EPL comments on the proposed draft law amending the Article 25 of the Law of Ukraine “On environmental protection” regarding the definition of environmental information
By the proposed draft law the Government of Ukraine strives to integrate the provisions of Aarhus Convention regarding the definition of environmental information into domestic legislation. Nevertheless, the proposed draft law ignores some of the elements of the definition given in the Convention while misrepresents other. Moreover, the proposed draft law removes legislative equality of the definitions used in domestic legislation such as “information on the state of the environment” and “environmental information” which if adopted, would diminish guaranties on access to such information available under domestic legislation.
1. The following text included in the definition of environmental information under the Convention is missing in the draft law: “environmental information – means any information […] on […], natural sites, […], activities affecting or likely to affect the environment, […], cost-benefit analysis used in environmental decision-making”.
2. A new proposed paragraph 8 misrepresents the paragraph 3C of Article 2 of the Convention stating that “environmental information – means any information […] on […] the state of human health and safety, conditions of human life, cultural sites and built structures, IF (instead of inasmuch) they are or may be affected by the state of the environment or its elements” and ignores the wording of the Convention “or, through these elements, by the factors, activities or measures referred above”.
3. The proposed draft law replaces in the title of the Article and in its body a double definition “information on the state of the environment (environmental information)” with “environmental information”. Such amendment, if enacted, would diminish constitutional and legislative guaranties of the openness of environmental information.
The Article 50 of the Constitution of Ukraine proclaims that “the right to free access to information on the state of the environment is guaranteed to everyone. No one shall make such information secret”. Article 8 of the Law of Ukraine “On state secret” establishes that the information on the state of the environment could not be classified as state secret. Pursuant to Article 30 of the Law of Ukraine “On information” information on the state of the environment possessed by public authorities could not be classified as confidential.
If the draft law is enacted as proposed the domestic guaranties establishing prohibition to make environmental information secret will cover only paragraph (3a) of Article 2 of the Convention.
Conclusions:
In order to insure that the proposed amendments comply with the Convention the following changes to the draft should be made:
- Information on natural sites, activities affecting or likely to affect the environment, and on cost-benefit analysis used in environmental decision-making should be included in the text of definition.
- new paragraph 8 should read as the paragraph 3(c) of Article 2 of the Convention that is: “the state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred above.
- The Government should abandon its attempts to limit domestic guarantees on openness of environmental information merely to the paragraph 3(a) of Article 2 of the Convention.