The environment that we are surrounded by, gives us life, and we all know that it is a precious trove and has to be safeguarded by all of us. The role it plays in our lives is crucial and inexorable. Over the years, human beings have been dependent on the environment and exhausting natural resources that seemed to be present in abundance. The shift in time and lifestyle of people has enormously increased the different uses of nature, that has also led to significant part of the resources to be destroyed and polluted. The concept of sustainable development was also introduced, which emphasised upon meeting the requirements of the present in a way that forbids the future generations from suffering due to lack of resources to meet their needs with. The need to strike a balance between the growing needs of the people and preserving the environment is vital in today’s scenario. The article relates to Public Participation in the Environmental decision making process.
The Importance of Public Participation
Importance of public participation in matters regarding the environment is not a new subject and has recently been referred to more often. Public participation is a key feature in developing and regulating environmental conservation as people are the ones who would be directly or indirectly affected by the policies that could lead to destruction. Public participation could be of various forms including educating and providing information regarding the environment, accepting reviews from the public, setting up advisory panels, public hearings, etc. Public participation can help advocate environmental justice as it acts as the means for identifying the interests of the public. Understanding the concerns raised by people can be helpful in formulating effective environmental policies. This, in fact, magnifies accountability and people being a part of the decision making makes it more acceptable.
Over the years we have witnessed various threats to the environment and it’s undeniable effect on the living organisms. This makes it preferable to consult people who are likely to be attacked. This becomes a topic of relevance while discussing the concept of sustainability. Another discourse of sustainable development, the precautionary principle being implemented also depends upon inputs from the people for assessing the extent of acceptable risks. Public participation has gained significance after it was recognised internationally and adopted by various countries. It initially started concerning people due to the unavoidable relationship between human life and the need for a clean and healthy environment.
It has been accepted that the environment that we live in is for everyone’s use to some extent. Several countries like Australia, Albania, Bahrain, Bangladesh, Bhutan, Croatia, China, Cuba, India, Italy, Iran, Netherlands, Oman, Panama, Poland, Sri Lanka, Sweden, Switzerland, Thailand, etc., have constitutional provisions that guarantee the citizens the right to a clean environment.
The Constitution of the Republic of South Africa, 1966 provides citizens the right to a healthy environment and the right to have the environment protected. People have the right to an environment that is not detrimental to their health or well-being. It is also recognised that people’s mere survival includes proper provisions of health and hygiene.
Similarly, the South Korea’s Constitution is embedded with provisions that state that all citizens have a right to a healthy and pleasant environment and they shall endeavour to protect the same. However, the substance of the environmental right shall be determined by law.
The law on Environmental Management of Indonesia also dealt with similar provisions. Article 5 of Chapter III is related to rights, duties and the role of communities in the environment. It states that every person shall be entitled to a good and healthy environment, have access to information about the environment, linked with the role in management of the environment, and citizens are to play a role in the environmental management framework. Later, due to various reasons the same was altered and people’s right to a good and healthy environment continued to be safeguarded.
It is also to be noted that Article 12 of the International Convention on Economic, Social and Cultural Rights, (ICESCR) states that parties to the covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Clause (b) of Article 12 also states that steps shall be taken by the parties for the improvement of all aspects of environmental and industrial hygiene.
International Recognition for Public Participation
The importance of public participation in environmental decision making goes way back in time. One of the very first instruments regarding public participation was the UN World Charter of Nature, 1982. It enabled people to participate in formulating decisions when it directly concerned their environment and also provided means for redress if their environment suffered degradation.
Later, the Rio Declaration on Environmental and Development, 1992 also talked about public participation. It was affirmed by the declaration that individuals shall have access to information related to the environment and they shall be allowed to participate in decision making processes. It was also stated that public awareness shall be promoted for effective Judicial proceedings.
The Aarhus Convention, 1998 mentioned i) Access to Information, ii) Public Participation in decision-making and iii) Access to Justice in Environmental Matters as three “pillars of environmental democracy”. It has guaranteed governance by disclosure and also made participation of NGOs an essential part of the decision making process which will help the parties to the convention become environmentally responsible.
Environment Impact Assessment
Environment Impact Assessment (EIA) is a tool used to measure the impact a project could have upon the environment. It helps in proper decision making as the environmental impact, having predicted beforehand, helps with prior consultation with communities that are likely to be affected and consideration for alternative plans and actions. Having its origin in the United States, EIA seeks to provide a clear picture before environmental decisions are made. “Environmental impact assessment, as a national instrument, shall be under-taken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority” was stated in the Rio Convention. The convention was the first to articulate a minimum version of Environmental Impact Assessment. EIA was enforced for the first time under the National Environmental Policy Act (NEPA), 1969. EIA being the backbone of NEPA extended itself and provoked it’s implementation in several other countries. EIA was later encapsulated in various countries like Australia (1974), Thailand (1975), France (1976), Philippines (1978), Israel (1981) and Pakistan (1983).
The UN World Charter of Nature, 1982 had stated that EIA should ensure minimization of adverse effects on the environment, include nature assessment and disclose plans and policies. The United Nations Environment Program (UNEP) took into consideration the above mentioned pointers. As a result it set up an expert committee exclusively for EIA and laid down guidelines for promotion of EIA, examined regulatory models and established standards. In 1987, it adopted the ‘Goals and Principles of Environmental Impact Assessment.’
The OECD “Declaration on Environmental Policy”, 1974 is an International document that incorporated EIA, as a follow up of the United Nations Conference on the Human Environment, 1972. Article 9 of the declaration mentioned that it is crucial that environmental impact of various public and private activities must be evaluated before they are implemented.
Several recommendations and declarations relating to Environment Impact Assessment (EIA) followed by. Those recommendations and declarations included “Council Recommendation on Assessment of Projects which may have Significant Effects on the Environment, 1979” and “Council Recommendations on Measures Required to Facilitate the Environmental Assessment of Development Assistance Projects and Programmes, 1986”, etc.
The European Union adopted EIA in 1985 and it required member countries to inculcate EIA systems the latest by 1988. Japan International Cooperation Agency (JICA) has been cooperating, and in 1988 “Sectoral Study for Development Assistance -Environment” was also completed. Similarly Japan Bank for International Cooperation (JBIC) has decided to draft new environment guidelines. The Canadian Environmental Assessment Act, 1955 has procedures for implementing assessments and provisions for public review of contents, public registers for disclosure of information and EIA related documentation and establishment of funds to promote public participation.
Public participation fosters reliability, democracy and transparency. It also helps in better implementation of environmental policies and regulations, provides room for different perspectives and useful insights and also improves the quality of the decisions as a whole. It is noteworthy that the prevailing system and the laws will never be sufficient to address all the environmental issues in this dynamic world. Criticisms on the existing system should always be welcomed as it shall be beneficial for making improvements regarding decision making and implementation of the environmental policies. Participation in decision making and implementation has to be open to the public in general, also in cases where they are not legally/directly involved.
 S Stec and S Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide(UNECE, 2000), 85. On definition of the ‘public’, see DN Zillman, ‘Introduction to Public Participation in the 21st Century’ in D. Zillman et al, Human Rights in Natural Resource Development:Public Participation in the Sustainable Development of Mining and Energy Resources (Oxford UP, 2002).
 The United Nations Environment Programme, “What are your Environmental Rights?”, available at: https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what-0 (last visited on December 20, 2020).
 The Constitution of the Republic of South Africa, art.24.
 The Constitution of South Korea, art. 35.
 The Constitution of Indonesia, art. 5(1).
 The International Convention on Economic, Social and Cultural Rights, 1966, art. 12.
 G.A. Res. 37/7, World Charter for Nature (Oct. 28, 1982).
 The Rio Declaration on Environmental and Development, 1992, Principle 10.
 The UNECE Sustainable Development Goals, “Public Participation” available at: https://unece.org/environment-policy/public-participation (last visited on December 20, 2020).
 The Rio Declaration on Environment and Development 1992, Principle 17.
BY AMRITHA BALAJI | SCHOOL OF LAW, SASTRA DEEMED TO BE UNIVERSITY