Omission or Defective Public Participation in Decision MakingProcesses

Omission or Defective Public Participation in Decision Making-Processes on Environmental Matters: Legal Implications in Spain and the Basque Country Dr. María del Carmen Bolaño, Lecturer of Administrative Law, University of The Basque Country E-mail: mariadelcarmen. bolano@ehu. es Dr. Iñaki Lasagabaster, Professor of Administrative Law, University of The Basque Country E-mail: inaki. lasagabaster@ehu. es Wroclaw (Poland), September 13 th-16 th, 2016

AIM OF THE PAPER Overview of the right to citizens’ participation in Spain and the Basque Country

Omission or Defective Public Participation in Decision Making -Processes on Environmental Matters: Legal Implications in Spain and the Basque Country I. BRIEF INTRODUCTION ON THE TOPIC: THE RIGHT TO PARTICIPATE II. SPANISH AND BASQUE LAW ON CITIZENS’ PARTICIPATION IN ENVIRONMENTAL DECISIONS III. SPANISH AND BASQUE JURISPRUDENCE III. 1. Distinction between Administrative Regulation and Administrative Decision III. 2. Legal Category of ‘Substantive Amendment’ III. 3. Imposition of specific obligations to public authorities by courts, such as the opening of a sanction procedure III. 4. Declaration of nullity IV. CONSIDERATIONS AND CONCLUSIONS

I. Brief Introduction on the Topic: THE RIGHT TO PARTICIPATE

Citizens’ Participation in Europe Some countries: participatory background in politics Others: need to recognise it expressly in the legal system Key legal instruments: International Law: Aarhus Convention European Union: a number of legislative instruments As a result: EU countries recognise the right to participate in environmental decisions

Citizens’ Participation in Europe In some societies: advanced democracy: legal recognition? In others: more than recognition: Legal consequences Possibility of exercising it properly Access to justice to protect the right

Right to Public Participation Courts: Key role Oblige Public Authorities to comply with the law and protect citizens’ right Not only theoretical recognition: The omission of the materialization of public participation must result in legal consequences

Right to Public Participation Citizens find more obstacles: Financial problems Time/patience

II. SPANISH AND BASQUE LAW ON CITIZENS’ PARTICIPATION IN ENVIRONMENTAL DECISIONS

THE LAW A wide number of legal instruments Different both in content and in legal nature

THE LAW International Law: Aarhus Convention: EU and Member States European Law: transposition of the Convention: by some different instruments Information and public participation: compulsory in the European, Spanish and Basque decision making-processes Spanish Constitutional Law: article 96: International Law prevails over domestic law

SPANISH LAW Different legal instruments: Legislative instruments: General Laws Specific Laws Also: State’s Parliament’s Law Autonomous Communities’ Parliaments’ Law

SPANISH LAW State’s general Law: administrative procedure law (Spanish Law number 30/1992) State’s general Law on the protection of the environment: Law number 27/2006 State’s Law on specific environmental matters: e. g. Spanish Law number 42/2007 on SAC, SCI and SPAB

SPANISH LAW INTERNATIONAL LAW PREVAILS OVER EUROPEAN UNION LAW AND DOMESTIC LAW −article 96, Spanish Constitution− If the Aarhus Convention sets a clear obligation to give information and open a public participation stage in environmental decisions Domestic Law cannot contradict the convention and, if it does so, courts must apply Aarhus Convention

SPANISH LAW EUROPEAN UNION LAW TAKES PREFERENCE OVER DOMESTIC LAW −constitutional or nonconstitutional, principle of primacy−. Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC

SPANISH LAW Relationship between general and specific Laws If the regulation on a specific environmental matter –for example, the Land Pollution Law− does not set the right to participate, the regulation on the environment in general must be implemented – e. g. , the Law on Environmental Protection−. The lack of regulation of the right in the most specific legal instrument cannot be an excuse to avoid the general regulation’s enforcement and vice versa. If the specific rule establishes the right to participate and the general regulation does not, the specific rule must be applied in order to protect citizens’ right to participate.

III. JURISPRUDENCE III. 1. Distinction between Administrative Regulation and Administrative Decision III. 2. Legal Category of ‘Substantive Amendment’ III. 3. Imposition of specific obligations to public authorities by courts, such as the opening of a sanction procedure III. 4. Declaration of nullity

III. 1. Administrative Regulations vs Administrative Decisions Jurisprudence

CITIZENS’ PARTICIPATION: BEDROCK OF EUROPEAN POLICY ON ENVIRONMENT Evidence of it: • Aarhus Convention (Spain 2005) • A number of European Directives and other instruments: e. g. Directive 2003/35/EC of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC

CITIZEN’S PARTICIPATION IN SPAIN In general: E. g. Spanish Law number 27/2006 on the right to access to information, public participation and access to justice in environmental matters In particular: E. g. , Spanish Law number 42/2007 on Special Protection Areas for Birds (SPAB), Sites of Community Importance (SCI) and Special Areas of Conservation (SAC) More other regulations

CITIZEN’S PARTICIPATION IN SPAIN Spanish Law number 42/2007 on Special Protection Areas for Birds (SPAB), Sites of Community Importance (SCI) and Special Areas of Conservation (SAC) −articles 43 and 45− Making-process: must include a public information stage VERY CLEAR

III. 1. Administrative Regulations vs Administrative Decisions HOWEVER, COURTS: Difference between administrative decision and regulatory instrument? WHY? That is not what law says The Supreme Court’s ruling does not comply with the legislation in force It interprets restrictively the right to public access, interpretation which is against the in dubio pro diritto principle

CITIZEN’S PARTICIPATION IN SPAIN They do not comply with international Law neither: Aarhus Convention sets the right with no difference: Legislative instruments, programmes, policies

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ Jurisprudence

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ Public information’s principal aim: Avoid Public authorities’ deliberate actions aimed at hiding some parts of the project

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ A number of legal instruments deny the possibility of opening a second stage of public information when the modifications of the project are not ‘substantive’ What does ‘substantive modification’ mean?

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ Authorities: problematic clauses after the first public participation stage As a result citizens cannot exercise their right to participate effectively Certainly, if modifications are not relevant, a new public information stage becomes unnecessary: It would postpone the decision in excess.

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ There is a need to define the legal meaning of ‘substantive amendment’ Supreme Court: ‘Substantial amendments’ occur ‘when the project’s essential lines, characteristics and structure are changed, in such a way that it looks like as it was a new project’ Public information is not a guarantee of individuals’ rights but of the protection of the environment or the territory

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ However: some individual rights may be affected Supreme Court: If some lands were not previously affected by the decision of the authorities but, as a consequence of the public information stage they become included in the project, there is no need to open a new public information stage −even if the protection of the area implies the prohibition of some usages previously not banned− If other rights are affected, such as health, this ruling hardly seems appropriate

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ Supreme Court’s Judgment February 3 rd, 2016: The initial project was only developed and some modifications were introduced to protect the environment −specifically, the cork oak trees in an area called Guadalquitón− There is no right to open a new stage because it just improved the protection of the environment

III. 2. LEGAL CATEGORY OF ‘SUBSTANTIVE AMENDMENTS’ Principle of legal certainty: Citizens should know, as precisely as possible, if a first public information stage can be followed by changes that may not be debated in a new public information stage Aarhus convention and State’s Law number 27/2006 clearly set the right to participate in the decision-making processes regarding plans, projects or policies in any case But if modifications are made after participation, regulations should set in which cases a project undergoes ‘substantive modifications’

III. 3. Imposition of specific obligations to public authorities by courts, such as the opening of a sanction procedure Jurisprudence

Public Authorities Compelled by Courts The omission of public participation may result in specific obligations for the authorities imposed by courts

Public Authorities Compelled by Courts Regional Court of Valencia: December 22 th, 2008 The person concerned asked authorities for some information about a quarry –specifically, about the license and inspections−, but authorities did not provide the information He asked for both the opening of a sanction procedure against the company and the closure of it –because the company did not have a license−

Public Authorities Compelled by Courts Administrative Law’s theory: Is the power to impose sanctions a completely discretional authorities’ competence? or Are authorities obliged to initiate a procedure when the law is not being complied?

Public Authorities Compelled by Courts Valencia’s Regional Court obliged Authorities to start a sanction procedure and to finish the closure proceeding against the company This case shows that the right to participate is of major importance: In such cases, without the complaint of citizens, authorities would not have taken any public action

Public Authorities Compelled by Courts As a result of this judgement, it can be deduced that: Citizens asking for environmental information can derive in legal obligations towards public authorities –what up to now was dubious− This judgement represents a major step forward Although it is a regional court’s ruling –not Supreme Court’s, which would be best placed to provide ruling on this issue−.

III. 4. Declaration of nullity Jurisprudence

III. 4. Declaration of nullity Some Regional Courts have annulled some projects due to omission of public participation: 1) Regional Court of Valencia, April the 8 th, 2008: The Natural Resources’ Management Plan’s modifications had been passed without public information and declared annulled by court− 2) Regional Court of Catalonia, December the 3 rd, 2013: The content of the plan had not been completely published what prevented citizens’ participation; it was also declared annulled−

IV. CONSIDERATIONS AND CONCLUSIONS

IV. CONSIDERATIONS AND CONCLUSIONS 1) Jurisprudence is not clear in its ruling on the nature of the resolutions that designate SAC, SCI and SPAB Public participation is only protected by courts when the decision is a regulatory, but it is not when it is administrative in nature Although the law makes no difference between them This distinction results in the breach of the public authorities’ obligation to give citizens the possibility to participate in any case

IV. CONSIDERATIONS AND CONCLUSIONS 2) It is also an obstacle the negative to open a second information stage because the modification of the project is not ‘substantive’. Quite frequently, public authorities introduce a number of minor amendments in the initial project with the aim of avoiding public information In our view, almost every amendment should be accessible to public participation

IV. CONSIDERATIONS AND CONCLUSIONS 3) Valencia’s Court’s judgement is very positive: In spite of theoretical Administrative Law’s theory: The limits imposed by court ordered the obligation of authorities to open a sanction procedure, along with the obligation to finish the closure of the company

IV. CONSIDERATIONS AND CONCLUSIONS 4) This judgement represents a major step forward: The possibility of public authorities to be compelled by courts to take some specific actions And all this in the name of public participation

Thank you very much for your attention Dr. María del Carmen Bolaño, Lecturer of Administrative Law, University of The Basque Country E-mail: mariadelcarmen. bolano@ehu. es Dr. Iñaki Lasagabaster, Professor of Administrative Law, University of The Basque Country E-mail: inaki. lasagabaster@ehu. es Wroclaw (Poland), September 13 th-16 th, 2016