By its resolution of 26.10.2009, Lviv circuit administrative court opened a new legal case initiated by Environment-People-Law (EPL) against the Cabinet of Ministers of Ukraine and National Agency of Environmental Investments (NAEI). EPL asked the court to recognize unlawful the inaction of the above mentioned governmental bodies towards information dissemination and oblige them to make public the information on international emissions trading according to the Kyoto Protocol to the UNFCCC.
Ukraine started to implement the mechanism of international emissions according to article 17 of the Kyoto Protocol. At the same time, there is no proper legal regulation of this activity, procedure of using revenues received from selling AAUs is not defined, neither it is clear what projects this money will be spent on and who will control implementation of the projects financed from these revenues.
Ukraine has signed the agreement on selling GHG emissions quotas with Japan. Environment-People-Law sent informational requests to the Cabinet of Ministers of Ukraine and National Agency of Environmental Investments to clarify the issues of legal nature of this agreement, control over its implementation, priority branches and projects for financing, procedure of the revenues allocation. We didn’t receive full information, but we were reported that the information on the agreement which we requested and the answer to which we didn’t receive is confidential. Hence, on the initial stage of signing the agreement the public has been denied access to the information on it. The public doesn’t have an opportunity to control or get information about execution of the agreement.
Selling of GHG emission quotas by Ukraine must be executed with ensured public access to information on such activities. Money received from GHG emissions trading must be spent on environmental projects according to strictly regulated procedure. Authority and signature, execution and control over implementation of the international agreements of GHG emission trading and allocation of revenues from emissions trading can’t be concentrated within one branch of power and even within one body of state executive power. However, this is the situation in Ukraine, when all functions are fulfilled by the National Agency of Environmental Investments and there are no clearly defined controlling powers of other state bodies which could control the activities of the National Agency in implementation of the international emissions trading mechanism.
- oblige the National Agency of Environmental Investments and the Cabinet of Ministers of Ukraine to provide us with the information on the signed agreement of GHG emissions trading, including information on the sum of the agreement, which we requested from the Cabinet of Ministers of Ukraine and NAEI.
- admit unlawful the inaction of the NAEI and the Cabinet of Ministers of Ukraine in providing us with information asked in the requests.
- resolve the issue of bringing to responsibility officials of NAEI guilty of violation of the legislation of Ukraine on access to information.
- issue resolution on bringing to responsibility officials of NAEI guilty of unlawful inaction concerning execution of the legislation of Ukraine on access to information.
After seven court hearings, on June 17, 2010, Lviv circuit administrative court ruled a decision according to which claim of NGO “Environment-People-Law” against the Сabinet of Ministers of Ukraine and National Agency of Environmental Investments (NAEI) of Ukraine was partly satisfied. During Judicial examination the court admitted unlawful inaction of the Cabinet of Ministers of Ukraine in providing us with the information on the request of NGO “Environment-People-Law” and obliged the defendant to provide plaintiff with the requested information.
The court also declared unlawful inaction of National Agency of Environmental Investment (NAEI) in providing us with true and complete information on the request of NGO “Environment-People-Law” which concerned providing information on international GHG emissions trading and obliged the defendant mentioned above to provide the plaintiff with requested information.
At the same time, Panel of Judges dismissed the claim in the part of declaring unlawful inactions of National Agency of Environmental Investments of Ukraine in providing with complete and true information on the price of the International agreement with Japan on selling GHG emissions quotas and further allocation of revenues from international GHG emissions quotas trading, providing with copies of the agreement, and, as a consequence, restoration of the violated right of the plaintiff to access to information.
EPL appealed the decision, whereas, information on the price agreement can’t be classified as confidential in the agreement only, but it has to be considered as confidential in the current Ukrainian legislation, and be docketed in the list of confidential information approved by governmental bodies.