Environmental Information
Information about the Environment
The Aarhus Convention, European Union rules implementing it supports the enforcement of environmental rules and standards by members of the public. It applies to information held by public authorities. This includes government departments but also local authorities and bodies which have any public function in relation to the environment.
Environmental information is very broad. It includes information in written or electronic or other forms relating to most aspects of the environment, including
- the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
- factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
- measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to above as well as measures or activities designed to protect those elements,
- reports on the implementation of environmental legislation,
- cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to at the third point above, and
- the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to above, through those elements, by any of the matters above.
Sometimes there are disputes about the scope of what is included.
Public authorities may charge for supplying environmental information, but this must not exceed a reasonable amount. Access to public registers or lists maintained by public authorities must be free of charge.
States must put in place procedures to ensure that an applicant for information who believes the requirements have not been complied with has access to a review procedure.
Information Enforcement
The Access to Information on the Environment Regulations 2007 to 2018 gives citizens the right to access information on the environment from public authorities. Under the Regulations, information relating to the environment held by, or for, a public authority must, subject to certain exceptions, be provided on request to any person.
Requests under the AIE Regulations should be provided to the public authority concerned. The Regulations provide a definition of environmental information and outline the manner in which requests for information should be provided to public authorities.
The Regulations provide for a formal appeals procedure in the event that a person is unhappy with a decision on their request. The Commissioner for Environmental Information provides the appeal mechanism to an independent body rather than a court.
Participation in Decision Making
Under the Aarhus Convention, the public has a right to participate in decision-making in environmental matters. Public authorities should enable the public to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment.
The outcome of the public participation process should be taken into consideration in the decision-making process. To facilitate this, information should be made available to help members of the public participate in on the decision-making process and understand the reasons for it.
In the European Union, this part of the Aarhus Convention has been implemented by Directive 2003/35/EC on public participation, also known as ‘the Public Participation Directive’.
Several pieces of legislation have been used to transpose the Public Participation Directive into Irish law, including the integration of its requirements into Irish planning law and into legislation governing other environmental consents. For example, in the planning system, members of the public may submit observations on planning applications and may appeal planning decisions to An Bord Pleanála.
Article 9 of the Convention requires that adequate review procedures are in place to safeguard the rights granted by the other pillars of the Convention and under national law.
Legal Costs in Environmental Matters
The Aarhus Convention deals both with access to information on the environment and legal costs. States are obliged to ensure that members of the public have access to review procedures before a court of law or another independent or impartial body to challenge the legality of any decision act or omission in areas covered by the convention. This includes decisions on certain types of activity and other decisions which have a significant impact on the environment.
The first list covers certain larger industrial installations in various sectors. States must procure that the remedies, including an injunction, are to be fair timely and not prohibitively expensive.
The compliance committee under the Convention has assessed that the usual rules in the UK in relation to court costs may breach the convention. Generally, the principle that the winner pays both side’s costs is not objectionable in itself, provided that in some cases, protective costs orders should be made in cases of public importance. Protective costs orders would not be automatically available but should be clear directions and guidance as to their availability.
The convention is reflected in various EU legislation, including that relating to environmental impact assessments. The Convention is reflected in the public participation directives. The Supreme Court rejected a claim in 2017 that the legislation required the state to provide free legal aid in planning and environmental matters.