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4. Involvement of the public (citizens, local population, NGOs) and representatives of industries in governmental decision-making in the field of environmental protection In the modern society, the state of the environment is one of the factors that determine the social well being. Interests of health protection are associated with the quality of air and water. Efficient distribution and use of natural resources directly effect interests of economic well being. Taking into consideration that these vital interests concern all people, the environmental law for the recent time employs a mechanism of involving the public into governmental decision-making in the field of environmental protection as a measure for defending public interests. Involvement of representatives of various layers of the society – local communities, academia, industries, NGOs in the process of governmental decision-making creates a climate of trust to the power, understanding of the decisions taken and respectively, a voluntary agreement to fulfil them. Besides, representation of various social groups in administrative procedures helps take into consideration various views and to take the best decision. Therefore, availability of public involvement mechanisms into environmental protection decision-making may be viewed as one of the criteria for determining the adequacy and sufficiency of environmental legal requirement and state implementation measures. All the Riparian States use various legal mechanisms that provide for involvement of the public into environment protection decision-making. In the CIS Caspian States an institute of environmental public rights is especially popular. In addition, such mechanisms as public ecological expertise, the right of governmental bodies to involve individuals and experts into drafting laws and regulations are also available. The legislation on non-governmental groups is rather well developed. These legal initiatives gave rise to fast growing of the number of environmental NGOs. At the same time, the new legal institute is in the process of development, and more efforts are needed to improve it. For instance, the non-governmental ecological expertise, although proclaimed in all the CIS Caspian States, remains inefficient. State bodies may invite the public to administrative decision-making, but are not obliged. In practice, at least at this point, they do not invite, unless an NGO itself insists on it. Frequently, participation in decision-making is complication, because of lack of information about decisions to be taken (e.g. drafts of governmental regulations). Though in some instances, in adopting legislative acts that concern industrial development involvement of representatives of industries seems to be useful, the legislation of the CIS Caspian States does not establish special or additional rights or procedures for involvement of representatives of the industries in governmental decision-making. They enjoy the same opportunities as other citizens. At the same time, they do not claim this deficiency publicly, and participate in governmental decision-making through various types of lobbying, indirect and informal participation in governmental activities. There is no legislation on lobbying. The number of environmental NGOs also grows quite fast in Iran. It now reached 250, although in 1997 there were only 20 public groups involved into environmental protection. Their role in the life of the country is growing, however, they face certain problems caused by poor development of legislation on NGOs and procedures of cooperation with governmental bodies. 4.1. Environmental rights of citizens and public groups Under influence of general democratization processes, new institute of environmental rights of citizens and public group have emerged in the legislation of the CIS Caspian States for the recent years. Similar approaches are employed, when environmental rights are proclaimed on the highest constitutional level and comprise the right for favorable environmental conditions, true information about the state of the environment and access to justice for defending their environmental rights. The above-proclaimed constitutional rights are further developed in the legislation. In particular, provision is made everywhere for setting up NGOs. There are no discriminatory rules against juridical defense of public rights. In some instance, the legal opportunities are even more democratic that similar rights and procedures adopted in western countries. For instance, in the USA an NGO is not entitled to file a claim with a court for the defense of environmental rights of citizens, until the infringed rights belong to a member of such NGO. In Russia, any NGO may file a claim on behalf of any citizen who suffered from an environmental offense. Much attention for the recent years is attached to the institute of access to information that turned out to become an area of conflicts of many interests – state, commercial, public. There are many questions unresolved in the legislation and in the implementation practice. For instance, the legal definition of environmental information is missing in all the CIS Caspian States. It is not clear, when to apply the charges for providing governmental information. Administrative procedures for providing information are often lacking, although gradually this work is being done. Azerbaijan Both the Constitution and the law “On Environmental Protection” proclaim the right of citizens to a favorable environment, the rights to get information on the state of the environment and measures for its improvement, to require and get compensation for damage caused through violation of the environmental legislation, to participate in public activities (meetings, manifestations), to apply to judicial and administrative bodies with a requirement to prohibit construction, operation of facilities that affect the environment and public health. Citizens are allowed to set up public groups that are granted special rights. They include the right to public control, rights to get true information about the state of the environment and measures for its rehabilitation, to participate in the discussion of draft of laws, and to file claims in the courts in cases of environmental violations committed either by nature users or governmental bodies. Implementation of the proclaimed rights face certain barriers sometimes caused by insufficient development in governmental regulations of the established rights. For instance, there are no clear juridical criteria for determining favorable environment. There are no lists of environmental information that may be either open or closed for the public, except for the hydrometeorological information that is recognized as open. According to the law “On Hydrometeorological Activities” the state is obliged to supply the public, state agencies, and mass media with factual, informative and forecast information, and warn about dangerous natural events, levels and dangers of expected pollution. At the same time, the legislation does not establish the procedure for providing individual persons with information, and there is no liability for the failure to provide required information to interested persons. Access to the judiciary is not restricted, but citizens apply to courts in rare cases, as it is connected with significant expenses, problems with the proof of guilt. The public movement concerned with environmental problems plays an ever-growing role in the social life of the country. The number of NGOs increases and numbers several dozens now. They are characterized by professionalism, high level of expertise of their members that allows them to conduct an equal dialogue both with the government and the business. According to their view, ministries and agencies do not express interest in cooperating with NGOs. Implementation of the provisions of laws relating to NGOs is in fact blocked by governmental regulations. For instance, the Azerbalyk Charter does not provide for its obligation to cooperate with the public that in fact prevents implementation of many legal requirements connected with public rights. Iran Environmental legislation does not establish specifically environmental rights of citizens and NGOs. However, there is no restriction to setting up of NGOs generally, and there are non-discriminatory procedures for anybody who suffered as a result of an environmental offense to file a respective claim with a court. Access to environmental information is not regulated by environmental legislation, and therefore, there is no specific obligation of the government to provide the public with certain data. Solely, the Air Pollution Act provides for an obligation of warning the public in cases of dangerous air pollution. Kazakhstan Environmental rights and obligations of citizens and NGOs are established by the laws “On Environmental Protection”, “On Public Groups”, “On Non-Commercial Organizations”. The rights include the right to live under environmental conditions favorable for the life and health, to have access to information about its state and about measures for its improvement, to get compensation for the damage inflicted by an environmental offense. Citizens are entitled to set up public groups, to require cancellation of decisions that affect the environment. The public environmental movement gains force quite fast. In general, most of NGOs are small professional groups numbering in total about 400. There are also large groups with quite developed organization and regional branches. Among them is they National Ecological Society of Kazakhstan with a membership of about 300 people, that is involved into many different activities, publishes its newspaper. Most of the NGOs focus on distribution of environmental information, defense of environmental rights of citizens in courts. A professional NGO of oil experts “Caspian 21” deals with the problems of sea pollution from oil activities. They have already gained important experience. In particular, they monitor the level of pollution in the oil production regions of the Caspian Sea and file claims with courts. According to the testimony of NGOs, the right to have access to environment information in fact is not implemented. There are no specific procedures for that, and governmental bodies are not interested to cooperate with NGOs. The law “On Ecological Expertise” does not provide for an obligation of the Ministry of Environmental Protection to notify the public about the planned activities. Russia The environmental rights of citizens and NGOs is proclaimed in the Constitution and the laws “On Environmental Protection”, “On Subsoil”, and others. In general, they comprise a standard set of rights, like the right for the favorable environment, the right to get information about its state and the right to get compensation of damage inflicted by an environmental offense. Laws “On Non-Governmental Organizations”, “On Non-Commercial Organizations” establishes procedure for setting up various non-governmental groups. The legislation on environmental information is quite vast. The general procedure for collection, storage and access to information is regulated in the law “On Information, Informatization and Access to Information”. Rules for the activities in relation to access to information are established by the law “On State Secrets”, and the governmental regulations “On Commercial Secrets”. All specific rules about access to special information concerning forests, lands, specially protected areas, deposits of minerals are stipulated by environmental legislation, including the Forest and Land Codes, laws “On State Land Cadastre”, “On Subsoil”, etc. Despite much attention that is attached to development of the legislation on information, many problems remain unresolved. In particular, it is not clear whether payments for obtaining certain types of information is legitimate, and does not violate the Constitutional right to have “free” access to information on the state of the environment. The information sharing process among the state bodies is not regulated. Some agencies prefer to sell their information to other state agencies that in fact negatively impacts the work of the whole system of environmental executive bodies. The juridical practice with participation of NGOs is well developed. There are in total about 800 environmental NGOs according to the official statistics, with some having large memberships and a wide spectrum of interests. Many deals with legal issues and comprise professional lawyers. They have gained good experience in this field. The main problem of environmental NGOs is poor financial position, however, they also gain positive experience in this field and manage to get grants for their activities from various international and foreign funds. Turkmenistan Environmental rights of citizens and public groups are proclaimed by the law “On Environmental Protection”. They comprise the right for a favorable environment and the right to participate in nature protection. The right of individuals for a favorable environment is ensured by the measures aimed at implementation of the legislation in industrial activities. Citizens are entitled to participate individually in measures aimed at preventing environmental offenses and in enforcement actions. Citizens and NGOs are also entitled to require information about the state of the environment, and sources of its pollution. The State and local bodies are obliged to assist citizens and NGOs in all respective ways in carrying out of their rights, to ensure transparency of their activities and to ensure access to information about the environment. The proclaimed rights evidently demonstrate the wish to carry out the democratic policy in this field. At the same time, provisions of the law “On Nature Protection” require further development in other laws or governmental regulations. In particular, to proclaim that the rights of individuals are ensured by enforcement activities and measures for the prevention of violation sounds insufficient unless it is determined, which measures in particular, are meant. The provision about the right of citizens to participate personally in enforcement activities may hardly be realized unless special enforcement powers are granted to certain or all citizens. No rules providing for enforcement powers of the public have been adopted. Under the influence of the Aarhus Convention, special attention is attached to the legislation about access to environmental information. In particular, agencies that are entitled and are obliged to supply environmental information have been nominated. They include the Ministry of Nature Protection, the sanitary and epidemiological inspection, geological services and others. The Center of Environmental Monitoring of the Ministry of Nature Protection issues a daily bulletin about pollution. Environmental information is also provided according to individual inquiries of individuals. In summer 2000, the Ministry of Nature Protection received many inquiries about the quality of water of the Caspian Sea in the recreation zone in connection with the mass death of … 4.2. Involvement of the public and industry into environmental decision-making In the Riparian States, like in many other states of the world, the following types of governmental decisions are taken – legislative acts, decisions of executive bodies both of regulatory and individual character. Regulatory decisions comprise regulations and rules adopted by the governments/councils of ministers, or ministries/committees. Individual decisions comprise various permits – licenses, contracts, other permitting documents that grant the right of nature use to concrete persons, and also decision concerning closure or suspension of operation of environmentally harmful activities, and enforcement decisions. Decision-making is done in accordance with the national procedures of each Riparian State. The general procedures for decision-making extend to the Caspian Sea. None of the Riparian State has established any special procedures or exemptions. Mandatory involvement of the public in decision-making as a procedural requirement is not applied. In all the cases, involvement of citizens, or representatives of industries is left to the discretion of the respective ministries and agencies. For instance, state agencies may involve representatives of local communities into state ecological expertise, but not obliged to. State bodies may invite the public to participate in drafting of legislative acts, but not obliged to. At the same time, in all the CIS Riparian States, individuals and non-governmental groups have wide opportunities to influence the decisions taken by the government. For instance, it is everywhere allowed to initiate a non-governmental ecological expertise. EIA procedures provide for mandatory public hearings. The views of the public are to be taken into consideration. The right for non-governmental control is also proclaimed. There is a right to arrange meetings and manifestations, to speak in mass media. Citizens are also entitled to claim in courts the state decisions adopted in violation of the law. Lastly, it is possible to arrange a referendum concerning adoption of this or that law. To have a referendum, interested persons are obliged to collect a required number of public signatures in support that is not easy to implement. There have been no referenda concerning adoption of any law connected with environmental protection, although in Russia, precedent of initiating the referendum procedures are available. In Iran, there are both similarities and differences with other Riparian States. In a similar way, governmental agencies are not mandated to involve the public into decision-making. Different from other Riparian States, the so-called environmental rights – the right to have access to information about the environment and the right to a favorable environment, are not proclaimed. However, there are certain specific opportunities for the public to influence and participate in governmental decision-making. Azerbaijan Provision is made for direct participation of the public in law making in cases when a draft law is adopted in the procedure of a referendum. Citizens may also participate in implementation of the state programs, to propose cancellation of state decisions regarding location, construction and operation of environmentally harmful facilities, and also suspension or termination of operation of industrial enterprises affecting the environment. In conformity with the law “On Ecological Expertise” the public is entitled at its own initiative and at its expense to conduct non-governmental ecological expertise. It is possible for the public to get a status of public environmental inspectors of the State Committee for Ecology and Control of Nature Use and to control environmentally relevant activities. There are no decision-making procedures that include a mandatory involvement of either the public, or the business into decision-making. Iran NGOs face problems with involvement into decision-making that include unsatisfactory relations with the Department of the Environment, complications with registration due to lack of legal procedures, poor contact of environmental NGOs with traditional organizations, generally insufficient legal regulation in the area and lack of governmental policies in this field. Nonetheless, some opportunities for influencing decision-making are available. Under the Environment Protection and Enhancement Act, representatives of the civil society- NGOs, academia, industry may be included to work in the High Environmental Council. In this case, the public is directly involved into decision-making, however, the opportunities for all interested to have a word in decision-making is very limited. There could be only four members picked out from various non-governmental entities that can hardly be representative of various interests in the country. Kazakhstan In conformity with the law “On Environmental Protection”, “On Ecological Expertise”, individuals and NGOs are granted standard environmental rights – the right to apply to state bodies with claims and appeals, the right to conduct non-governmental ecological expertise, the right for public control of environmentally related activities. The efficiency of the mechanisms of public involvement remains on a low level for several reasons including insufficient development of legal requirements in governmental regulations. For instance, there are no procedures for administrative consideration of citizen’s applications. Procedure for the state registration of the non-governmental ecological expertise that is a mandatory condition for conducting it is missing. To initiate non-governmental ecological expertise, it is required for an NGO or an individual to acquire a state license, but the licensing procedure has not been established. Though the public environmental control is proclaimed, to exert this function practically impossible for the lack of financial resources needed to do this work. The former rule, when public inspectors were allowed to keep a third part of the penalties collected was repelled by a governmental decree of 8 April 1997. In conformity with the new procedures, all penalties go to the budget. The former rule seems to be rather useful, if to mind that the share of environmental offenses investigated by public inspectors reached 30-40%. This approach of distributing the amounts received as penalties is also adopted in the western countries. Russia The rights of individual and public groups that allow to influence the state decisions taken are determined in the Constitution and the laws “On Environmental Protection”, “On Ecological Expertise”, by the Codes of Arbitration Procedures, and Civil Procedures. An important role is played by the law of 1992 (as amended in 1995) “On Judicial Claiming of actions and Decisions of the government that Violate Rights and Obligation of Citizens” that establishes the procedures for filing the claims against governmental officials and executive agencies. In accordance with the legislation, individuals and public groups are entitled to require in an administrative or judicial procedure cancellation of the decisions concerning location, construction or operation of industrial facilities that affect the environment, and also suspension of termination of environmental harmful activities, to inspect industries, and to conduct non-governmental ecological expertise. In addition, NGOs are specifically entitled to propose consideration of draft laws and to conduct referenda. Implementation of civil rights is guaranteed by mandates of state agencies that are established by environmental and administrative legislation. For instance, state bodies are mandated to assist in any feasible way to public groups and individuals in using their rights, to take necessary measures for fulfillment of their proposals and requirements concerning organization of nature protection activities. The legislative provisions are formulated in a rather declarative form and need to be further developed in governmental regulations or legislative acts. However, to assess whether the legislation is developed sufficiently in this field seems to be impossible because of the lack of legal criteria and vague wordings. For instance, which assistance to NGOs may be deemed sufficient and which actions may be viewed as assistance. In fact, the governmental bodies function in conformity with administrative rules, which do not stipulate cooperation with public groups, and neither the administrative procedure, nor law-making procedures provide for mandatory involvement of the public or business into decision-making. Some permits and licenses are granted in the procedure of competitions of auctions. In those cases, the public formally has an opportunity to influence the decisions taken. In practice, representatives of the public hardly attend such arrangements, because in fact of low efficiency of such a participation. Turkmenistan The state standard “Environmental Impact Assessment of the Planned Economic Activities” provides for holding mandatory public hearings while conducting an EIA. It is also allowed to conduct a non-governmental ecological expertise. The right for public inspection is not provided for. There are no legislative requirements to involve the public to the preparation and enactment of legislative or regulatory decisions.
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