutional Change in the European Union
(Oxford: Hart Publishing, 2000). C. Harlow and R. Rawlings, Law and Administration (London:
Butterworths, 1997) discuss the development of administrative procedure more generally. The
Aarhus Convention concentrates on procedure as a requirement of the regulator, but
‘proceduralisation’ can also concentrate on imposing procedural requirements on the regulated.
7 Which Dryzek terms ‘administrative rationalism’, ibid., Chapter 4.
8 R. Summers, ‘Evaluating and Improving Legal Processes – A Plea for Process Values’ (1974) 60
Cornell Law Review 1, makes a distinction between the evaluation of processes according to their
good result efficacy or alternatively, according to their capacity to serve process values per se.
Similarly, Pring and Noe
´, n 4 above, and B. Barton, ‘Underlying Concepts and Theoretical
Issues in Public Participation in Resources Development’ in Zillman, Lucas and Pring, n 4
above, discuss participation by reference to substantive or process legitimacy.
the popularity (although not necessarily the incidence) of ‘command and control’ regulation in
environmental law.
10 See J. Rowan-Robinson and A. Ross, ‘Non-Regulatory Instruments and Public Access to
Environmental Information’ in K. Bosselmann and B. Richardson (eds), Environmental Justice
and Market Mechanisms – Key Challenges for Environmental Law and Policy (London: Kluwer
Law International, 1999). S. Kuhn, ‘Expanding Public Participation is Essential to Environ-
mental Justice and the Democratic Decision-making Process’ (1999) 25 Ecology Law Quarterly
647 discusses the problems of ensuring public participation in pollution trading.
11 S. T. McAllister, ‘The Convention on Access to Information, Public Participation in Decision-
Making, and Access to Justice in Environmental Matters’ [1998] Colorado Journal of
International Environmental Law and Policy 187. Note that a large number of NGOs participated
in the conferences leading to the Aarhus Convention: see European Eco-Forum, Brussels
Declaration (Brussels, 2002, available at: ohttp://www.eeb.org/Brussels%20Declaration.pdf4);
and Stec and Casey-Lefkowitz, n 3 above, 1–2.
12 The phrase ‘meeting any requirements under national law’, and similar phrases, arises a number
of times and is not defined in the Convention. It may indicate a certain deference to State
Public Participation Under the Aarhus ConventionJanuary 2003]
81rThe Modern Law Review Limited 2003
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