Gaining access to environmental information held by the Spanish Government can sometimes be an odyssey. In 2012 the Galician organization Adega discovered that a public work affecting a Natura 2000 protected area was carried out despite a negative assessment about the effect on the environment and biodiversity. Adega was only able to get this information after complaining to the Spanish Ombudsman because the Government refused to release the report. Now, two regional officials are being prosecuted for this case.
If Spanish environmental NGOs can complain to the Spanish Ombudsmen and obtain the information they want, albeit with considerable delay, it is because the Aarhus Convention was incorporated to the Spanish law in 2006.
The Aarhus Convention is a UNECE treaty aimed to guarantee three ‘pillars’ of justice – Access to information owned by the public administration; Public participation in decision-making processes; and Access to justice on environmental issues. It entered into force in Ireland in September 2012, although the EU approved Aarhus in 2005 and has introduced its principles in European legislation.
Accessing environmental information has often been a challenge in Ireland. A recent example involves a complaint lodged to the European Commission in October 2012 by Friends of the Irish Environment. A key part of their complaint was the high cost of accessing public information. Friends of the Irish Environment was asked to pay more than a million euro for a set of digitalised pictures of an aerial survey. Other issues they identified were the government’s failure to take a proactive approach to providing such information and the lack of resources for the Office of the Commissioner for Environmental Information (CEI).
The CEI is the Irish public office in charge of the fulfilment of European legislation related to the access of environmental data, headed now by Mr Peter Tyndall and until recently by Emily O’Reilly. The decisions of the Commissioner are binding, and he can require a public authority to make the information available to him and affirm or annul decisions made by them. However, even O’Reilly reports delays in bringing Access to Environmental Information appeals to completion.
The Aarhus Convention places an imperative on public authorities to proactively provide information and to allow meaningful public participation, as opposed to having to wrangle information by way of a complaint to the Commissioner.
In Spain, the incorporation of the Aarhus principles into Spanish law has increased opportunities for public participation, such as the public display of the information related to town planning or other projects. University of Santiago de Compostela law professor Alba Nogueira explains that certain projects have had a considerable level of public participation in projects related to coastal planning, mining or fish farms. But problems remain, because sometimes the places or the timetables to consult some planning decisions are not suitable for many people and the information is presented in a way that is too technical and difficult to understand.
Nogueira doesn’t believe that the government’s attitude has changed significantly – a view shared by the Spanish Ombudsmen, who have complained in their reports about the lack of government collaboration.
Since September2013, a year after Ireland ratified the treaty, anyone can report perceived breaches of the Aarhus Convention by Ireland to the Aarhus Convention Compliance Committee (ACCC), an international organisation which monitors its fulfilment.
The third pillar of the Aarhus Convention, the right of access to justice in the event that the first two rights are denied, will probably will be the one of the first issues to bring forth complaints to the ACCC. The reason, as the chairman of the Task Force on Public Participation Phillip Kearney explains, is the high cost of the Irish justice system.
UCC law professor Áine Ryall agrees that these legal costs “may well be prohibitive in cases where an individual or NGO has limited resources”, a situation contrary to the treaty. Kearney guesses that complaints against the Irish government will begin to arrive to the ACCC and that in the beginning “there would be tension with the Government, and there would be some conflict, but I think it could be very productive”.
High legal costs are also a problem in Spain, where the new conservative government began last year to charge fees for every legal process. This decision was described by Spanish environment lawyer José Manuel Marraco as “the biggest outrage by this disastrous Minister for Justice against the judicial administration”, and he believes that this measure goes against the access to justice guaranteed by the Convention. In September the Spanish Constitutional Court was asked to decide on the constitutionality of these fees.
Since September 18th this year, Irish people have a new way to ensure compliance of their rights, and time will tell if it will encourage a more transparent government and better access to environmental information.
By Santi Agra, an environmental journalist from Galicia, with supporting contributions from IEN staff