Public Participation and Privatisation in Environmental Matters: An Assessment of the Aarhus Convention

Abstract

In using the Aarhus Convention as a reference, this article examines the tension between two developments of environmental governance in the last decades: (i) the strengthening of participatory rights of members of the public in environmental decision-making; and (ii) the privatisation and outsourcing of resources, services and functions related to natural resources and the environment. It observes that privatisation may significantly affect the scope of participatory rights in environmental matters, including the right to access to information. Yet, the broad conception of ‘public authority’ in the Aarhus Convention implies a right to access to information also when corporations, as a result of privatisation, perform public administrative functions or have public responsibilities or functions in relation to the environment. The right to participate in decision-making also remains when resources and services are privatised. The Aarhus Convention does not exclude the possibility of delegating certain responsibilities in decision-making procedures to different bodies and private actors, but only to the extent that sufficient impartiality is ensured to guarantee proper conduct during the public participation procedure. In such situations, all standards for public participation apply in full. Finally, the Aarhus Convention precludes almost all attempts to privatise any function relating to access to justice. The article concludes that the effectiveness of participatory rights in case of privatisation not only depends on formal compliance with the Aarhus Convention standards, but also on the general domestic legal setting surrounding privatisation.

Keywords: public participation, access to information, access to justice, environment, privatisation, Aarhus Convention