November, 2010
Prepared by Yelyzaveta Aleksyeyeva, EPL’s senior lawyer
Having in mind that on its 30th meeting the Compliance Committee will review the progress of the Government of Ukraine in implementing MOP decision III/6f, EPL submits this assessment to update the Committee on how the situation has changed since EPL presented its view on the state of fulfillment of MOP decision III\6f by Ukraine and implementation of the Action Plan approved by the Decree of Cabinet of Ministers of Ukraine on December 27th, 2008 (Action Plan) in December of 2009 on the 26th Compliance Committee meeting.
With the regret EPL has to acknowledge again that the Action Plan adopted by the Government in 2008 has not been implemented and that Ukraine remains in the state of non-compliance with the Convention.
Action Plan set out seven measures which had to be fulfilled by the end of 2009.
The measure #1.1. planned the following actions:
- By the end of September of 2009 – to design and submit to the Cabinet of Ministers law drafts aiming to amend legislation in order to implement the Aarhus Convention;
By the end of November of 2010 the only law draft regarding implementation of the Aarhus Convention that was designed and submitted for public commenting in November of 2009 was a draft law “On Amendments to Article 25 of Law of Ukraine “On Environmental Protection” (regarding definition of environmental information). EPL considered this draft law to be poorly written, because it failed to include all types of environmental information listed in the Convention while misrepresented other. Moreover, the proposed draft law removed legislative equality of the definitions used in domestic legislation such as “information on the state of the environment” and “environmental information” and thus limited domestic guarantees on openness of environmental information merely to the paragraph 3(a) of Article 2 of the Convention.
EPL submitted its comments, but never found out to what extend they were or were not taken into account. This draft law has not been submitted to the Cabinet of Ministers, not to mention adopted by the Parliament.
The measure #1.2.
- By the end of November of 2009 — a draft law “On Ratification of GMO Amendments to the Aarhus Convention”;
The draft law “On Ratification of GMO Amendments to the Aarhus Convention” was designed and submitted for public commenting in November of 2009, but has not been adopted yet.
The measure #1.3.
- By the end of June 2009 — draft regulations “On Public Participation in Environmental Decision-making” and “On Access to Environmental Information”;
Draft Order on Provision and Dissemination of Environmental Information was designed and submitted to the Committee and for public commenting shortly after the 26th Committee’s meeting (letter dated Dec 29, 2009). In EPL’s view this draft does not seem to take into account any of the recommendations given by the Committee, nor to adequately address any of the practical problems related to access to information pillar of the Convention in Ukraine. Moreover, it straitens assess to environmental information compared to current legal framework for public access to information held by public authorities. The detailed comments of EPL on this draft were submitted to the Government of Ukraine and the Committee on January 14, 2010.
Draft Order has not been submitted to the Cabinet of Ministers for the adoption; no feedback on comments in any form was provided to EPL by the Government whatsoever.
Draft Order on Taking into Account Public Opinion in Environmental Decision-Making Process was developed within the EC project Assistance to Ukraine to implement Aarhus and Espoo Conventions. Although drafted in February, it was posted on the ministerial web-page only on the 20th of September, 2010. EPL considers that this draft fully reflects many of the problems identified by the Committee and is capable to establish a clear domestic framework, among others
- ensuring that timeframes for the public consultation process are sufficient for the public to study the information on projects and prepare and submit comments;
- ensuring that sufficient time is available to the relevant public officials to take any comments into account in a meaningful way;
- preventing short cutting in the decision-making procedure, i.e. parts of EIA being provided for evaluation and approval by the decision-making authority prior to any information of the project or plan being made publicly available;
- ensuring that public authorities do not limit the provision of information under article 6, paragraph 6, and article 4 of the Convention to publication of the environmental impact statement, but include other relevant information to ensure more informed and effective public participation;
- requiring that texts of decisions are publicly available along with the reasons and considerations on which they are based.
Nevertheless, EPL considers that the proposed Draft Order is rather vague and does not clearly establish that
- information that developers are required to provide in the course of the public authorities’ decision-making under article 6 is generally not exempt from disclosure based on the “ownership”;
- disclosure of EIA studies in their entirety is considered as the rule (with the possibility for exempting parts being an exception to the rule).
Furthermore, the Draft Order is not specific enough requiring that public authorities possess information on which they base their decisions, and make it available to the public. The formulations on this issue in the Draft Order should be made clear because as for today there is the other regulation in force obliging the appropriate authorities to return all of the documentation submitted in the course of environmental expertiza (the process upon which the permitting decision based upon EIA is issued) – sec. 14 of the Decree of the Cabinet of Ministers of Ukraine “On the procedure of submitting the documentation for the state environmental expertiza”, Oct 31, 1995, # 870.
Draft Order has not been submitted to the Cabinet of Ministers yet.
The measure #1.4.
- By the end of August 2009 — draft regulation “On a Network of National Environmental Automatic Informational and Analytical System for Providing Access to Environmental Information”.
To EPL’s best knowledge it has not been drafted yet, although the network had to be commenced and start operating back in 2005 according to the Decree of the Parliament of Ukraine.
The measure #2 lays down an intention to design and adopt Model regulation on regional Aarhus center. By the end of November of 2010 no such draft was posted on governmental web-page or submitted for public commenting in any other way.
The measure #3 obliges Ministry of Environmental Protection and its regional departments to post on a regular basis statements of impact and conclusion of state environmental expertiza (permitting decisions based on EIA studies) on their official web-pages and in the magazine “Ecotyzhden”.
By the end of November 2010 there are only five conclusions of state environmental expertiza on the web-page of the Ministry (a few hundred are issued every year) whereas some regional departments not only fail to post, but also officially deny public access to such documents upon requests considering all the conclusions of state environmental expertiza to be a confidential information either of a state, or a developer or claiming that these permitting documents do not contain environmental information and thus may not be publicized. No statements of impact are available on the Internet.
EPL raised this issue a number of times in front of the Ministry of the Environmental Protection of Ukraine. No reaction followed.
The official position of the Ministry declared in its letter to EPL is the following: “Publishing of full texts of conclusions of state environmental expertiza is not being fulfilled because it is not required by law. The Ministry sends these documents upon written requests, but the Ministry does not have sufficient technical and human resources to post them on the Ministerial web-page.”
In September of 2010 EPL filed a lawsuit claiming inaction of the Ministry as to absence of the conclusions of state environmental expertiza on the Internet to be illegal and asking the court to oblige the Ministry to post such documents on the web-page. The defendant denies the EPL’s claims. The litigation is pending.
By the measure #4 the Government planned to create Intergovernmental Working Group on Implementation of the Aarhus Convention. By the end of November 2010 such body has not been created. To our knowledge a decree on its establishment has not been adopted yet, although submitted for public commenting back in 2009.
The measures # 5, 6 and 7 set out some educational activities. There is no information on official governmental web-page or in media regarding implementation of these activities. They either have not been fulfilled or the Government conducted them in a non-transparent way so the public is not aware of implementation of these measures of the Action Plan.
There have been not trainings for judiciary on Aarhus convention issues conducted by the Government whatsoever.
Conclusions
EPL considers that actions taken by the Government of Ukraine by the end of November 2010 are not sufficient to fulfill the MOP decisions regarding Ukraine and bring it in compliance with its obligations under the Aarhus Conventions since Ukraine fully ignored the main requirements of paragraph 5 of decision III\6f which is to create clear domestic regulations of time frames and procedures for public consultations, commenting and making available to the public information on which decisions are based and also did not fulfill even the activities listed in its own Action Plan.
The only noteworthy draft is the Draft Order on Taking into Account Public Opinion in Environmental Decision-Making Process developed within the framework of the EU sponsored project and posted on the Ministerial web-page on September 20, 2010. If adopted, it will resolve some of the problems identified by the Committee in its findings. However, other clear recommendations of the Committee remain addressed neither by this, nor any other draft, such as provisions establishing that
- public authorities possess information relevant to their functions, including that on which they base their decisions, and make it available to the public.
- information that developers are required to provide in the course of the public authorities’ decision-making under article 6 is generally not exempt from disclosure based on the “ownership”;
- disclosure of EIA studies in their entirety is considered as the rule (with the possibility for exempting parts being an exception to the rule).
As of November 2010 not a single peace of domestic legislation has been adopted by the Government of Ukraine in order to improve domestic legal framework of issues identified by the Committee in 2005.
