Active participation in environmental issues – law or myth?

The central theme of the next decade will likely be how to maintain the good state of the environment in which we live. Recent developments on the planet teach us that if we want to raise the level of quality of life, we should put our actions in frameworks that respect the aspiration towards development and the need to ensure the main precondition for human well-being – a healthy and safe environment.

Successful protection of the environment and nature can only be achieved with the active engagement of all members of society. This engagement can be at the level of environmentally responsible behavior in the daily life and actions of an individual, family or institution. The second level of action is an active social engagement in the effort to introduce and encourage social change and to participate in decision-making in various processes that are of importance for the protection of the environment and nature, and therefore human society as a whole.

Legal aspects of public participation

Man as an atom that makes up society has a choice of action by which he directs his knowledge and skills into a balanced relationship between the environment and socioeconomic progress.

How can I influence the environment in which I live? How can I improve the life quality but also preserve it for future generations? How do we reconcile the fact that as a society we need economic development, but also a social one?

The right to a healthy environment is no longer just a formality; it has ceased to be a mere declaratory right that stands inscribed in the Constitution of the Republic of Croatia. It’s becoming alive. Pollution is becoming a factor of change in present generations, and legal options are emerging as a powerful tool in preserving the riches we enjoy and as a mediator in the sustainable development issues of each community.

The level of awareness of citizens about the need to preserve the environment in Croatia is far higher than 10 or even 20 years ago. Many factors are the reason for this – from the actions of the authorities, the international political climate, to the knowledge of each individual that the quality of life is not something that can only be influenced within their household, but also depends on exterior factors and events.

Issues that directly concern the environment are necessarily colored by various requirements. Thus, there are demands from the private sector, public authorities and the citizens themselves. Any decision concerning the environment is driven by a certain individual interest, but must necessarily reflect the public interest and the fundamental postulates of environmental law. It is the citizens who are obliged to apply this decision and to whom it will be applied indirectly or directly.

For a decision to be applicable, it must be made in a way that allows the citizen to understand, accept and apply it. In order to understand it, it is necessary that the actions preceding each decision are public, transparent and that the citizen is informed thereof.

In order to accept it, it must be given time and place to present its views and proposals on it until it has been adopted.

In order to apply it, it must be provided with a safe and understandable framework containing its rights and obligations.

Aarhus Convention

As a result of understanding the importance of citizens’ voice in environment-related decisions, on 25 June 1998, in the Danish city of Aarhus, the Convention on Access to Information, Public Participation in Decision-Making and Access of Justice in Environmental Matters was signed. Such an international legal framework in the field of environmental protection marks a milestone in the way of decision-making on environmental issues and is extremely important for the further development of environmental law, both in Croatia and in the world. The Republic of Croatia ratified the Convention in December 2007. It is important to note that the European Union is also one of the signatories of the Convention and its provisions have been transposed through European legislation.

This document sets out environmental rights as a reliable basis for citizens’ involvement in environmental policies and reaffirms our commitment to future generations. The Aarhus Convention is a signpost that sustainable development can only be achieved by involving all participants in society. It focuses on democratic public cooperation with public authorities and paves the way for a new process of public participation in the negotiation and implementation of international agreements. To achieve this, the public needs to be informed and involved in decision-making processes. This was made possible by the implementation of the Aarhus Convention. The Convention is implemented in Croatian legislation by the Law on the Affirmation of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (NN MU No. 01/07).

The Aarhus Convention is based on the principle of the three pillars – access to information, public participation in environmental decision-making and access to justice.

Access to information – implies that each signatory state is obliged to ensure that environmentally important information is obtained easily and in a timely manner.

Public participation– implies an obligation of public law bodies to involve citizens in the procedures for assessing the environmental impact of an intervention or adopting some spatial plan and similar act, and to include the opinions of citizens in the final decision.

Access to justice – implies the right of citizens and associations to challenge environmental decisions before the court, which they believe offend their right to a healthy environment.

The provisions of the Aarhus Convention require each signatory state to transfer and incorporate the three pillars of public participation into domestic legislation in such a way that the legislature creates a legal framework that will be understandable to the citizen and equally valid throughout the territory. These requirements are in the service of the principle of legal certainty, which propagates the positive legislation of the Republic of Croatia, and it starts from the fact that certain legal norms can be accepted and respected by the addressee only if they are unequivocally determined and act towards everyone equally. Practice often shows that creating an unequivocal norm is not an easy task and is an area that paves the way for different interpretations of the same provision. The Aarhus Convention here serves as a kind of roadmap and the necessary legislation resulting from it must be aligned with it. It is important to note here that in the Croatian legal system all signed conventions in the hierarchy occupy a place above the law, from which the above rule arises.

Reports on the implementation of the Aarhus Convention

Additional verification of the proper transfer of the objectives of the Aarhus Convention is provided by periodic reports which the Republic of Croatia is obliged to submit to the bodies of the Convention. In these reports, the Republic of Croatia is obliged to convey the status of compliance with the rights that the Convention provides in the field of environmental protection.

Thus, the proposal for the text of the Report for the period 2017-2021 was put at the disposition of citizens through the e-consultation site in March 2021. The Association Sunce participated in the comments, pointing out some systemic problems in the implementation of the postulate of the Convention. These are:

·         Insufficient competence of citizens to use legal tools to obtain relevant environmental information and inertia of public law bodies to take a step further in providing legal assistance in this regard – NOTED

·         Non-adoption of legal acts that would ensure the effective implementation of the Convention in the Republic of Croatia legislation – Regulation on information and participation of the public and interested public in environmental matters (NN 64/08) should have been adopted within one year from the date of entry into force of the new Environmental Protection Act (EPA), in accordance with Art. 268 of the same Law. This deadline is long overdue, and to date, the environmental procedures are subject to a Regulation that is not aligned with the EPA in force, which has since been amended several times. – NOT ACCEPTED

·         Flat-rate involvement of the public in participation processes and working groups without a real will or interest in incorporating expressed opinions into decisions. – NOT ACCEPTED

·         Not providing complete information on administrative environmental procedures. – NOT ACCEPTED

·         The practice of not imposing interim measures by the courts that would repeal the environmental decisions against which the dispute is being remanded, and whose further implementation could cause environmental damage (if the decision continues to be implemented while the dispute is ongoing). – NOT ACCEPTED

·         Amendments to the Administrative Disputes Act that “introduced” the payment of the costs of an administrative dispute according to the principle of success in litigation, although on one side it is always the Republic of Croatia with its budget, and on the other, it is a citizen or group of citizens. (The previous practice was that each party bears its own costs, precisely because of the uneven distribution of power in the dispute) – IT WAS NOT ACCEPTED

The process of consultation with citizens for The fifth report on the implementation of the Aarhus Convention has just been completed and all prominent comments have been rejected with the following expressions “Noted” or “Not accepted”.

Explanations to why some of the above comments were not accepted were given flatly and frivolously. The highlight was the citing of legal provisions, of which we are well aware.

However, the point of the public participation process is to find solutions that will improve the legislative framework in the service of public participation in environmental matters and thus transfer the spirit of the Convention to our legal system. The aim of the public consultation on the draft Report is not to categorically reject any position contrary to the text set out in the Report, nor to block progress through a position of power.

On the contrary, cooperation is the key to success. Although civil society is accustomed to this approach, in this case it is intolerable and dangerous. Why? Precisely because it is a document that revises the application of the umbrella regulation that ensures the participation of the public in the adoption of decisions concerning the environment – the Aarhus Convention, which by its strength represents an act above the law in the Republic of Croatia, and just below the Constitution. If the process of public participation for such an important document is carried out flatly, it is not an exaggeration if we conclude that at local levels (for example, the decision to embank the coast of a length above 50 meters) the procedure of consulting with the public will not even be carried out.

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If we go back to the beginning and think about the role of guardians of the environment that we, as human beings, should take, and if we take into account that with our mental capacities we have predicted the limits of endurance of our only home – planet Earth, the question arises what are we achieving if we consciously ignore all of the above?

Decisions that are as important as those on environmental issues must not be deprived of the right to an opinion and public participation, as this is precisely where public awareness and the protection of the public interests are reflected.

Is there really a problem in putting additional effort into reading and considering the public’s submitted opinions on planned environmental interventions, or are there other reasons involved? Perhaps the reason is still the lack of awareness of everything that was said in the introduction, and precisely in those who should lead by example.

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