Nuclear Monitor #913
By Jan Haverkamp, Wise Nederland
In the 1990s, around and after the enormous changes set by the collapse of the Soviet Union, European countries formulated new rules for transparency around environmental issues under the umbrella of the United Nations Economic Cooperation in Europe (UNECE). First, the obligations of environmental impact assessment and especially transboundary cooperation were formulated along already existing EU law-lines in the Espoo Convention of 1991. During the “Environment for Europe” process in the 1990s, the Aarhus Convention then formulated rights and obligations on access to information, public participation and access to justice in environmental matters in 1998.
As Conventions come, both have a compliance mechanism to oversee that signatory countries indeed fulfil their obligations. The Espoo Convention has its Implementation Committee (IC) and Aarhus the Aarhus Convention Compliance Committee (ACCC).
Since those Conventions became valid, they have played a crucial role in increasing transparency in the nuclear industry. What has 20 years of Espoo and Aarhus brought?
Where
The two conventions initially covered the UNECE region, which includes besides all EU countries all countries in the Balkan, Eastern Europe and Central Asia, except for Russia. Espoo has been signed, but not ratified, by Russia as well. Canada is a party to Espoo. The US has signed neither of the conventions. Belarus is currently stepping out of Aarhus, after the Meeting of Parties found that it was structurally non-compliant because of harassment of environmental NGOs. Both, the Espoo and Aarhus Convention are also actively opening up for countries outside the UNECE, with Guinee Bissau recently accessing to the Aarhus Convention.
In Latin America, a similar agreement like the Aarhus Convention has been established in the form of the Escazu Agreement.
The jurisprudence under the Espoo and Aarhus Convention is globally seen as an important indication of best practice, also outside the signatory states.
Access to information
Nuclear activities are now, especially because of the Aarhus Convention, commonly understood to be activities that always are related to the environment. That means that under the Aarhus Convention, all information related to nuclear activities falls under the access to information rights for citizens and NGOs, and exemptions have to follow the strict criteria under art. 4(4) of the Convention. These exemptions furthermore have to be interpreted in a restrictive way, that means that any refusal of information on one of these grounds needs to be argued, and only with very strong arguments may be applied. There are many cases, where the ACCC has corrected countries that tried to withhold nuclear information from the public, and increasingly national courts are following these obligations with great care. For instance, attempts from Slovakia to make all information related to nuclear energy confidential by putting it under national security, and later under its postal secrecy act were halted by complaints to the ACCC.
Basically, all information – environmental, about emissions, waste, but also economic, safety information and other information – related to nuclear installations should be accessible to the public. Because this considers not only obligations from countries to provide information, but also rights from citizens to get information, in cases where national legislation is not entirely clear or misinterpreted, citizens can directly refer to their rights under the Convention. In practice this means for me, that if I notice I cannot get access to some kind of information, say, a document about radioactive emissions from the IAEA that is in the possession of national nuclear authorities, I first look whether they can withhold that on the basis of Aarhus. If not, I will then look under what national legislation I have to request this, and I will sue the authority on the basis of national law and the Aarhus Convention when they do not release the information – so far always successfully. Because in many countries, the Aarhus Convention access to information rights have been implemented as special cases within general access to information legislation, it is mostly necessary and sufficient to refer to the fact that you request “environmental information” as defined under the Aarhus Convention.
Important conclusions from the ACCC include that authorities may, for instance, not withhold complete documents if only a limited amount of information falls under one of the exemptions from art. 4(4), but has to give access to the document and blacken or edit out, with argumentation, parts that indeed are confidential. They cannot withhold environment related reports from outside consultancies that they have in their hands on the argument of confidentiality or outside information. Also, authorities have to give access to information in digital form if it exists in that way and cannot force citizens or NGOs to come to certain locations to only see the documentation, unless one of the art. 4(4) exemptions is valid for the information.
A nice example was a document leaked in Russia that looked coming from the “for authorities only” IAEA Unified System for Information Exchange in Incidents and Emergencies (USIE) website on measurements of Ruthenium-106 in the atmosphere in 2017. It was not clear whether this leaked document had possibly been tampered with, and WISE asked access to the IAEA to the original document. The IAEA did not respond, so WISE asked access to the Dutch national nuclear regulator ANVS for a copy. The ANVS refused and WISE went to court, lost and brought the issue for the highest administrative court, the Council of State. The Council of State concluded that the ANVS, under the Aarhus Convention, had to take a more pro-active stance and explicitly request the IAEA to remove confidentiality from the data.
Public participation
Aarhus prescribes in art. 6 (specific activities), 7 (plans, programmes and policies) and 8 (regulations and laws) public participation on environmental matters in decision procedures. The Espoo Convention furthermore prescribes that the public in potentially affected countries has to be given equivalent access to public participation procedures and consultations as the public in the country of origin of the project. The Espoo Convention has been extended with the Kiev Protocol that prescribes a Strategic Environmental Assessment for plans and programme, including public participation in the procedure.
• plans and programmes
For plans and programmes, the rules for public participation are not as strict as for concrete projects. There is no prescribed format, but there is an obligation to give the public a chance to express its views and viewpoints have to be taken “into due account”, that means it has to be argued how they have been taken into account, and if not, why. This is still solid enough to be able to influence the development of plans and programmes. Nuclear examples include general energy policies or specific nuclear energy policies. But also, the by Euratom prescribed 10-year updates of the national programmes on nuclear waste.
• new projects
Virtually all new nuclear projects have to undergo a form of public participation in which environmental issues are also assessed and play a role in the decision.
The Espoo Convention prescribes for that an environmental impact assessment (EIA) procedure and adopted in 2017 Good Practice Recommendations on the Application of the Convention to Nuclear Energy-related Activities. The Aarhus Convention prescribes public participation when all options are still open (including not carrying out the project).
It is important to notice that this obligation includes explicitly public participation on environmental matters. During the preparation of the project for a new nuclear reactor for the production of radioactive medicines in the Netherlands, the Pallas project, environmental matters played a role in the local (municipal!) site definition, but the environmental impact assessment (EIA) only came available in the procedure for the nuclear safety license by the national nuclear regulator ANVS. The ANVS has no competence on environmental issues, but still, under Aarhus, has to take views from the public on the EIA into account while issuing its construction and operation license. It cannot simply refer to the fact that environmental issues were already dealt with in the siting license given by the municipality, but without EIA and public participation on the EIA report. This case is currently subject to a court appeal at the administrative court in the Netherlands, in which WISE asks the court to dismiss the construction and operation license issued by the ANVS on the basis that public participation on environmental issues was not taken into account.
• lifetime extensions and periodic safety reviews
The environment changes over time. Nuclear power stations were initially technically designed and built for an operational time of 30 or 40 years. Even in case they had undergone public participation on the environment, or even an EIA at their construction (most nuclear power stations build in the 1970s and 1980s did not!), the circumstances have changed so much that current potential impacts of the installation will be very different after the expiration of this technical lifetime. Think of changes in how many people live around it, how much economic activity there is around it, how much areas of natural importance can be found around it. For that reason, environmental NGOs demanded a new EIA procedure, including public participation on environmental matters, at the time nuclear plants were allowed to operate longer than their initially foreseen technical lifetime. They based themselves on the obligations under Espoo and Aarhus that significant changes in activities also must be decided upon with public participation. Nuclear operators and nuclear countries strongly objected to such a practice, because they saw it as a potential barrier against longer operation. Under the Espoo Convention, a decade long process resulted in the Guidance on the applicability of the Convention to the lifetime extension of nuclear power plants. The ACCC concluded in reaction to several complaints from NGOs on specific nuclear lifetime extensions that any form of prolonging operation of beyond initially foreseen periods of “ultra-hazardous activities” like nuclear power stations constituted a change, “and an important one for that”. It stated that this is not only the case when initial licenses expire and need to be prolonged, but also when a nuclear power station has an unlimited operational license, and that a reasonable period is not only related to formal permits. It, for instance, found that the by the Convention on Nuclear Safety (CNS) and Euratom prescribed 10-yearly periodic safety review was a moment where public participation on environmental matters Under art. 6(10) of the Convention needs to take place.
Access to justice
The Aarhus Convention gives citizens and environmental NGOs the right to bring issues around access to information and public participation on environmental matters to court. But also, general issues around environmental decisions. This is not always a clear given. In Poland, for instance, it is impossible to bring a lack of public participation around plans and programmes to court. Also, the European Union for a long-time blocked access of NGOs to the European Court.
If your rights on access to information or public participation under the Aarhus Convention are broken, you must be able to bring them to court and this should not be extremely difficult – for instance in the form of very high legal fees, the obligation to be represented by an expensive lawyer, or by complex forms of NGO registration. In the case national courts cannot help you in restoring your rights, you can forward the complaint to the ACCC for consideration. But be aware that you first have had to exhaust the possibilities at the courts in your own country.
WISE has used this route several times – sometimes with success, sometimes with only limited success, and still have, for instance, a complaint running in which a license update of the Borssele NPP was not accompanied by public participation on environmental issues.
Going the whole way to the ACCC is costing a lot of time – first through the local court system, then to Geneva – this can easily take five years or more. The threat of being willing to go that entire way does, however, sometimes help to focus courts on the need to take the rights and obligations under Aarhus seriously.
A communication to the IC of the Espoo Convention can be sent always, but the IC has less possibilities to change the situation on the ground, because its findings need to be accepted (preferably in consensus!) by the Meeting of Parties of the Espoo Convention. For that reason, we have found it more effective to not only rely on the Espoo Convention, but rather on the rights and obligations under the Aarhus Convention.
Other Aarhus rights
Next to access to information and public participation, the Aarhus Convention gives you a few more important rights.
• Facilitation to get your rights
Art. 3(2) of the Aarhus Convention obliges authorities to help you get your rights under Aarhus. For that reason, the Dutch Council of State, for instance, obliged the Dutch nuclear regulator ANVS under art. 3(2) to pro-actively contact the IAEA to see if confidentiality on Ru-106 measurement data could be lifted. We convinced the regional authorities in the Pomeranian Region in Northern Poland with art. 3(2) to bring us into contact with the regional geologist to give us access to geological data of the foreseen site for a new nuclear power plant.
• Promotion of Aarhus principles in international cooperation
Art. 3(7) obliges authorities to promote the principles of the Aarhus Convention in international cooperation and international organisations. We have made that operational in our demand for access to Ru-106 measurement data at the IAEA.
• No harassment of environmental defenders
Art. 3(9) forbids harassment of citizens in their attempts to operate their rights under the Aarhus Convention. This has not only given protection to Belarussian NGO members in the past, but also could be used to argue against disproportional police violence against climate activists in Western democracies. The Aarhus Convention has established the position of a Special Rapporteur on Environmental Defenders, who can react fast on urgent threats against environmental activists.
Compliance
The Espoo Convention’s Implementation Committee (IC) oversees whether signatory states (Parties to the Convention) fulfil their obligations and consists of civil servants representing signatory countries. It gives (Party-)independent conclusions about whether or not a country has been compliant with the rules of the Convention. Parties (states) can complain about other Parties, Parties can ask advice about compliance issues, but the IC can also start investigations on its own initiative, including in reaction to communications from the public. The IC works on then behind closed doors to come to its findings. That means you are not participating during hearings or sessions. Using this mechanism, several complaints by NGOs from the Ukraine, followed by the Netherlands, the Czech Republic, Bulgaria, France and others resulted in a discussion to what extent nuclear life-time extensions had to be submitted to a (transboundary) environmental impact assessment. A decade long process resulted in the Guidance on the applicability of the Convention to the lifetime extension of nuclear power plants. On that basis, the IC has reached the conclusion that Ukraine, Bulgaria and the Czech Republic did not comply with the Convention when failing to carry out an EIA during lifetime extension procedures, and is still working on the French case. And Slovenia and Finland decided on their own to carry out an EIA for nuclear lifetime extension projects.
The Aarhus Convention Compliance Committee (ACCC) has a wider mandate. Because the Aarhus Convention does not only address obligations of states, but also rights of citizens, citizens can directly turn to the ACCC when their rights are broken. However, more strictly than the compliance mechanism under the Espoo Convention, the ACCC requires that you first have tried to solve the problems you are facing within the national court system. Only when you have “exhausted local remedies”, you can ask the ACCC to assess whether or not a country has been non-compliant with Aarhus. Still, this can be a powerful tool. This way, for example, established that also citizens from Germany could participate in the public participation procedures around the Hinkley Point C nuclear power station in the UK.
Support
If your anti-nuclear organisation wants to use its rights under Espoo and Aarhus and needs support with that, you can contact Jan Haverkamp, WISE Nederland, jan@wisenederland.nl
