The previous chapter focused on professional users of the right to access environmental information and highlighted the stark mismatch between the expectations which underpin the right’s intended use and how the right is actually used in practice. Professional users serve as a clear example of this mismatch because the underpinning assumptions which animate the right and its legal regimes do not cater for this minority category of users. However, considering this mismatch in that context also provides the opportunity to identify whether the same is true for “personal users”. Personal users – the majority of those using the right – are more likely to be engaging directly with the environmental information held by public authorities and with the right’s environmental and participative aims. Yet, as with those in the professional user category, the individual actors within this second group are also diverse in terms of what motivates them, how they use information obtained and their levels of expertise in engaging with public authorities and the right itself. Thus, mismatches such as those identified in the context of professional users also arise in relation to personal users.

INTRODUCTION

The differences between personal users are key to how they experience and engage with the right of access to environmental information. These differences can be split into two themes. The first of these relates to the motive of personal users, referring to what drives these users to engage with the right and seek access to environmental information. The second theme relates to the levels of expertise that different users hold, encapsulating different aspects such as the ability in seeking proactively disclosed information, drafting and submitting requests for environmental information, and understanding any information accessed under the right. Such variety distinguishes different personal users from each other, creating a complex tapestry of personal users who are each engaging with the right in their own way and for their own reasons.

This variety lies at the heart of this chapter.

Although the environment may be intended to be the ultimate beneficiary, within the Aarhus Convention and the Environmental Information (Scotland) Regulations 2004 (EI(S)R) that give it effect in Scotland, users of the right are the actors who can claim direct benefits. It is therefore crucial that analysis of the right considers its users. It is these users who engage with the Convention’s moral duty to “protect and improve the environment for the benefit of present and future generations” and who exercise the right to seek access to environmental information through the proactive disclosure efforts of public authorities and the procedures set out in the EI(S)R. As a result, it is important to build both an appreciation of how the law perceives and constructs a vision of the users of the right to environmental information and an empirical understanding of who the users are and what they are doing.

INTRODUCTION

The starting point for understanding how the Aarhus Convention and the EI(S)R view users of the right is through the broad nature of the moral duty imposed on users to protect and improve the environment by participating in environmental decision-making processes. This duty is significant because it shapes expectations regarding how and why users engage with the right. Specifically, there is an assumption that users will be directly using the environmental information they access to “observe this duty” and fulfil their assumed altruistic, environmentally driven motivations for engaging with the right – a perspective reinforced by the legal instruments that preceded the Aarhus Convention. Further, users are expected to hold the necessary expertise effectively to understand and make use of the information they access for these purposes.

Yet while the Aarhus Convention holds these assumptions regarding those using the right, they are not fully reflected in the Convention’s provisions themselves. Under the Aarhus Convention, it is “the public” who can utilise its procedural rights, with “the public” being defined as:

The starting point for the creation of a right to environmental information is “the need to protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development”. This need has become all the more pressing at a time of significant anthropogenic environmental change. However, the right of access to environmental information is framed in a way that primarily emphasises the concerns and needs of humanity. While this anthropocentric framing influences the interpretation of the right’s environmental aims, it also emphasises the role of human actors, particularly users of the right, in the operation of the right itself. Yet human actors are not the only actors that exert influence over how the right is guaranteed, implemented and utilised in practice; non-human actors influence how the right to environmental information is guaranteed. Notable examples of such actors include technology and the law, which influence the interactions between other actors, and the environment itself, an actor given limited attention both by the right itself and its implementing legal instruments. The role and impact of these actors remains unexplored, to the detriment both of how the right is implemented in practice and of how it seeks to achieve and understand its own environmental and participative aims. This chapter will discuss how to give better consideration to these actors and, in particular, will argue for the need to give more attention to the environment as an actor.

INTRODUCTION

Actor-Network Theory is concerned with the “the tracing of associations” between different actors in order to understand how they each engage with and interact with each other within society. It is these associations between the different actors which construct the “actor-network”, a network which is built up through the connections made between different actors. Through the construction of the actor-network, Actor-Network Theory provides a useful perspective to analyse and understand the operation of various aspects of society, including the right of access to environmental information.

This book has shown that the reality of the exercise of the right of public access to environmental information is rather different from and more complicated than much of the discussion of the topic suggests. From the Rio Declaration through the Aarhus Convention to the Environmental Information (Scotland) Regulations 2004 (EI(S)R), the provision of information is seen as a means of promoting the development of environmentally engaged citizens and enabling them to participate effectively in decision-making procedures with a view to protecting and enhancing the environment. Only a few of the uses fit well with this vision and, even when they do, users are left frustrated that they are not able to exercise more influence over decision-making procedures. As such, there is a gap between the aspirations of the right and the reality of its use that needs to be considered.

The most basic point perhaps is the low level of awareness of the existence of the particular right to environmental information that is distinct from any entitlements under more general laws on freedom of information and that lies behind information being accessible. Whether or not the use of the right is recognised as such by those involved, the practice does not always match the aspirations that lie behind it. The parties involved are more diverse than can be encapsulated in a single category of “users” or “holders” of information, and their relationships are shaped by their engagement not only with each other but also with a range of non-human actors. In addition, their motivations are often very different from the environmental objectives that providing access to environmental information was designed to serve. The overall result is a system where mismatches arise as a result of different motives and expectations, leading to frustrations and getting in the way of the right always being smoothly and successfully implemented. That different actors will define success in relation to the right differently, particularly in terms of focusing on procedural or substantive outcomes of engaging with the right, adds to the complexity.

In recent decades, the introduction of a right of public access to environmental information has been acclaimed as a major achievement in improving environmental governance across the world and it is frequently asserted that this right “will improve environmental protection”. Yet remarkably little work has been undertaken to examine how the right is being used in practice and whether it is in fact making a difference. This book will provide some answers to those vital questions, building on empirical work in Scotland to identify lessons that are of general application. It offers insights into the workings of the processes for accessing environmental information – who is using them, what information is being sought and for what purposes? – and into whether what is happening in practice lives up to the aspirations that underpin the introduction of the right. The findings reveal a significant mismatch between aspirations and practice that requires consideration of what is currently being achieved and how the position might be improved.

The research behind this book was carried out at the University of Dundee and was supported by a grant from the Economic and Social Research Council (ref. ES/P010067/1), running from January 2018 to June 2020. The investigators who submitted the proposal, Professor Colin Reid in Law and Dr Jonathan Mendel in Geography, were joined by Dr Sean Whittaker as a research assistant until he was appointed Lecturer in Law in late 2019. For the final months of the funded project, this research assistant post was filled by Dr Petya Dragneva who – despite the disruptions caused by the COVID-19 pandemic – was able to do excellent work in preparing interview material for archiving, working on interview transcripts, and other parts of the project. A project website was established and is available at: https://sites.dundee.ac.uk/envinfo.

Analysis of the right of access to environmental information is generally conducted through one of two legal perspectives. The work here offers insights beyond these typical approaches both by drawing more on social theory and through empirical study of how the right is operating in practice. The first conventional approach, relying on a widespread legal methodology, studies the legal framework and also the aims and aspirations that underpin the creation of the right, “grappling with the foundational concepts that inspire the ambitious vision” that lies behind it. The second, narrower approach seeks to examine the right through the doctrinal method of analysis, an approach which focuses on the internal working and operation of “black-letter” law and its position within the legal hierarchy. The latter perspective follows the legal origins of the right and the way it has been embodied. From the Stockholm Declaration through the Rio Declaration and the Aarhus Convention to the measures ensuring its implementation in the EU and Scotland, the recognition and development of the right have been dominated by the law and the legal procedures which give it effect. The doctrinal methodology, with its basis in legal study, thus dominates discussion and analysis of the right of access to environmental information.

Both approaches bring numerous benefits in analysing the right of access to environmental information. The focus on the underlying concepts and ambitions enables access to information to be considered in the wider context of analysing governance. The doctrinal approach, by adopting an internal perspective on the laws that govern the right, offers analysis that can consider the internal logic of these laws and whether they are aligned with the objectives that they are seeking to achieve. However, while both approaches provide valuable perspectives on the right, they do not consider whether the law operates in the “real world” as intended. Described as the gap between “the law in the books” and “the law in action”, there is a risk that relying wholly on either methodology will result in a distorted understanding of the right that is based on how the law was intended to operate or is assumed to be operating rather than how it actually operates in practice.

In recent decades, the introduction of a public right to access environmental information has been acclaimed as a major achievement in improving environmental governance across the world and it is frequently asserted that this right “will improve environmental protection”. This book critically assesses that assertion, examining the operation and impact of the right in practice to see how far what happens in real life matches the assumptions and aspirations that surround the right. Ultimately this leads to an examination of the value of a distinct right to environmental information operating separately from wider rules on transparency and freedom of information.

There can be no doubt that the environment needs greater protection, not least from the overarching issue of climate change and its negative impacts on both humanity and the wider environment. Such global concerns are also felt locally in relation to climate adaptation and mitigation measures, but local concerns also focus on other issues, such as land use and urban planning matters, waste disposal, water quality, noise and smells. An increased interest in environmental matters has led to a more intense desire from the public for greater transparency and involvement in environmental governance. While this interest is seen in non-environmental issues as well, there has been a particular emphasis on transparency, accountability and public participation in the environmental context due to the increased recognition of our shared vulnerability to, and responsibility for, the Earth’s environmental degradation. It is from this recognition that the right of access to environmental information was born.

This right was created as a means of promoting the flow of environmental information between the state and the public, either through proactively publishing environmental information or disclosing environmental information on request. At the core of the right is the assumption that the disclosure of such environmental information will contribute to humanity’s efforts to slow, or even reverse, the degradation of the environment. This will be achieved by promoting the transparency and accountability of public bodies in environmental matters, but even more so by encouraging and enabling public participation in decision-making on environmental issues.

The right of access to environmental information has been the focus of this book so far, but this right does not operate in isolation. Linked to the right of access to environmental information is the right to participate in environmental decision-making procedures. Broadly defined as ensuring the ability for individuals to participate in environmental decisions made by a public authority, the development of this right and its role in protecting and enhancing the environment has occurred in parallel with the right of access to environmental information. Indeed, at the extreme, the right to access information can be presented as a subsidiary matter, existing merely to ensure that public participation can be effective. How far the use of the right to access environmental information is in practice linked to the exercise, and effectiveness, of the right to participate – and the broader efficacy of public participation – are therefore crucial to exploring what these rights are achieving.

INTRODUCTION

The parallel development of the rights to access environmental information and to participate in environmental decision-making is evidenced in the Rio Declaration, which boldly asserted that: “Environmental issues are best handled with the participation of all concerned citizens.” The Rio Declaration was notable not just for this assertion, but for also explicitly linking the provision of environmental information with the ability to effectively participate in environmental decision-making procedures. This position was generally adopted in subsequent legal instruments, particularly the Aarhus Convention, and represented a broader trend towards viewing human rights and “environmental participatory rights” as a connected set of rights.

Yet the stark clarity of the assertion made by the Rio Declaration masks the fact that there is considerable uncertainty over what such participation is supposed to achieve and how it should be made possible. As Lee and Abbot noted: “Participation has a very strong pull on environmental policy making, but its meaning and aims are rarely made clear.” The rationale for promoting participation has been subject to considerable debate, reflecting a divergence in how public participation, and its aims, are conceptualised, with different levels of empowerment for the public involved.