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 Participatory Environmental Governance: 
 Reflecting on Its Innovative Legal and
 Political Underpinnings
  By Evangelos Raftopoulos,
  Editor and Founding Director of MEPIELAN Centre,
  Professor Emeritus of International Law,
  Panteion University of Athens, Greece
  Fellow, C-EENRG, University of Cambridge, United Kingdom


An Overview

Let me begin with a rather condensed articulation of the approach to Participatory Environmental Governance.

More than ever, and especially in this dire situation of the COVID-19 pandemic, “participatory environmental governance” (PEG) should not be simply considered and declared as a challenging perspective or an abstract ambition to be “moderately” planned, reached and practiced. In fact, its conceptualization and construction rises well beyond traditional “normal” thinking and perceived applications or doctrinal positivist restrictions. It should be contemplated as a multidimensional, interdisciplinary, relational process capable of generating sustainability and contributing to common interest (international and domestic) in an “ever-changing” world (“meeting the needs of present and future generations”). Integrating political, legal, scientific and social knowledge, thus, effectively addressing the policy-science-society interface at all levels of governance PEG provides an all-encompassing approach to sustainability effectiveness while opening up a roadmap to trust and strong social legitimation.

Participatory environmental governance naturally ingrains a progressive bottom-up approach into the traditional top-down approach to the process of shaping and implementing environmental governance and law-making. As a result, sustainability policies and environmental legislation as well as international duty-obligations and power-rights under conventional environmental regimes, should come under public scrutiny. States should not only secure effective consultation with non-state actors, the public, in their decision-making process managing environmental issues. States should not merely give access to information to the public or disseminate scientific information on their own terms. Increasingly and consistently, States should effectively engage non-state actors, the public, in environmental decision-making process at all levels and in all stages of this process, so that the latter become essential part of the continuous management of sustainability with its ecological, technological, social and ethical implications. Τhe democratization and trust-building of this process, associated with consistent contribution to international/domestic common interest, is the best guarantee for its legitimation, effectiveness and social acceptance. In practice, this invites transformative innovative concepts and policies, public-engaging practices and better understanding of legal and political complementarities in constructing effective environmental governance.

Let me now take you to the streets of this so heavily rich – and so complex but reliable - encompassing approach to PEG, shedding some light into two of its, more daring but far-reaching, underpinnings to better understand its outward evolving institutional life.

Public Trust Approach

PEG is associated with the operation of the trusteeship or stewardship approach on behalf of present and future generations, so that the use of resources and ecosystems is sustainable and equitable striking a balance with their long-term conservation. The implementation of the trusteeship approach becomes tangible with the use of the Public Trust Approach (PTA) which provides the legal force for “intergenerational equity” addressing the legitimate interests of current and future generation. PTA has been repeatedly discussed in previous editions of this Bulletin [1]. Besides, through MEPIELAN’s institutional strategic initiatives, the acknowledgement of the importance of its prospective role in international environmental governance has been consistently declared in the framework of the Mediterranean Action Plan (MAP) / Barcelona Convention system for the Protection of the Mediterranean[2]. However, the challenge it poses by its transformative innovative nature in a world fighting to find its pacing in two competitive realities, the new reality of sustainability (and the slow response to it) and the persisting old-fashioned reality of an inward-looking governance models combined with deep-rooted individualistic legal concepts, makes its brief and refreshing explanation hardly redundant.

The Public Trust Approach (PTA) literally pronounces that governments have a fiduciary (i.e. involving trust) legal obligation to the public to protect and conserve the environment and natural resources for the benefit of present and future generations. The use of the PTA, an old and cross-cutting legal concept, will unveil what is already manifested or implied in laws and jurisprudence of many states as well as in many environmental treaty instruments embracing elements of public trust: that is, the governmental stewardship of the protection of the environment and the sustainable management of natural resources, where the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as people’s common/public trust. Both current and future generations are the beneficiaries of this public trust. Governments as public trustees must protect the use of the trust resources by present generations and, at the same time, conserve it for future generations, and if the governments-trustees violate this fiduciary duty are accountable towards the beneficiaries empowering them to seek judicial relief [3]

The PTA will therefore provide a solid legal and policy foundation to address the sustainability aspects in environmental decision making processes, international (international environmental agreements) and national (constitutions, statutory and regulatory law, court decisions).  As a result, the PTA will substantially enhance their effective implementation and compliance and it will strengthen accountability, essentially improving conservation outcomes. It will, therefore, deliver a foundational governance framework to build capacity for monitoring, control, implementation, compliance and enforcement systems that will guide all-decision making to better protect the interest of the trust beneficiaries, both current and future generations.
 
The introduction of PTA as a foundational governance framework in international environmental agreements is expected to have the following general evolutionary impacts serving all conservation and sustainability objectives and, in effect, international common interest:
  • Operating horizontally among States parties (inter-Parties fiduciary relationship)[4], it will reinforce the fiduciary duties of the Contracting Parties and their accountability for the purpose of sustainability and conservation.
    - It will empower public participation in governance for sustainable development, enabling the public to operate as beneficiaries and take action against governmental trustees;
    - It will support a relational approach to compliance, involving effectively and appropriately the public and civil society in the function of the increasingly established compliance mechanisms;
    - It helps to solidify domestic institutional coordination responding to the “whole-of-governance” approach required by the implementation of the Sustainable Development Goals (SDGs);
    - It will give substance to their entrusted duty of care, building a trusteeship approach to the precautionary principle (take all reasonable steps to secure baseline data before making decisions on how to manage the trust resources) as well as to EIAs and SEAs (prevent significant adverse impacts, application of EIA procedural requirements in their own right, irrespective of compliance with substantive standards (e.g. BAT) “exercising due diligence in conducting such an assessment”, comprehensive and continuous monitoring[5]).
    - It will enact and implement more principled and progressive environmental legislation, streamlining it with the principles of environmental law, including the more progressive principles of non-regression (ensuring non-weakening of environmental protection) and that of progression (improving environmental legislation on the basis of the most recent scientific knowledge for the common/public benefit).
  • Operating vertically within States parties’ domestic order (intra-Parties fiduciary relationship), it will develop the fiduciary relationship between State and its people/subjects and the fiduciary responsibility of Government and of its democratic underpinning, associated with the public duties of legality, procedural fairness and reasonableness for the exercise of its fiduciary authority, and by generating enforceable equitable remedies. 
Besides, the fiduciary relationship between State and its people/subjects may be further effectively advanced if related to, and connected with, the operation of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters (1998)[6]. The Aarhus Convention, setting up a distinctive treaty participatory approach to environmental governance making it increasingly democratic, public-oriented and transparent, challenges the failing state-centric model and state-dominant decision-making processes lying at the heart of the traditional political systems of the States parties to the Convention. Providing a comprehensive platform of procedural duties of States for the implementation of the three pillars of democratic environmental governance (access to information, public participation in decision making, and access to justice), the Aarhus Convention plays an important role in the promotion of democratic environmental governance. It enshrines a cluster of common international standards for participatory environmental governance and, although regional in scope as a UNECE treaty, its significance is considered as global[7]. After all, the Convention itself provides the seed for its progressive de-regionalization: any State that is simply a member of the United Nations may accede to the Convention upon approval by the Meeting of the Parties (Article 19.3).

The “Talanoa Dialogue” Platform

Looking at PEG in a holistic manner, as process instrumentation for the attainment of a “whole-of-society” and “whole-of-governance” participation in the understanding and formulation of policies in line with the Sustainable Development Goals, another dimension of participatory governance is unfolded. In order to strengthen and make more interactive and, therefore, socially acceptable the governance (continuous management for common interest) of environmental issues, it becomes more than clear the need to explore the construction of facilitative dialogue platforms between the participants, which would have a supplementary force feeding the continuous negotiating process inherent in environmental governance. 

Inviting stakeholders and Government representatives to be engaged in a structured, facilitative and transparent dialogue of certain specific issues, is not only challenging. Aiming at building empathy and trust for decisions of common interest serving sustainability, such a participatory process, if properly organized, may become deeply transformative. It will influence behavior change dispelling misunderstandings, information bias and, especially, bogus knowledge, and will effectively inform more resilient policy development and more inter-subjectively pragmatic assessment and prioritization of choices. At the same time, it will imperceptibly promote a more participatory approach to knowledge. Largely overlooked, participatory knowledge production is of great importance: effective consideration is to be given to an interactive diagnostic framing of the environmental problem and to the values and interests involved between the producers and the users of the relevant knowledge[8]

A decisive step towards this direction may be taken by the introduction of a talanoa-type of dialogue platform, already efficiently employed at the COP 23 of the UNFCC as a way to determine the implementation of the Paris Agreement and the attainment of its long-term greenhouse gas reduction targets on a national level. “Talanoa” is an exotic word traditionally used in Fiji and across the Pacific to signify community wisdom on creative problem-solving: a process of inclusive, participatory and transparent dialogue for collective good. Building a narrative approach to specific issues, it embraces the sharing of ideas, skills and experience through storytelling. Stakeholders and Governments are encouraged to prepare their inputs in this participatory dialogue by addressing three standard Talanoa Dialogue questions (“where are we?”, “where do we want to go?” and “how do we get there?”) to inform the dialogue and submit these to the process. And they do so, in an organized structured way, permeated by the facilitative nature of this dialogue in pursuance of unveiling common interest. 

In practice, the “talanoa-type” facilitative dialogue is built as a two-phased structured process. Its Preparatory Phase refers to a collective effort by all participants to put forward ideas, skills and experience by consistently addressing the three standard Talanoa Dialogue questions with a view to prepare a synthesis report reflecting the wealth of information shared. Such a report is a collection of ideas, not of conclusions. It does not represent consensus but collective key messages that will provide a starting point for the Political Phase that will follow. Organized as a High Level Political Phase, it will produce a report and summaries of the discussions. The outcome of this procedure will generate greater confidence because of its common interest facilitating character. By providing a platform for a collective, bottom-up clarification of transformative changes, the Political Phase is poised to develop effective domestic support for more informed implementation, compliance and negotiation of specific environmental issues.

Coda 

More than ever, amidst an unprecedented surge of on line environmental discussions, views and meetings sailing in the uncharted seas of a world gripped by the COVID-19 pandemic and populating our thought, behavior and perception, PEG points to the most reliable, community cohesive and potentially more effective approach to sustainability governance. The advancement of its innovative legal underpinning, reflected in the introduction of the Public Trust Approach, will provide a powerful space for a community legal and policy implementation of sustainability governance. It will not merely give voice to the vulnerable “voiceless community” (indigenous population, future generations). It will go beyond the protection of the voiceless community interests. It will reactivate the whole community unveiling the missing fiduciary trust linkage between the government and the whole of society for the common good. In doing so, it will take to centre stage the role of the public as beneficiary in its fiduciary relationship with the government exercising sustainability governance. In parallel, the development of its political underpinning, cast in the procedural development of a facilitative “talanoa-type” dialogue platform between all participants, will generate a cohesive, bottom-up interaction in the process of building and sharing sustainability governance with far-reaching potentialities. It will showcase the importance of unveiling the “decision space”[9] embracing participatory dialogue and participatory knowledge for a more effective framing of environmental problems, including the management of their inherent uncertainties, and shaping collective decisions serving the common/public interest. All in all both aspects of PEG will vest with legal and political authority the whole community as continuity, as “part of a network that goes far beyond the few days of our lives and the few square meters that we tread”[10].

ENDNOTES
  1. See e.g. Raftopoulos E.” Advocating a Public Trust Approach for the Sustainable Environmental Governance in the Mediterranean” MEPIELAN E-Bulletin, February 2019; “Dancing with the Transposition of the Public Trust Approach in the Realm of Conventional Environmental Governance” MEPIELAN E-Bulletin, November 2014; The Barcelona Convention System as an International Trust Regime: The Public Participation Aspect MEPIELAN E-Bulletin, November 2012.
  2. For the most recent acknowledgement and support of PTA, see UNEP/MAP: Report of the 21st Meeting of the MCSD Steering Committee, Teleconference, 13-14 May 2020, UNEP/MAP WG.479/6, xxviii, 16.
  3. See e.g. Turnispeed, M., et al. “Using the Public Trust Doctrine to Achieve Ocean Stewardship”, in C. Voigt (ed.) Rule of Law for Nature – New Dimensions and Ideas in Environmental Law, Cambridge University Press, 2013, 365-379.
  4. See generally, Raftopoulos, E., “Conventional Environmental Governance in the Mediterranean and its Evolving Institutional and Fiduciary Aspects in a Pragmatic Perspective”, 30 Ocean Yearbook (2016) 129, 155-173. Also, Sand, P.  “Sovereignty Bounded: Public Trusteeship for Common Pool Resources?,” 4(1) Global Environmental Politics (2004): 47–71.
  5. ICJ: Case Concerning Pulp Mills on the River Uruguay (Argentina v. Ururguay), Reports 2010, para. 205, 83-84.
  6. For such an interlinkage see Raftopoulos, E., supra note (2), 129, at 162. 
  7. UNECE, The Aarhus Convention: An Implementation Guide (2nd ed.) 2014.
  8. Turnhout, E., “Environmental Experts at the Science-Policy-Society Interface”, in E.Turnhout, W. Tuinstra and W. Halfman (eds.)  Environmental Expertise – Connecting Science, Policy and Society, Cambridge University Press, 2019, 222-233.
  9. See Raftopoulos, E. International Negotiation – A Process of Relational Governance for International Common Interest, Cambridge University Press, 2019, 37.
  10. Rovelli, C. The Order of Time, Penguin Books, 2019, 107.




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