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This book is printed on paper containing more than 50% recycled fiber,

including 20% post-consumer fiber.

This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation (CEC). The views contained herein do not

necessarily reflect the views of the CEC, or the governments of Canada,

Mexico or the United States of America.

For more information about this or other publications from the CEC,

contact:

Commission for Environmental Cooperation

393, rue St-Jacques Ouest, bureau 200

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ISBN: 2-89451-309-7

© Commission for Environmental Cooperation, 1998

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque nationale du Québec, 1998

Legal Deposit - Bibliothèque nationale du Canada, 1998

Disponible en français – ISBN: 2-89451-305-4

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PROFILE

In North America, we share vital natural resources including air,

oceans and rivers, mountains and forests. Together, these natural resources are the basis of a rich network of ecosystems that sustain our livelihoods and well-being. If they are to continue being a source of future

life and prosperity, these resources must be protected. Protecting the

North American environment is a responsibility shared by Canada,

Mexico and the United States.

The Commission for Environmental Cooperation (CEC) is an international organization whose members are Canada, Mexico and the

United States. The CEC was created under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental

conflicts and to promote the effective enforcement of environmental

law. The Agreement complements the environmental provisions of the

North American Free Trade Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of fifteen citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico

and the United States.

VII
LAW AND POLICY PROGRAM

The Law and Policy Program of the CEC addresses regional priorities regarding obligations and commitments in the NAAEC related to

environmental standards and their implementation. The program monitors and reports regional trends in implementing and enforcing environmental standards, including innovations in regulation, economic

instruments and voluntary initiatives. The program also addresses

NAAEC commitments to public participation in processes for establishing and enforcing environmental standards.

The program is delivered in two parts. The first part, Environmental Standards and Performance, focuses on NAAEC objectives of strengthening regional cooperation in the development and improvement of

environmental laws and regulations, as well as making private standards more compatible. It provides a regional forum for the exchange of

alternative domestic strategies for implementing improved environmental standards, mechanisms for public participation in standard setting processes and exchange of methodologies. The program also

supports the implementation of processes directed at greater regional

compatibility of environmental technical regulations, standards and

conformity assessment procedures consistent with NAFTA, as well as

promoting the compatibility of voluntary standards in the private sector.

The second part of the program, Enforcement Cooperation, responds directly to the Parties’ obligations for the effective enforcement of

their respective environmental laws and regulations. In response to the

Council mandate to ensure regional cooperation in enforcement, the

program supports a regional forum of senior enforcement officials. It

also addresses alternative approaches to effective enforcement and private access to remedies.

VIII NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
TABLE OF CONTENTS

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . XI

Environmental Impact Assessment:

Law and Practice in North America . . . . . . . . . . . . . . . . . . . 3

Public Access to Government-Held Environmental Information:

Report on North American Law, Policy and Practice . . . . . . . . . 65

IX

ACKNOWLEDGMENTS

In addition to the individuals and organizations specifically

acknowledged within each report, the CEC wishes to acknowledge the

following for their work in the preparation and edition of this compendium: Janine Ferretti, Greg Block, Linda Duncan and Stéphanie Johnson.

Marc Paquin

Editor, North American

Environmental Law and Policy

XI

ENVIRONMENTAL

IMPACT ASSESSMENT

LAW AND PRACTICE

IN NORTH AMERICA

ENVIRONMENTAL IMPACT ASSESSMENT

Law and Practice in North America

Introduction

The following paper provides a comparative overview of the federal

environmental impact assessment processes of the three countries, with

selected examples of the process in place in some of their states and

provinces. It was developed in the context of CEC’s project on Transboundary Environmental Impact Assessment (TEIA). The TEIA project

arises from Article 10(7) of the North American Agreement on Environmental Cooperation (NAAEC) which states:

Recognizing the significant bilateral nature of many transboundary environmental issues, the Council shall, with a view to agreement between the

Parties pursuant to this Article within three years on obligations, consider

and develop recommendations with respect to:

(a) assessing the environmental impact of proposed projects subject to decisions by a competent government authority and likely to cause significant

adverse transboundary effects, including a full evaluation of comments

provided by other Parties and persons of other Parties;

(b) notification, provision of information and consultation between Parties

with respect to such projects; and

(c) mitigation of the potential adverse effects of such projects.

On 12 June 1997, the Council of the CEC considered recommendations of an inter-governmental expert group for an agreement on

transboundary environmental impact assessment. As a result, the Council decided that the Parties would complete a legally binding agreement

on TEIA by 15 April 1998.1 The Expert Group recommendation is available on the CEC web site <http://www.cec.org>.

3

1. At the time of publication, the Parties were still negotiating the legally-binding agreement on TEIA.
The Secretariat would like to acknowledge the work of the following

individuals and organizations in the preparation of the following paper:

the Canadian Institute of Resources Law, the Center for International

Environmental Law (CIEL), the Environmental Law Institute (ELI),

the Mexican Center for Environmental Law (CEMDA), Wilehaldo

Cruz-Bressant and Howard Mann.

Marc Paquin

Council Secretary and Program Manager,

Special Legal Project and Procedures

4 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
CANADA

1. OVERVIEW OF CANADA’S ENVIRONMENTAL

ASSESSMENT REGIME. . . . . . . . . . . . . . . . . . . . . . . . 7

1.1 General Introduction . . . . . . . . . . . . . . . . . . . . . . 7

1.2 Federal Environmental Assessment Processes . . . . . . . . 9

2. CANADIAN ENVIRONMENTAL ASSESSMENT ACT . . . . . 10

2.1 Projects Covered by the CEAA . . . . . . . . . . . . . . . . 10

2.2 Scoping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.2.1 Scope of the Project. . . . . . . . . . . . . . . . . . . 11

2.2.2 Scope of the Factors to be Considered . . . . . . . . 12

2.3 Environmental Effects . . . . . . . . . . . . . . . . . . . . . 13

2.3.1 Transboundary Effects. . . . . . . . . . . . . . . . . 13

2.4 Mitigation and Alternatives. . . . . . . . . . . . . . . . . . 14

2.5 Environmental Assessment Report Contents . . . . . . . . 14

2.6 Judicial or Administrative Review . . . . . . . . . . . . . . 15

2.7 Follow-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.8 Federal-Provincial Harmonization and Joint

Panel Reviews . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.9 Public Involvement . . . . . . . . . . . . . . . . . . . . . . 17

5
3. SUMMARY OF PROVINCIAL AND TERRITORIAL

ENVIRONMENTAL ASSESSMENT PROCESSES . . . . . . . . 19

3.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.2 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.3 Scoping and Contents of Reports. . . . . . . . . . . . . . . 20

3.4 Public Participation . . . . . . . . . . . . . . . . . . . . . . 20

3.5 Relationship with other Processes . . . . . . . . . . . . . . 20

3.6 Transboundary Environmental Assessment . . . . . . . . 21

6 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. OVERVIEW OF CANADA’S ENVIRONMENTAL

ASSESSMENT REGIME

1.1 General Introduction

The environment is not, as such, a subject matter for legislation

under the Canadian Constitution. Rather, it is a diffuse subject that cuts

across many different areas of constitutional responsibility, some federal, some provincial.1 As a result, both governmental levels, federal and

provincial, have adopted environmental assessment processes.

Environmental assessment was first adopted as a formal process in

Canada in 1972 when the federal government introduced the Environmental Assessment and Review Process (EARP)2 as a policy document

for government departments to follow. This document was refined in

the 1984 Environmental Assessment and Review Process Guidelines

Order (EARPGO), which was ultimately found by the courts to have the

force of law.3

The Canadian Environmental Assessment Act (CEAA),4 proclaimed

into law in 1995 to replace the EARPGO, represents the current legal

framework for the federal government to consider potential environmental consequences when making decisions on projects. Triggering the

application of the CEAA’s provisions is a statutory definition of “project,” inclusion and exclusion lists, and a required role for the federal

government regarding the project in question. For projects covered by

the CEAA, the process involves a preliminary determination by the

responsible federal authority of the level of environmental assessment

required for each project decision. There are four such levels: a screen7

1. See A.G. of Canada v. Hydro Québec, Supreme Court of Canada, File No.: 24652, 18 September 1997, par. 112.

2. Provisions of the Policy of the Government of Canada establishing the Federal Assessment

and Review Process, undated.

3. Environmental Assessment and Review Process Guidelines Order, SOR/84-467, Canada

Gazette II, 118/14, p. 2794. The status of EARPGO as binding law was confirmed by

the Supreme Court of Canada in Friends of the Oldman River Society v. Canada, [1992] 1

S.C.R. 3.

4. Canadian Environmental Assessment Act, S.C. 1992, c. 37. CEAA was adopted by Parliament in 1992 but not proclaimed into force until 1995 when several critical regulations were adopted as well.
ing, a comprehensive study, and public review either by a panel or by

mediation. The results are advisory in nature, with the final decision on

projects made by the federal department or agency with authority to

undertake or provide support to the project (i.e., the “responsible

authority”).

Determining the scope of the environment assessment (scoping) is

done with reference to the components of the project under review, factors specified under the CEAA, and the specific issues raised by the project and its environmental setting. The CEAA requires that alternatives

to the project, mitigation measures, and follow-up be considered. The

CEAA also contains specific transboundary provisions and provides for

federal-provincial harmonization, delegation of certain functions, and

joint panel reviews.

Public involvement is most formal in the case of major projects, for

which the review is conducted by an independent panel or a mediation

process and follows the completion of a comprehensive study. The

CEAA also contains provisions regarding funding of participants for

public reviews and access to information through a public registry.

Given that the “environment” is a shared responsibility between

the federal government and the provinces, by the end of the 1980s, all ten

provinces had also introduced environmental assessment legislation

and established formal environmental assessment processes. In recent

years, most provinces have developed new environmental assessment

regimes to reflect institutional changes and heightened public expectations. Provincial and territorial environmental assessment processes

follow generally similar procedures, although some differences can be

noted.

As well, municipal governments have recognized the need for

incorporating environmental assessment into their development planning, and a number of Canadian municipalities have instituted formal

environmental assessment processes, either independently or in concert

with provincial governments. Environmental assessment processes

have also been introduced as part of native land claim agreements.

Today, a comprehensive environmental assessment system, composed of some thirty formal environmental assessment processes, exists

in Canada, reflecting the constitutional division of power over the environment, the outcome of major legal challenges, the development of

environmental authorities within each jurisdiction, and the results of

experience, research, and public comments.

8 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
This report is intended to provide an overview of Canada’s environmental assessment regime with a detailed analysis of the CEAA, and

a summary of the key features of provincial and territorial environmental assessment processes.

1.2 Federal Environmental Assessment Processes

Over the years, the EARP has evolved into a series of environmental assessment processes designed to ensure that environmental factors

are integrated into all levels of federal decision-making, including policies, plans, programs and projects.

The environmental assessment process administrated by the federal government are:

· The CEAA first introduced as part of the 1990 EARP reform package,

replaces the EARPGO. It was passed by Parliament in 1992 and proclaimed into force on 22 January 1995. The CEAA provides for a more

defined process to be applied to projects. It requires that a responsible

(federal) authority, that initiates, funds, grants land, or issues specific

regulatory approvals for certain projects, ensures that these proposals undergo an environmental assessment before they proceed. The

federal Minister of the Environment (Minister) is accountable to Parliament for the administration of the CEAA. The Canadian Environmental Assessment Agency (Agency) provides support to the

Minister in meeting federal obligations.

· The James Bay and Northern Quebec Agreement, established in 1975

to oversee development projects in northern Quebec, provides specific requirements for the federal review of projects that fall under

federal jurisdiction in that area. Projects under provincial jurisdiction

are reviewed according to the provincial process established for that

region.

· Other aboriginal land claims agreements are now incorporating environmental assessment processes into their regimes as well. These

focus on cooperative environmental assessment processes that

include participation of aboriginal government.5

ENVIRONMENTAL IMPACT ASSESSMENT 9

5. See, for example, the Agreement between the Inuit of the Nunavut Settlement Area and

Her Majesty the Queen in Right of Canada, 1993, Sahtu Dene and Metis Comprehensive

Land Claim Agreement, Vol. 1, 1993, Article 12; Art. 25.3.
· The Environmental Assessment Process for Policy and Program Proposals, issued as a directive of the federal Cabinet in 1990 as part of the

EARP reform package, is a non-legislated environmental assessment

process applied to policy and program proposals submitted for Cabinet consideration. The process requires federal departments and

agencies to assess and document the potential environmental effects

of their policy and program proposals, and to make public the results

of the assessment at the time of their announcement, including potential environmental effects and how these are to be managed.

2. CANADIAN ENVIRONMENTAL ASSESSMENT ACT

2.1 Projects Covered by the CEAA

The CEAA sets out four conditions that must be met if the federal

environmental assessment process is to apply to a proposal. First, the

proposal must concern a “project,” which can be either a physical work

or a physical activity. “Project” is defined in the CEAA to mean: (a) any

proposed construction, operation, modification, decommissioning,

abandonment or other undertaking in relation to a physical work; or (b)

any proposed physical activity not relating to a physical work that is

listed in the Inclusion List Regulation.6

Second, the project must not be excluded from the requirement for

an environmental assessment under the CEAA. A project may be

excluded if it is carried out in connection with an emergency or for

national security reasons. As well, the Exclusion List Regulation

describes types of projects that are excluded because they have insignificant environmental effects.

The third condition is that an environmental assessment must be

triggered by the action of a “federal authority.” This term is defined to

include federal Ministers, agencies or other bodies of the federal government that are accountable to Parliament through Ministers, federal

departments or departmental corporations, or any other bodies prescribed in regulations under the CEAA. Most federal Crown corporations are excluded from the application of the CEAA.7

Finally, the CEAA requires that the federal authority: (a) be the

project proponent; (b) provide money or other financial assistance to the

project; (c) grant an interest in land to enable the project to be carried out;

10 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

6. CEAA, Section 2(1).

7. CEAA, Section 2(1).
or (d) exercise a regulatory duty in relation to a project, such as issuing a

permit, licence or approval, under a statute or regulation included in the

Law List Regulations. The federal authority that may take any of these

actions with respect to a project is referred to as the “responsible authority.”8

2.2 Scoping

The CEAA contains a number of provisions regarding the scope of

the environmental assessment. That is, the scope of the project (components of a proposed development to be included in the environmental

assessment), as well as the factors (e.g., environmental effects, comments from the public, mitigation measures, etc.) to be considered in the

environmental assessment.

2.2.1 Scope of the Project

Scoping the project involves identifying those components of the

proposed development that should be considered for the environmental

assessment. The scope of the project can be defined as the sum of the

physical works, the undertakings associated with the physical works,

and the physical activities that are identified through the following three

questions:

· What is the physical work or physical activity that triggers the CEAA

(i.e., for which a power, duty or function is being exercised)?

· What other associated physical works or physical activities (identified in the Inclusion List regulations) must be undertaken to carry out

the triggering project?

· What are the other undertakings associated with the physical works

identified through questions 1 and 2?9

Under the CEAA, the federal authority responsible can combine

two or more triggering projects into the same environmental assessment

if it determines that the projects are so closely related that they can be

ENVIRONMENTAL IMPACT ASSESSMENT 11

8. CEAA, Sections 5, 2(1).

9. The issue of the scope of the project has generally arisen in the context of whether an

assessment should include elements that may be either preliminary (exploratory) or

future components of the project in the EA. See, e.g., Quebec (A.G.) v. Canada (National

Energy Board), [1994] 1 S.C.R. 159; and Community before Cars Coalition v. National

Capital Commission, F.C.T.D. T-1830-96, T-2865-96, T-2866-96, T-2481-96, 7 August

1997, Muldoon J.
considered to form a single project.10 Relevant criteria are interdependence, linkage and geographic proximity.

2.2.2 Scope of the Factors to be Considered

The second component dealing with the scope of the environmental assessment concerns the factors to be considered in the environmental assessment itself. The CEAA sets out factors to be considered,

depending on the stage of the process (screening, comprehensive study,

mediation or review panel). Section 16(1) requires that the following factors be considered under all four of these cases:

· the environmental effects of the project, including effects of malfunctions or accidents that may occur and any cumulative environmental

effects that are likely to result from the project, in combination with

other projects or activities that have been or will be carried out;

· the significance of these environmental effects;

· public comments received;

· technically and economically feasible measures that would mitigate

any significant adverse effects; and

· any other matter relevant to the assessment that the responsible

authority may require, such as the need for and alternatives to the

project.

In addition to these factors, every comprehensive study, mediation

or review panel is also required to consider:11

· the purpose of the project;

· technically and economically feasible alternative means of carrying

out the project as well as the environmental effects of these alternative

means;

· the need for and requirements of any follow-up program; and

· the capacity of renewable resources that are likely to be affected by the

project to meet present and future needs.

12 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

10. CEAA, Section 15(2).

11. CEAA, Section 16(2).
The responsible authority determines the scope of these factors. In

particular, the geographic boundaries, the range of environmental

impacts, and the time frames over which effects may be felt will need to

be established.

2.3 Environmental Effects

The CEAA requires that every environmental assessment consider

the environmental effects of the project and their significance. Such environmental effects are broadly defined and include the impacts on both

the physical and socio-economic environments.12 Environmental effects

of malfunctions or accidents that may occur in connection with the project and “any cumulative environmental effects that are likely to result

from the project in combination with other projects or activities that

have been or will be carried out” are also to be included. 13

More specifically, the term “environmental effects” is defined to

include “any change that the project may cause in the environment,

including any effect of any such change on health and socio-economic

conditions, on physical and cultural heritage, on the current use of lands

and resources for traditional purposes by aboriginal persons, or on

any structure, site or thing that is of historical, archaeological,

paleontological or architectural significance.” The term also applies to

“any change to the project that may be caused by the environment.” As

defined in the CEAA, the term “environment” means: “the components

of the Earth, and includes: (a) land, water and air, including all layers of

the atmosphere, (b) all organic and inorganic matter and living organisms, and (c) the interacting natural systems that include components

referred to in paragraphs (a) and (b).”14

2.3.1 Transboundary Effects

All assessments conducted under the CEAA must consider potential transboundary effects, since this is included in the definition of environmental effects.15 In addition, specific sections of the CEAA include

provisions for projects having interprovincial or international

transboundary environmental effects or effects on “lands of federal

ENVIRONMENTAL IMPACT ASSESSMENT 13

12. The breadth of this approach was both noted and approved by the Supreme Court

of Canada in the Friends of the Oldman River decision, op. cit., n. 3.

13. CEAA, Section 16(1)(a).

14. Both of these definitions are found in Section 2(1) of the CEAA.

15. This is seen in the concluding words of the definition of environmental effects,

“whether any such change occurs within or outside Canada.”
interest.” Under the transboundary provision,16 the Minister of the Environment has the authority to refer a project directly to a mediator or

panel, if the Minister believes that the project may cause significant

adverse transboundary effects in cases when the project would otherwise not require an environmental assessment under the CEAA and

where there is no federal involvement in the project pursuant to any federal law. However, such a referral shall not be made where the federal

government and interested provinces have agreed on an environmental

assessment (meeting certain conditions) to consider transboundary

effects.

2.4 Mitigation and Alternatives

The CEAA requires that every environmental assessment consider

“measures that are technically and economically feasible and that would

mitigate any significant adverse environmental effects of the project.”17

The need for the project and alternatives to the project (e.g., different

ways of achieving the same end) may also be considered. In addition,

every comprehensive study, mediation process, and panel review must

consider “alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any

such alternative means.” Alternative means are methods that are technically similar or variations on the same functional approach to achieving

the project’s objectives.18

2.5 Environmental Assessment Report Contents

An environmental assessment report must be prepared based on

the results of the screening, comprehensive study, mediation process, or

panel review:

· Screening reports should cover the topics noted in the above section

on scoping (2.2).

In addition, the CEAA provides for the designation of “class screening reports” where the Agency determines that a screening report

14 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

16. CEAA, Sections 46-48.

17. CEAA, Section 16(1)(d).

18. CEAA, Section 16(2)(b). Previous court decisions have ruled that the consideration

of alternatives is not an open ended exercise to review all possible alternatives, but

is limited to those reasonably available to achieve the same ends. See, e.g., Re

Alberta Wilderness Association and Express Pipelines Ltd. et al. (1996), 137 D.L.R. (4th)

177, F.C.A.; leave to appeal to the Supreme Court of Canada sought, 30 October

1996, S.C.C. No. 25618; leave to appeal dismissed as abandoned, 20 March 1997.
could be used as a model in conducting screenings of other projects

within the same class.19 In applying a class screening report to a project, the responsible authority must still take into account site-specific

circumstances and cumulative effects. Proposed class screening

reports are available for public comment, and these comments must

be considered by the Agency in deciding whether to accept a report as

a class screening report. The Agency’s decision must be published

and class screening reports made available to the public through the

environmental assessment registry.

· Comprehensive study reports must address the factors identified in

the above section on scoping (2.2).

A completed comprehensive study report must be submitted to the

Minister and to the Agency.20 The Agency is then required to publish

a notice stating when the report will be available to the public, how

copies may be obtained, and the deadline for filing comments. The

comprehensive study report and any public comments will be filed in

the public registry for the project.

· If the project is referred to mediation, the mediator submits a final

report to the responsible authority and the Minister whether or not an

agreement has been reached. When the Minister or the mediator

determines that the mediation is not likely to produce a result that is

satisfactory to the participants to the mediation, the Minister shall

refer the issue to a review panel. Upon receipt of the mediator’s report

the Minister must give public notice that the report is available.21

· The report of a panel review shall contain the panel’s rationale, conclusions and recommendations, including any proposed mitigation

measures and follow-up program. A summary of public comments

will also be provided. Once the report is submitted to the responsible

authority and the Minister, the latter will provide public notice that

the report is available.22

2.6 Judicial or Administrative Review

Actions taken under the CEAA may be subject to judicial review

according to general principles of administrative law. In practice, the

availability of judicial review will depend, in large measure, on the

ENVIRONMENTAL IMPACT ASSESSMENT 15

19. CEAA, Section 19.

20. CEAA, Sections 21, 22.

21. CEAA, Sections 32, 36.

22. CEAA, Sections 34, 36.
degree of discretion provided for in the relevant provisions of the

CEAA. Applications for judicial review will be refused where the sole

ground for relief is “a defect in form or a technical irregularity.”23

Although the CEAA was proclaimed only in 1995, significant cases

have been commenced, and some completed, on its provisions.24

Equally relevant, however, are the accumulated principles and results of

litigation under the preceding legislation,EARPGO, from 1988 to 1997.25

2.7 Follow-up

The CEAA provides that the environmental assessment process

includes, where applicable, “the design and implementation of a follow-up program.” These are defined as programs to verify the accuracy

of a project’s environmental assessment and determine the effectiveness

of mitigation measures.26 As previously noted, a comprehensive study,

mediation, or review panel must address the need for and requirements

of any follow-up program. In addition, when a responsible authority

decides to approve a project, it shall design and arrange for the implementation of any follow-up program that it considers appropriate for

the project. When such a program is designed, the responsible authority

is required to advise the public of both the program and its results.27

2.8 Federal-Provincial Harmonization and Joint Panel Reviews

The CEAA’s provisions regarding cooperation with other jurisdictions and joint panel reviews are an important component of the federal

environmental assessment process. Where another jurisdiction also has

authority to conduct an environmental assessment, the responsible

authority may cooperate with that jurisdiction at the screening or comprehensive study stages. These “jurisdictions” include provincial governments or agencies, bodies with environmental assessments powers

established pursuant to land claims agreement or pursuant to legislation

16 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

23. CEAA, Section 57.

24. For example, Re Alberta Wilderness Association and Express Pipelines et al., op. cit.,

n. 18; Union of Nova Scotia Indians v. A.G. Canada, [1997] 1 F.C. 325 (Trial Division).

25. The first case on EARPGO was the Canadian Wildlife Federation v. Canada (Minister of

the Environment), [1989] 3 F.C. 309 (T.D.). What is likely to be the last case on

EARPGO – Community Before Cars Coalition v. National Capital Commission, op. cit.,

n. 9 – includes summaries of the state of the law on many of the issues raised in this

report at the end of the EARPGO period.

26. CEAA, Sections 14(c), 2(1).

27. CEAA, Section 38.
that relates to the self-government of Indians.28 The responsible authority may also delegate to another jurisdiction the screening or comprehensive study, the preparation of the screening or comprehensive study

report, or the design and implementation of a follow-up program. Any

decision-making authority to be exercised following screening or comprehensive study cannot, however, be delegated. Furthermore, decision

making cannot be exercised unless the responsible authority is satisfied

that any delegated functions have been carried out in accordance with

the CEAA and its regulations.29

Joint panel reviews may be conducted with other jurisdictions that

also have authority over a project.30 The term jurisdiction is defined to

include provincial governments or agencies, bodies established under

land claims agreements, governments or agencies of a foreign state or a

subdivision of a foreign state, and international organizations and agencies. Any joint panel agreement must be published prior to the commencement of the joint panel review. Joint panels are required to

consider the factors specified in the CEAA for panel reviews. In addition, a number of procedural requirements are set out, including:

appointment or approval of the panel chairperson (or one

co-chairperson) and appointment of at least one panel member by the

Minister; impartiality and relevant expertise of panel members; terms of

reference fixed or approved by the Minister; specified powers for the

panel; public participation; submission of a report to the Minister; and

publication of the report.

2.9 Public Involvement

Public involvement in screening is at the discretion of the responsible authority. Where public participation in screening is considered to

be appropriate, an opportunity for public review and comment on the

screening report will be provided prior to the making of a decision on

the project. In addition, the screening report must be included in the

public registry established for the project.31

Although it is not specifically required by the CEAA, the Agency

strongly encourages responsible authorities and proponents to involve

the public early in the preparation of the Comprehensive Study. Responsible authorities are encouraged to prepare a Public Involvement Plan

ENVIRONMENTAL IMPACT ASSESSMENT 17

28. CEAA, Section 12(5).

29. CEAA, Section 17.

30. CEAA, Sections 40-45.

31. CEAA, Section 18(3).
outlining the opportunities for public participation in the process. For

example, the responsible authorities may want to involve the public in

determining the scope of the assessment and obtain comments on the

early draft of the comprehensive study report. This early involvement of

the public contributes to the identification of issues which can be

addressed and resolved before the submission of the report to the

Agency and Minister.

After the submission of the comprehensive study report, the

Agency is required by the CEAA to facilitate public access to the report

for a review and comment period. The manner in which this review

period will be handled and the time required for it will depend on how

extensive has been the public involvement program during the environmental assessment itself. Prior to the deadline set out in the notice published by the Agency, any person may file comments with the Agency

relating to the conclusion and recommendations and any other aspect of

the comprehensive study report. The Minister will take these comments

into account in reaching a final determination.

The most extensive provisions for public involvement under the

CEAA relate to panel reviews for major projects.32 The CEAA specifies

that review panels shall ensure that information required for the assessment is available to the public and shall hold public hearings. Furthermore, the panel report must include a summary of public comments.

These requirements under the CEAA are supported by a very strong tradition of public involvement in the independent panels which began

under the EARPGO process (independent not only of the proponent, but

also of the government agency making the project decision). Indeed, the

material describing the panel review process provided to panel members indicates that public input is the single most important feature of

the process. This is underlined by the requirement in the CEAA that the

Minister establish a participant funding program to facilitate public

involvement in mediation and panel reviews.33

Regardless of how the responsible authority decides to proceed

following an environmental assessment, public notice of the decision is

required. If federal support for the project is not provided, a notice of

that course of action must be filed in the public registry. If federal support is provided, the responsible authority must notify the public of its

course of action, any required mitigation measures, and any follow-up

program (and the results of that program).

18 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

32. CEAA, Sections 34-36.

33. CEAA, Section 58(1.1).
Access to information is also an important component of effective

public participation. The CEAA provides for a public registry to ensure

access to information relating to projects for which an environmental

assessment is conducted.34

3. SUMMARY OF PROVINCIAL AND TERRITORIAL

ENVIRONMENTAL ASSESSMENT PROCESSES

3.1 Introduction

Processes for conducting environmental assessments exist in each

of Canada’s provinces and territories. Although these processes provide

similar approaches and procedures, there are important differences.

Furthermore, in some jurisdictions (e.g., Quebec, Yukon and Northwest

Territories), agreements with First Nations have resulted in special environmental assessment regimes that apply only in certain regions.

3.2 Application

Provincial environmental assessment processes apply to both private and public sector projects except in Ontario, where only public sector projects are automatically included. Private sector projects may be

designated as subject to environmental assessment in Ontario. Statutory

definitions (e.g., “undertakings,” “developments,” etc.) are usually

quite broad. Environmental assessment legislation often allows considerable discretion regarding the applicability of the environmental

assessment process to projects. The determination whether provincial

processes apply to a project may involve a discretionary determination

of the significance of environmental effects, or it may be based on

defined categories of included or excluded projects. If a more detailed

review is necessary, the proponent is generally required to prepare an

environmental impact statement (EIS). The scope of this document may

be set out in legislation, or may be determined through project-specific

terms of reference. The EIS will generally be examined by government

officials and public comments may be solicited. Additional information

may be requested to fill gaps. A public review of the project may follow if

there is uncertainty regarding its effects or evidence of significant public

concern.

ENVIRONMENTAL IMPACT ASSESSMENT 19

34. CEAA, Section 55.
3.3 Scoping and Contents of Reports

Provincial legislation may define the scope of projects and related

activities that must be examined in an environmental assessment. Some

provincial statutes enumerate the types of impacts and other issues to be

addressed in the EIS or any other environmental assessment report that

may be required. Specified factors to be considered may include alternatives to the project, alternative methods for carrying out the project,

cumulative environmental effects, mitigation measures, monitoring

programs, etc. Issue scoping is also an important component of provincial environmental assessment processes. It is often carried out mainly

by, or on behalf of, the proponent.

3.4 Public Participation

Public involvement in environmental assessment varies from a

right to review and comment on written material (e.g., proposed terms

of reference for the EIS, or the EIS itself) to participation in formal

quasi-judicial hearings. In some cases, financial assistance to intervenors

or participants may be provided.

Some provinces have established permanent environmental

assessment boards to conduct hearings, while in others ad hoc panels are

created. In Alberta and Ontario, the environmental assessment panels

have decision-making authority regarding projects. In other jurisdictions, panel reports are advisory only, with final decision-making usually at the ministerial level.

3.5 Relationship with other Processes

The relationship between environmental assessment and other

processes is formalized in some jurisdictions. In Ontario, the Consolidated Hearings Act creates a joint board consisting of members from the

Environmental Assessment Board and the Ontario Municipal Board to

hold hearings under a number of statutes pertaining to environmental

and land-use authorities. In Alberta, the Environmental Protection and

Enhancement Act provides for written public comments on environmental assessment documentation prepared by the project proponent. If a

public hearing is required, the environmental assessment process

merges into the project review process of the Alberta Energy and Utilities Board or the Natural Resources Conservation Board, the mandates

of which are broader than the existing environmental assessment process. In the Yukon and under certain land claims processes, some effort

is made to integrate environmental assessment with land-use planning.

20 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
3.6 Transboundary Environmental Assessment

Transboundary effects are not generally addressed in provincial

environmental assessment legislation. However, most definitions of the

environment or environmental effects either include the environment

outside the province or do not exclude it.35 Thus, the provincial processes are generally able to include transboundary effects when

required. An exception is British Columbia’s recently enacted Environmental Assessment Act which states that the participation of neighbouring jurisdictions in the environmental assessment process is one of its

purposes. This Act provides for consideration of transboundary effects

at several places in the environmental assessment process, and for the

participation of neighboring jurisdictions in the project committee

charged with an initial review and advisory function, and in the associated public advisory committee. Provision is also made for circulating

notices which invite comments from neighboring jurisdictions during

the review process.

ENVIRONMENTAL IMPACT ASSESSMENT 21

35. The major exception here is Ontario, whose definition of environment is limited to

that falling within provincial boundaries. However, other provisions of the legislation suggest some scope for the inclusion of transboundary impacts. Ontario Environmental Protection Act, R.S.O. 1990, c. E-19, Sections 1(k) and 3(2).

MEXICO

1. THE ENVIRONMENTAL IMPACT ASSESSMENT

PROCESS IN MEXICO . . . . . . . . . . . . . . . . . . . . . . . . 25

1.1 Basic Features of the Environmental Impact

Assessment Process in Mexico . . . . . . . . . . . . . . . . 25

1.2 Provisions regarding the Transboundary Effects

of EIAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2. ANALYSIS OF THE EIA PROCESS . . . . . . . . . . . . . . . . 28

2.1 Projects subject to the Federal EIA Process . . . . . . . . . 28

2.2 The EIA Procedure . . . . . . . . . . . . . . . . . . . . . . . 29

2.2.1 Preventive Reports (PRs) . . . . . . . . . . . . . . . 29

2.2.2 Environmental Impacts Statements (EISs). . . . . . 30

2.2.3 The Decision . . . . . . . . . . . . . . . . . . . . . . 31

2.2.4 Risk Analysis . . . . . . . . . . . . . . . . . . . . . . 31

2.2.5 Who may prepare an EIS . . . . . . . . . . . . . . . 31

2.2.6 Provisions regarding Publication

and Consultation . . . . . . . . . . . . . . . . . . . . 32

2.2.7 Restrictions on Public Participation . . . . . . . . . 33

2.3 Mitigation and Alternatives. . . . . . . . . . . . . . . . . . 33

2.4 Administrative and Judicial Review . . . . . . . . . . . . . 33

23
2.5 Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

3. SUMMARY OF EIA STATE LAW AND PRACTICE . . . . . . . 35

24 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS

IN MEXICO

1.1 Basic Features of the Environmental Impact Assessment

Process in Mexico

The legal framework pertaining to the environmental impact

assessment (EIA) process is contemplated under the General Law of

Ecological Equilibrium and Environmental Protection (Ley General del

Equilibrio Ecológico y la Protección al Ambiente–LGEEPA),1 and in the Regulation under the General Law of Ecological Equilibrium and Environmental Protection Regarding Environmental Impact (Reglamento de la

Ley General del Equilibrio Ecológico y la Protección al Ambiente en Materia de

Impacto Ambiental, hereinafter “EIA Regulation”).2

The LGEEPA was amended in 1996 for the purpose of adapting

and broadening the environmental policy instruments provided for

under the law itself. Among the reasons behind the LGEEPA reform initiative was the acknowledgment that the former legal framework contained certain deficiencies, for example the excessive centralization of

decision making at the federal level, the difficulty to determine the type

of works or activities submitted to the EIA process, and the lack of clear

administrative procedures and mechanisms for public participation.

Thus, the principal reforms focused on:

· Clarifying and adding to the listing of works and activities subject to

the EIA process. The listing covers those works and activities that

may or will generate significant impacts on the environment and natural resources, and that cannot be adequately regulated through

other such instruments as standards, licenses, and ecological zoning.

It is intended to ensure that all works and activities having significant

impact are assessed by the federal government. The listing is also

intended to provide proponents with increased legal certainty as to

which projects must be submitted to the EIA process.

25

1. Published in the Official Gazette of the Federation (Diario Oficial de la Federación) of 28

January 1988 and amended by Decree published on 13 December 1996.

2. Published in the Official Gazette of the Federation of 7 June 1988.
· Including in the LGEEPA a reference to the EIA Regulation regarding

the works and activities [...] which, due to their location, size, characteristics or scope, will not produce significant impacts and therefore

do not require an EIA.

· Providing the Secretariat of the Environment, Natural Resources and

Fisheries (Secretaría de Medio Ambiente, Recursos Naturales y Pesca –

Semarnap) the authority to request an EIA of works and activities

which, although not expressly listed under the LGEEPA, are likely to

cause ecological imbalances, harm public health or the ecosystems, or

exceed legal standards and conditions.

· Raising the profile of the preventive report (PR), by integrating this

tool in the law itself. The PR was previously contemplated under the

EIA Regulation only in connection with those cases that did not

require the filing of an environmental impact statement (EIS).

· Simplifying the EIA procedures for works and activities under local

jurisdiction.

· Linking the EIA procedures to the ecological zoning and land-use

regulations set forth under the legislation governing human settlements.

· Broadening public participation in EIA procedures.

· Defining more precisely the responsibility of the experts who assist in

the preparation of EISs.

Articles 28 through 35 bis 3 provide the legal framework of the EIA

process. Article 28 of the LGEEPA defines EIA as the process through

which Semarnap “sets forth the conditions which shall govern the carrying out of works and activities likely to cause ecological imbalances or

exceed the limits and conditions established [...for...] the protection of

the environment and the preservation and remediation of ecosystems

with a view to prevent or mitigate to the extent possible their negative

impacts on the environment.”

The LGEEPA empowers the federal, state and municipal governments to conduct EIAs. Article 28 lists the works and activities subject to

the federal EIA process. Article 35 bis 2 provides that the works and

activities not contemplated in Article 28 will be assessed by state govern26 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ments, with the assistance of the relevant municipalities, when such

works and activities are expressly listed in the environmental law of a

state and they are of the type that cause significant environmental

impacts as a result of their location, importance or characteristics.

At the federal level, Semarnap, through a decentralized agency,

the National Institute of Ecology (Instituto Nacional de Ecología – INE),

carries out the EIA process. Within INE, the responsible department is

the General Directorate of Ecological Zoning and Environmental Impact

(Dirección General de Ordenamiento Ecológico e Impacto Ambiental –

DGOEIA), which has the following duties, among others:3

· Assessing and resolving the PRs and EISs submitted in connection

with proposed public or private works or activities that fall under its

jurisdiction;

· Convening and holding, when deemed necessary, technical and public hearings on projects undergoing an EIA;

· Organizing consultations on PRs and EISs and publishing information on the planned works and activities in official and other media;

· Establishing, in accordance with the law, technical and administrative guidelines governing the filing, processing and review of EIA

documents.

1.2 Provisions regarding the Transboundary Effects of EIAs

With regard to the transboundary effects of the EIA process, the

LGEEPA states the following principle: “It is in the Nation’s interest that

the projects carried out within the domestic territory, and those areas

where it exercises its sovereignty and jurisdiction, do not affect the ecological balance in other countries or zones under international jurisdiction.”4 The EIA Regulation specifically provides that proposed private

or public works or activities that may cause ecological imbalances outside Mexican jurisdiction be submitted to an EIA.5

ENVIRONMENTAL IMPACT ASSESSMENT 27

3. Bylaws of Semarnap (Secretaría de Medio Ambiente, Recursos Naturales y Pesca), published in the Official Gazette of the Federation of 8 July 1996.

4. Article 15, Section XVII.

5. EIA Regulation, Article 5, Section XIII.
2. ANALYSIS OF THE EIA PROCESS

2.1 Projects subject to the Federal EIA Process

The LGEEPA provides that proponents of the following works or

activities specified in its Article 28 must obtain an environmental impact

authorization from INE prior to their initiation. Those are:

I.- Hydraulic works, highways and other roadways, pipelines for oil,

gas, hydrocarbons, and multi-purposes pipelines;

II.- Oil, petrochemical and chemical industries, iron and steel works,

pulp and paper mills, sugar refineries, cement works and power

generation facilities;

III.- Exploration, exploitation and benefaction of minerals and substances reserved to the Federation in accordance with the law governing mining, as well as that implementing Article 27 of the

Constitution in regard to nuclear matters;

IV.- Facilities for the treatment, containment or disposal of hazardous

and radioactive waste;

V.- Management of woodlands in tropical forests and of species which

do not regenerate easily;

VI.- Forestry;

VII.- Changes in land use in woodlands, as well as in jungles and arid

zones;

VIII.- Industrial parks where highly hazardous activities are projected;

IX.- Real estate developments affecting coastal ecosystems;

X.- Works and activities in wetlands, mangrove swamps, lagoons,

rivers, lakes and estuaries connected to the sea, as well as along their

littorals, or in federal zones;

XI.- Works in federally protected natural areas;

XII.- Fishing, aquaculture or agribusiness likely to jeopardize the preservation of one or more species or cause harm to ecosystems; and

28 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
XIII.- Works or activities under federal jurisdiction that may cause serious

and irreparable ecological imbalances, damage to public health or

ecosystems, or exceed the standards and conditions specified in the

legal provisions pertaining to the preservation of ecological balance

and environmental protection.

With regard to a proposed work or activity covered by Section XIII,

Article 28 provides that, should Semarnap decide to require that any

such work or activity be submitted to the EIA process, it shall advise the

proponent of the proposed work or activity of its decision.

Article 28 also provides that the EIA Regulation will determine

those proposed works and activities which, although covered by Article

28, do not need to undergo an EIA because they do not or can not cause

significant environmental impacts or ecological imbalances, nor exceed

the standards and conditions established under environmental regulations because of their location, size, characteristics or scope.

2.2 The EIA Procedure

2.2.1 Preventive Reports (PRs)

Article 31 provides that proponents of works and activities listed

in Article 28 which fall into any of the following categories must file a PR

instead of an EIS:

· There exist NOMs or other provisions that regulate the releases,

discharges, exploitation of natural resources and, in general, all

the environmental impacts that may result from the proposed

work or activity;

· The proposed work or activity is specifically contemplated

under a partial plan of urban development or an ecological zoning plan that has previously been assessed by the Semarnap; or

· The installations in question are located in authorized industrial

parks.

Where the EIA process is initiated through the filing of a PR, the

INE will first determine whether or not the proposed work or activity

falls within one the three above-mentioned categories. If it does not, INE

will determine the type of EIS the proponent must file.

ENVIRONMENTAL IMPACT ASSESSMENT 29
2.2.2 Environmental Impacts Statements (EISs)

Proponents of works and activities that do not fall within the three

categories of projects covered by Article 31 must file an EIS to obtain an

environmental impact authorization.6

“Environmental impact statement” is defined in the law as the

“document which, based on studies conducted, discloses the potential

significant environmental impact that would be generated by works or

activities, as well as the means to prevent or mitigate such an impact, if it

were to be negative.”7

There are three types of EISs: general, intermediate and specific.

The main difference among them is their level of specificity. Indeed,

while the general EIS is intended to present generic information about

the proposed work or activity, the intermediate and specific EISs request

more specific information about how the environment will be affected

by the work or activity.8

When the proponent gathers that its proposed work or activity

requires the presentation of an EIS, it will usually file an EIS of the general type. The intermediate or specific types of EISs are usually filed at

INE’s request when more complete and detailed information is required

about the characteristics of a proposed project (size, potential for causing

significant environmental impacts) or the characteristics of its proposed

location.

30 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

6. Article 30 of the LGEEPA indicates that “the contents of the preventive report, as well

as the characteristics and the types of environmental impact statements and risk

assessment reports, will be set forth in the EIA Regulation.”

7. Article 3, Section XX.

8. The general and intermediate EISs require that promoters of a project identify

impacts at the various stages of the project and that they select the most appropriate

methodology for doing so. The intermediate type requires in addition that the promoter provide a description of those impacts generated at each stage of the project,

pointing out their origin, evolution, incidence and recurring effects on the environment. As well, the promoter must identify and describe in detail the social and economic changes brought about by the project development. This type of EIS must also

include a description of the natural characteristics of the area before siting the project, as well as an analysis of the most significant environmental impacts that the area

will sustain, taking into consideration the synergetic effects that might result from

those impacts. The specific EIS requires a more in-depth description, evaluation and

interpretation of the project’s impacts. Like the intermediate type, the specific type

requires a description of the changed environment and of the current and projected

physical, chemical, biotic, abiotic, socio-economic, cultural and political factors. In

this type of EIS, interested parties must identify, measure, evaluate, interpret and

compare not only the direct and indirect impacts of the project, but also the reversible, irreversible, inevitable, cumulative and residual impacts over the short and

long term.
2.2.3 The Decision

Under the LGEEPA, the INE is given 60 days to decide whether or

not to issue an environmental impact authorization for a proposed project.9 The INE may authorize or not a proposed project, or may also grant

a conditional authorization subject to specific requirements intended to

prevent or mitigate the adverse environmental impacts of the project.

The deliverance of an environmental impact authorization does not

exempt a proponent from complying with any other obligation accruing

under state or federal permits.

2.2.4 Risk Analysis

Under the EIA Regulation, “risk analysis” is defined as a document that states those risks posed by a proposed work or activity to the

environment or its ecological balance, as well as the technical safety

measures, of a preventive and corrective nature, intended to avoid, mitigate, minimize or control those adverse effects, should an accident occur

while the project is being developed or during its normal operation.10

The LGEEPA specifies that, where highly hazardous activities11 are to be

involved, the EIS must include a risk analysis.12

2.2.5 Who may prepare an EIS

The LGEEPA states that PRs, EISs and risk assessments may be

prepared by the proponents, research institutions, or professional colleges or associations. The parties preparing such documents are responsible for their contents.13

ENVIRONMENTAL IMPACT ASSESSMENT 31

9. LGEEPA, Article 35 bis. This time limit may exceptionally be extended for 60 additional days whenever, due to the complexity and the scope of the work or undertaking, the INE requires a longer period of time to carry out the assessment.

10. EIA Regulation, Article 3(II). See also Articles 32–35 of the LGEEPA.

11. Highly hazardous activities are specified in two lists published in the Official

Gazette of the Federation on 28 March 1990 and 4 May 1990. The first lists those activities involving the use or handling of toxic substances and the second, those using

flammable materials and explosives.

12. The INE has prepared two guidelines pertaining to risk analysis: Guide for the

Preparation of the Preliminary Risk Report (Guía para la Elaboración del Informe

Preliminar de Riesgo) and the Guide for the Preparation of the Risk Analysis (Guía

par la Elaboración del Análisis de Riesgo)(unpublished documents that may be

obtained from INE).

13. LGEEPA, Article 35 bis 1.
2.2.6 Provisions regarding Publication and Consultation

The LGEEPA provides that Semarnap shall make available to the

public the PRs14 and EISs that have been filed, along with its own assessments of the EISs.15 In addition, since the 1996 reform of the LGEEPA, a

public participation and consultation process is now contemplated in

the Law.

The DGOEIA is the administrative division responsible for organizing the public consultations, “convening and conducting, whenever

it is deemed necessary, technical and public hearings on projects undergoing an EIA”16 and publishing the relevant information on planned

works or activities in the Ecological Gazette (Gaceta Ecológica) and other

media. 17

Although prompted by a citizen request, the decision to hold a

public consultation is left to the discretion of the authorities. Article 34 of

the LGEEPA reads as follows:

Semarnap, at the request of any person of the affected community, may

hold a public consultation in accordance with the following:

I.- Semarnap shall publish, in its Ecological Gazette, the environmental

impact authorization request. In addition, the proponent shall publish, at

his own expense, a summary of the projected work or activity in a newspaper with wide circulation in the federated state involved, no more than

five days after the filing of the EIS with the Semarnap;

II.- Any citizen may, within ten days after the publication of the project

summary and in the manner referred to above, request that Semarnap

make the EIS available to the public of the relevant federated state;

III.- Whenever, according to the provisions of the EIA regulation, works or

activities likely to bring about serious ecological imbalance or cause harm

to public health or ecosystems are involved, Semarnap, in coordination

with local authorities, may organize a public information meeting at

which the proponent of the project shall explain the technical environmental aspects of the proposed work or activity.

32 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

14. Ibid., Article 31.

15. Ibid., Article 34.

16. Ibid., Article 35 bis 1, Section VI.

17. Bylaws of Semarnap (Reglamento Interior de la Semarnap), Article 60, Sections VII.
IV.- Any interested party may, within twenty days from the release by

Semarnap of the EIS to the public, in accordance with the provisions of

Section I above, propose the implementation of additional prevention and

mitigation measures and make comments it may deem appropriate; and

V.- Semarnap shall include the comments made by interested parties in

the respective file and shall record, in its decision [about the proposed project], the public consultation process, as well as the results from those comments and proposals submitted in writing.

2.2.7 Restrictions on Public Participation

A proponent may request that information included in its EIS be

kept confidential, whenever industrial property rights and the confidentiality of commercial information it submitted might be jeopardized by

public disclosure.

2.3 Mitigation and Alternatives

Mitigation of the environmental impacts of proposed works and

activities must be addressed in any EIS. Depending on the type of EIS

(general, intermediate, specific) the requirements related to the identification of the potential environmental impacts of the project and the mitigation measures contemplated at the various stage of the project will

vary.

For each proposed mitigation measure, a proponent must specify

the extent to which it will contribute to abating the targeted impact. The

proponent must also provide an estimate of the costs of the proposed

mitigation measures. Moreover, when submitting an EIS of the specific

type, a proponent must submit an abandonment program that foresees

the use of the site, its infrastructure and the surrounding areas, at the end

of the project’s useful life.

2.4 Administrative and Judicial Review

Administrative and judicial review of governmental action is

available to the proponents and to the public through various procedures such as: the ‘citizen complaint’ (Denuncia Popular), the ‘revision

recourse’ (Recurso de Revisión), and the amparo suit (Juicio de Amparo).

ENVIRONMENTAL IMPACT ASSESSMENT 33
2.5 Monitoring

The surveillance role of the government and the public does not

end with the INE’s approval of an EIS. Profepa is the principal authority

responsible for monitoring compliance with the LGEEPA and the EIA

Regulation.18 Compliance is monitored by Profepa through: (1) citizen

complaints; (2) notifications by INE of environmental impact violations;

and (3) Profepa’s own audits and inspections.19

If Profepa has reason to believe that a private party or public entity

is not complying with the conditions and mitigation measures set out in

an EIS, or with any other applicable environmental legal provisions, it

may launch an inspection for the purpose of verifying compliance.20

Should violations be uncovered, Profepa, either during the course

of the inspection or afterwards, shall issue and send by registered mail a

notice of corrective actions required, indicating the violations detected

and the actions that the corporation must implement at once.21 The concerned party has 15 working days to respond to this notice and provide

support documents or evidence. Once Profepa has received the response

to its initial notification or the time allowed for submitting the evidence

has elapsed, it has 20 working days to prepare and issue an administrative decision. This decision is an order describing the specific actions that

the concerned party must undertake, the compliance deadline, and the

sanctions imposed.22 Within five working days of the date set by the

order, the offender must notify the authority of its compliance.

When the deadline set by the administrative order has passed,

Profepa may impose additional fines for each day that the offender is out

34 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

18. Bylaws of Semarnap, Article 38.

19. Interview with the Head of Profepa’s Verification Division.

20. Bylaws of Semarnap, Article 62, Section I.

21. LGEEPA, Article 167, and Federal Law of Administrative Procedure (Ley Federal de

Procedimiento Administrativo), Articles 35–39.

22. LGEEPA, Article 171. Profepa has the authority to impose five types of administrative sanctions: (1) fines in the amount of 20 to 20,000 times the daily minimum

wage; (2) the temporary or permanent, partial or total, shutdown of the polluting

source; (3) the “administrative arrest” of the person acting on behalf of the corporation, for up to thirty-six hours; (4) the seizure of instruments, specimens, products

or byproducts directly related to infringements of the regulations pertaining to forest resources, wild flora and fauna species or genetic resources; and (5) the suspension or revocation of the corresponding concessions, licenses, permits or

authorizations. In establishing the sanction, Profepa must take into account the

seriousness of the infringement, its impact on human health and the environment,

the financial condition of the offender and the number of violations committed by

the offender.
of compliance, provided that the total amount of the fine does not exceed

20,000 times the daily minimum wage in the Federal District.23 Should

the private party become a repeat offender, Profepa is authorized under

the LGEEPA to impose an additional fine in an amount double that of

the initial fine, provided that the overall fine does not exceed twice the

maximum fine meted out to one-time offenders.

3. SUMMARY OF EIA STATE LAW AND PRACTICE

Currently, all 31 states and the Federal District have enacted environmental laws that embody EIA provisions. As mentioned earlier,

activities that are not specifically contemplated in Article 28 of the

LGEEPA, fall under the jurisdiction of states and municipalities as far as

EIA is concerned.24 States usually have jurisdiction over the following

activities:

· State public works;

· Country roads;

· Industrial zones and parks;

· Rubber industry and its byproducts, brickworks, maquiladoras,

foodstuffs, textiles, tanneries, glassworks, pharmaceutical and

cosmetics industries;

· Activities or industries that are not considered highly hazardous by the Federation;

· Exploration, exploitation and manufacturing of mineral substances found in deposits whose nature is similar to that of soil

components;

· Private and state tourist developments;

· Facilities for the treatment, confinement or disposal of waste

waters and nonhazardous solid wastes; and

· Land distribution, housing units and new urban centers.

ENVIRONMENTAL IMPACT ASSESSMENT 35

23. Ibid., Article 171.

24. Ibid., Article 35 bis 2, which provides that the works and activities not contemplated in Article 28 will be assessed by state governments, with the assistance of the

relevant municipalities, when such works and activities are expressly listed in the

environmental law of a state and they are of the type that cause significant environmental impacts as a result of their location, importance or characteristics.
Other activities regulated under state EIA legislation include the

exploitation of natural resources that are not reserved to the Federation,

those activities not requiring the use of hazardous materials, and

hydraulic projects in waters under state jurisdiction.

State EIA laws establish mechanisms similar to those provided in

the LGEEPA. For example, the laws refers to PRs, the three types of EISs,

and Risk Analysis.25 Further to the LGEEPA reform, public consultation

mechanisms will probably be introduced in the different laws and regulations of each one of the states in the Republic to ensure consistency

between federal and state EIA legislation.26

One of the purposes of the 1996 LGEEPA reform was to simplify

the EIA process for works and activities under the jurisdiction of local

authorities. The reform was intended to prevent the proliferation of

administrative procedures requiring several authorities to authorize

projects that, in fact, could be handled in a single procedure and to further the integration of urban development with environmental management.

36 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

25. A risk assessment must be submitted when a proponent intends on carrying out

hazardous activities, but not the highly hazardous ones falling under federal jurisdiction.

26. Such amendments must be introduced pursuant to the Third Transitory Article of

the Congress Decree (Artículo Tercero Transitorio del Decreto del Congreso de la Unión)

amending, adding and repealing various provisions of the LGEEPA, which states:

“The governments of the Federate Entities as well as the City Councils shall adapt

their laws, regulations, ordinances, police and good government edicts and other

applicable provisions to those established in the present Decree.” Published on 13

December 1996 in the Official Gazette of the Federation.
THE UNITED STATES OF AMERICA

1. OVERVIEW OF THE FEDERAL REGIME: THE NATIONAL

ENVIRONMENTAL POLICY ACT. . . . . . . . . . . . . . . . . 39

1.1 Basic Features. . . . . . . . . . . . . . . . . . . . . . . . . . 39

1.2 Provisions for Transboundary Effects . . . . . . . . . . . . 40

2. ANALYSIS OF CONTENTS AND PROCEDURES . . . . . . . . 42

2.1 When an EIS is required . . . . . . . . . . . . . . . . . . . . 42

2.1.1 “Proposal” . . . . . . . . . . . . . . . . . . . . . . . 42

2.1.2 “Legislation” . . . . . . . . . . . . . . . . . . . . . . 43

2.1.3 “Major” and “Significant”. . . . . . . . . . . . . . . 43

2.1.4 “Federal” . . . . . . . . . . . . . . . . . . . . . . . . 44

2.1.5 “Human Environment” . . . . . . . . . . . . . . . . 44

2.2 NEPA and CEQ Procedures for Environmental

Impact Statements . . . . . . . . . . . . . . . . . . . . . . . 44

2.2.1 Timing . . . . . . . . . . . . . . . . . . . . . . . . . . 44

2.2.2 Scoping . . . . . . . . . . . . . . . . . . . . . . . . . 45

2.2.3 Impacts . . . . . . . . . . . . . . . . . . . . . . . . . 45

2.2.4 Alternatives . . . . . . . . . . . . . . . . . . . . . . . 46

2.2.5 Mitigation . . . . . . . . . . . . . . . . . . . . . . . . 47

37
2.2.6 Contents of Environmental Assessment

Documents . . . . . . . . . . . . . . . . . . . . . . . 47

2.2.7 Contents of Environmental Impact

Statements. . . . . . . . . . . . . . . . . . . . . . . . 48

2.2.8 Administrative and Judicial Review . . . . . . . . . 49

2.2.9 Post EIA Monitoring . . . . . . . . . . . . . . . . . . 50

2.2.10 Public Notice and Participation. . . . . . . . . . . . 51

3. SUMMARY OF STATE LEGISLATION . . . . . . . . . . . . . . 51

3.1 California . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

3.1.1 Mitigation and Alternative . . . . . . . . . . . . . . 52

3.1.2 Judicial Review . . . . . . . . . . . . . . . . . . . . . 53

3.2 New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3.2.1 Mitigation . . . . . . . . . . . . . . . . . . . . . . . . 53

3.3 Texas and Michigan: Partial Programs. . . . . . . . . . . . 53

3.3.1 Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . 54

3.3.2 Michigan . . . . . . . . . . . . . . . . . . . . . . . . 54

38 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. OVERVIEW OF THE FEDERAL REGIME: THE NATIONAL

ENVIRONMENTAL POLICY ACT

1.1 Basic Features

The National Environmental Policy Act of 1969 (NEPA),1 signed into

law on 1 January 1970, directs federal government agencies to prepare

an environmental impact statement (EIS) on every proposal for a major

federal action significantly affecting the quality of the human environment. NEPA’s mandate must be followed by all agencies with respect to

virtually all of their major actions.2 The Supreme Court has said that

NEPA is primarily a procedural statute and does not set substantive

standards governing agency decisions. Through court decisions in over

2,000 cases brought by private parties and environmental groups

against government agencies for failure to prepare an EIS or preparation

of an inadequate EIS, federal courts have defined the scope of the EIS

requirement and established its required content.

In 1978, drawing on court interpretations, the President’s Council

on Environmental Quality (CEQ, established under another section of

NEPA) promulgated regulations giving definitive guidance to federal

agencies on the implementation of NEPA’s environmental impact

assessment provisions.3 The CEQ regulations establish a three-step process. First, the agency decides whether the proposed action falls within

the NEPA mandate for preparing an EIS (i.e., is it a “major Federal

action” that may “significantly affect” the environment). Each agency

must publish implementing NEPA procedures which should identify

39

1. 42 U.S.C. 4321-4370d.

2. There are only two general exceptions to the EIS requirement. First, no EIS is

required if preparing one would cause a direct conflict with another statutory

requirement. Second, most administrative actions of the US Environmental Protection Agency (EPA) are not formally subject to NEPA requirements due, in part, to

statutory exemptions such as under the Clean Air Act and the Clean Water Act. In issuing permits and making other regulatory decisions, the Agency generally follows a

systematic and thorough environmental review process, including public participation, that constitutes the “functional equivalent” of NEPA requirements. Some EPA

permits, such as certain permits for new sources under the Clean Water Act, are formally subject to NEPA.

3. 40 C.F.R. Parts 1500-1508.
those categories of actions that normally do not individually or cumulatively have a significant environmental effect, and for which, therefore,

no environmental analysis is required. For actions not categorically

excluded, the second step is to conduct a concise environmental assessment to determine if an EIS should be prepared.4 If no potential for significant effect is found, the agency may conclude the process after the

environmental assessment with a “Finding of No Significant Impact”

(FONSI). For proposed actions that may have a significant effect, the

third step is to prepare a complete EIS following the requirements of

NEPA and the CEQ rules.

Court decisions since 1978, including Supreme Court decisions,

have acknowledged the authoritative nature of the CEQ and have

deferred to agency discretion about the content of the analysis. Federal

agencies, on average, prepare 450 – 500 EISs and tens of thousands more

environmental assessments each year.

By agreement with the CEQ, the Office of Federal Activities in the

Environmental Protection Agency (EPA) is the official repository of all

draft and final EISs. As part of this function, the EPA publishes each

week in the Federal Register a “notice of availability” of all draft and final

EISs it has received. In addition to its record-keeping responsibility,

under Section 309 of the Clean Air Act the EPA has the responsibility to

review and comment on all EISs.5 EPA uses a standard grading system

that addresses both the adequacy of the document and the environmental consequences of the proposed action. EPA has the authority, exercised only rarely, to find an EIS inadequate and a proposed federal

action environmentally unsatisfactory, leading to a referral to CEQ for

resolution of the matter.

1.2 Provisions for Transboundary Effects

The applicability of NEPA to potential environmental effects that

may occur outside US jurisdiction has been a point of legal controversy

from the beginning. The statute itself makes no distinction between

domestic, transboundary, or global loci of action or loci of environmental effect. Under US law, a presumption exists against applying statutes

extraterritorially.6 In this regard, two legal questions are presented:

(1) does the mandate to prepare an EIS with respect to transboundary

40 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

4. Of course, for any proposed action the agency may decide to proceed directly to the

preparation of an EIS.

5. 42 U.S.C. 7609.

6. See e.g., Foley Bros. v. Filardo, 336 U.S. 281 (1949) and Equal Employment Opportunity

Commission v. Arabian American Oil Co. et al., 499 U.S. 244 (1991).
impacts involve the extraterritorial application of US law; and (2) is there

sufficient evidence of congressional intent to overcome the general presumption against extraterritorial application? These issues remain unresolved in many respects.

While the applicability of NEPA to transboundary environmental

effects may be subject to debate, Executive Order 12114, promulgated by

President Jimmy Carter in 1979, provides that the Order “represents the

United States government’s exclusive and complete determination of

the procedural and other actions to be taken by Federal agencies to further the purpose of the National Environmental Policy Act, with respect to

the environment outside the United States, its territories and possessions” (including agency actions inside and outside the United States).7

The Executive Order does not purport to define legal obligations under

NEPA, but only to define policy within the Executive Branch that “furthers the purpose” of NEPA.

Four basic categories of major Federal actions require some kind of

environmental impact assessment under the Order:

· those significantly affecting the environment of the global commons;

· those significantly affecting the environment of a foreign nation

not participating with the United States or not otherwise

involved in the action;

· those significantly affecting the environment of a foreign nation

which provide to that nation certain products or physical projects (for example, a project which in the United States is prohibited or strictly regulated by Federal law to protect the

environment against radioactive substances); and

· those actions outside the United States which significantly

affect certain resources of global importance.

Certain actions, even if they would otherwise fall within the scope

of the Order as outlined above, are exempt from EIA requirements, for

example, actions taken by the President; intelligence activities; export

licences; certain actions related to national security or armed conflict;

votes in international organizations; and disaster/emergency relief. In

addition, agencies are accorded flexibility in the contents and timing of

ENVIRONMENTAL IMPACT ASSESSMENT 41

7. 44 Fed. Reg. 1957 (1979).
environmental documentation where, for example, prompt action is

required or foreign relations would be adversely affected. Unlike NEPA

(which, as described elsewhere, can be judicially enforced through the

EPA), the Order does not provide a cause of action.

2. ANALYSIS OF CONTENTS AND PROCEDURES

2.1 When an EIS is required

The mandate for EISs appears in section 102(2)(C) of NEPA.8 The

key phrase defining the scope of the requirement is that an EIS should be

prepared for “proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment.” Each

word in this phrase has been interpreted by courts and defined in the

CEQ regulations.

As a threshold matter, a question often arises about how the acting

agency may carry out its NEPA responsibility. It is up to the agency to

assure that the EIS meets NEPA requirements and follows proper procedures. In cases where more than one federal agency is involved, one of

the agencies will be selected as the “lead” agency with responsibility for

the NEPA process.

2.1.1 “Proposal”

The agencies and the courts have struggled with the question of

when a course of action becomes concrete enough or specific enough to

constitute a “proposal.” Agencies constantly engage in long-range planning and reform of policies and procedures. They also establish policies

or programs that have no immediate effect in themselves but may

encourage or permit later specific decisions that will have effects.

Among the factors to be considered in this regard are how connected the

actions are, whether they are more than speculative, whether state and

42 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

8. The key text of 102 reads as follows:

The Congress authorizes and directs that, to the fullest extent possible,... (2) all agencies of the Federal Government shall... (C) include in every recommendation or

report on proposals for legislation and other major Federal actions significantly

affecting the quality of the human environment, a detailed statement by the responsible official on: (i) the environmental impact of the proposed action, (ii) any adverse

environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local

short-term uses of man’s environment and the maintenance and enhancement of

long-term productivity, and (v) any irreversible and irretrievable commitment of

resources which would be involved in the proposed action should it be implemented.
federal agencies have negotiated an approach, and considerations of feasibility and necessity.

2.1.2 “Legislation”

The application of NEPA to agency proposals for legislation has

been called NEPA’s “neglected mandate.” Several difficulties have

stood in the way of regular use of environmental impact assessment for

legislative proposals. One is the Supreme Court’s holding that this mandate does not extend to requests for appropriations.9 More fundamentally, this aspect of NEPA is viewed as an intrusion into the

constitutional relationship between the executive and legislative

branches of government. If Congress wants an EIS on a bill proposed by

the executive, it can enforce that requirement by simply refusing to act

on the legislation until an EIS is prepared. If Congress is prepared to

approve legislation without an EIS, the courts have declined to intrude

into this executive-legislative relationship. If an agency does prepare a

legislative EIS, however, it will be held to the normal procedural requirements and tests of adequacy. In this context, the CEQ regulations recognize the exceptional circumstances of a legislative EIS, and call for a

one-step process for a statement to accompany the legislation rather

than the standard draft EIS – comment – final EIS sequence.10

2.1.3 “Major” and “Significant”

For the most part, the question whether an action is “major” and

whether it may have “significant” effects is treated as a single inquiry.

The CEQ regulations, in defining “major Federal action,” state: “[the

adjective] ‘major’ reinforces but does not have a meaning independent

of ‘significantly’.”11

Defining “significantly” has been an issue in many cases. Building

on interpretations by the courts, the CEQ regulations call for a consideration of both the context of the action and its intensity in determining

significance. Context includes such factors as whether the effects are

local or regional and whether they are long-term or short-term. Intensity

is even more complex: the rules list ten factors for evaluating the intensity or severity of the possible effects, including effects on human health,

effects on endangered species, the uncertainty of the effects, and the

degree to which the effects are likely to be “highly controversial.” In

practice, agencies are more likely to prepare an EIS if there is a high level

ENVIRONMENTAL IMPACT ASSESSMENT 43

9. Andrus v. Sierra Club, 442 U.S. 347 (1979).

10. 40 C.F.R. 1506.8.

11. 40 C.F.R. 1508.18.
of local public interest and concern about the project. This is consistent

with the objective of public disclosure and education that is part of the

environmental impact assessment philosophy.

2.1.4 “Federal”

NEPA applies only to federal agencies. Federal permits, approvals,

loans, leases, financial assistance and similar connections to an action are

sufficient to make it “federal.” The more difficult matter to resolve is the

degree of federal involvement that will trigger the requirement for an

EIS. What happens when there is a small proportion of federal funding

or when federal approval may be needed for a small part of the project?

In most cases, the critical issue is whether the federal agency has the ability to direct, control, or influence the project in some way. Thus,

non-specific federal funding through general revenue sharing with a

local government is usually not sufficient to make a local project a “federal” activity, but specific, restricted federal share of funding for a project like a highway may satisfy the “federal” test.

2.1.5 “Human Environment”

Over the years, cases involving NEPA have established that the

assessment of impacts on the “human environment” should include

impacts on cultural and historical artifacts. The human environment

includes social and economic conditions as well as the physical environment, but only if there is some change to the physical environment that

induces the socio-economic changes. Thus, potential effects on crime in

the neighborhood should be examined as part of the EIS for an urban jail

building,12 but psychological stresses related to fear of radiation would

not be an effect on the environment in a case where the proposed action

will cause no perceptible change to the physical environment but might

allegedly cause fear.13 However, socioeconomic impacts cannot, in

themselves, be the trigger for an EIS.

2.2 NEPA and CEQ Procedures for Environmental Impact

Statements

2.2.1 Timing

The policy behind the law favors beginning the EIS as early as possible in the project planning stage. The CEQ regulations call for an EIS to

44 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

12. Hanly v. Mitchell, 460 F. 2d 640 (2d Cir. 1972).

13. Metropolitan Edison Co. v. People Against Nuclear Energy (PANE), 460 U.S. 766 (1983).
be initiated at the feasibility analysis stage or, in the case of applications

for licences or approvals, as soon as the application is received. The environmental impact assessment should be part of the decision about

whether and how to proceed with the action, and should not become an

after-the-fact rationalization for a decision already taken. Nevertheless,

the advantage of early environmental assessment must be balanced

against the need to have a specific proposed action to assess. In some

instances where such dilemmas arise, agencies have prepared “programmatic” EISs discussing the general scope and effect of a nationwide

government program, with separate environmental assessments or EISs

done for specific projects or actions under that program.

There is no systematic procedure for public notice or participation

prior to the initiation of an environmental impact statement or receipt of

an application for a permit, licence, or approval. There may be public

notice and participation requirements that apply to the underlying

action, however, so the public will usually become aware of the proposed action at an early stage.

2.2.2 Scoping

The CEQ regulations have a separate provision on scoping, which

calls for publication in the Federal Register of a notice of intent to prepare

an EIS as soon as possible after the decision to prepare one has been

made.

This public notice should define the scope of the EIS and the significant issues it will cover, and invite other Federal, state, and local agencies; Indian tribes; and private citizens to participate in the EIS process.

Thus, the agency preparing the EIS will make the first determination of

the scope of the assessment, but that determination may be modified

based on the basis of input from other interested parties.

2.2.3 Impacts

As noted in Section 2.1, the EIS should evaluate effects on the natural or physical environment and also related social or economic impacts.

Several difficult questions may arise in determining which effects need

to be evaluated. One question is the cumulative impact of an action,

along with that of other actions which may precede or follow it. If the

other actions are reasonably connected to the proposed action, or are

reasonably foreseeable, their potential impacts should be included, but

it is not always easy to draw such lines. Another question is the indirect

impact that the action may have. For example, the construction of a highENVIRONMENTAL IMPACT ASSESSMENT 45
way may lead to commercial or residential development of land near the

highway. Here, too, the test is one of foreseeability and degree of connection to the proposed action. If a port development project is intended to

promote some industrial development, the EIS should evaluate the environmental effects of that industrial development, but it may not need to

guess about the residential development that may or may not occur as a

further consequence.

Another issue that often arises in this context is “segmentation” –

whether the proposed action stands alone or is part of a larger plan that

should be evaluated for its overall effect. If there is sufficient connection

between the activity described in the EIS and other planned activities,

the EIS should evaluate the environmental effects of the total project

concept. If, however, the project segment under review is viable as an

independent project, and if related projects are not reasonably foreseeable, an EIS on the segment alone is usually adequate.

A final question in determining what impacts to assess is how to

manage uncertainty. For example, in the assessment of a project to construct a terminal for oil tankers, does the EIS need to evaluate the consequences of a catastrophic oil spill? After a debate spanning many years,

CEQ modified its regulations to abandon the concept of assessing the

“worst case” in all such instances, but agencies are still required to apply

the best available evidence about reasonably foreseeable possibilities,

however low the probability, along with the best available evidence

about the likelihood that such an event will in fact occur.14

2.2.4 Alternatives

Many courts and commentators agree with the CEQ regulations

that the analysis of alternatives is the “heart” of the impact assessment

process. As noted earlier, the alternatives analyzed should always

include the “no action” alternative. It has also been held, and CEQ regulations state, that an agency is required to consider reasonable alternative means to the same objective even if those alternatives are outside the

agency’s authority – e.g., energy conservation as an alternative to building a new power plant or on-shore gas development as an alternative to

offshore oil leasing.15

There may be countless alternatives to a particular action; the

choice of which alternatives to examine and how intensively to examine

them is not always easy. Once again, the “rule of reason” governs, and

46 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

14. 40 C.F.R. 1502.22.

15. 40 C.F.R. 1502.14(c).
different courts and different agencies reach widely varying judgments

about what is reasonable. Moreover, which alternatives are considered

reasonable depends in part on how the objective or purpose of the proposed action is defined. Leaving such complex considerations aside,

there are some typical questions that arise frequently. Alternative sites

for a project should be examined, but may be reasonably limited by

availability of suitable sites in the context of a particular project, such as a

highway between two cities. Another kind of alternative is different project designs; these may be limited by physical, engineering, economic, or

other constraints. The analysis of alternatives should contain at least

enough detail to allow a reasonable comparison of the environmental

effects of the “preferred” or “proposed” action and the alternatives.

During the planning and impact assessment process, the public

may suggest alternatives to the proposed action. If they do so, they

should provide enough information about their alternative to persuade

the agency that it is reasonable and should be analyzed.

2.2.5 Mitigation

Mitigation is a weak link in the NEPA EIS process – following the

Supreme Court decision in Robertson v. Methow Valley Citizens Council.16

In that case, reaffirming that NEPA is procedural only and not substantive, the Court held that it was sufficient for an EIS to discuss possible

mitigation measures to show that environmental impacts had been

“fairly evaluated,” and that there was no substantive requirement that

the proposed action contain specific plans for mitigation measures or

commitments to engage in them.

The CEQ regulations require that descriptions of alternatives and

assessments of their impacts include consideration of appropriate mitigation measures. They also provide a generic definition of mitigation,

including measures to avoid, minimize, or rectify the impact, reduce the

impact over time, or replace the affected resource. However, where a

decision is based on mitigation measures, then the agency is required to

implement them pursuant to CEQ regulations.17

2.2.6 Contents of Environmental Assessment Documents

As described earlier, three types of documents can be prepared

during the environmental impact assessment process: an environmental

assessment, a FONSI, and an EIS. The first two documents result from a

ENVIRONMENTAL IMPACT ASSESSMENT 47

16. 490 U.S. 332 (1989).

17. 40 C.F.R. 1505.3.
preliminary assessment of environmental effects. The contents of a full

EIS are discussed in Section 2.2.7 below.

In situations when the agency is considering whether or not to prepare an EIS, it can prepare an environmental assessment, a brief and concise statement that is a public document. The environmental assessment

should contain a brief discussion of the expected environmental effects

of the proposed action and alternatives, with a view to aiding the

agency’s decision about whether to prepare an EIS. If, as a result of the

environmental assessment the agency decides to prepare a full EIS, the

environmental assessment will serve as the starting point for the more

detailed EIS. If the environmental assessment shows that the environmental impact will not be significant, the agency will issue a FONSI.

Both the environmental assessment and the FONSI shall be made

available to the public and the latter shall include the environmental

assessment on which it is based and may incorporate its conclusions by

reference. If the proposed action is one for which the agency would normally prepare an EIS or if it is an action without precedent in the agency,

the FONSI should be made available for public review and comment for

30 days before the agency makes a final determination.18

2.2.7 Contents of Environmental Impact Statements

A full EIS is a “detailed statement” containing the types of analysis

and consideration of alternatives described above. Through many court

decisions interpreting the elements of an EIS spelled out in the statute,

there is substantial legal guidance about the scope and degree of analysis

that an EIS must contain. This guidance, which covers many of the issues

discussed above, is summarized in 25 sections of the authoritative CEQ

regulations.19

The CEQ regulations require a draft EIS covering all the issues

decided upon in the scoping process that “must fulfill and satisfy to the

fullest extent possible” the NEPA requirements for an EIS. The draft EIS

is a public document circulated to other federal agencies, interested or

affected Indian tribes and state and local agencies, project applicants, citizen groups, and others. All these parties have the opportunity to comment in writing on the draft EIS.

In addition to covering the environmental effects of the proposed

action and alternatives to the proposed action, the final EIS must contain

48 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

18. 40 C.F.R. 1501.4(e).

19. 40 C.F.R. Part 1502.
a summary of the comments received on the draft EIS and the agency’s

response to those comments, which may include new alternatives, new

analysis of effects, or reasons why the agency did not make any change

from the draft. No decision on the proposed action shall be made by a

Federal agency until 30 days after publication of the notice of availability

for a final EIS, and the final EIS must be completed and available to the

agency decision maker and the public before the final decision on the

proposed action.20

There are two common circumstances in which the final EIS may

not provide a sufficient evaluation of the environmental effects at the

time the final action decision is being made. First, new information may

have become available, particularly if the agency decision has been

delayed for a long time, and the agency has a continuing responsibility

to accumulate and consider new information. Second, the proposed

action may have changed enough that the original EIS no longer fairly

describes the proposed action or its effects. In either case, the agency will

need to supplement the EIS. Preparation of a supplemental EIS normally

follows the same pattern and procedure as for the original EIS, except

that the scope may be limited to the new information or the modification

of the proposed action, and scoping is not required.

2.2.8 Administrative and Judicial Review

As noted previously, the US procedure has both administrative

and judicial review. The administrative review is conducted by the EPA

under Section 309 of theClean Air Act, and can result in an EPA comment

that the EIS is inadequate or that the underlying action is environmentally unsatisfactory. By law, the EPA’s comments are public. If the EPA

makes negative comments and the problems are not corrected in the

final EIS, or the lead agency wants to proceed with the action, the EPA

may refer the matter to CEQ. Other agencies objecting to a proposed

action may also initiate referrals to CEQ.

The referral procedure is spelled out in the CEQ regulations.21 It

requires the referring agency to be specific in its objections, and allows

the acting agency an opportunity to respond. Since the referral is a matter of public record, CEQ will also take public comments into account.

CEQ may call interagency meetings or conduct public meetings or hearings in its effort to resolve the disagreement. In rare instances, the matter

may be referred to the President for decision. Agencies have invoked

ENVIRONMENTAL IMPACT ASSESSMENT 49

20. 40 C.F.R. 1506.10(b).

21. 40 C.F.R. Part 1504.
CEQ referral infrequently (an average of one per year) but often with

great effect, mostly to protect important resources under their jurisdiction from the effects of another agency’s proposed action.

Judicial review of agency actions has played a central role in establishing NEPA’s environmental impact assessment mandate and in

defining its requirements. NEPA itself does not provide for judicial

review, so all review actions have been brought under the Administrative Procedure Act (APA), which allows judicial review of final agency

actions that are alleged, among other things, to be contrary to law. The

earliest NEPA cases were generally brought against agencies that had

decided on an action without preparing an EIS. As agencies began to

accept their obligations to prepare an EIS, the focus in later cases shifted

to review of the adequacy of the EIS. In either situation, the courts have

the power to enjoin implementation of the agency action until the NEPA

requirements are properly fulfilled. In many instances, the extra study

and delay involved in EIS preparation, or the publication of findings of

no significant environmental impact, have caused agency or private project applicants to abandon the action or substantially modify it. The

delay also allows opponents of projects time to marshal political support

to get the Congress or federal or state agencies with some control over

the project to take steps to block or modify it. In some cases, political

involvement has resulted in Congressional action to exempt a particular

project from NEPA. The Alaska oil pipeline in Alaska is a notable beneficiary of such an exemption.

2.2.9 Post EIA Monitoring

Neither NEPA nor the CEQ regulations include a general requirement to monitor the environmental effects of actions taken. However,

the CEQ regulations do require monitoring and enforcement “where

applicable for any mitigation.”22 In addition, the CEQ regulations note

that agencies “may provide for monitoring to assure that their decisions

are carried out and should do so in important cases.”23 The record on

post-action monitoring, however, is poor. Agencies and scholars who

have attempted to assess the benefits of environmental impact assessment have been frustrated by the scant amount of objective data available to evaluate whether the predictions of effects in EISs have been

reasonably accurate.

50 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

22. 40 C.F.R. 1505.2(C).

23. 40 C.F.R. 1505.3.
2.2.10 Public Notice and Participation

One of the primary functions of the environmental impact assessment process under NEPA is to educate and inform the public, as well as

government decision makers, about the environmental consequences of

planned actions. NEPA itself requires that the EIS and federal, state, and

local agency comments on the EIS be made available to the public.24 The

CEQ regulations set forth comprehensive procedures for “public

involvement” in the environmental impact assessment process.25 In particular, the CEQ regulations call for extensive public notice of the availability of documents and of any hearings or meetings related to NEPA.

This includes direct mail notice to those who have expressed interest or

reside in the immediate vicinity of a project site, publication in the Federal Register for cases of national interest, and notice through state and

area wide clearinghouses, local newspapers, and other local media in

the affected local areas. Hearings or meetings should be convened

whenever “appropriate” or required by law, for example because of the

degree of environmental controversy, or if they are requested by other

interested agencies. CEQ regulations require that agencies allow a minimum of 45 days for comments on draft EISs.

The Freedom of Information Act, a federal agency disclosure law, limits disclosure of information under certain conditions, most notably for

the protection of privately-developed confidential business information

and for the protection of classified government secrets. Thus, the

Supreme Court has held that the Department of Defense must prepare

an EIS for a weapons storage facility that would presumably store

nuclear weapons, but that it could keep the EIS secret in order not to disclose whether nuclear weapons would in fact be stored there.26

3. SUMMARY OF STATE LEGISLATION

Fourteen states, the District of Columbia, and Puerto Rico have

complete statutory programs requiring environmental impact assessments. Three other states have partial environmental impact assessment

requirements under executive order, and nine states have procedures

that cover particular activities or particular state agencies. This section

provides a brief analysis of the statutory programs in two key border

states – California and New York – that have long-standing and fully

developed programs. It also notes the circumstances of two other border

states – Texas and Michigan – that lack comprehensive statutory programs.

ENVIRONMENTAL IMPACT ASSESSMENT 51

24. 5 U.S.C. 552.

25. 40 C.F.R. 1502.19, Part 1503, and 1506.6.

26. Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981).
3.1 California

The California Environmental Quality Act (CEQA)27 requires an

environmental impact report (EIR) on any project that a state agency or

local government intends to carry out, support financially, or for which

it intends to grant a permit, licence, certificate, or similar government

entitlement. Nondiscretionary “ministerial” actions are excluded, as are

feasibility studies and emergency actions. When comparing this coverage to the federal NEPA, it should be kept in mind that most private

development projects involving construction or other physical alteration of the environment will require the approval of one or more state or

local agencies, so most private projects are covered by the CEQA.

The general structure of the CEQA process is similar to the federal

system. Some actions or project types are categorically excluded. For

non-excluded actions, the agency begins with a quick assessment of the

potential environmental effects. If those are not significant, the agency

may issue a “negative declaration” stating that an EIR is not required. If

the potential effects are significant, the agency proceeds to preparation

of the EIR. Unless extensions are granted, the EIR must be completed

within one year.

The scope and content of an EIR and the procedures associated

with EIR preparation are also similar in most respects to a federal EIS.

There are two important differences, however, that are worth highlighting.

3.1.1 Mitigation and Alternatives

Unlike the purely procedural approach under NEPA, the CEQA

environmental assessment process has a substantive element. In California, mitigation of environmental effects is required whenever the project

could have at least one significant environmental effect, unless mitigation is infeasible. To satisfy this requirement, mitigation measures that

are incorporated into the proposed action must be enforceable by government permit conditions or binding agreements. The requirement to

consider alternatives is also more strongly stated than in NEPA: agencies have a “strong duty” to consider alternatives and must give reasonable substantive consideration to alternatives in light of the nature of the

project. The “no action” alternative should be examined if there are no

other feasible alternatives.

52 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

27. Cal. Pub. Res. Code 21000–21174.
3.1.2 Judicial Review

The scope of judicial review of California EIRs is somewhat different than under the federal NEPA system. The agency action is generally

reviewable only when there is a prejudicial abuse of discretion. Such

abuse of discretion may be found for failure to prepare an EIR when the

action may have a significant environmental effect, if the statement fails

to meet statutory requirements, or if the conclusions of the EIR are not

supported by substantial evidence.

3.2 New York

New York’s State Environmental Quality Review Act (SEQRA) governing environmental impact assessment, like the California law, is

modeled closely on NEPA, but expands upon or fills gaps in the NEPA

process. It has the same broad scope, applying to state and local agency

actions including permits, leases, licences or other entitlements. It also

applies to agency decisions on policies, regulations, or procedures. Only

ministerial acts, repair and maintenance activities, and enforcement

actions are excluded. The term “environment” is broadly defined to

include “existing community or neighborhood character” and population concentration, distribution, or growth, in addition to the physical,

historical and aesthetic environment.

3.2.1 Mitigation

The SEQRA, like the CEQA, has a substantive element lacking in

the federal system. In the New York procedure, the agency taking the

action must make an explicit finding that all requirements of the SEQRA

have been carried out and that all practicable means will be taken to minimize or avoid adverse environmental effects. Moreover, under a separate law, the New York Commissioner of Environmental Conservation

is empowered to base any determinations in relation to licences, orders

and other acts of the commission on the cumulative impacts on all state

resources, including fish and wildlife, water, land and air.

3.3 Texas and Michigan: Partial Programs

In view of their significance as states where activities with potential transboundary environmental effects might be carried out, and

given their much less complete approach to environmental impact

assessment, the existing requirements in Texas and Michigan are worth

a brief mention.

ENVIRONMENTAL IMPACT ASSESSMENT 53
3.3.1 Texas

Texas has no comprehensive law or regulation requiring environmental impact assessment. Four separate provisions of the Texas codes,

however, call for some kind of environmental assessment in specific circumstances. The Texas Water Code calls for draft EIAs that “comply

with NEPA” to accompany applications to lease state-owned navigation

district lands.28 The Texas Administrative Code contains three other EIA

requirements. The Texas School Land Board can require draft EISs from

private parties for projects on state-owned lands; this section of the code

contains detailed guidelines on the form and content of such statements.29 The Texas Water Development Board can require an EIS as part

of the evidence for hearings on proposed agency actions; again, the Code

provides guidance on form and content, including social and economic

impacts.30 Finally, the Texas Department of Transportation requires

EISs for any state highway improvement projects with significant environmental impacts.31

3.3.2 Michigan

In 1971, 1973, and again in 1974, the governor of Michigan promulgated executive orders addressing the subject of environmental impact

statements. The 1974 order was superseded in 1989 by another order,

Executive Order 1989 – 3, establishing the Governor’s Council on Environmental Quality and charging the Council, among other duties, “To

set forth guidelines to be used by state agencies for the preparation of

environmental impact statements and environmental assessments

which shall be required for each proposed major state action significantly affecting the environment, and to monitor compliance with the

guidelines.” As of 1995, however, the Governor’s Council on Environmental Quality has been disbanded, and no other state agency has been

charged with the development of EIA guidelines. Lacking any set state

policy or procedures, Michigan state agencies do not prepare such

assessments.32

54 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

28. Texas Water Code 61.116.

29. 31 Tex. Admin. Code 155.21, 155.24.

30. Tex. Admin. Code 353.21-353.26.

31. 43 Tex. Admin. Code 11.87–11.88

32. This summary is based on a copy of the 1989 executive order obtained from the

Governor’s Legal Office and a conversation with Mr. Dennis Armbrister of the

Environmental Assistance Center in the Michigan Department of Natural

Resources.
PUBLIC ACCESS TO

GOVERNMENT-HELD

ENVIRONMENTAL

INFORMATION

REPORT ON NORTH AMERICAN

LAW, POLICY AND PRACTICE

PUBLIC ACCESS TO GOVERNMENT-HELD

ENVIRONMENTAL INFORMATION

Report on North American Law,

Policy and Practice

INTRODUCTION

Background to the Report

In 1993, Canada, Mexico and the United States entered into the

North American Agreement on Environmental Cooperation (NAAEC).

In tandem with establishing a regional, cooperative framework for environmental protection, the NAAEC emphasizes the importance of public

participation in conserving, protecting and enhancing the environment.

The agreement commits the Parties to provide opportunities to the public to obtain information about environmental laws and decisions and to

participate in environmental decision-making processes. The Council,

established under the NAAEC, is mandated to promote and, as deemed

appropriate, to develop recommendations regarding public access to

environmental information held by the Parties’ public authorities,

including information on hazardous materials and activities in their

respective communities. The Council is also mandated to promote and

recommend opportunities for the public to participate in decisionmaking processes related to public access.

In September 1995, in furtherance of these related obligations and

commitments, the Commission for Environmental Cooperation (CEC)

brought together an ad hoc group of representatives from North American government agencies, non-governmental organizations and the private sector with expertise in policies and procedures for access to

environmental information to provide their advice. The result was a

consensus report recommending a list of essential elements necessary

for the Parties to the NAAEC to ensure effective public access to environmental information, including reforms to law, policy and procedure to

ensure public right of access in a timely, affordable manner.

57
The Council of the CEC responded in October 1995 with a joint

policy statement issued through Council Resolution 95-8 entitled Public

Access to Environmental Information. The resolution reaffirms the commitment by the Parties to public participation in environmental protection and the importance of promoting public access to environmental

information, subject to the sovereign right of the Parties to establish their

own environmental policies as well as mechanisms to access and disseminate information. By the resolution the Council agreed:

a) To identify present laws and practices pertaining to public

access to environmental information in the three countries in

accordance with the respective laws of the Parties, within the

scope of work undertaken by the Commission;

b) To implement actions and initiatives aimed at improving education and communication programs concerning environmental issues and access to environmental information in our

respective nations;

c) To explore ways of facilitating ease of access, affordability and

timeliness of obtaining information to which members of the

public are entitled as prescribed by domestic law;

d) To promote an effective and timely exchange of information

among museums and biodiversity research institutions of our

countries.

The Report

In 1995 the CEC Secretariat commissioned this report in support of

these undertakings. The purpose of this report is to provide information

on the laws, policies and practices of Canada, Mexico and the United

States for providing public access to environmental information held by

governments. While the report focuses on current regimes for providing

public access to environmental information, it also references any

reform processes proposed or underway where that information was

revealed.

The report surveys federal regimes for providing public access to

environmental information in each of the three countries, with selected

additional examples, where appropriate, of state and provincial

regimes.

58 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
For the purposes of this report, the term “access” is intended to

include affirmative efforts on the part of government agencies to provide environmental information to the public. Consistent with the «elements of effective access to environmental information» as outlined

above, the report addresses the following matters:

· legal right of access;

· access policies;

· ease of access;

· timeliness;

· affordability of the processes.

For the purposes of the report, the term “public” includes any

interested citizen or resident of any NAFTA country, as well as

non-governmental organizations, companies, industry associations,

labour unions and others. “Public” does not include governments,

whether federal, state, provincial, territorial or municipal.

Finally, the term “environmental information” is understood to

include a broad range of categories of information generated by, or otherwise in the possession of, a public authority including information

related to:

· environmental assessments of proposed projects;

· issuance of licences and permits for proposed projects;

· proposed regulations, policies, programs or plans that affect the environment;

· enforcement and compliance actions related to environmental laws;

and

· toxic substances release inventories.

These categories of environmental information were selected on

the basis of several considerations. A primary consideration is that Article 10(5) of NAAEC provides that the CEC is to develop recommendations regarding public access to government-held environmental

information relating to opportunities of the public to participate in deciPUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 59
sion-making, and to information on hazardous materials and activities

in communities. The first four categories of information conform closely

to the CEC’s function to develop recommendations relating to public

access to environmental information in support of public participation

in decision-making. The fifth category of information, release inventories of toxic substances, conforms closely to the reference in Article 10(5)

to information on hazardous material and activities.

Methodology

The report was prepared for the CEC by a team of legal consultants

with particular expertise in access to environmental information. The

information provided is based for the most part on interviews with government officials, government documents and related literature.

The focus of the report is in direct response to the Council Resolution 95-08 and the elements of effective access to environmental information proposed by the Expert Advisory Committee to the CEC.

Disclaimer

The report does not necessarily reflect the opinions or views of

either the Parties or the CEC. The CEC also wishes to clarify that while

efforts were made to update the report to include current reforms to the

Parties’ laws, polices and practices, the information is considered valid

only to December 1997.

Linda F. Duncan

Head, Law & Enforcement Cooperation Program

Commission for Environmental Cooperation

60 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ACKNOWLEDGMENTS

The Commission for Environmental Cooperation wishes to

acknowledge the many individuals and organizations who contributed

to the completion of this report. We wish to acknowledge Stephen

Hazell, Marbek Resource Consultants, as the project coordinator and the

team of consultants who prepared the country reports and updates as

follows:

Canada Report:

Stephen Hazell, Marbek Resource Consultants;

Mexico Report:

Mtra. Maria Del Carmen Carmona Lara and Lic. Marisela Illescas,

Instituto de Investigaciones Jurídicas; Lic. José Juan Gonzales

Marques; Lic. María Elena Mesta, Centro Mexicano de Derecho

Ambiental;

United States Report:

Susan-Casey Lefkowitz, Environmental Law Institute.

We further wish to acknowledge those officials who assisted the

CEC by providing information and reviewing of the draft reports. We

also wish to acknowledge the work of the members of the CEC Expert

Advisory Committee whose 1995 report on the elements of effective

access to environmental information provided the framework for this

report:

Claude-André Lachance, Director, Government Affairs, Dow Chemical Canada Ltd.;

Charles Brassard, Director, Consultations, Communications Directorate, Environment Canada;

Chris Rolfe, Ministry of the Environment, Government of British

Columbia;

61
Don Sadowsky, U.S. EPA Office of General Counsel;

Robert Coullahan, V.P. Strategic Development, CIESIN;

Zane Gresham, Attorney, Morrison & Foerster;

Mtra. Carmen Carmona Lara, Instituto de Investigaciones

Jurídicas;

Ing. Luis Sanchez Catano, Director de Gestión Metropolitana,

INE-Semarnap;

Enrique Medina, Comité Civico de Divulgación Ecológica.

62 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
CANADA

1. CONSTITUTIONAL AND LEGAL FRAMEWORK

FOR PUBLIC ACCESS TO INFORMATION . . . . . . . . . . . 65

1.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 65

1.2 Overview of Constitutional Provisions . . . . . . . . . . . 65

1.3 Overview of Federal Access Legislation, Policies

and Practices . . . . . . . . . . . . . . . . . . . . . . . . . . 67

1.3.1 Access to Information Act . . . . . . . . . . . . . . . 67

1.3.2 Other Federal Access to Information Laws . . . . . 72

1.3.2.1 Workplace Hazardous Material

Information System . . . . . . . . . . . . . . 72

1.3.2.2 Canadian Environmental Assessment

Act . . . . . . . . . . . . . . . . . . . . . . . 72

1.3.2.3 Canadian Environmental Protection Act . . 73

1.3.2.4 Pest Control Products Act . . . . . . . . . . 74

1.3.2.5 Other Governmental Policies . . . . . . . . 74

1.3.3 Access to Information Concerning Judicial

Proceedings . . . . . . . . . . . . . . . . . . . . . . . 75

1.4 Overview of Provincial Access Legislation, Policies

and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

1.4.1 Freedom of Information and Protection of

Privacy Act (British Columbia) . . . . . . . . . . . . 76

63
1.4.2 Access to Information Concerning Judicial

Proceedings . . . . . . . . . . . . . . . . . . . . . . . 78

2. ENVIRONMENTAL ASSESSMENTS OF PROPOSED

PROJECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 79

2.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

2.3 Provincial (Alberta) . . . . . . . . . . . . . . . . . . . . . . 84

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS . . . . . 86

3.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 86

3.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

3.3 Provincial (Ontario) . . . . . . . . . . . . . . . . . . . . . . 92

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS

AND PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

4.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 95

4.2 Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

4.3 Provincial (Ontario) . . . . . . . . . . . . . . . . . . . . . . 99

5. ENFORCEMENT AND COMPLIANCE ACTIONS . . . . . . . 102

5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 102

5.2 Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

5.3 Provincial (British Columbia) . . . . . . . . . . . . . . . . 106

6. NATIONAL POLLUTANT RELEASE INVENTORY . . . . . . 107

64 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. CONSTITUTIONAL AND LEGAL FRAMEWORK FOR

PUBLIC ACCESS TO INFORMATION

1.1 Introduction

This document describes and evaluates public access to five categories of environmental information at the federal level in Canada, and

on a selected basis, at the provincial level.This first section provides an

overview of constitutional provisions and federal and provincial laws

that are relevant to public access to environmental information in Canada. Generic access to information laws are dealt with in some detail,

given their prime importance for public access to the environmental

information held by federal and provincial governments. The federal

Access to Information Act1 is discussed, as is the British Columbia Freedom of

Information and Protection of Privacy Act.2

1.2 Overview of Constitutional Provisions

The Canadian Constitution3 recognizes each level of government

(federal and provincial) as having its own proper legislative powers

such that every individual is subject to the laws of both the federal and a

provincial government (excepting residents of the two northern territories, whose territorial governments are creations of federal law). Neither

level of government is subordinate to the other, and both have important

legislative powers with respect to the environment. In documenting and

evaluating public access to environmental information held by the various governments in Canada, the federal and provincial legislatures are

empowered to legislate with respect to the public’s access to information

held by the federal and provincial governments respectively, subject to

any constitutional provisions that might limit those powers.

The Canadian Constitution does not explicitly set out the rights of

individuals to obtain access to environmental information held by gov65

1. R.S.C. 1985, c. A-1.

2. S.B.C. 1992, c. 61, as amended by S.B.C. 1993, c. 46.

3. Enacted as the British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK), renamed by

item 1 of the Schedule to the Constitution Act, 1982, being Schedule B of the Canada

Act, 1982, c. 11 (UK).
ernments. However, several provisions of the Constitution are relevant,

if of limited importance. Sections 18 and 194 require the statutes, records

and journals of Parliament and the New Brunswick legislature respectively to be printed and published in both English and French. Thus for

these jurisdictions there is a constitutionally entrenched obligation to

publish environmental statutes and the records of parliamentary

debates and committees dealing with environmental issues, among others, in both official languages.

The Canadian Charter of Rights and Freedoms5 in the Canadian Constitution sets out several rights and freedoms relevant to public access to

environmental information. The Charter declares that everyone has the

right to freedom of thought, belief, opinion, and expression, including

freedom of the press and other media of communication, as well as freedom of peaceful assembly. The Charter also includes the right of any

member of the public in Canada to communicate with and receive available services from the head or central office of an institution of Parliament or government of Canada in both English and French. Together,

these provisions could be interpreted to imply certain obligations on the

part of the government of Canada to provide public access to information held by the government.

Finally, the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof

except in accordance with the principles of fundamental justice. It is

arguable that fundamental justice in this context guarantees the right to

participate in environmental decisions that put life, liberty or personal

security at risk.6 The right to participate in decision making would

include a right of access to environmental information. Laws denying

such public access could be held by a court to be unconstitutional.

In summary, the Canadian Constitution and Charter provide limited guarantees, if any, of public access to environmental information

held by either level of government.

66 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

4. Ibid.

5. Being Part I of the Constitution Act, 1982.

6. See M. Jackman. Rights and participation: The use of the Charter to supervise the regulatory process. Canadian Journal of Administrative Law and Practice Vol. 4, p. 23.
1.3 Overview of Federal Access Legislation, Policies and Practices

1.3.1 Access to Information Act

Legal Right of Access to Information

The Access to Information Act7 (AIA) is the cornerstone legislation

for access to environmental information at the federal level in Canada.

Enacted in 1983, the AIA establishes an enforceable right of access to federal governmental information for Canadians, subject to a number of

important exceptions. The AIA provides a process of appeal for refusal

of access to an independent Information Commissioner and then to the

Federal Court.

As legislation that applies to all information held by the Government of Canada, the AIA is relevant to public access to environmental

information in all of the information categories of interest in this study.

Due to its importance, the AIA regime is explained in detail below.

The AIA guarantees the rights of Canadians to information held by

the federal government, including environmental information, subject

to specific exemptions. The stated purpose of the AIA is to provide a

right of access to information in records under the control of a governmental institution in accordance with the principles that governmental

information should be available to the public, that necessary exemptions

to the right of access should be limited and specific, and that decisions on

the disclosure of governmental information should be reviewed independently of government.

An independent Office of the Information Commissioner reporting to Parliament is established under the AIA. The Information Commissioner is an information ombudsman, with powers to investigate

complaints and to seek judicial review where an information seeker may

have been improperly denied access to information. The Information

Commissioner reports annually on the implementation of the AIA,

reporting on public complaints and their disposition, as well as any

emerging barriers to access, such as fees or slow response times to

requests for information.

Under the AIA, Canadians and landed immigrants have a right to

and shall, on request, be given access to any record under the control of a

governmental institution. The right of access is elaborated to include the

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 67

7. Supra, note 1.
right to be given an opportunity to examine the record or part thereof, or

be given a copy thereof subject to regulations.

The right of access is limited by provisions in the AIA which set out

exclusions and mandatory and discretionary exemptions. A key difference between exempted documents and excluded documents (such as

Cabinet confidences) is that the Information Commissioner and the Federal Court of Canada have the authority to examine the former but not

the latter. The most important exclusion is that the AIA does not apply to

Cabinet confidences, including memoranda, discussion papers, briefing

papers, Cabinet meeting agendas and minutes, and draft legislation.

Thus, the only legislation that applies to Cabinet confidences is the Official Secrets Act,8 which is designed to prohibit and control access to sensitive governmental information. The unauthorized release to the public

of Cabinet confidences that have been in existence for less than 20 years

could result in criminal charges being brought against the individuals

involved.

A second exclusion is that the AIA does not apply to published

material or material available for purchase by the public. When combined with this exclusion, the Crown’s copyright to works published by

or under the direction or control of any government department pursuant to the Copyright Act9 becomes a tool to control public access to government information. The prospect of revenue generation from the

licensing of publication of works subject to Crown copyright is likely to

act as a disincentive to providing access under the AIA.

The AIA sets out numerous exemptions, some of which are

detailed below. Heads of governmental institutions must refuse to disclose any requested record that was obtained in confidence from foreign,

provincial or municipal governments or international organizations of

states unless the government or organization consents to the disclosure

or makes the information public. Similarly, access to third-party trade

secrets or financial, commercial, scientific or technical information that

is confidential is prohibited unless the third party consents to disclosure,

or disclosure is in the public interest as it relates to public health, public

safety, or protection of the environment.

Heads of governmental institutions may refuse to disclose any

requested record that could “reasonably be expected to be injurious” to

the conduct of international or federal-provincial relations, the defense

of Canada, or to Canada’s econo mic interests; that could threaten the

safety of individuals; or is subject to solicitor-client privilege, among

68 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

8. R.S.C. 1985, c. O-5, as amended.

9. R.S.C. 1985, c. C-42, as amended.
other discretionary exemptions. For the first set of exemptions, the information must be released if there is no reasonable expectation of injury.

Access to trade secrets or to financial, commercial, scientific, or technical

information that belongs to the Canadian government and has substantial value may also be refused.

Another limitation is that only Canadians and permanent residents within the meaning of the Immigration Act10 (landed immigrants)

are entitled to take advantage of the rights set out in the AIA.

Access Policies

A number of Canadian governmental policies are relevant to public access to environmental information under the AIA. The 1993 Access

to Information Policy issued by the Treasury Board states that:

It is the policy of the government to carry out the spirit and requirements

of the Access to Information Act in a manner which:

· Recognizes the duty to inform as the essential principle underlying the

access legislation;

· Discloses to requesters the maximum information possible which is not

injurious to the public and private interests identified in the exemptions in the legislation and does so in the most timely and consistent

manner given the nature and scope of the request; [...]11

The 1990 Communications Policy issued by the Treasury Board

states that it is governmental policy to:

Provide information to the public about its policies, programs and services that is accurate, complete, objective, timely, relevant and understandable.12

With respect to availability and dissemination of information, the

Communications Policy states:

The government has a clear responsibility to ensure that information

about federal policies, programs and services is disseminated or made

available to all regions of Canada. [...] However, the provision of information is costly and should be undertaken only where there is a clear duty to

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 69

10. R.S.C. 1985, c. I-2, as amended.

11. Treasury Board. Access to information. In: Information and administrative management. Ottawa: Minister of Supply and Services Canada. 1993. Chap. 1-1, p. 1.

12. Treasury Board. Communications. In: Information and administrative management.

Ottawa: Minister of Supply and Services Canada. 1991. Chap. 1-1, p. 1.
inform the public or where the user is willing to pay for it. The full cost of

providing information to serve the proprietary interests of individuals

should not be borne by taxpayers at large.13

Thus, the Communications Policy suggests that disseminating

governmental information at an affordable price should occur only

where there is a clear duty to inform. This could be interpreted to mean

that the full costs of any information disseminated should be recovered

where there is no clear duty to disclose (i.e., where the head of government has discretion whether or not to disclose).

Guidelines issued by the Interdepartmental Working Group on

Database Industry Support (IWGDIS) in 1991 support licensing governmental information to private sector vendors as a way to generate revenues. Such licensing is a way of publishing the data such that it would no

longer be subject to access requests under the AIA. Royalties and fees

generated from such licensing can now be retained by the department

under a 1993 Treasury Board policy.

The 1994 Information Management Policy issued by the Treasury

Board goes so far as to require governmental institutions to make their

information holdings available for purchase by the public where appropriate and where there is a significant public demand.14 Wide-scale

application of this policy could have the effect of limiting the application

of the AIA to governmental information where there is no significant

public demand.

Ease of Access

Several barriers to convenient public access to information under

the AIA deserve mention. The first is that the AIA requires that a request

for access to a record “be made in writing to the governmental institution that has control of the record and shall provide sufficient detail to

enable an experienced employee of the institution with a reasonable

effort to identify the record.” Thus, the onus is placed on the person seeking access to identify the governmental institution and provide enough

information about the record to which access is sought to enable the

institution’s personnel to identify that record.

The duty of the governmental institution is limited to making

information available only to requests in writing that identify the

70 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

13. Ibid. Application of the policy, Chap. 1-4, p. 6.

14. Information Commissioner. Information technology and open government. Information Commissioner of Canada. 1994, pp. 15-16.
records sought. The governmental institution has no duty to take positive steps to ease public access to information.

The AIA provides minimal guidance regarding the format of

records to be disseminated. For example, the AIA does not indicate in

which situations governmental institutions should or must provide

records in particular formats (e.g., computer diskette, Braille, large

print).

One measure of the convenience of public access to information is

the number and disposition of complaints made to the Information

Commissioner against the government. In 1994-95, 960 complaints were

made, of which 63 percent were resolved through remedial action by the

Information Commissioner and 29 percent were considered not to be

substantiated.15 This compares to 768 complaints in 1993-94, 720 complaints in 1992-93, and 873 complaints in 1991-92.16

Timeliness

The AIA requires that the governmental institution, subject to certain caveats, notify the information seeker, within 30 days after the

request is received, as to whether or not access will be given. If access is

to be given, the person must also be given access to the record within 30

days after the request is received. The 30-day time period may be

extended “for a reasonable period of time” where the request is for a

large number of records or where consultations are necessary to comply

with the request.

In 1994, the Information Commissioner concluded that processing

times in response to access requests were “sluggish.”17 The percentage

of requests processed within 30 days fell from 75 percent in 1983-84 to 58

percent in 1992-93. The percentage of requests that took longer than 60

days to process increased from six percent in 1983-84 to 21 percent in

1992-93.

Affordability

The AIA permits regulations to be developed setting out fees that

may be charged to those seeking information. The application fee curPUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 71

15. Information Commissioner. Annual report: 1994-1995. Information Commissioner

of Canada. 1995, p. 59.

16. Information Commissioner. Annual report: 1993-1994, p. 43; Annual report:

1992-1993, p. 35; Annual report: 1991-1992, p. 34. Information Commissioner of Canada.

17. The Access to Information Act: 10 years on. Information Commissioner of Canada,

1994, p. 21.
rently prescribed by the regulations is C $5.00. Additional fees may be

charged for costs associated with document reproduction, and for every

hour in excess of five hours that is reasonably required by employees of

the governmental institution to search for the record and prepare it for

disclosure. The fee for photocopying is C $0.20 per page, and for microfiche duplications, C $0.40 per fiche. In 1994, the Information Commissioner reported that according to 1992 statistics, the government

collected on average C $12.30 in fees for each completed request.

1.3.2 Other Federal Access to Information Laws

1.3.2.1 Workplace Hazardous Materials Information System

The Workplace Hazardous Materials Information System

(WHMIS) is a combination of federal and provincial laws designed to

guarantee workers’ right to know the potential dangers of hazardous

materials and products encountered in the workplace. The WHMIS

includes three main sets of requirements: labeling, disclosure by means

of material safety data sheets and worker training and education. The

federal Hazardous Products Act18 obliges importers, manufacturers, processors and sellers to warn of the hazardous nature of such products and

materials. Provincial and territorial legislation and the Canada Labor

Code require employers to ensure that hazardous materials are appropriately labeled, that material safety data sheets are readily available to

workers and that workers are educated and trained to handle hazardous

materials safely.

The products and materials regulated under the Act fall into the

following classes: compressed gas, flammable and combustible material, oxidizing material, poisonous and infectious material, corrosive

material, and dangerously reactive material. The Hazardous Materials

Information Review Act19 sets out a system to address claims of confidentiality that arise when information is provided in order to comply with the

Hazardous Products Act.

1.3.2.2 Canadian Environmental Assessment Act

TheCanadian Environmental Assessment Act20 (CEAA) sets out additional rights of public access to environmental information at the federal

level. One of the purposes of the CEAA is to ensure that there be an

72 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

18. R.S.C. 1985, c. H-3, as amended.

19. R.S.C. 1985, c. 24 (3rd Supp.), Part III.

20. S.C. 1992, c. 37.
opportunity for public participation in the environmental assessment

process. The CEAA requires federal authorities to establish public registries to facilitate public access to records relating to environmental

assessments, and that these public registries be established and operated

in a manner that ensures convenient public access. The Minister of the

Environment is obliged to report annually to Parliament on the administration and implementation of the CEAA.

1.3.2.3 Canadian Environmental Protection Act

The Canadian Environmental Protection Act (CEPA) sets out as

duties of the Government of Canada the obligation to provide information to the people of Canada on the state of the Canadian environment

and to encourage the participation of Canadians in the making of decisions that affect the environment. The CEPA requires the Minister of

Environment to publish notification of substances to be evaluated for

toxicity, the toxicity declaration for substances, and proposed regulations and orders to be made under the CEPA in the Canada Gazette. Any

person may file a notice of objection to the proposed regulation or order

within 60 days of such publication, and the Minister may establish a

Board of Review to investigate the objection. The CEPA requirements

relating to publication of an annual report and to citizen applications for

investigations of alleged offenses under the CEPA also afford opportunities for public access to environmental information.

Further, the Minister may publish a notice in the Canada Gazette

requiring any person to provide the Minister with any information

needed to determine whether or not a substance is toxic. Persons providing information are entitled to submit a request that such information be

kept confidential, and subject to the other provisions in the CEPA, the

Minister and other persons are required to keep the information confidential. Except for information to which the Hazardous Material Information Review Act applies, the Minister may disclose information

notwithstanding the AIA if the disclosure is in the interest of public

health, public safety, or the protection of the environment, and the public interest outweighs the material financial loss or prejudice to the competitive position of the person on whose behalf it was provided.

Finally, the Minister of the Environment is authorized to publish or

distribute both information about all aspects of the quality of the environment and a report on the state of the Canadian environment to be

prepared on a periodic basis.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 73
1.3.2.4 Pest Control Products Act

The federal Pest Control Products Act21 and related regulations govern the production and registration of pesticides. The legislation

requires that pesticides toxic to plants and animals be registered, conform with certain specified safety standards, and be properly labeled

and packaged before they may be imported, exported or sold. On 1 April

1995 the Pest Management Regulatory Agency was established to consolidate federal pest management regulations and to oversee the Pest

Management Information Service (PMIS).

The PMIS answers questions about pest control products and use

of pesticides; undertakes research and provides information about different categories of pesticides; and responds to inquiries about the pesticide registration process in Canada, product labels, safety precautions,

possible preventative measures and alternative pest management practices. Information is not provided about non-active ingredients of pesticides, nor is proprietary or confidential business information made

accessible. The PMIS provides a national toll-free telephone service for

Canadians and maintains a Web site on the Internet.

1.3.2.5 Other Governmental Policies

Certain governmental policies such as the Regulatory Policy

enhance public access to government-held environmental information.

Other policies, such as the Information Management Policy and the

Communications Policy, are now restricting, and may further restrict,

public access to environmental information through the imposition of

fees and other charges designed to recover the costs to government associated with producing the information.

Finally, it is noteworthy that the Official Languages Act22 requires

that much information held by the federal government be made available in both English and French. Federal institutions have the duty to

ensure that any member of the public can communicate with, and obtain

available services in either official language from its head or central

offices, offices located in the National Capital Region, or elsewhere in

Canada where there is significant demand for such communication or

those services.

74 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

21. R.S.C. 1985, c. P-10.

22. R.S.C. 1985, c. 31 (4th Supp.), as amended.
1.3.3 Access to Information Concerning Judicial Proceedings

Federal laws governing the Federal Court of Canada and the

Supreme Court of Canada provide that courts are to be open to the public and that court documents are available to the public. For example, in

the Federal Court, any person may, subject to appropriate supervision

and when the facilities of the Court permit, inspect any Court file and

obtain a copy on payment of a fee at the rate of C $0.40 per page. Rules

relating to pre-trial production of documents and discovery of witnesses, as well as cross-examination of witnesses at trial enable litigants

to obtain environmental information from other parties to the case.

Finally, the Criminal Code of Canada provides that criminal proceedings are to be in open court unless the court directs otherwise in the interests of public morals, the maintenance of public order or the proper

administration of justice.

1.4 Overview of Provincial Access Legislation, Policies

and Practice

With the proclamation of the Alberta Freedom of Information and Protection of Privacy Act on 1 December 1994, all Canadian provinces except

Prince Edward Island, now have freedom of information statutes in

force similar to the federal Access to Information Act. Members of the public have access rights to government-held information subject to a number of exemptions and exceptions that are broadly similar to those under

the federal legislation.

Legislation in Alberta, British Columbia, Ontario and Saskatchewan designates an Information Commissioner, with an independent

watchdog function similar to the federal Information Commissioner,

while the Quebec law establishes a three-member Access to Information

Commission (Commission de l’accès à l’information). The Manitoba and

New Brunswick statutes expand the mandate of the provincial ombudsman to include access to information complaints. In Newfoundland, the

reviewing officer is a judge of the Supreme Court of Newfoundland,

while in Nova Scotia, the reviewing officer is either appointed by Cabinet or is a judge of the Supreme Court of Nova Scotia.

Ontario and Saskatchewan have separate statutes setting out public access rights to information held by municipal governments, while

other provinces, such as British Columbia, address rights to information

held by municipal governments in the statute that applies to the provincial government as a whole.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 75
Most provincial access to information laws provide that “any person” has the right to the governmental information. Local residency or

other connections or associations with the province do not appear to be

required to exercise this right. The Newfoundland law is similar to the

federal law, but dissimilar to those of other provinces in limiting access

rights to Canadian citizens and landed immigrants. Neither the federal

nor the Newfoundland statute appear to preclude the use of agents who

are Canadian citizens or landed immigrants to request the desired information from the government in question. The British Columbia Freedom of

Information and Protection of Privacy Act(FOIPPA) is discussed in detail as

it represents one of the more sophisticated provincial regimes.

1.4.1 Freedom of Information and Protection of Privacy Act

(British Columbia)

Legal Right of Access to Information

Enacted in 1992, the British Columbia Freedom of Information and Protection of Privacy Act23 (FOIPPA) is broadly similar to the federal Access to

Information Act in that it entrenches the right of access of any person to

information held by the provincial government subject to limited exceptions. An independent Information and Privacy Commissioner is established as an officer of the provincial legislature with responsibility for

monitoring the administration of the FOIPPA and conducting investigations and audits to ensure compliance.

As with the AIA, FOIPPA requires an applicant to make a written

request to the public body that the applicant believes has custody or control of the record. The BC legislation surpasses the AIA in placing a positive duty on provincial officials to respond to information requests. The

head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately

and completely.

Cabinet confidences are subject to an exception under FOIPPA but

are not excluded as under AIA. A public body cannot refuse to disclose:

· records that have been in existence for 15 years;

· information in the record of a Cabinet decision on an appeal under an

Act; or

· background documents if the decision has been public or implemented, or if five years have passed since the decision was made.

76 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

23. Supra, note 2.
FOIPPA sets out other discretionary exceptions, such as those for

policy and legal advice, personal information, information relating to

intergovernmental relations or negotiations, the financial or economic

interests of public bodies, and business interests of third parties. An

additional exception permits public bodies to refuse to disclose information which could reasonably be expected to result in damage to or interfere with the conservation of natural or heritage sites, or of endangered

or rare species of animals and plants.

Unlike AIA however, FOIPPA provides for a public interest override for all exceptions. Disclosure is required where there is a risk of significant harm to the environment, to the health or safety of the public or a

group, or where disclosure of the information would be clearly in the

public interest.

Access Policies

In October 1993, the Government of British Columbia produced a

Policy and Procedures Manual. This manual is the authoritative guide to

the FOIPPA and is updated periodically. The document is detailed and

addresses many public access issues. One interesting policy statement in

the Policy and Procedures Manual is that a Freedom of Information request

should only be made as a last resort, when requests through informal

channels have not succeeded. This statement appears to recognize that

unless informal systems are recognized and valued, the entrenchment of

access rights in law may lead to diminished access as informal systems

of providing access are discontinued. A second policy initiative is the

Freedom of Information Directory, which is a listing of records held by British Columbia public bodies.

Ease of Access

As with the AIA, FOIPPA requires public bodies to create a record

for an applicant as long as: the record can be created from a machine

readable record in its custody or under its control; using its normal computer hardware, software and technical expertise; and creating the

record would not unreasonably interfere with its operations.

Timeliness

The time-frames for responding to information requests are tighter

for FOIPPA than AIA. Public bodies must supply requested information

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 77
without delay and not later than 30 days after the request is received.

Extensions of this deadline are limited to specific situations and to an

additional 30-day period, unless a longer period is approved by the

Information and Privacy Commissioner.

Affordability

The fee regulations under FOIPPA provide for maximum search

and copying fees that may be charged by public bodies. Public bodies

may charge less than the maximum fees, or charge no fee at all. The maximum fee for copies of printed material is C $0.25/page; for microfiche,

C $10.00/fiche; and for computer diskettes, C $10.00/diskette. Maximum searching fees are C $7.50 per quarter-hour after the first three

hours.

A controversy has arisen recently with respect to fees charged for

information that is available for purchase. The British Columbia government proposes to charge C $600 per file for geographic information system (GIS) data that an environmental group needs to make

environmental maps. The government argues that access may be

refused because the data is available for purchase, but the environmental group argues that C $600 per file is an unreasonable barrier to access

for a non-profit organization. The environmental group has requested a

review by the Information Commissioner, but the government is disputing the Information Commissioner’s jurisdiction to conduct the review.

1.4.2 Access to Information Concerning Judicial Proceedings

Provincial laws governing the procedures of superior and provincial courts typically state that all court hearings shall be open to the public except where a court orders the public to be excluded due to the

possibility of serious harm or injustice to any person. In most provinces,

however, there is a prohibition on photography, video and audio

recordings, as well as live coverage, except in limited circumstances as

ordered by the court.

On payment of prescribed fees, a person is entitled to see and

obtain a copy of any document filed in a court proceeding unless an Act

or an order of the court provides otherwise. The court has the authority

to treat a document as confidential so that it does not form part of the

public record. For example, an Ontario court ordered that documents

relating to a secret manufacturing process be sealed and not form part of

the public record.

78 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
2. ENVIRONMENTAL ASSESSMENTS OF PROPOSED

PROJECTS

2.1 Introduction

This section describes laws, policies and practices relating to public access to information associated with environmental assessments of

development projects. The federal regime under the Canadian Environmental Assessment Act is discussed, as well as the Alberta regime under

the Environmental Protection and Enhancement Act.24

2.2 Federal

Legal Right of Access to Information

The Canadian Environmental Assessment Act25 (CEAA), which came

into force in January 1995, is the primary federal legislation setting out

the public’s legal rights of access to information associated with environmental assessments of proposed development projects. The Act is based

in large part on the principle of public participation. The Preamble states

that:

And whereas the Government of Canada is committed to facilitating

public participation in the environmental assessment of projects [...] and

providing access to the information on which those environmental assessments are based [...]26

One of the stated purposes of CEAA is to ensure that there be an

opportunity for public participation in the environmental assessment

process. To facilitate public access to records relating to environmental

assessments, the Act requires that a public registry “be established and

operated in a manner to ensure convenient public access to the registry

[...] in respect of every project for which an environmental assessment is

conducted.”

The federal authority charged with the responsibility of ensuring

that an environmental assessment is carried out (the responsible authority) bears the legal obligation of establishing and maintaining the public

registry throughout the entire period of the environmental assessment.

Further, a public registry must be maintained for every project which

undergoes an environmental assessment, whether it be a simple screening or a lengthy panel review.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 79

24. S.A. 1992, c. E13.3.

25. Supra, note 20.

26. Supra, note 20, Preamble.
The requirement that public access to the registry must be convenient represents a significant broadening of public access rights beyond

those set out in the Access to Information Act. Mere compliance with the

requirements of the Access to Information Act may not meet the test of convenience under CEAA.

A public registry must include records that:

· have otherwise been made available to the public;

· would have been disclosed under the Access to Information Act had a

request been made;

· would be in the public interest to disclose because they are necessary

for effective public participation in the assessment, except records

containing third party information.

The third point, which is based on a “public interest” test, represents a significant broadening of the public access rights under AIA for

environmental assessment information.

In most cases, however, records proposed for inclusion in a public

registry must be “cleared” through the Access to Information Actto ensure

compliance with that legislation. This clearing process is intended to

ensure that no exempted or excluded information, such as records relating to trade secrets, Cabinet documents, national security or criminal

investigations is included in the public registry.

In addition to public access rights associated with the public registry, the Canadian Environmental Assessment Act includes various provisions that set out rights to environmental assessment information. The

Minister is required to report to Parliament annually on the activities of

the Agency and the implementation of the CEAA. This annual report

must include a statistical summary of all environmental assessments

conducted or completed during that year.

With respect to screenings, responsible authorities have the discretion to notify the public and give the public an opportunity to examine

and comment on screening reports and supporting documents prepared

pursuant to CEAA. With respect to comprehensive studies, the Agency

is required to notify the public of such studies and provide an opportunity to examine and comment on comprehensive study reports and supporting documents. With respect to panel reviews, the panel is required

to ensure that the information required for an assessment by a review

80 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
panel is obtained and made available to the public, and to hold its hearings in public. The Minister of Environment must make reports from

panel reviews or mediators available to the public and must advise the

public that the report is available.

Finally, the Minister is required to provide reasonable public

notice of, and a reasonable opportunity for anyone to comment on, draft

guidelines, codes of practice, criteria or orders respecting the application

of CEAA, or draft federal-provincial or international agreements or

arrangements respecting environmental assessments.

Access Policies

As a matter of policy, the Canadian Environmental Assessment

Agency has established a public registry framework to ensure convenient access to information about environmental assessments carried

out under the Act, as well as to ensure a consistent approach throughout

the federal government. The framework consists of three components:

· the Federal Environmental Assessment Index, an electronic database

listing all environmental assessments conducted under the Act;

· document listings of all publicly available documents relating to the

environmental assessments; and

· the environmental assessment documents themselves.

The Federal Environmental Assessment Index contains information on the “who, what, when, where, and why” of federal environmental assessments, and provides contacts for further information on these

and related documents. This Index is accessible on the Internet electronic network, and is updated monthly by the Canadian Environmental Assessment Agency based on information provided by the

responsible authorities. The index represents an important advance in

making environmental assessment information publicly accessible in a

convenient manner because it:

· provides “one-window” access on the key information of any environmental assessment conducted under the Act;

· directs the public to contacts and documents related to a specific environmental assessment;

· is electronic and therefore convenient, quick, and inexpensive; and

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 81
· eliminates the need to request information through the Access to Information Act.

The second component of the public registry framework is the listing of all available documents relating to each environmental assessment. This listing is maintained by the responsible authority in either

electronic or hardcopy form. The third component of the public registry

framework consists of the documents produced by, collected by, or submitted to the responsible authority with respect to an environmental

assessment.

Ease of Access

Several barriers to convenient public access to environmental

assessment information under CEAA deserve mention. The electronic

format of the Federal Environmental Assessment Index has led to some

implementation difficulties in several departments that are lagging

behind in connecting to the information highway. This barrier to public

access is likely to be temporary. A second barrier is that fiscal restraint

resulting from the March 1995 federal budget has led to layoffs of personnel and budget cutbacks in offices of some departments responsible

for providing access to environmental information.

Timeliness

The Canadian Environmental Assessment Agency has developed

guidelines for responsible authorities27 concerning reasonable time

frames in responding to public requests for documents that are in the

public registry. The guidelines are based on the following principles:

· the time period between ordering a document and its delivery

should, in most cases, be less than 30 calendar days;

· time periods should be flexible to account for the circumstances of

each request; and

· transmitting documents electronically should be encouraged.28

82 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

27. Canadian Environmental Assessment Agency. Responsible authority’s guide. Canadian Environmental Assessment Agency, November 1994, pp. 176-177.

28. Ibid. pp. 175-176.
The guidelines provide that:

· access should be provided within 10 working days of the date of

request unless an extension is warranted;

· priority should be given to requests from persons wanting to participate in a formal public participation process being conducted under

the Act;

· access may, if necessary, be provided within a period greater than 10

working days but less than 30 calendar days, in the following circumstances:

1. the request is for a large number of documents or for particularly lengthy documents;

2. the request requires documents to be translated or put into an

alternative format; and

3. access may exceed 30 calendar days only if the requester

agrees to the extension.

Given that the CEAA and the public registry system have only

been in operation since January 1995, there is insufficient information to

determine if federal departments are meeting the requirements of the

Act and these guidelines.

Affordability

The fee structure for providing copies of documents from the public registry is based on that used for the AIA and according to the following eight principles developed by the Agency:

· Simplicity – The process to determine costs recovered or waived

should be as simple and precise as possible;

· Consistency – The practice of recovering costs should be uniform

throughout the federal government;

· Usefulness – Cost recovery guidelines should not inhibit convenient

public access to documents. However, the guidelines should serve as

a deterrent to frivolous, overly broad or poorly framed requests;

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 83
· Pre-payment – Payment for the reproduction costs (if any) must be

received before the documents are to be transmitted;

· Scope – Charges should be limited to reasonable standard costs and

should cover only the direct costs of reproducing documents in

hardcopy or electronic form;

· Level – There should be no minimum or maximum charge for reproducing documents;

· Exemptions – No costs should be charged for documents prepared for

the purpose of consulting with the public during the period of consultation; and

· Format – For convenience and cost savings, the reproduction of documents in electronic form should be encouraged.29

The fee schedule for the three formats (hardcopy, microfiche, electronic) are: C $0.20 a page for hardcopy; C $0.40 per fiche; and C $10.00

per diskette. Where the total fee is C $25.00 or less, the fee is waived.

2.3 Provincial (Alberta)

Legal Right of Access to Information

The Alberta Environmental Protection and Enhancement Act30 (EPEA)

sets out the statutory framework for the environmental assessment process for projects in the province of Alberta. The EPEA requires that the

Director, an official designated by the Minister of Environmental Protection, establish and maintain a register containing such documents and

other prescribed information that are provided to the Director or created

or issued by the Director.

Under the Environmental Assessment Regulation of the EPEA,31 a

person may, during usual business hours, examine any information or

document contained in the register, and may obtain one copy of any document contained in the register free of charge. These rights are subject to

the Alberta’s Freedom of Information and Protection of Privacy Act.

84 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

29. Ibid. p. 173.

30. S.A. 1992, c. E-13.3.

31. Alberta Regulation 112/93.
The Environmental Assessment Regulation prescribes the documents and information that must be included in the registry for environmental assessments. Other information requirements prescribed by the

Regulation are as follows:

· Where further environmental assessment is required, the proponent’s notice must include certain information and be published in a

newspaper that has general circulation in the area where the proposed activity is to be located;

· Notice of the Director’s decision with respect to an environmental

impact assessment report must be given to each person who submitted a statement of concern with respect to the proposed activity;

· Notice of the final terms of reference for an environmental impact

assessment report must be published in a newspaper that has general

circulation in the area where the proposed activity is to be located;

· Notice must be published in a newspaper that has general circulation

in the area where the proposed activity is to be located that the environmental impact assessment report has been published and submitted to the Director.

Access Policies

The governments of Alberta and Canada have signed an agreement that seeks to harmonize the conduct of environmental assessments

that are subject to the processes of both governments. The establishment

of a federal office in Edmonton and other measures under the agreement

should ensure more convenient public access to information from environmental assessments. The Ministry of Environmental Protection has

published a guide to the EPEA32 and a brochure on the Alberta environmental assessment process.

Ease of Access

The Environmental Assessment Regulation prescribes the categories of information that must be included in the register of environmental assessment information but does not prescribe the format of the

register (electronic, paper files or a combination thereof). The standard

practice, however, is to enter environmental assessment information

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 85

32. Alberta Environmental Protection. 1993. A guide to the Environmental Protection and

Enhancement Act. Alberta Environmental Protection.
into an electronic database. The information in the database of the register is available through the Ministry of Environmental Protection’s

Edmonton office, but is not accessible on-line by the public. The proponent must make the terms of reference for environmental impact assessment reports available for inspection during business hours, and must

also provide a copy to any person who requests it.

Timeliness

The EPEA has several provisions that set time-frames for the conduct of the process. People who are directly affected by a proposed activity for which a decision relating to further environmental assessment

has been made may, within 30 days (or longer if allowed by the Director), submit a written statement of concern to the Director, setting out

their concerns with the proposed activity. Within ten days of publishing

and submitting an environmental impact assessment report, a proponent must publish a notice in an appropriate general circulation newspaper that the report or a summary thereof is available and that a copy can

be obtained free of charge.

Neither the EPEA nor the Environmental Assessment Regulation

set out time frames or standards (such as the “convenient public access”

standard in the CEAA) guaranteeing timely provision of information.

However, the Environmental Assessment Division of the Ministry

reports that delays for entry of information into the register, at least with

respect to information generated by government, are minimal in that

such information is automatically entered into the register.

Affordability

As noted above, a person may, during usual business hours, examine any information or document contained in the register, and may

obtain one copy of any document contained in the register free of charge.

Environmental impact assessment reports are available from proponents free of charge.

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS

3.1 Introduction

Each year dozens of federal and provincial departments and agencies issue many hundreds of different types of approvals (i.e., licenses,

permits, authorizations) for projects that may have environmental

effects or that relate to the environment in some way. In this section,

86 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
public access to environmental information relating to the more common approvals are discussed as examples of the approaches taken by the

federal government. The Ontario Environmental Bill of Rights33 (EBR) is

discussed as an interesting provincial approach to providing generic

public access to environmental information relating to issuing licenses

and permits [see discussion in Section 3.3 below].34

3.2 Federal

The primary federal laws providing public access to environmental information relating to proposed licenses and permits for projects are

the Access to Information Act35 and the Canadian Environmental Assessment

Act.36 The AIA applies generally to all such approvals, while the CEAA

applies only to those licenses, permits or authorizations issued pursuant

to statutes or regulations listed in the Law List Regulations37 of the

CEAA. Where such a statutory or regulatory provision is included on

the Law List Regulations, an environmental assessment must be conducted before an approval can be issued pursuant to that provision for

any proposed project. The information from the project’s environmental

assessment is then accessible through the public registry system under

the CEAA.

The Law List Regulations include 190 provisions relating to

approvals in such areas of federal authority as fisheries, navigable

waters, the Yukon and Northwest Territories, Indian reserves, nuclear

facilities, oil and gas pipelines, national parks, migratory birds and railways.

Three examples of federal approvals are discussed in this section,

as follows:

· Subsection 35(2), Fisheries Act;38

· Subsection 14(1), Northwest Territories Waters Act;39 and

· Section 117, National Energy Board Act.40

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 87

33. S.O. 1993, c. 28.

34. See Part 4.3, infra.

35. See note 1, supra.

36. See note 20, supra.

37. S.O.R./94-636.

38. R.S.C. 1985, c. F-14, as amended.

39. S.C. 1992, c. 39.

40. R.S.C. 1985, c. N-7.
The first two of these are Law-Listed provisions, while the third is

not.

Subsection 35(2) of the Fisheries Act provides for issuing authorizations by the Minister of Fisheries and Oceans to harmfully alter, disrupt

or destroy fish habitat in the course of a work or undertaking. In the

absence of such an authorization, harmfully altering, disrupting or

destroying fish habitat may be an offense under the Act.

Subsection 14(1) of the Northwest Territories Waters Act authorizes

the Northwest Territories Water Board to issue licenses to use waters or

deposit waste in waters in connection with operating an undertaking.

The unauthorized use or deposit of waste is an offense under the Act.

Note that the Yukon Waters Act is virtually identical to the Northwest Territories Waters Act.

Section 117 of the National Energy Board Act authorizes the National

Energy Board to issue licenses for exporting and importing natural gas

to and from Canada. Exporting or importing gas is not permitted except

under and in accordance with a license.

Legal Right of Access to Information

The Fisheries Act does not provide specifically for public access

rights to environmental information relating to applications for, documents relating to, or authorizations issued pursuant to Subsection 35(2)

of the Act. It does, however, require the Minister to submit an annual

report to Parliament, part of which deals with protecting fish habitat.

With this one exception, then, public access rights to information are

limited to the AIA and CEAA.

The Northwest Territories Waters Act does provide additional rights

as follows. Under this Act, the Northwest Territories Water Board is

required to hold public hearings with respect to certain types of licenses

and has discretion to hold hearings for others. The Board must give

notice of applications for licenses and public hearings through such

means as publishing the application in a newspaper of general circulation and theCanada Gazette. The Board is also required to maintain a public register which contains prescribed information relating to each

license. The Act requires that the public register be open for inspection

by any person upon payment of a fee during the Board’s normal business hours.

88 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The National Energy Board Act requires public hearings before the

National Energy Board with respect to issuing licenses for the export of

gas. These hearings provide opportunities for public access to environmental information about the project. Regulations under this Act

describe in detail the information requirements an applicant must meet

before a license to export gas can be issued. Although applications to

export gas do not trigger an environmental assessment under the Canadian Environmental Assessment Act, the Board has determined that it has

authority to examine environmental effects associated with such applications.

The Rules of Practice and Procedure of the Board41 set out several provisions designed to ensure that the public is notified and has an opportunity to participate in hearings. Notices of pending hearings are

published in various newspapers with wide distribution. Members of

the public are entitled to intervene as parties to the hearing, subject to the

Board’s authority to control its proceedings. Interveners have the right

to participate fully in hearings, present evidence and argument, and

cross-examine witnesses. Any party may request additional information from any other party. Where information is not forthcoming, a party

may bring a motion before the Board requesting that the information be

provided. The Board generally requires that applicants provide all documents to interveners as they are produced. A final legal requirement is

that the Board must submit an annual report on its activities to Parliament.

Access Policies

The Department of Fisheries and Oceans has no formal policies

relating to providing access to environmental information associated

with authorizations to destroy fish habitat. The Northwest Territories

Water Board has developed several policies and practices to facilitate

access to information related to license applications. Applications and

associated documents and transcripts of Board hearings are available at

the Board’s Yellowknife head office. Notice of applications for certain

types of licenses for projects outside the Yellowknife area is provided in

local newspapers while local aboriginal or public interest organizations

are notified by letter. Further, key documents are translated into local

aboriginal languages.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 89

41. The rules of practice and procedure of the board. Part II. Canada Gazette. 129/10. 17

May 1995.
The National Energy Board has published a Memorandum of Guidance Concerning Early Public Notification of Proposed Applications, which

applies to applications to export natural gas, among others. It was developed on the assumption that timely public input improves the Board’s

regulatory process.

The policy set forth in this memorandum is that applicants must

implement a public information program to explain the proposed project and its potential environmental and social effects, and must also

allow an opportunity for public comment. This public information program must be described in the application to the Board. It must also provide interested parties with adequate time to both comment on the

proposed project and to respond to any relevant questions that may be

raised by an interested party.

Finally, the Board has also published a bulletin entitled How to Participate in a Public Hearing42 which explains how members of the public

can participate in the hearing process.

Ease of Access

Each of the regions of the Department of Fisheries and Oceans

(DFO) has the responsibility for issuing Subsection 35(2) authorizations

for that region. Historically, regions have differed markedly in their

approach to issuing these authorizations: several regions issue many;

others, very few. The DFO has initiated several measures designed to

achieve a national approach that would be implemented by all regions.

One of these has been to issue a regulation that sets out standard forms

for both applications and the authorizations themselves.

Public access is complicated by the fact that in most provinces, proponents contact provincial regulatory agencies first about proposed projects. The provincial agencies in turn refer projects to the DFO where a

Subsection 35(2) authorization may be required. DFO regional officials

determine whether or not an authorization is required. If so, an environmental assessment is carried out and the authorization issued, together

with any terms and conditions required to protect fish habitat.

Much project-specific information is available through provincial

regulatory agencies, although this varies from province to province

depending on the nature of the provincial system. Environmental

90 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

42. Minister of Public Works and Government Services. How to participate in a public

hearing. Information Bulletin IV. Ottawa: National Energy Board. 1994.
assessment information is accessible through the public registry under

the CEAA. The DFO often relies on the AIA system for large-scale information requests concerning project authorizations but provides information informally for smaller-scale requests.

A key barrier to access to information held by the Northwest Territories Water Board is the fact that it serves a small population (50,000

inhabitants) scattered over an expanse of land larger than Mexico. As

noted above, the Board has undertaken several measures to address this

issue, at least in part.

The quasi-judicial nature of the National Energy Board can be a

barrier to convenient access to environmental information associated

with gas export applications. The Board goes so far as to encourage interveners to consider legal representation; in practice, most interveners are

represented by lawyers. Obviously, such representation usually means

substantial costs for the intervener. A second barrier is that the amount

of information routinely sent to interveners by applicants can be very

large, requiring much time and effort to review.

Timeliness

Little information is available on the timeliness of responses by the

DFO to requests for information concerning Subsection 35(2) authorizations. However, the Information Commissioner has not reported any

unresolved complaints against the DFO under the AIA in its last two

annual reports.

Time delays associated with providing public access to information about applications for water licenses by the Northwest Territories

Water Board are minimal, and publication of a notice of application in a

newspaper occurs within one to two weeks of receipt by the Board. In

National Energy Board hearings, providing timely information to interveners in accordance with the public information program is in the interests of project applicants, and so is not usually an issue.

Affordability

The informal practice of the Department of Fisheries and Oceans

with respect to information about Subsection 35(2) authorizations is to

charge no fees for copies of documents, subject to the comments noted

above. When the scale of an information request is such that a formal

information request under the Access to Information Act is required, the

AIA fee structure is applied.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 91
The Northwest Territories Water Board charges no fees for providing access to water licenses, applications or related environmental information, with the exception that members of the public pay charges for

photocopying documents.

The National Energy Board lacks the authority to award costs

against an applicant, so that interveners participate in hearings at their

own expense. However, interveners receive information, including

environmental information, related to applications to export gas from

the applicant and the Board at no charge.

3.3 Provincial (Ontario)

Legal Right of Access to Information

Proclaimed into force on 15 February 1994, the Environmental Bill

of Rights of 199343 (EBR) represents an expansion of public access rights

to information relating to proposed environmental decisions by the

Government of Ontario. Under s. 2(1), the purposes of the EBR are:

· to protect, conserve and, where reasonable, restore the integrity of the

environment;

· to provide sustainability of the environment;

· to protect the right to a healthy environment.44

To fulfill these purposes, the EBR purports to provide:

· means by which residents of Ontario may participate in environmentally significant decisions by the Government of Ontario;

· increased accountability of the Government of Ontario for its environmental decision-making.45

The EBR sets out minimum levels of public participation that must

be met before fourteen prescribed ministries of the Government of

Ontario make decisions on certain kinds of environmentally significant

proposals for instruments (as defined), policies (including programs

92 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

43. S.O. 1993, c. 28. The EBR homepage is at <gov.on.ca/envision/ebr/index.htm>.

44. Ontario Environmental Bill of Rights, 1993, Subsection 2(1).

45. Id., Subsection 2(3).
and plans), Acts, and regulations. Instrument is defined as a permit,

license, approval, authorization, direction or order issued under an Act,

and includes, under the regulations, proposals for orders relating to

waste disposal sites and approvals relating to the discharge of contaminants into the environment. Instruments are to be classified under regulations, and this classification determines the level of public

participation and notice for any given instrument.

A Minister is required to do everything in his or her power to give

public notice of a proposal for an instrument under consideration in his

or her ministry at least thirty days before a decision is made on whether

or not to implement the proposal. Notice is given through the electronic

registry established under the EBR, and other appropriate means. A

Minister need not give notice of the proposed instrument where the

delay involved in giving notice would result in danger to the health and

safety of any person, harm or serious risk of harm to the environment, or

injury or damage or the serious risk of injury or damage to any property.

However, the Minister must give notice of a decision on whether or not

to implement a proposal for an instrument as soon as is reasonably possible after the decision is made.

Any Ontario resident has the right to appeal a decision to implement a proposal for certain categories of instruments issued by the several primary regulatory ministries. Any two Ontario residents may

apply to the Environmental Commissioner for a review of the instrument by the appropriate Minister.

The position of an independent Environmental Commissioner was

established under the EBR as an officer of the Legislative Assembly. The

Environmental Commissioner’s role is to oversee the implementation

of, and compliance with the EBR. With respect to public participation in

government decision-making, the Environmental Commissioner

reports on Ministerial compliance in placing notices on the Environmental Registry, reviews the registry’s use and processes under the EBR, and

reviews the exercise of Ministers’ discretion under the EBR. The Environmental Commissioner is required to report annually to the Speaker

of the Legislative Assembly, may provide special reports to the Speaker,

and may be required to perform such special assignments as directed by

the Assembly.

Access Policies

Several initiatives have been undertaken to improve public access

to the EBR Environmental Registry. The Ministry of Environment and

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 93
Energy, which administers the Environmental Registry, has established

a technical advisory committee to identify problems and recommend

improvements. The Ministry also provides funding to the Ontario Environmental Network, a nongovernmental network of Ontario environmental organizations, to engage a resource person to promote the use of

the Registry by environmental and other citizen groups, and to recommend ways to improve it. Finally, the Ministry has published a guide to

assist the public in accessing and using the Environmental Registry.

The Office of the Environmental Commissioner has established an

educational advisory committee to advise the Commissioner on educational and outreach strategies with respect to the EBR. The Environmental Commissioner has also published several guides to the EBR and the

Environmental Registry.

Ease of Access

The Government of Ontario has adopted the position that the Environmental Registry should be developed using existing infrastructure.

Various access modes have been selected for the Environmental Registry:

· dial-up by computer and modem using either a local number or a

toll-free long distance number;

· access through the Internet,46 Freenet, Web, and GONet (Government

of Ontario) electronic networks; and

· dial-up by computer and modem made available by local public and

First Nations libraries.

Several administrative barriers to access associated with the Environmental Registry have been suggested. The first is that insufficient

information is provided by Ministries with respect to proposed instruments, and that the language used is overly technical. A style guide for

use by all of the participating provincial Ministries designed to improve

public access and enhance participation is being considered by the

Ontario government.

A second barrier is that the lead Ministry responsible for administering the Environmental Registry should be clarified. At present, the

Ministry of Environment and Energy administers the Registry, although

94 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

46. Queries to the Registry should be directed to <gov.on.ca/samples/search/

Ebrquery_reg.htm>.
it includes information from many other Ministries. It may be appropriate for a central agency, such as the Management Board Secretariat, to

administer the Registry. Notwithstanding these barriers, it is noteworthy that more than 14,000 individuals had logged on to the Environmental Registry as of June 1995.

Timeliness

No statistical information is yet available as to the extent to which

the Environmental Commissioner and provincial ministries are in compliance with the various legislated time frames for responses to requests

from the public. The 30-day period for public comment on proposed

instruments (as well as proposed regulations and policies) is the minimum period prescribed under the EBR. This 30-day period has been criticized as being too short for informed comment to occur, in at least some

circumstances.

A related criticism is that prior to the EBR, longer periods of time

were afforded to the public on an informal basis. For example, 90 days

was a standard period of time for public consultations by the Ministry of

Environment and Energy. Environmental groups are concerned that the

30-day period will become the standard period for public comment,

rather than a minimum period.

Affordability

The Government of Ontario has adopted the position that access to

the Environmental Registry should be free for residents of Ontario. The

toll-free long distance dialing service to the Environmental Registry is

provided at no charge, as is access to the Freenet and GONet. Internet

users pay a flat fee for a connection to Internet, but there are no actual

usage charges for access to the Environmental Registry. Web users pay

membership and usage fees.

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS AND

PLANS

4.1 Introduction

This section addresses the extent to which the public has access to

the environmental information upon which governments make decisions about proposed regulations, policies, programs and plans. The

Ontario Environmental Bill of Rights Act is discussed as an innovative

approach at the provincial level to afford public access to environmental

information used in support of policy and law reform.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 95
4.2 Federal

Legal Right of Access to Information

The extent of public access rights to information relating to proposed regulations, policies, programs and plans depends on a number

of factors such as whether or not the proposals are excluded or exempted

from access pursuant to the Access to Information Act and the stage of

development of the proposal within government. As noted above, a

wide variety of documentation relating to the Queen’s Privy Council for

Canada (Cabinet) is excluded from the application of the AIA. These

documents include memoranda to Cabinet, discussion papers, communications between Ministers on Cabinet business, briefing material, and

draft legislation and orders in council. The exclusion for Cabinet confidences is most important because all draft regulations, all important policies and programs, and many plans are approved by Cabinet.

A number of exemptions set out in the AIA allow governmental

institutions to refuse to disclose environmental information associated

with proposed regulations, policies, programs and plans. Exemptions

are provided for information obtained in confidence from other governments; information relating to federal-provincial affairs, international

affairs, national defense or the economic interests of Canada; or information subject to solicitor-client privilege.

A recent initiative is the amendment of the Auditor General Act47 to

create a Commissioner of the Environment and Sustainable Development. The Commissioner will report directly to the Auditor General on

the success of subject departments in implementing their sustainable

development strategies. In turn the Auditor General’s role is expanded

to include giving due regard to the environmental effects of expenditures in the context of sustainable development.

The new provisions also require federal departments to “reply” to

a “petition,” made by a resident of Canada, provided that:

· the petition concerns an environmental matter;

· is in the context of sustainable development; and

· the matter is the responsibility of a Department subject to the Act.

96 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

47. R.S.C., c. A-17, as amended.
There is no further provision setting out the possible content of

either the petition or the reply, but the amendments have the potential to

provide indirectly for public access to information concerning departmental programs. The Auditor General’s traditional function is to report

to Parliament and to the public on government expenditures. The new

amendments might also raise the profile of federal sustainable development strategies through the Auditor General.

Access Policies

In its December 1995 response to the recommendations of a Parliamentary standing committee dealing with reform of the Canadian Environmental Protection Act48, the Government of Canada recognizes the

public’s right to information and proposes to establish an electronic

public registry that would include inventories of environmental data,

monitoring data, information submitted to reporting requirements

under the CEPA, and information gathered to determine whether or not

substances are toxic.

A key source of information about proposed federal regulations

related to the environment is the Federal Regulatory Plan,49 which is published annually. Each federal department is required to provide information on the objectives and status of all regulatory initiatives falling

within its jurisdiction. In addition, government departments often

undertake public information and consultation exercises concerning

proposed regulations prior to drafting the regulations or other documents that will be submitted to Cabinet. For example, the Environmental

Consultations Calendar50 published by Environment Canada itemizes at

least a dozen consultations with stakeholders outside government for

which changes to a regulation or statute were envisaged.

The Government of Canada’s Regulatory Policy provides that

once Cabinet approval has been secured, draft regulations should be

published in Part I of the Canada Gazette for several months to allow for

public comment prior to the regulations being finalized. Departments

are required to demonstrate, by means of a regulatory impact analysis

statement that is published with the draft regulation, that Canadians

have been consulted. This consultation requirement often affords

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 97

48. Government of Canada. 1995. Environmental protection legislation designed for the

future – A renewed CEPA: A proposal (CEPA Review: The Government Response).

Ottawa: Minister of Supply and Services, pp. 24-25.

49. Treasury Board of Canada (published annually).

50. Government of Canada. 1993. Environmental consultations calendar. Ottawa: Environment Canada.
enhanced public access to environmental information relating to the

proposed regulation. In most cases, the finalized regulations are not

changed substantially as a result of this formal consultation process. In

the case of the first four regulations promulgated under the Canadian

Environmental Assessment Act, however, changes between the draft and

final regulations were considerable. The Agency is also continuing to

work with a regulatory advisory committee composed of representatives from the federal and provincial governments, industry, environmental groups and aboriginal groups in order to develop additional

regulations.

Proposals for policies and programs other than regulations to be

considered by Cabinet are subject to the Cabinet directive, The Environmental Assessment Process for Policy and Program Proposals.51 The stated

objective of this directive is to systematically integrate environmental

considerations into the planning and decision-making processes. The

environmental information derived from an examination of proposed

policy or program initiatives is intended to support decision-making in

the same way that economic and other factors are considered.

The Cabinet directive provides that a statement on environmental

implications should be included in memoranda to Cabinet, and where

appropriate, other documents submitted to Ministers. Where anticipated environmental effects are likely to be significant, a more detailed

account of the environmental assessment and the rationale for its conclusions and recommendations should be included in the documents

supporting the proposal.

The Cabinet directive allows broad discretion to ministers as to

whether or not a public statement relating to the environmental effects

of a policy or program should be released. For key initiatives likely to

have significant effects, the Cabinet directive suggests that public

announcements contain a summary of the anticipated environmental

effects, their significance, information on mitigation measures and follow-up programs, if any.

Ease of Access

Part I of the Canada Gazette is widely available at libraries across

Canada. Subscriptions are available in hard-copy format, and through

various legal on-line services. Virtually all draft regulations are published in Part I of the Canada Gazette, together with the regulatory impact

98 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

51. Federal Environmental Assessment Review Office, February 1993.
analysis statements that often provide some information relating to

likely environmental effects of the regulation.

Compliance with the Cabinet directive by federal departments has

been low, but appears to be increasing. Certainly, information about

such assessments, where they are conducted, is rarely made available to

the public even in summary form as suggested in the Cabinet directive.

A notable exception is the environmental review of the North American

Free Trade Agreement.

The key barrier to public access to such environmental information

is the doctrine of Cabinet confidentiality, which is well-entrenched in

Canadian governments. Another barrier is that neither the Canadian

Environmental Assessment Agency nor one of the central agencies has a

clear mandate to promote, monitor and publicly report on compliance

by departments with the Cabinet directive.

Timeliness

Time frames for public comment on draft regulations published in

Part I of the Canada Gazette are typically 60 or 90 days. The importance of

the timeliness of information issue under the Cabinet directive is diminished given that few environmental assessments of proposed policies

and programs are carried out, and information about such assessments

is rarely provided to the public.

Affordability

Free access to Part I of theCanada Gazetteis widely available at public or university libraries, while annual subscriptions cost hundreds of

dollars. The limited information that has been released relating to the

environmental assessments of proposed policies and programs has

apparently been made available at no charge to members of the public.

4.3 Provincial (Ontario)

Legal Right of Access to Information

As outlined in Section 3.3, the EBR (Environmental Bill of Rights)

expands public access-to-information rights relating to proposed environmental decisions by the Government of Ontario, including decisions

relating to proposed regulations, policies, programs and plans. The EBR

sets out minimum levels of public participation which must be met

before the Government of Ontario makes decisions on a proposed policy

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 99
(a policy is defined as a program, plan or objective and includes guidelines or criteria to be used in making decisions about issuing, amending

or revoking instruments).

Where a Minister considers that a proposal for a regulation could,

if implemented, have a significant effect on the environment, the Minister is legally obliged to do everything in his or her power to give notice of

the proposal to the public. In the case of proposed policies or Acts, the

Minister is subject to this legal obligation only if, in addition to the significant environmental effects determination, he or she considers that the

public should have an opportunity to comment on the proposal before it

is implemented. As with proposals for instruments, Ministers provide

notice of proposals through the Environmental Registry.

Public notice is not required where such notice would endanger

the health or safety of any person; harm or pose a serious risk of harm to

the environment; or injure, damage or pose a serious risk of damage to

any property. Similarly, notice is not required where, in the Minister’s

opinion, the proposal is subject to a public participation process under

other legislation that is substantially equivalent to the process required

under the Environmental Bill of Rights, or the decision is primarily

administrative or financial in nature. Finally, no notice is required for a

proposal that forms part of a budget or economic statement presented to

the Legislative Assembly.

After giving notice of a proposal, Ministers are legally obliged to

take every reasonable step to ensure that all comments relevant to the

proposal that are received as part of the public participation process are

considered when decisions about the proposal are made. Finally, Ministers are required to give notice that a proposal for a policy or regulation

has been implemented as soon as reasonably possible after the implementation of that proposal.

Fourteen Ontario provincial ministries, including the Ministry of

Environment and Energy, are required to develop so-called Statements

of Environmental Values. The Ministry Statement of Environmental

Values is intended to explain how the purposes of the EBR are to be

applied when decisions that might significantly affect the environment

are made in the Ministry and how consideration of the Act’s purpose

should be integrated into the Ministry’s decision-making process.

Draft Statements of Environmental Values and any revisions

thereof are required to be placed on the Environmental Registry for public comment. A Minister is required to take every reasonable step to

100 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
ensure that the Ministry’s Statement of Environmental Values is considered whenever decisions that might significantly affect the environment

are made in the Ministry.

As for instruments, any two Ontario residents who believe that an

existing policy or regulation should be amended, repealed or revoked in

order to protect the environment may apply to the Environmental Commissioner for a review of the policy or regulation. In addition they can

propose that a new policy, Act or regulation be developed.

Assuming that certain conditions are met, a Minister who has

received an application for review from the Environmental Commissioner, is legally required to consider each one in a preliminary manner

in order to determine whether the public interest warrants such a

review. In making this determination, the Minister may consider the

Ministry’s Statement of Environmental Values and other criteria outlined in Section 67 (of the EBR). Where a Minister determines that the

public interest does warrant a review, it shall be conducted within a reasonable time. Finally, a Minister is required to give notice of the decision

whether or not to conduct a review, together with a brief statement outlining the reasons for the decision, to the applicants and the Environmental Commissioner.

In November 1995, the newly elected Government of Ontario

issued a regulation that has the effect of narrowing the scope of the EBR’s

application. Under its terms, the Ministry of Finance is exempted from

the provisions of the EBR and second, public notice requirements for

environmentally significant proposals that would result in the elimination, reduction or realignment of a provincial government expenditure

are suspended for ten months.

Access Policies

Many of the final Statements of Environmental Values placed on

the Environmental Registry by the 14 Ontario government ministries in

November 1994 reinforce EBR commitments to public participation in

decision-making by committing themselves to open and consultative

processes for proposed policies, Acts, regulations and instruments that

are environmentally significant. Each Ministry has agreed to participate

in a one-year review process of the Statements of Environmental Values

ending in November 1995. This review process, requested by the Environmental Commissioner in late 1994, is a response to criticism by public

interest groups who argue that some of the Statements of Environmental

Values do not meet the requirements of the EBR.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 101
As part of the review process, the Environmental Commissioner

intends to explore ways to refine each Statement of Environmental

Values by developing strategies to ensure and enhance ongoing public

participation, among others.

Ease of Access

The Environmental Commissioner has developed instruction kits

and application forms for individuals wishing to apply for an investigation into whether an environmental law has been contravened and for a

review to determine whether an existing policy, Act, regulation or

instrument should be amended, repealed or revoked. The Environmental Commissioner’s Office includes a team of educators and public information officers to assist applicants in the processing of forms.

Timeliness

See Section 3.2.

Affordability

See Section 3.2.

5. ENFORCEMENT AND COMPLIANCE ACTIONS

5.1 Introduction

Federal and provincial governments in Canada are both engaged

in enforcing and otherwise seeking compliance with their respective

environmental laws. Industrial facilities are inspected, possible illegal

activities are investigated, determinations with respect to compliance

(or lack of compliance) are made, prosecutions are commenced, and the

courts enter convictions or acquittals. The issue to be addressed is the

extent to which there is convenient public access to information about

enforcement and compliance actions undertaken by governments under

environmental laws and guidelines. The following section examines

public access to information relating to enforcement of and compliance

with the federal Canadian Environmental Protection Act, the Canadian

Environmental Assessment Act, and the pollution provisions of the federal

Fisheries Act, as well as key environmental laws in the province of British

Columbia.

102 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
5.2 Federal

Legal Right of Access to Information

The right of public access to enforcement and compliance information relating to the CEPA, the CEAA, and the pollution provisions of the

Fisheries Act is subject to the Access to Information Act. The AIA allows

governmental institutions to refuse to disclose information obtained or

prepared by any governmental institution pertaining to the enforcement

of any federal or provincial law, or which could reasonably be expected

to be injurious to the enforcement of any such law or the conduct of lawful investigations. The AIA also allows governmental institutions to

refuse to disclose information that is subject to solicitor-client privilege.

Several provisions of the CEPA do, however, provide legal authority to enable the public to obtain information relating to the enforcement

of the CEPA. First, the federal Minister of Environment is required to

report annually on the administration and enforcement of the CEPA.

These reports contain valuable publicly accessible information about

compliance and enforcement.

Second, the CEPA provides that any two adult Canadian residents

who believe that an offense has been committed under the CEPA may

apply to the Minister for an investigation of the alleged offense. On

receipt of the application, the Minister must investigate all matters he or

she considers necessary to determine the facts relating to the alleged

offense. Where the alleged offense does not require further investigation, the investigation may be discontinued. However, a report describing the information obtained and stating the reasons for its

discontinuation must be provided to the applicants. Thus the applicant

gains access to government-held information, but also has the ability to

require the government to gather additional information and make it

available. The Minister is required to report to the applicants within

ninety days on the progress of the investigation and the action, if any,

that the Minister proposes to take. There appears to be no obligation on

the part of the government to make the investigation reports publicly

available.

Given the very limited enforcement powers under the CEAA, and

the absence of offenses and penalties, compliance is secured primarily

through education and information mechanisms such as the CEAA

annual report and its public registry, discussed in Section 3.2 above.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 103
Access Policies

Environment Canada’s CEPA Enforcement and Compliance Policy52 identifies education and information as one of six categories of

measures to promote compliance with the legislation. Under this Policy,

Environment Canada undertakes to announce the availability of the following materials, which it will distribute upon request:

· copies of the Canadian Environmental Protection Act and its regulations;

· environmental quality guidelines and objectives, release guidelines,

and environmental codes of practice, developed under the Act;

· the Act’s Enforcement and Compliance Policy;

· a list of court actions arising from the enforcement of the Canadian

Environmental Protection Act;

· a list of orders issued by the Minister under the Act;

· information on precedent-setting cases under the Act;

· fact sheets, handbooks, pamphlets and reports on subjects relevant to

the Act.

Under a second category of measures entitled Consultation on

Regulation Development and Review, Environment Canada promises

to consult affected parties during regulation development, believing

that such consultation and the ensuing amendments result in better and

more effective regulations. Compliance policies for the pollution provisions of the Fisheries Act and the Canadian Environmental Assessment Act

are being developed; these may provide for making compliance information accessible to the public.

Ease of Access

On the premise that compliance and enforcement help to achieve

environmental protection, and help to increase knowledge and public

awareness, Environment Canada has undertaken several initiatives to

make enforcement and compliance information publicly available. The

1993-94 CEPA Annual Report53 summarizes the enforcement and compli104 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

52. Government of Canada. 1992. Canadian Environmental Protection Act enforcement

and compliance policy. Ottawa: Environment Canada.

53. Government of Canada. 1994. Canadian Environmental Protection Act report for the

period April 1993 to March 1994. Ottawa: Environment Canada.
ance efforts of each of Environment Canada’s five regions. The number

of inspections, warnings, directions, prosecutions, and convictions

relating to the different CEPA regulations are provided, together with

other enforcement and compliance initiatives.

The Pacific and Yukon Region of Environment Canada produces

an annual Compliance Status Summary Report,54 which provides a more

detailed overview of the compliance status of the industrial and commercial sectors with theCanadian Environmental Protection Act and pollution provisions of the Fisheries Act. The following types of information

are included:

· compliance verification mechanisms used;

· compliance status;

· degree of implementation for the particular law or guideline;

· descriptions of enforcement actions that have been employed; and

· compliance promotion activities performed.

The report provides information on enforcement and compliance

priorities for that year, and presents selected inspection data for given

facilities, such as pulp and paper mills and mines.

Finally, Environment Canada publishes a national status report on

compliance with selected regulations under the CEPA and the Fisheries

Act.55 This national status report presents statistics and graphically displayed summary information, but does not identify individual facilities

or companies.

Timeliness

The publications described above are published annually. While

they present information that is useful in identifying trends in compliance and enforcement, there is less information that is of interest to a

member of the public interested in a specific facility. More timely information would need to be sought through a request under the Access to

Information Act.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 105

54. Government of Canada. 1994. Compliance status summary report, British Columbia:

Fiscal Year 1993-1994. Ottawa: Environment Canada (Environmental Protection

Branch).

55. Government of Canada. 1995. Compliance and enforcement report, Vol I: Six regulations under CEPA and the Fisheries Act. Ottawa: Environment Canada.
Affordability

The publications described above are provided at no charge. Other

information relating to enforcement and compliance, if accessible,

would be subject to the fees associated with requests under the Access to

Information Act.56

5.3 Provincial (British Columbia)

Legal Right of Access to Information

Legal rights of access to information concerning the enforcement

and compliance of British Columbia environmental laws reside primarily in the Freedom of Information and Protection of Privacy Act(FOIPPA).57

Access Policies

The Government of British Columbia is a leading jurisdiction in

Canada in terms of making enforcement and compliance information

available to the public. The initiatives taken by the British Columbia

Ministry of Environment, Lands and Parks respond to a publicly stated

decision by the Minister to provide better information to the public with

respect to enforcement and compliance activities.

Ease of Access

Two initiatives of the Ministry of Environment, Lands and Parks

that facilitate public access to environmental information relating to

compliance and information deserve mention. The first is the biannual

Environment Noncompliance Report, which identifies industrial and

municipal operations not in compliance with the British Columbia Waste

Management Act58 or regulations. The tenth of these reports, published in

March 1995, listed 85 operations not in compliance over the period from

1 April to 30 September 1994.59 Noncompliance with waste management

permits, pollution prevention orders, and waste management regulations, as well as the Act itself are published in the report. Information

provided for each entry in the report includes the name of the company

or municipality, the location, the type of operation, and the status of the

operation.

106 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

56. Supra, note 9.

57. Supra, note 10.

58. S.B.C. 1982, c. 41.

59. News Release: B.C.’s Tenth environment noncompliance list release. British Columbia

Ministry of Environment, Lands and Parks. 2 March 1995.
A second initiative of the Ministry of Environment, Lands, and

Parks is the Charges and Significant Penalties Summary, also published

twice per year. This document lists charges laid, convictions entered and

penalties imposed for offenses committed under provincial environmental protection statutes, and under the environmental protection provisions of the federal Fisheries Act.60 During the period from 1 April to 30

September 1994 for example, 269 charges were laid and 134 convictions

were recorded. Information provided includes the name and location of

the operation, the offense under which the charge was laid, the disposition by the court, and the penalty imposed or remedy ordered.61 Both of

these reports are available through regional offices of the Ministry as

well as on the Internet. Additional information related to the noncompliance of industrial and municipal operations or to charges laid, convictions entered and penalties imposed against such operations is available

in accordance with the provisions of FOIPPA.

Timeliness

Internet access to the reports provided by the British Columbia

Ministry of Environment, Lands, and Parks ensures timely access to

information to members of the public who are on-line. The five-month

period needed to prepare each of the reports is not ideal but is not unreasonable given the sensitive nature of the information and the need for

accuracy in reporting.

Affordability

The reports prepared by the British Columbia Ministry of Environment, Lands, and Parks are provided at no charge to members of the

public.

6. NATIONAL POLLUTANT RELEASE INVENTORY

The National Pollutant Release Inventory (NPRI) is a national

database of pollutants released into the Canadian environment from

industrial and transportation sources, as well as pollutants transferred

off-site as wastes. The first summary report on NPRI was published in

April 1995.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 107

60. Supra, note 38.

61. News Release: Latest environmental charges and significant penalties summary released.

British Columbia Ministry of Environment, Lands and Parks. 27 February 1995.
Legal Right of Access to Information

NPRI was established under the authority of the Canadian Environmental Protection Act. This Act empowers the Minister of Environment to

order information to be submitted for the purpose of determining

whether or not a substance is toxic, for the purpose of assessing whether

or not to control a substance, or the manner in which to control a substance. On 27 March 1993, in accordance with Section 16 of the CEPA, the

Minister published a notice in Part I of the Canada Gazetterequiring anyone in Canada who owns or operates a facility with 10 or more full-time

employees in the reporting year, and which manufactures, processes or

otherwise uses any of the 178 NPRI-listed substances, in concentrations

greater than 1 percent, and in quantities equal to or greater than 10

tonnes, to file a report with Environment Canada and identify any

releases or waste transfers of those substances into the air, water or land.

A number of facilities are exempt from the reporting requirement

including mines, oil and gas wells, fuel distribution facilities, and facilities selling products which contain NPRI substances where there are no

releases to the environment from the facility.

Public access rights to information in NPRI are limited by provisions in the CEPA and the Access to Information Act relating to confidential business information. Companies providing information to the

NPRI can claim that the information is confidential; the submission of

such a claim prevents Environment Canada from releasing the information except in limited circumstances. The CEPA incorporates, by way of

reference, the provisions of the AIA dealing with third-party confidential information. When a request for confidentiality is made, the requesting party is not normally required to provide information to justify the

request unless specifically prescribed. For example, the NPRI Guidance

Document recommends that persons requesting confidential treatment

include documentation justifying their claim with their request. When

disclosure is intended, the third party claiming confidentiality is notified and given the opportunity to provide evidence that the information

in question meets the criteria set out in the AIA. Where such evidence is

not provided or is insufficient, the third party is notified that the information will be released.

In a June 1995 reportIt’s About our Health!: Towards Pollution Prevention,62 the House of Commons Standing Committee on Environment and

Sustainable Development recommended that the NPRI be given an

108 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

62. Government of Canada. 1995. Report of the House of Commons Standing Committee on

Environment and Sustainable Development.
explicit statutory basis and that it be harmonized with the United States

Toxics Release Inventory (TRI). In its response,63 the Government of

Canada accepted the recommendation and is proposing to amend the

CEPA to provide a statutory basis for the NPRI.

Access Policies

Current NPRI reporting requirements are based on consensus recommendations from a multistakeholder advisory committee (MSAC),

which included representatives of industry, labor, environmental

groups, and provincial and federal governments. The list of 178 substances for the 1993 reporting year was selected following a review of the

lists of substances used by the US Toxics Release Inventory (TRI) and the

National Emissions Reduction Masterplan of the Canadian Chemical

Producers’ Association.64 The first annual report on NPRI65 included

data from 1466 facilities in 5266 substance reports. The report is published as a matter of policy, and not pursuant to any legal requirement.

The report states that approximately 130 companies requested

confidential treatment of all or part of the information they provided to

NPRI. According to the report many of these claims were withdrawn

and at the time of printing, the Access to Information Secretariat had

accepted four claims for confidentiality, while a fifth remained unresolved.

Ease of Access

The report states that NPRI is intended to be publicly accessible,

and that information on NPRI and the database can be obtained from

Environment Canada’s national and regional offices. Non-confidential

NPRI data is available on the Internet.

Timeliness

Information will continue to be collected and published on an

annual basis, providing opportunities for year-to-year comparison and

for assessing trends in the release and disposal of pollutants in Canada.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 109

63. Government of Canada. 1995. Environmental protection legislation designed for the

future – A renewed CEPA. Ottawa: Environment Canada.

64. Chris Rolfe. 1994. Community right to know: Issues for the five-year review of the Canadian Environmental Protection Act. West Coast Environmental Law Research Foundation, p. 7.

65. Government of Canada. 1995. Summary report of the 1993 National Pollutant Release

Inventory. Ottawa: Environment Canada.
Affordability

The NPRI report has been provided to members of the public at no

charge; similarly, there is no charge for accessing NPRI data through the

Internet.

110 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
MEXICO

1. CONSTITUTIONAL AND LEGAL FRAMEWORK FOR

PUBLIC ACCESS TO INFORMATION IN MEXICO . . . . . . 113

1.1 Federal Constitutional Framework . . . . . . . . . . . . . 113

1.2 Constitutional Framework at the State Level . . . . . . . 115

1.3 Federal Administrative Procedure Act . . . . . . . . . . . 117

1.4 General Law of Ecological Equilibrium and

Environmental Protection . . . . . . . . . . . . . . . . . . 117

1.4.1 Disclosure of Environmental Information . . . . . 118

1.4.2 Individual Right of Access to Environmental

Information . . . . . . . . . . . . . . . . . . . . . . 121

1.5 Federal District Environmental Act (Ley Ambiental

del Distrito Federal). . . . . . . . . . . . . . . . . . . . . . 124

2. ENVIRONMENTAL IMPACT ASSESSMENTS . . . . . . . . . 125

2.1 Federal Legislation . . . . . . . . . . . . . . . . . . . . . . 126

2.2 State Legislation. . . . . . . . . . . . . . . . . . . . . . . . 132

3. PERMITS AND AUTHORIZATIONS. . . . . . . . . . . . . . . 137

4. PROPOSALS FOR PLANS AND PROGRAMS . . . . . . . . . 140

5. LAWS, REGULATIONS AND STANDARDS . . . . . . . . . . 144

5.1 Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

111
5.2 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 145

5.3 Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

6. ENFORCEMENT AND COMPLIANCE ACTIONS . . . . . . . 150

7. RELEASE INVENTORIES OF TOXIC SUBSTANCES. . . . . . 152

8. GENERAL CONSIDERATIONS. . . . . . . . . . . . . . . . . . 155

112 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. CONSTITUTIONAL AND LEGAL FRAMEWORK FOR

PUBLIC ACCESS TO INFORMATION IN MEXICO

This section provides an overview of the constitutional and legal

provisions governing public access to information, both generally and in

regard to environmental issues.

1.1 Federal Constitutional Framework

In terms of public access to environmental information, the Political Constitution of the United States of Mexico is not specific in acknowledging such a right, although two provisions related to this subject are

contemplated under Articles 6 and 8, respectively. The wording of Article 6 specifically states that: “The expression of ideas shall not be subjected to any judicial or administrative inquiry, provided that they do

not attack ethical principles, infringe on the rights of third parties, entail

any violation or disturb the peace; the right to information shall be guaranteed by the State.”

This precept, introduced in the Constitution of 19771 together with

individual guarantees regarding freedom of speech, enshrines the right

to information. There has been some debate around the legality of this

right, as the constitutional wording “does not precisely define the

phrase ‘right to information,’ nor does it assert who the recipients of this

right are, or the legal means the State will exert in order to ensure that it is

respected.”2 The necessary rules for making the constitutional reform

effective were left to be the subject of a specific regulatory law. In interpreting the legal contents of the right to information, the federal courts

have issued very restrictive criteria:3

113

1. The Constitutional amendments were published in the Official Gazette of the Federation (Diario Oficial de la Federación) on 6 December 1977.

2. Opinion of the United Committees for Legislative Studies and First Committee for

Constitutional Issues, who reviewed the Reform Initiative forwarded by the President of the Republic in October of 1977. Federal Electoral Commission, Political

Reform, Mexico, vol. I, 1978, p. 46.

3. Amparo recourse 390/83, Fifth District Court for the Federal District Administrative

Issues, 1983. This criterion was upheld in 1985 by the Administrative Division of the

Nation’s Supreme Court of Justice.
· The right to information is a social guarantee, correlative to that of

freedom of speech, which was instituted on the occasion of the

so-called “Political Reform,” and consists of the State permitting a

variety of opinions from political parties to be voiced through communications media, on a regular basis;

· The specific definition of the right to information is to be provided by

secondary legislation; and

· It was not intended to establish individual guarantees entitling citizens, whenever they deem it appropriate, to request and obtain given

information from State bodies.

This is not to say that authorities free themselves from their constitutional and legal obligation to provide information in the manner and

under the terms established by the Constitution and the law, but on the

other hand, it is not to be assumed that citizens have a right before the

State to obtain information in cases and through systems not contemplated under applicable rules.

Such was the restricted legal framework in force until 1994, when

the exercise of the right to public information was defined by ordinary

legislation, specifically under the Federal Act on Administrative Procedure

(Ley Federal de Procedimiento Administrativo); later, in 1996, the right to

information in connection with environmental issues was defined more

clearly when amendments to the General Law of Ecological Equilibrium

and Environmental Protection (Ley General del Equilibrio Ecológico y la

Protección del Ambiente – LGEEPA) were passed by the Congress of the

Union. In these amendments reference is made to public access to

records, documents and data held by administrative authorities. It will

be necessary to wait and see how the courts systematically interpret

these legal provisions in order to assess the scope of the access to information right as an individual guarantee granted to private citizens. Both

laws will be reviewed later on in this document.

Article 8 of the Constitution establishes the so-called right to petition, asserting that:

Civil servants and public employees shall respect the right to petition, provided that it is exercised in writing, in a peaceful and respectful manner;

however, only citizens of the Republic may avail themselves of this right

where political issues are concerned.

114 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The authority to whom the petition is addressed shall have the obligation

to issue a written response and make it known to the applicant within a

brief period of time.

The right to petition empowers individuals to go before state

authorities and present a written submission or petition of any kind in

order to obtain a response to their request. The right to petition is a comprehensive individual guarantee consisting of the right granted to private citizens and a corresponding obligation on the part of authorities.

Pursuant to this obligation, the authorities must respond in writing to

the submission received. This does not necessarily imply, however, that

the response to a given request must be affirmative.

A most important aspect of this constitutional guarantee relates to

the fact that it is not subject to the fulfillment of any requirements in

order for it to be exercised; that is, it is a broad guarantee granted to all

individuals.4 The Supreme Court has unequivocally asserted that “Article 8 of the Constitution does not make the dispute itself, or any other

aspect of the petition right, contingent upon applicants having complied

with specific regulatory requirements.”5

1.2 Constitutional Framework at the State Level

Within the legal framework of the States of the Republic, these two

guarantees (the right to information and the right to petition) are in force

pursuant to the principle of supremacy of the Federal Constitution.6 The

individual state constitutions do not have the legal power to contravene

or restrict the prescriptions entrenched in the Federal Constitution.

State constitutions are empowered to either implement individual

guarantees and itemize or provide details thereto in order to ensure that

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 115

4. See “Petition, Right of.” Judicial Gazette of the Federation (Semanario Judicial de la

Federación), Sexta Época, Vol. LXXVII, third part, p. 25, Amparo under review

6176/63, José Guadalupe Arontes Blancas, 28 November 1963, 5 votes. The argument

to the effect that the right to petition granted under Article 8 of the Constitution is

conditional upon the applicant substantiating his legal standing in connection with

the subject matter of his submission is inaccurate, since the guarantee embodied in

the mentioned precept is only conditional upon the right being exercised in writing,

in a peaceful and respectful manner.

5. See “Petition, Right of.” Judicial Gazette of the Federation, Sexta Época, Vol. XIX,

third part, p. 63, Amparo under review 4916/58, Juan N. Canales, 19 January 1959,

voted unanimously (4 votes).

6. Article 133 of the Political Constitution of the United Mexican States enshrines the

principle of the supremacy of the Federal Constitution itself and that of federal laws

and international treaties over the constitutions and the laws of the Federate states.
they are better applied or observed. The provisions of the Political Constitution of the State of Yucatán specifically address the right of access to

information under Article 86, which states:

The State, in its capacity as the organizer of human community life, shall

exercise those actions under its responsibility to the extent necessary for

securing the solidarity of community members, and guaranteeing them an

equitable participation in the well-being that results from community life.

The State, through its public authority, shall guarantee the respect of each

individual’s right to enjoy an ecologically balanced environment and

benefit from the protection of the ecosystems that make up the natural

heritage of Yucatán, based on the following principles:

I.- State inhabitants have the right to live in a healthy environment that

allows them to live in dignity and make rational use of the natural resources with which the State is endowed in order to reach sustainable development, in the terms outlined in the governing Law;

II.- No person may be compelled to perform activities that cause, or are

likely to cause environmental damage, in the terms outlined in the governing Law;

III.- State inhabitants are entitled to knowledge of and access to up-to-date

information regarding the condition of the environment and the State’s

natural resources, as well as to participate in those activities directed

towards their preservation and betterment.7

These constitutional provisions are regulated under the Law of

Ecological Equilibrium and Environmental Protection (Ley del Equilibrio

Ecológico y Protección al Ambiente) of the State of Yucatán, in its chapter

devoted to social participation,8 which states:

Article 89. State and municipal governments shall encourage the participation and responsibility of society in devising ecological policy, the use of

any instruments thereof for information and enforcement actions and, in

general, in those ecological actions that may be undertaken.

Article 90. To this effect, the state and municipal governments shall [...]

invite the general public to express their opinions and make proposals...

116 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

7. This chapter is contained in part eight of the Constitution of the State of Yucatán,

which relates to the “purpose of the State as a means of living in a civilized manner

and the overall development of the community.”

8. Published in the Official Gazette of the State Government on 21 December 1988.
1.3 Federal Administrative Procedure Act

The Federal Administrative Procedure Act (Ley Federal de

Procedimiento Administrativo – LFPA) was published in the Official

Gazette of the Federation on 4 August 1994 and came into force on 1 June

1995. The provisions of this law apply to actions, procedures and resolutions adopted by the centralized federal public administration, without

prejudice to the provisions contained in the international treaties to

which Mexico is a party. The LFPA supplements the various administrative laws under its umbrella, such as the General Law of Ecological Equilibrium and Environmental Protection.9

The LFPA deals essentially with the right to access administrative

documents. In accordance with this law:

a) The federal public administration must provide access to its

registries and records as provided by this or other laws.10 The

object of the right to access is the information held in public

offices in a clear and comprehensible format, while the

records, registries and documents are the media through

which such rights can be exercised.

b) The parties interested in a given administrative procedure are

entitled to know its status at all times and to obtain the appropriate information from the relevant authorities, provided

such information does not relate to national defense and security, issues protected by trade or industrial secrets – where the

interested parties are neither owners nor assignees – or matters governed by specific legal provisions that prohibit disclosure.11

1.4 General Law of Ecological Equilibrium and Environmental

Protection

The General Law of Ecological Equilibrium and Environmental

Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente –

LGEEPA) was amended in 199612 in order to include, among other

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 117

9. The LFPA does not apply in issues of a fiscal or financial nature, nor does it govern

the responsibilities of public servants, electoral issues, economic matters, agrarian

and labor justice, or the office of the Solicitor General. Article 1, second paragraph.

10. Article 16, Sections VII and VIII.

11. Articles 33 and 34.

12. The Reform was published in the Official Gazette of the Federation on 13 December

1996.
issues, the right to environmental information, as a mechanism intended

to widen the scope of public participation in environmental management.

In accordance with the draft LGEEPA amendments forwarded to

Congress by the Federal Executive, “the guiding criterion has been that

communities which are objectively informed may make decisions that

best protect their interests and rights, and at the same time are likely to

pay attention to what is happening in their areas. Given the environmental conditions that prevail in some regions and areas of the country, communities in particular and society in general, must be aware of any

environmental changes that do or do not occur. This is why it must be

guaranteed that responsible authorities make such information available to the public.” Thus, the LGEEPA deals with the access to information issue in two ways: the disclosure of environmental information and

the individual right of access to information held by administrative

authorities.

1.4.1 Disclosure of Environmental Information

In regard to the disclosure of environmental information, the Law

requires that environmental authorities periodically publish available

official information. To this aim, the LGEEPA contemplates the creation

of a National System of Environmental and Natural Resources Information (Sistema Nacional de Información Ambiental y de Recursos Naturales –

SINIA), whose object will be to register, organize, update and publicly

disclose national environmental information. SINIA will be coordinated

and merged with the National Accounts System under the responsibility

of the National Institute of Statistics, Geography and Informatics

(Instituto Nacional de Estadística, Geografía e Informática – INEGI).13

118 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

13. The development of institutional databases is a general policy of the Mexican Government, contemplated in the 1995-2000 Information Systems Development Program (Programa de Desarrollo Informático). This program outlines a serious problem

with regard to this issue: the development of institutional, publicly accessible data

bases is only just beginning. In 1995, of a total of 215 databases managed by 31 institutions, only 11 were publicly accessible. This is why there are plans to set up an

informational infrastructure for the benefit of public institutions, the private sector

and society at large, through the development of databases on specific subjects that

include information at national, regional, sectorial and institutional levels. Likewise, this program proposes that criteria be established to allow the promotion and

coordination of governmental efforts aimed at granting citizens access to public

information contained in national and international data networks.
The design of SINIA is based on the pressure-state-response model

proposed by the OECD and adjusted to Mexico’s specific needs and possibilities. In 1997, the second phase of SINIA, allowing it to be accessed

via the Internet, will be implemented. In the third phase, the information

contained in the biennial report, discussed later on in this document,

will be incorporated.

SINIA will also include information pertaining to the inventories

of existing natural resources in the national territory; the mechanisms

used and the results obtained from monitoring air, water and soil quality; and data on ecological zoning, registers, programs and actions that

may be undertaken in order to preserve the ecological equilibrium and

protect the environment. The law also provides that SINIA will contain

relevant reports and documents resulting from scientific and academic

activities, as well as technical or other studies that deal with environmental issues and the preservation of natural resources, which are conducted in the country by individuals or corporations, both domestic and

foreign.

In accordance with the 1995-2000 Environmental Program

(Programa de Medio Ambiente), SINIA will encompass the following components:

· Environmental Indicators System;

· Environmental Accounts Complementing the National Accounts

System;

· Geographical Information System for Ecological Zoning;

· Information System for the Knowledge and Use of Biodiversity;

· Information System on Protected Natural Areas;

· Information System on Toxic Substances and Hazardous Waste;

· Pollutants Release and Transfer Registry;

· Information System on International Environmental Cooperation;

· Information System on Environmental Regulations;

· Information System on Compliance with Environmental and Natural

Resources Laws, Regulations and Standards;

· Laboratories and Environmental Monitoring.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 119
Likewise, the LGEEPA states that SINIA must produce the following environmental information publications:

· A Report on the General Condition of Ecological Equilibrium and

Environmental Protection (Informe sobre la Situación General en Materia

de Equilibrio Ecológico y Protección al Ambiente), that must be drafted

and published every two years. Publication of the 1995-96 Biennial

Report (Informe Bienal de la Situación General en Materia de Equilibrio

Ecológico y Protección al Ambiente) was expected during the second

semester of 1997.14 INEGI is participating in the information gathering process so that environmental statistics and basic information

handled by both institutions are validated and rendered compatible.

The trends and policies developing in the country will then be analyzed so that they may be discussed by national experts and finally,

the report will be discussed in the Advisory Councils for Sustainable

Development;

· The Ecological Gazette (Gaceta Ecológica), which will contain legal

provisions, Mexican Official Standards, decrees, regulations, agreements and other administrative acts. It will also contain general information regarding environmental issues published by the federal or

local governments and international documents dealing with environmental issues of interest to Mexico, notwithstanding their publication in the Official Gazette of the Federation (Diario Oficial de la

Federación) or in other media;15

· The calculation of the Ecological Net Domestic Product (Producto

Interno Neto Ecológico). The Ecological Net Domestic Product will be

computed for the purpose of quantifying the costs of environmental

pollution and the depletion of natural resources caused by economic

activities in a specific year. The INEGI will integrate the Ecological

Net Domestic Product into the National Accounts System.16

120 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

14. Until now, two Biennial Reports, covering the periods 1991-92 and 1993-94, have

been published.

15. Article 159 bis 2. The Ecological Gazette (Gaceta Ecológica) has the legal status of a

governmental gazette, in accordance with the Act on the Official Gazette of the Federation and Governmental Gazettes (Ley del Diario Oficial de la Federación y Gacetas

Gubernamentales) published on 24 December 1986. However, the purpose, contents

and scope of the Ecological Gazette are more extensive than those of the other governmental gazettes, which are only concerned with the “publication of agreements,

orders, decisions, directives, notifications, notices and in general all communications issued by Federal Executive Agencies, which are not required to be published

in the Official Gazette of the Federation.” (Article 13).

16. Article 159 bis, third paragraph.
1.4.2 Individual Right of Access to Environmental Information

The LGEEPA reform was intended to grant everyone, independently of whether or not they are directly affected by a given issue, the

right to obtain, from the appropriate environmental authority, the environmental information in the hands of such authority.17 In accordance

with article 159 bis 3, any individual or juridical person has the right to

ask Semarnap, state, Federal District and municipal authorities to grant

them access to the requested information. Only one exception to the general access to information is contemplated. This exception covers the

information related to environmental audits: only those who are, or are

likely to be directly affected may gain access to the basic diagnosis and

the preventive and corrective actions to be undertaken as a result of

environmental audits. Moreover, confidentiality must be respected, as

provided under the Federal Law on Industrial Property (Ley Federal de

Propiedad Industrial).18

The LGEEPA determines the kind of information that may be

requested, the steps to be followed and the instances when authorities

may deny such information. Under the law “any information (whether

in written, visual or electronic format) in the hands of environmental

authorities pertaining to water, soil, flora, fauna and natural resources in

general, as well as information regarding activities and measures which

affect, or might affect them,” is construed as environmental information.

Under the LGEEPA, procedures are minimized and encompass filing a written request, which must clearly specify the information being

requested, and the reasons underlying such request.19 The applicants,

whether individuals or juridical persons, must identify themselves by

stating their personal or corporate names and their addresses. This legal

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 121

17. This legal provision is in accordance with the position stated by the Judiciary in the

sense that exercising the petition right does not require that legal standing be

proven. This is how it has been asserted in the following case: “Petition, Right of.”

Judicial Weekly Review of the Federation, Vol. LXXVII, third part, p. 25, Amparo

under review 6176/63, José Guadalupe Arontes Blancas, 28 November 1963, 5

votes. The argument to the effect that the petition right granted under Article 8 of

the Constitution is subject to the petitioner substantiating his legal standing in

regard to the petition is inaccurate, since the guarantee embodied under the mentioned legal precept only requires that the right be exercised in writing and in a

peaceful and respectful manner.

18. Article 82.

19. “Petition, Right of.” Article 8 of the Constitution does not subordinate the challenge or any other aspect of the right of petition to the compliance by the petitioners

with specific regulatory requirements. Judicial Weekly Review of the Federation

Vol. XIX, third part, p. 63, Amparo under review 4916/58, Juan N. Canales, 19 January 1959, voted unanimously (4 votes).
provision regulates petition rights granted under Article 8 of the Constitution in regard to environmental issues.

One of the innovative aspects contemplated under the LGEEPA

has to do with the establishment of an obligation for environmental

authorities to respond to the petition within 20 days. This is most relevant, as it expedites the issuance of a response to the applicant. In the

Mexican legal system, authorities may normally take up to four months

to respond. Article 17 of the Federal Administrative Procedure Act states

that “unless specific laws prescribe otherwise or set different deadlines,

the period of time available for authorities to issue a decision shall not

exceed four months; after this period of time has elapsed, the applicant’s

request shall be deemed refused.” Before this legal definition, the jurisprudence from the Nation’s Supreme Court of Justice had only considered that the “brief period of time” referred to under the Constitution

must be “that which reasonably allows a petition to be considered and

decided upon.”20

Even though this legal provision – whose purpose it is to expedite

the response from environmental authorities – is adequate, it may be

ineffective in practice. In fact, Article 159 bis 5 of the LGEEPA asserts that

environmental authorities must respond within 20 days after having

received a given petition. In addition, it states that, where authorities

provide a negative answer, it shall mention the reasons underlying the

denial. However, immediately thereafter, the concept of deemed refusal

is incorporated, by providing that where no written response is issued

by environmental authorities within the specified time limits “the petition shall be deemed to have been refused.” This could result in authorities simply letting deadlines go by, in order not to provide legal reasons

for denying access to the requested information, due to the administrative burden faced by public offices, or as a result of sheer indolence.21 In

122 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

20. Amparo under review 3609/1957, – Genaro Sandi Cervantes. Judicial Information

Bulletin (Boletín de Información Judicial), 1958, No. 61-62 and 1966 Report (Informe de

1966), Second Division (Segunda Sala), p. 135. In jurisprudence, the Court has ruled

that Article 8 of the Constitution is violated if, after 4 months from the date a written petition from a private party is received by the authority, no response is issued

(Appendix to Vol. CXVIII, rulings 767, 188 and 470); in other decisions the Court

has established the variability of the “brief term” concept, since in some instances it

has estimated that this may be 5 days, while in other instances it may be up to 10

days. (Amparo under review 6023/1954. – María Servín de Peralta. – Judicial Information Bulletin, 1955, No. 2953; and Amparo under review 1799/1955. – Luis Valencia Rojas. – Judicial Information Bulletin, 1955, No. 3286.

21. The lack of legal grounds and arguments underlying the deemed refusal may not be

challenged before the Courts, since it is not an act of power per se and therefore the

formality requirements to be fulfilled by legal acts do not apply. Only the essence of

the refusal may be challenged, not its lack of formality. See decision rendered

by the Second Collegiate Administrative Tribunal of the First Circuit: “Deemed
any event, when applicants receive a negative response to their information request, they may directly file an action for annulment before an

administrative tribunal or challenge the grounds for the deemed refusal

before a Federal Court.22

In addition, the LGEEPA grants private parties the right to file a

revision recourse whenever they consider that their interests are

affected by the authorities’ denial to provide the requested information.

It is worth mentioning that, besides administrative recourses, private

parties may avail themselves of another legal instrument to demand that

information be provided: the amparo recourse – whose purpose is to

have constitutional petition rights respected by authorities, and to have

criminal recourses contemplated in the Criminal Code for the Federal

District in fuero común matters, and for the entire Republic in fuero federal

matters – which provides that unduly preventing the filing or the processing of a request by public employees is construed as a misuse of

power.23

The right of access to environmental information is not limitless.

Indeed, the LGEEPA establishes the limits of such a right by setting

exceptions in order to prevent the right from being meaningless. Environmental authorities may only deny providing the information

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 123

Refusal [...] may not be challenged for lack of grounds and arguments.” The

deemed refusal resolution, since it is a legal fiction that originates in the silence of

administrative authorities, is intended to provide the grounds for action, which,

when implemented, allows the plaintiff to initiate an action for annulment in substitution of the express act; thus, even though the negative silence constitutes the

challenged act, the truth is that it is not a real administrative resolution since it lacks

the will of the issuing authority; this is why interpretation processes may not be

made, and challenges may not be allowed on the grounds that the constitutional

requirements of foundation and motivation are lacking, since it is merely a fiction

that comes into legal existence at peoples’ will and, hence, only the essence of the

refusal may be examined. Direct Amparo 122/91, Fivisa, S.A. de C.V. 25 April 1991.

Voted unanimously. Justice: Carlos Yánez. Secretary: Mario de Jesús Sosa

Escudero.

22. In this case, it is not proper to make an application for the revision recourse contemplated under the LGEEPA before the authority that “issued” the deemed refusal.

According to the decision made by the Second Collegiate Tribunal of the Sixth Circuit: “Deemed Refusal, may not be challenged before the very authority responsible for it.” Direct Amparo 394/91. Gloria Violeta Contreras, 9 May 1991. Voted

unanimously. Judicial Weekly Review of the Federation, Octava Época. Vol. XIV,

July, second part, p. 671.

23. Article 215, Section III provides that private parties may be liable for the misuse of

information provided by environmental authorities. Article 159 bis 6 of the

LGEEPA states that: “those who receive environmental information from competent environmental authorities, in accordance with the provisions of this Chapter,

shall be responsible for using it in an adequate manner and shall be liable for any

damages arising from any misuse thereof.”
requested whenever one of the following circumstances occurs and is

evidenced:24

· It is considered under legal provisions that the information is confidential or that its disclosure affects national security, given its very nature;

· The information pertains to matters which are the subject of pending

legal proceedings or inspection and enforcement actions;

· The information has been provided by third parties even though they

are not obliged to do so by law; or

· The information relates to inventories, inputs, and processing technologies, including their descriptions.

1.5 Federal District Environmental Act (Ley Ambiental del

Distrito Federal)

Article 23 of the Federal District Environmental Act25 states that the

Federal District Department of the Environment (Secretaría del Medio

Ambiente del Distrito Federal) shall establish a publicly accessible, permanent system of environmental information and enforcement. This system shall include information pertaining to natural resources,

environmental policy instruments, as well as releases and levels of pollutants. In addition, Article 23 provides that the Department of the Environment must issue an annual public report on the environmental

conditions in the Federal District.

The following information mechanisms are currently made available to the public by the Government of Mexico City:26

· Requests to visit the Atmospheric Monitoring Automated Network

(Red Automática de Monitoreo Atmosférico – RAMA). Visits to RAMA

facilities, such as the control center, the calibration and maintenance

laboratory or the weather forecast division, are permitted. This allows

citizens to be aware of the actions carried out for the purpose of adequately registering the levels of atmospheric pollution in the Metropolitan Zone of Mexico City (ZMCM) and the repercussions these

measurements may have on some aspects of city life, such as the triggering of the Environmental Contingencies Program. Access to

RAMA facilities is free of charge;

124 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

24. Article 159 bis 4.

25. Published on 9 July 1996 in the Official Gazette of the Federation.

26. Federal District Department. Handbook of Procedures and Public Services of the

Federal District Public Administration (Manual de Trámites y Servicios al Público de la

Administración Pública del Distrito Federal). Oficialía Mayor, 1996.
· Consulting the Documentation Center of the Pollution Prevention

and Control Division (Centro Documental de la Dirección General de

Prevención y Control de la Contaminación), which allows citizens to consult bibliographic information and environmental impact and risk

assessment studies. The consultation is free of charge;

· Information regarding the inventory of pollutants released into the

atmosphere and periodical publications about air quality and special

analyses. These give the public up-to-date information on the pollutant release inventory by area and include reports, statistical yearbooks, and monthly, annual and special studies on air quality

undertaken by the ZMCM. In order to gain access to the information,

the applicant must provide an appropriate explanation supporting

the need for the requested information, which is supplied free of

charge;

· Information regarding the historical database of the Atmospheric

Monitoring Automated Network (RAMA). This database contains

comprehensive historical data stored in electronic format which may

be accessed by applicants in a manner that suits their needs – for

example by contaminant or for a given period of time – so that they

may perform relevant data analyses. Applicants must justify the need

for the information requested, which is supplied free of charge;

· Consultation of the Metropolitan Air Quality Index (Índice

Metropolitano de Calidad del Aire – IMECA). This hourly report issued

by the Metropolitan Environmental Commission (Comisión Ambiental

Metropolitana) may be consulted through the Internet at:

<http://www.cem.itesm.mx/sima/ddf/> and by telephone

through Locatel;

· Access to the Restricted Traffic Program “No Driving Today”

(Programa de Restricción Vehicular “Hoy No Circula”). This service is

supplied through the Telephone Information Service (Servicio Público

de Localización Telefónica – Locatel) and provides information regarding the days when a vehicle, depending on its registration and sticker

color, may not be driven in the metropolitan area. It also provides

information about emergency measures triggered by the implementation of atmospheric contingency programs.

2. ENVIRONMENTAL IMPACT ASSESSMENTS

This section describes the legislation, regulations and policies concerning public access to information gathered through environmental

impact assessment procedures. The federal General Law of Ecological

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 125
Equilibrium and Environmental Protection27 and the environmental

legislation of some of the states will be reviewed.

In Mexico, jurisdiction over environmental issues is shared by the

three levels of government: federal, state and municipal. The LGEEPA

itself grants jurisdiction by stating that the Federation shall be responsible for the environmental impact assessment of any work or activity

expressly contemplated under Article 28 of this Law (which is discussed

later on in this document); the states shall be in charge of assessing the

environmental impact of those works or activities not expressly under

the jurisdiction of the Federation, while municipalities shall participate

in the environmental impact assessment of works or activities under the

responsibility of the states, whenever they are undertaken within the

limits of their territory.28

2.1 Federal Legislation

Right of Access to Information

Under the LGEEPA, an environmental impact assessment is

defined as an administrative procedure under the responsibility of

Semarnap, which “sets forth the conditions that shall govern the undertaking of works and activities that are likely to cause ecological imbalances or exceed the limits and conditions established in the applicable

provisions aimed at protecting the environment and preserving and

restoring ecosystems, in order to prevent or minimize their negative

effects on the environment.”29

126 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

27. The Environmental Impact Regulation adopted under the LGEEPA (published in

the Official Gazette of the Federation dated 7 June 1988) will not be reviewed since,

in accordance with the LGEEPA amendments enacted on 13 December 1996, the

right of access to information was substantially modified in order to widen its

scope and add some precision. This Regulation is to be amended in order to reflect

the changes introduced in the Law.

28. Article 35 bis 2 adds some precision to the distribution of jurisdiction grants among

the federal, state and municipal governments: “Article 35 bis 2: Those environmental impacts that might be brought about by works or activities not contemplated

under Article 28 shall be assessed by the Federal District or state authorities, with

the participation of the respective municipalities, whenever, due to their location,

magnitude, or characteristics, the probable environmental impacts are significant

and are expressly contemplated in state environmental legislation. In such occurrences, the environmental impact assessment may be performed within the framework established for authorization procedures relating to land use, constructions,

subdivisions, or other procedures contemplated by state laws and the applicable

provisions. Such laws shall contain the provisions necessary for the purpose of

achieving compatibility between environmental policy and urban development

and avoiding needless duplication of administrative procedures.”

29. Article 28.
Under the LGEEPA, those works and activities that cause, or are

likely to cause significant effects on the environment or natural

resources, are subject to the granting of an authorization prior to their

being undertaken whenever they may not be adequately regulated

through other instruments such as standards, permits, ecological zoning

and others. To this end, Article 28 of the Law specifically describes the

works and activities whose environmental impact assessment shall be

the responsibility of the federal government:

I. Hydraulic works, roads, oil, gas, hydrocarbons and multi-purpose pipelines;

II.- Oil, petrochemical, chemical, iron and steel, pulp and paper, sugar,

cement and electrical power generation industries;

III.- The process of exploring, extracting and processing minerals and

substances reserved for the Federation in accordance with the Mining Act

(Ley Minera) and the Act Regulating Article 27 of the Constitution in

regard to Nuclear Matters (Ley Reglamentaria del Artículo 27 Constitucional

en Materia Nuclear);

IV.- Hazardous and radioactive waste treatment, containment and disposal facilities;

V.- Exploiting tropical forests and that of species which do not regenerate

easily;

VI.- Tree plantations;

VII.- Changes in the use of woodlands, jungles and arid zones;

VIII.- Industrial parks high-risk activities are contemplated;

IX.- Real estate developments that affect coastal ecosystems;

X.- Works and activities in everglades, swamplands, lagoons, rivers, lakes,

banks and shores connected to the sea, as well as in their littorals or federal

zones;

XI.- Works in natural protected areas under federal jurisdiction;

XII.- Fishing, aquaculture and agricultural activities that may threaten the

preservation of one or more species, or damage their ecosystems, and

XIII.- Works and activities under the federal government’s jurisdiction

that are likely to cause serious and irreparable ecological imbalances,

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 127
damage to public health and the ecosystems, or exceed the limits and

conditions set forth in the legal provisions pertaining to the preservation

of ecological equilibrium and the protection of the environment.

The aim of such a listing is to ensure that the Federal Government

does not leave any works and activities that involve significant impacts

unregulated, and to provide private parties with increased legal certainty, so that they know exactly which activities require an authorization.30

Further to the reform of the LGEEPA in 1996, public participation

in environmental impact assessment procedures has been expanding.

Besides having the right to know the contents of the statements submitted to authorities, citizens may now participate in environmental impact

assessment procedures through two newly created public access means.

Public discussion of projects submitted to environmental authorities is

permitted whenever their undertaking might bring about serious ecological imbalances or damages to public health or ecosystems. In addition, the procedures to be followed by environmental authorities for the

purpose of guaranteeing the right of individuals to make remarks and

proposals regarding submitted environmental impact statements are

established. The following access to information mechanisms derive

from the contents of Article 36.

· Right of access to the contents of environmental impact statements

(manifestaciones de impacto ambiental – MIA). Article 34 of the Law provides that, once an environmental impact statement is submitted and

duly filed, the authority shall make it accessible to the public so that it

may be consulted by any person who so requests.

I.- The Department shall publish the environmental impact authorization

request in the Ecological Gazette.31 In addition, within five days of filing

the environmental impact statement with the Department, the applicant

128 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

30. The LGEEPA also provides that Semarnap may request an environmental impact

assessment of works and activities that, while not expressly listed in the Law, may

cause ecological imbalances, damages to public health or the ecosystems, or exceed

the limits and conditions set forth by law. However, so that the benefit resulting

from having an accurate listing is not nugatory, this provision contemplates the

procedure by which authorities determine whether filing an environmental impact

statement is in order. The presumption of deemed acceptance is contemplated where

the authority fails to respond within the prescribed time limits.

31. This requirement for publication in the Ecological Gazette is also mentioned in the

last paragraph of Article 31: “The Department shall publish in the Ecological

Gazette a listing of the preventive reports that are brought to its attention in accordance with the provisions of this article, and shall make such reports available to

the public.”
shall publish, at his own expense, a summary of the projected work or activity in a newspaper of wide circulation in the federate state involved;

II.- Within ten days of the project summary’s publication according to the

above-mentioned terms, any citizen may request that the Department

make the environmental impact statement available to the public in the

federate state involved.

The Division of Ecological Zoning and Environmental Impact of

the National Ecology Institute (Dirección General de Ordenamiento

Ecológico e Impacto Ambiental del Instituto Nacional de Ecología) within

Semarnap is the administrative unit in charge of organizing the consultation process regarding preventive reports, environmental impact

statements, and publishing the relevant information pertaining to projected works or activities in the Ecological Gazette.32

It should be noted, however, that some restrictions apply in terms

of gaining access to the information provided by the promoters of the

work or activity. When submitting an environmental impact statement,

the applicant may request that information included in the file be kept

confidential whenever industrial property rights and the confidentiality

of commercial information submitted might be jeopardized by public

disclosure.

· Holding public consultations regarding projected works or activities.

The law provides that Semarnap may hold public hearings at the

request of any member of the community involved. This stage is of

high significance in the environmental impact assessment procedure,

for its purpose is to gather the opinions and viewpoints of all those

affected by the projects being considered. The relevant wording of the

mentioned Article 34 provides that:

III.- Whenever, according to the provisions set forth in the Regulation

adopted under the Law, works or activities that are likely to cause serious

ecological imbalances or damages to public health or ecosystems are

considered, the Department, in coordination with the local authorities,

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 129

32. Article 60, Section VII of the Bylaws of the Department of the Environment, Natural

Resources and Fisheries (Reglamento Interior de la Secretaría de Medio Ambiente,

Recursos Naturales y Pesca). In addition to the activities carried out by the Division of

Ecological Zoning and Environmental Impact, the federal agencies of Semarnap

have authority in connection with environmental impact assessments (Article 32,

Section X, paragraph f). The Department is promoting a delegation and decentralization process of environmental impact assessments. Currently, 19 of Semarnap’s

federal agencies are empowered to examine statements, make diagnoses and provide follow up, and all agencies now have offices where environmental impact

studies may be filed.
may organize a public information meeting at which the promoter of the

project shall explain the technical environmental aspects of the planned

work or activity.

In order for this duty to be effective, the Division of Ecological Zoning

and Environmental Impact is responsible for convening and conducting,

whenever it is deemed necessary, technical and public hearings in regard

to projects that have entered the environmental impact assessment

stage.33

It is worth noting that the decision to hold such public hearings is

left entirely to the discretion of authorities; that is, not all requests from

interested parties will give rise to public consultations, but rather that

environmental authorities shall take the particular circumstances surrounding each case into consideration and decide accordingly.

· Submission of proposals by affected parties. The above-mentioned

Article 34 establishes the mechanism aimed at ensuring that public

opinions and proposals are taken into consideration during the

assessment procedure:

IV.- All interested parties may, within twenty days of the Department

making the environmental impact statement available to the public in

accordance with the provisions of section I, propose the implementation

of additional preventative and mitigatory measures, and make those

remarks that they may deem appropriate; and

V.- The Department shall include the remarks made by interested parties

in the respective file, and record the public consultation process as well as

the remarks and proposals submitted in writing in the decision issued.

The relevant aspect in the LGEEPA is to make public information

an integral part of the authority’s decision-making process. From these

legal provisions ensues the fact that environmental impact assessments

and statements, and public information are essential elements in the

environmental impact assessment process. Public participation in the

process is more than merely red tape; it is a decisive component of the

assessment system itself which requires that technical considerations

take public perceptions into account.

One other important fact is worth emphasizing. This access to

information mechanism is not restricted to environmental impact statements, but also covers preventive reports. Preventive reports are submitted in connection with projected works or activities which do not require

130 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

33. Id., Section VI.
an environmental impact statement to be filed under the law.34 Indeed,

the last paragraph of Article 31 of the LGEEPA states that “the Department shall publish in its Ecological Gazette the listing of all preventive

reports that may be submitted in accordance with the provisions of this

Article, and shall make them available to the public.” The interpretation

of this legal provision may mean that the right of access to information is

in fact limited to consulting the reports and submissions filed. Since the

law itself establishes that the damages that might be caused by specific

works or activities do not justify undertaking an environmental impact

assessment procedure, it would perhaps be excessive to subject preventive reports to as strict a scrutiny as that undergone by environmental

impact statements.

Access to Information Policy

The 1995-2000 Environmental Program states that environmental

impact assessment is an instrument for gathering environmental information and a process for analyzing the social costs and benefits involved

in each development project; it provides an opportunity for making the

right decisions in order to maximize the use of economic and ecological

resources for the benefit of society. Thus, in order to fully take advantage

of an environmental impact assessment’s overall potential, a series of

measures, which include “devising appropriate mechanisms for public

participation and consultation,” are considered necessary under this

Program.

Ease of access

The executive summaries pertaining to environmental impact

assessment projects may be also consulted through the Internet at the

following address: <http://www.ine.gob.mx/INE/documentos/

dgoeia/mias.html/>.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 131

34. “Article 31. The undertaking of works and activities referred to under Article 28,

Sections I through XII, shall require the filing of a preventive report in lieu of an

environmental impact statement whenever: I. There exist official Mexican standards or other provisions that regulate the releases, discharges, natural resources

exploitation and, in general, all the relevant environmental impacts that may be

brought about by the projected works or activities; II. The intended works or activities are specifically contemplated in a partial urban development plan or ecological

zoning that has been assessed by the Department in accordance with the provisions

of the next article; or III. The facilities involved are located in industrial parks

authorized under the provisions of the present section. In the above cases, upon

analyzing the preventive report, the Department shall determine, within a period

of time not exceeding twenty days, whether filing an environmental impact statement in any of the forms prescribed by the Regulation adopted under this Law is

required, or if any of the above conditions apply.”
Access Time

Environmental impact assessment records may be consulted at

any time after they have been submitted to Semarnap and the respective

file has been opened. Moreover, the promoter of the work or activity

must publish a project summary in a newspaper of wide circulation

within the federate state where the project is to be undertaken within

five days after filing the statement.

Citizens may request, within ten days of the project summary’s

publication, that Semarnap make the environmental impact statement

available to the public of the federate state involved. In addition, any

interested party may, within twenty days of the environmental impact

assessment’s being made publicly available by the Department, propose

the establishment of additional preventive and mitigatory measures and

make any remarks they deem relevant.

2.2 State Legislation

Right of Access to Information

Each of Mexico’s 31 states and the Federal District has its own legislation pertaining to environmental protection, which contemplates and

regulates the environmental impact assessment procedure. All of these

laws establish the right of access to information in connection with this

process, excepting those enacted by five states.35

In dealing with the environmental impact assessment procedure,

the Federal District Environmental Act (Ley Ambiental del Distrito Federal)

contemplates a mechanism that provides access to documents filed with

the Federal District Department of the Environment (Secretaría de Medio

Ambiente del Gobierno del Distrito Federal):

Article 37. Upon receipt of an environmental impact or risk report, statement or study, the Department shall, within two working days, open a file

for public consultation containing the summary of the projected work or

activity (in the form prescribed under Article 35, Section I, Subsection h),

as well as the decision rendered in regard to the corresponding environmental impact, when issued.

To this end, the Federal District Department of the Environment

shall maintain, on its premises, a publicly available list of all reports,

132 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

35. Colima, Nayarit, Oaxaca, San Luis Potosí and Tlaxcala.
statements and studies submitted in regard to environmental impact.

This list is to be updated every two working days.

Besides granting citizens the right to access documents, the Federal

District Environmental Act contemplates the possibility of public participation in the environmental impact assessment procedure through the

following mechanism:

· Promoters of works or activities that require the issuance of an environmental impact authorization prior to their being undertaken must

publish a summary of the projected works or activities – at their own

expense, in a newspaper with nationwide circulation – which states

the name of the owner or promoter and that of the person responsible

for the environmental impact statement or study; the name and the

main characteristics of the project, including its location; and the most

significant environmental impacts expected together with any preventative, mitigatory, remedial, compensatory or enhancement measures considered;

· Any person may submit written remarks to the District’s Department

of the Environment within five working days of this summary’s publication, provided that documentary evidence is presented to support

these remarks;

· The Department of the Environment shall carefully assess the

remarks submitted when rendering its decision regarding the environmental impact; and

· Those persons who are of the opinion that their remarks have not

been appropriately analyzed and taken into account, may avail themselves of the dissension administrative recourse, in accordance with

the provisions of the Federal District Administrative Procedure Act (Ley

de Procedimiento Administrativo del Distrito Federal).

The laws of the States of Baja California Sur, Campeche, Coahuila,

Chiapas, Guanajuato, Chihuahua, Guerrero, Hidalgo, Morelos, Nuevo

León, Puebla, Querétaro, Sinaloa, Tabasco, Veracruz, Yucatán and

Zacatecas include provisions that regulate access to information in connection with the environmental impact assessment procedure. For

example, in this regard the Ecological Act for the State of Guanajuato (Ley

Ecológica para el Estado de Guanajuato) provides the following:

Article 28. Upon filing an environmental impact statement, and once the

requirements established by the competent authority have being fulfilled,

any person may consult the corresponding file.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 133
Interested parties shall be entitled to request that any information contained in the file be kept confidential whenever its disclosure might affect

industrial property rights or licit interests of a commercial nature.

Similar provisions are contemplated in the environmental legislation of the States of Sonora and Tamaulipas. The Law of Ecological Equilibrium and Environmental Protection of the State of Sonora36 provides

that:

Article 31. Upon the filing of an environmental impact statement and once

the requirements established by the competent authority have being fulfilled, the statement shall be published under the terms and conditions prescribed by Regulation. Interested parties shall be entitled to request that

any information contained in the file be kept confidential whenever its disclosure might affect industrial property rights or licit interests of a commercial nature.

Any person may consult the corresponding file made up of the documents

contained in the environmental impact statement.

For its part, the Law of Ecological Equilibrium and Environmental

Protection of the State of Tamaulipas37 provides that:

Article 39. Upon the filing of an environmental impact statement and once

the requirements established by the Department or the competent municipal authority have being fulfilled, any person shall be entitled to consult

the corresponding file at the Environmental Programs Registration Office

(Oficina de Registro de Programas Ecológicos).

Any interested person shall be entitled to request that any information

contained in the file be kept confidential, whenever its disclosure might

affect industrial property rights or licit interests of a commercial nature.

In the State of Baja California, the possibilities for accessing the

information are broader, since the files are both made publicly available

in government offices and are published in the State’s Official Gazette

(Periódico Oficial del Estado). Indeed, the Law of Ecological Equilibrium

and Environmental Protection of the State of Baja California (Ley del

Equilibrio Ecológico y Protección al Ambiente del Estado de Baja California)38

provides that:

Article 63. Upon filing an environmental impact statement, and once the

requirements established by the branch have being fulfilled, any person

134 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

36. Published in the Official Gazette of the State Government (Periódico Oficial del

Gobierno del Estado), dated 3 January 1991.

37. Published in the Official Gazette of the State Government, dated 12 December 1991.

38. Published in the Official Gazette of the State Government, dated 29 February 1992.
shall be entitled to consult the corresponding file, which shall be published in the Official Gazette of the State (Periódico Oficial del Estado).39

Any party interested in keeping any part of the information confidential

shall clearly indicate to the Branch, in a separate section of the filed document, any information that constitutes a technological secret and which, if

it were made public, could affect industrial property rights or licit interests

of a commercial nature. In this case, the information shall be presented in

such a way that any information of significance to the environment or

public health may be examined without the interested party being affected.

Also aimed at widening access to information possibilities, the

Law of Ecological Equilibrium and Environmental Protection of the

State of Quintana Roo (Ley del Equilibrio Ecológico y la Protección del

Ambiente del Estado de Quintana Roo)40 provides that promoters of works

or activities must submit their environmental impact statements accompanied by a sufficient number of copies for distribution to state municipalities:

Article 35. Upon filing an environmental impact statement, and once the

requirements established by the competent authority have been fulfilled,

any person shall be entitled to consult the corresponding file.

For the purposes of the preceding paragraph, the interested party shall

provide the copies that are necessary for public consultation at the official

libraries of each municipal seat. Environmental groups that operate in the

state shall be entitled to request copies of the file containing the environmental impact statement from the libraries in which documents are kept,

or from the Department of Public Works and Urban Development (Secretaría de Obras Públicas y Desarrollo Urbano), which shall be provided within

five days of the request.

No subsequent application for a work or activity shall be considered for

two years following the date the authorization of the work was made

public, if the essential elements of the new application are identical to the

ones contained in the previous one, so that intellectual property rights or

licit interests of a commercial nature are protected.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 135

39. On the contrary, Article 54 of the Environmental Impact Regulation adopted under

the Law of the State of Baja California (Reglamento en Materia de Impacto Ambiental de

la Ley del Estado de Baja California) restricts access to information possibilities, as it

requests that interested parties prove their legal standing and the need to obtain

the information contained in the files in order for them to be allowed to consult the

documents on the premises of the State environmental authority.

40. Published in the Official Gazette of the State (Periódico Oficial del Estado), dated 14

April 1989.
Access Policies

In the states of the Republic, the policy is to allow public access to

the information submitted in the environmental impact assessment procedure without any legal limitation whatsoever, except for the five states

which do not regulate this issue. It is worth mentioning, however, that

the environmental legislation of the State of Michoacán limits the access

to information pertaining to the environmental impact assessment procedure since it requires that the applicant be proficient in environmental

issues.41 This is considered to be exception to the general tendency prevailing in the country, which allows access to any interested persons,

without any need for them to prove their legal standing or show any

kind of proficiency. The Environmental Protection Act of the State of

Michoacán (Ley de Protección al Ambiente del Estado de Michoacán)42 states:

Article 28. Once the environmental impact statement has been filed, and

the requirements established by the competent authority have been fulfilled, only individuals who are proficient in environmental issues may

consult such a report.

Ease of Access

All states throughout the country have set up branches charged

with the administration and application of environmental laws and regulations in force in their territory. However, ease of access is still limited,

since the information is concentrated in the offices of state governmental

seats. Visiting these offices is necessary to gain access to this information, implying that individuals not residing in the capital city must travel

there in order to consult any files. Efforts must be made to forward this

information to all municipalities belonging to a specific state. Moreover,

information systems allowing on-line access must be set up. Early implementation of these mechanisms is hindered by financial considerations.

136 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

41. There is also some doubt on the interpretation of Article 70 of the Law of Ecological

Equilibrium and Environmental Protection of the State of Aguascalientes (Ley del

Equilibrio Ecológico y Protección al Ambiente del Estado de Aguascalientes). It specifically states that: “Upon an environmental impact statement being filed, and once

the requirements established by the competent authority have been fulfilled, any

person who shows an interest may consult the corresponding file.” A strict interpretation might indicate that the Law requires a direct interest to be proven for access to

information to be granted; however, a systematic interpretation of the Law indicates that the intention of the legislator was to leave the way open for any person

who is interested to know the files’ contents without them having to prove that they

are affected in a direct, actual or potential manner in order to gain access to information.

42. Published in the Official Gazette of the Constitutional Government of the State of

Michoacán de Ocampo (Periódico Oficial del Gobierno Constitucional del Estado de

Michoacán de Ocampo) dated 7 May 1992.
Access Time

Consulting environmental impact information may occur at any

time after it has been submitted by the promoter of the work or activity

and duly filed with authorities. Specific provisions in the Federal District legislation contemplate not only access to information but also the

possibility to submit comments regarding the environmental impact

statement within five working days of its publication.

Cost

The publication of environmental impact statements is at the

expense of the promoter of the work or activity. This is why consulting

the document itself is free of charge, although a small charge applies if

copies of filed documents are requested.

3. PERMITS AND AUTHORIZATIONS

The issuance of permits, licenses or authorizations is the action

through which administrative authorities grant private parties the ability or the right to perform an act or undertake an activity. This section

deals with the mechanisms of public access to information related to the

issuance of the various permits and authorizations contemplated in

environmental laws, such as:

· Operating licenses – Fixed sources under federal jurisdiction that

release or are likely to release odors, gases, or solid or liquid

particulates into the atmosphere, require that an operating license be

granted by Semarnap before operations are allowed to start;

· [Pollutant] release inventory – Its purpose is to register fixed sources

of air pollution. Businesses must provide information regarding the

substances they release into the atmosphere, specifically their quantity and composition;

· Authorization to handle hazardous wastes – This is the authorization

granted to businesses involved in the installation and operation of

systems for the collection, storage, transport, containment, reuse,

treatment, recycling, incineration and final disposal of hazardous

waste;

· Authorizations dealing with the import or export of hazardous waste;

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 137
· A register of companies involved in the handling of hazardous waste

– The regulation adopted under the LGEEPA in connection with hazardous waste provides that facilities generating hazardous waste

must be listed in a registry established by Semarnap for this purpose;

· Discharge permits – The National Waters Act (Ley de Aguas Nacionales)

provides that a permit from the National Water Commission

(Comisión Nacional del Agua) is required for permanent, periodic or

accidental discharges of wastewater into bodies of water under federal jurisdiction, and where such wastewater permeates federal or

other lands whenever such discharges are likely to contaminate

underground strata or aquifers;43

· Authorizations setting specific permitted noise levels.

Right of Access to Information

Environmental legislation does not contemplate public participation in granting permits and authorizations. Generally, the procedure

only involves filing the application and fulfilling the requirements set

forth by law. The administrative act granting or denying a permit or an

authorization is personally communicated to the interested party and is

not published in any medium such as the Official Gazette of the Federation.

Notwithstanding the above, it is possible to gain access to official

documents issued by the administration and those submitted by interested parties. As indicated earlier in this document, under Article 159 bis

3 of the LGEEPA, all persons are granted the right to ask authorities to

make the requested environmental information available to them, as

prescribed by Law. Environmental information is defined in this Article

as any “information in written, visual or electronic format, in the hands

of environmental authorities, relating to water, air, soil, flora, fauna and

natural resources in general, as well as that pertaining to activities or

measures which affect, or are likely to affect them.” The subject of the

access right is, then, the information kept in public offices, while the files,

records and documents in the hands of the administration are the instrumental means enabling the exercise of this right.

138 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

43. Article 88. The Article itself provides that the National Water Commission may

substitute the required wastewater discharge permit with a simple notice, depending on the characteristics of the aquifers, areas and sites involved, or those of water

uses.
Access Policies

SINIA, the National System of Environmental Information and

Natural Resources (see Section 1.4.1 above), contemplates the creation of

a subsystem known as the Environmental Regulation Information System (Sistema de Información sobre Regulación Ambiental). Its purpose is to

combine data pertaining to the legal framework in force and its implementation. It will include databases containing information regarding

the decisions, authorizations and licenses issued by Semarnap, as well as

information pertaining to laws, regulations and Mexican Official Standards. In accordance with the 1995-2000 Environmental Program, this

information system must be promoted so that individuals, companies

and other government agencies may make use of its contents in their

decision-making processes.

For the purpose of consolidating all the information generated in

the process of issuing environmental permits, licenses and authorizations, Semarnap determined that there was a need to devise a centralized management and documentation instrument which would also,

among other things, serve as an input for an information system. Thus,

on 11 April 1997, Semarnap published in the Official Gazette of the Federation, “The Agreement Establishing the Mechanisms and Procedures

for Obtaining a Comprehensive Environmental License through a Single Request, and Updating Pollutants Release Information through an

Operating License.” This Agreement considers that the “Comprehensive Environmental License” is the appropriate instrument for coordinating procedures, gathering and updating information, and

monitoring pollutants released by industrial facilities. It states:

FIRST. The purpose of the present agreement is to establish the mechanisms and procedures so that – in those instances where the management

and operation of facilities that carry on activities under federal jurisdiction

must be granted several permits, licenses or authorizations by the Department of the Environment, Natural Resources and Fisheries (Secretaría de

Medio Ambiente, Recursos Naturales y Pesca – Semarnap) – a single application may be filed in connection with environmental protection issues, and

to update the information needed to set up a pollutants release and transfer inventory by facility.

Ease of Access

The Environmental Regulation Information System is in the development stage, however, several registers containing information

regarding the permits and authorizations granted by the different

branches of Semarnap may currently be consulted:

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 139
· Pollutants Release Inventory. Sources of atmospheric pollution are

registered in this inventory;

· Public Register of Water Rights (REPDA). This is where concession

and assignment titles, and the permits for the use and exploitation of

water are registered, together with any extensions, suspensions or

terminations thereof, as well as the acts or contracts pertaining to the

total or partial transmission of titles.

Besides these registers, the various reports submitted by Semarnap

include global figures in connection with the permits, licenses and

authorizations issued. Such is the case with the Report on the General

Condition of the Ecological Equilibrium and the Protection of the Environment (Informe sobre la Situación General en Materia de Equilibrio

Ecológico y la Protección al Ambiente) which is submitted biannually, and

the Activity Reports (Informes de Actividades) which are presented by the

Department on a yearly basis.

Cost

Access to these registers is free of charge. A small charge applies

whenever copies of data contained in the registers are requested, which

is at the applicant’s expense. Once the Environmental Regulation Information System is fully implemented, it will be possible to access it

through the Internet at no cost.

4. PROPOSALS FOR PLANS AND PROGRAMS

This section describes the mechanisms for public access to projected plans and programs being considered by environmental authorities.

Right of Access to Information

Article 26 of the Constitution explicitly sets forth the power of the

State to undertake planning activities. It also lays the ground for ensuring that the various sectors – public, private and social – are involved in

the National System of Democratic Participation. This Article states:

“Planning shall be democratic. Through the involvement of the different

social sectors, it shall gather the expectations and demands of society in

order to include them in the development of the plan and programs.

There shall exist a development master plan to which all programs of the

federal public administration shall be subjected to.” Thus, the planning

140 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
system is not merely conceived as a decision-making process but, essentially, as a social participation process where conciliating interests and

joining efforts allow the achievement of goals that are supported by the

entire society.

The Planning Act (Ley de Planeación)44 regulates Article 26 of the

Constitution and is intended, among other things, to establish the basic

standards and principles according to which the planning of national

development will be carried out, to direct the activities undertaken by

the federal public administration accordingly, as well as to lay the

ground for promoting and guaranteeing the democratic participation of

the various social groups – through their representative organizations –

in the design of the government’s plans and programs.

The Planning Act contemplates a National Development Plan

which sets forth the national goals, the strategy and the priorities for the

country’s overall development; it provides an estimate of the resources

that will be allocated to that end; it determines the instruments for carrying out this plan and those responsible for so doing; it establishes the

policy guidelines of global, sectorial and regional natures; and its programs encompass all economic and social activities and rule the contents

of sectorial, institutional, regional and special programs.

Article 20 of the Planning Act asserts that:

Within the framework of the National System of Democratic Planning

there shall be room for the participation and consultation of various social

groups, so that the population may voice opinions concerning the drafting, updating and carrying out of the Plan and the programs referred to in

this Act.

The organizations representing blue-collar labor, peasants and popular

groups, academic, professional and research institutions, business organizations and other social groups, will be involved as permanent advisory

bodies in those aspects of democratic planning which are related to their

activities, through public consultations organized to that aim. Moreover,

representatives and senators of the Congress of the Union shall participate

in these meetings.

To this end, and in accordance with the applicable legislation, the System

shall contemplate the organization and operation, the formalities, the frequency and the terms which shall govern the participatory and consultative processes for the national planning of development.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 141

44. Published on 5 January 1983 in the Official Gazette of the Federation.
The LGEEPA’s role establishes that the federal government shall

promote the responsible participation of society in planning, carrying

out, assessing and controlling environmental and natural resources policy. To this end, Article 158, section I provides that Semarnap “shall convene, within the framework of the National System for Democratic

Planning, organizations representing blue-collar workers, businesses,

peasants, farmers, agroforestry and fisheries, agrarian communities,

indigenous people, educational institutions, private and not-for-profit

entities, and other interested parties, so that they may voice their opinions and make proposals.”

Even though the public has the right to participate in the planning

process through public consultations, they are not entitled to have access

to projected plans and programs until such time as they are finalized and

published. The plans and programs relating to environmental management are not included under the LGEEPA’s definition of environmental

information accessible to the public. It is important that plans and programs be included in the information that may be furnished to the public, for it is easier to make adjustments or amendments when a project is

still in its development stage – when the documents in the hands of the

government body are known – than to challenge the action taken by the

administration on the grounds of disagreement with the final draft submitted to the public.

Access Policies

The environmental policy making process and its evaluation need

public participation in order for them to be legitimated and to bring

about propitious conditions for their implementation. This is why one of

Semarnap’s strategic lines of action aims at promoting shared social

responsibility and participation in environmental and natural resources

policy making. As a result, a policy aimed at permanently informing the

various levels of social stakeholders and securing their cooperation has

been implemented. One of Semarnap’s responsibilities is to coordinate

the Advisory Committees for Sustainable Development, one at the

national level and four at the regional level, which were set up in April of

1995.

The duties of the advisory committees are: a) to advise on designing, carrying out and evaluating sectorial strategies and policies; b) to

promote or undertake public consultations and coordinate the various

institutions and social organizations; c) to promote, organize or undertake public consultations and coordinate citizens; d) to assess the results

of the general and specific programs of Semarnap and its decentralized

142 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
agencies; e) to analyze issues and specific cases of regional and national

significance; and f) to ensure proper coordination with similar national

and international entities.

The advisory councils are made up of permanent, specialized technical commissions and working groups set up for specific purposes.

Each commission or working group appoints a coordinator; all councils

have an operating committee, a president and a technical department

who follow up on the agreements reached and the recommendations

adopted by the corresponding council. The duties of the various bodies

are described in the corresponding operating bylaws discussed and

approved by the counselors themselves.

Between April 1995 and March 1997 the national and regional

councils held seven meetings. The following are among the key issues

discussed:

· Semarnap’s sectorial programs (Environment, Land and Forests,

Hydraulic, Fisheries and Aquaculture);

· The Amendments to the General Law of Ecological Equilibrium and

Environmental Protection;

· The Strategy for Environmental Management Decentralization;

· Semarnap’s strategic proposal concerning the transition towards sustainable development;

· Semarnap’s report before the UN Commission for Sustainable Development;

· Holding national workshops for the analysis of the LGEEPA in April

of 1996; and

· The official document presented by Mexico at the Rio+5 Forum held

in March 1997 in Rio de Janeiro, Brazil.

Additionally, the following issues have been discussed at regional

council meetings:

· The Hazardous Waste Program;

· The Border XXI Program;

· The Intracoastal Channel Project for the State of Tamaulipas;

· The expansion project for Exportadora de Sal, S.A. de C.V. “Salitrales de

San Ignacio” in Baja California Sur;

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 143
· The construction of a dock for cruise ships in Cozumel, Quintana Roo;

· The issue concerning oil exploitation activities in the Natural Area of

Laguna de Términos and the Península de Atasta, Campeche;

· The project regarding the construction of the La Venta – Colegio

Militar highway; and

· The “Save the Apatlaco River” Project.

Ease of access

The National Development Plan and Semarnap’s Environmental,

Hydraulic, Land and Forestry, Fishing and Aquaculture Programs were

published in the Official Gazette of the Federation. In addition, all of

them are commercially published so they may be purchased at public

documentation centers. They may also be accessed and obtained

through the Internet at Semarnap’s website <http://www.semarnap.

gob.mx/> and the Presidency of the Republic’s homepage <http://

www.presidencia.gob.mx/>.

Cost

The publications may be consulted free of charge at information

centers. The cost of publications is affordable so that interested persons

can acquire the environmental plan and programs. Copies of these documents may be obtained free of charge through the Internet.

5. LAWS, REGULATIONS AND STANDARDS

This section provides an overview of existing legal mechanisms

enabling the public to participate in the process of making environmental law, regulations and standards. Furthermore, mechanisms for public

access to the contents of such legal provisions are outlined.

5.1 Laws

Under the Mexican Constitution, the right to introduce new bills

or amendments to existing laws before the Congress of the Union is

reserved for the President of the Republic, representatives and senators

of the Congress of the Union and state legislatures.45

144 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

45. Article 71 of the Political Constitution of the United Mexican States.
Even though the power to present bills is limited to the federal

executive and legislative branches and the state congresses, Mexican

legislation allows citizens to directly present submissions (peticiones)

before the Congress of the Union. The bylaws governing the Internal

Administration of the General Congress of the United States of Mexico46

provide the following:

Article 61. Any submissions made by individuals, corporations or authorities that do not possess the right to initiate legislation shall be directly forwarded by the President of the House of Representatives to the

corresponding House Committee, according to the subject of the submission. The Committee shall decide whether or not the submission deserves

consideration.

Citizens and groups interested in bills discussed by the Congress of the

Union may voice their opinions at public hearings held throughout the

legislative process. Such hearings provide important information to legislators.

This mechanism was used when amendments and additions to the

General Law of Ecological Equilibrium and Environmental Protection

were introduced in 1996.

In 1995, the Ecological and Environmental House and Senate Committees (in close cooperation with the federal executive branch and the

Congresses of the federate states) called for national consultations on

environmental legislation, for the purpose of hearing the considerations, recommendations and concerns of the various sectors of society.

Through this consultation process, numerous submissions

expressing diverse concerns and proposals in regard to national legislation on environmental issues were received from nongovernmental

organizations, research centers, universities, manufacturing associations, boards of trade, federal, state and municipal agencies and bodies,

state Congresses and representatives from international civic organizations. The submissions constituted the grounds for the drafting of the

LGEEPA reform.

5.2 Regulations

Only the President of the Republic has the power to issue administrative regulations. This power is contemplated under Article 89 I of

the Constitution: “The powers and obligations of the President are as

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 145

46. Published on 20 March 1934 in the Official Gazette of the Federation.
follows: 1. To promulgate and carry out the laws passed by the Congress

of the Union, ensuring that the administration strictly enforces compliance thereto.” The regulatory power of the federal executive is thus contemplated here: it empowers this branch of the public authority to issue

general or abstract provisions aimed at carrying out the law by developing and complementing in great detail, the legal principles contained in

the laws enacted by the Congress of the Union. There is no legal mechanism allowing the public to take part in drafting these regulations.

5.3 Standards

Article 36 of the LGEEPA states that Semarnap is responsible for

issuing Mexican Official Standards pertaining to the environment and

the sustainable exploitation of natural resources, for the purpose of:

I.- Establishing the requirements, specifications, conditions, procedures,

goals, parameters and permitted ranges which shall be observed in

regions, zones, river springs or ecosystems; in the exploitation of natural

resources; in carrying out economic activities; in the use and destination of

goods and services as well as in production processes;

II.- Considering the conditions necessary for the well being of the population, the preservation or restoration of natural resources, and the protection of the environment;

III.- Stimulating or encouraging economic agents to redirect their processes and technologies with the aim of protecting the environment and

achieving sustainable development;

IV.- Providing conditions of long-term stability for investment and inducing economic agents to absorb the costs arising from any environmental

damages they may cause; and

V.- Fostering productive activities for reasons of efficiency and sustainability.

The issuance of environmental Mexican Official Standards and

amendments thereto shall be subjected to the procedure established

under the Federal Law on Metrology and Standardization (Ley Federal

sobre Metrología y Normalización).47 The purpose of this law is to promote

transparency and efficiency in drafting and enforcing Mexican Official

Standards (NOM) and Mexican Standards (NMX). Under Article 47 of

the Law, the procedure established is as follows:

146 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

47. Published on 1 July 1992 in the Official Gazette of the Federation.
· Draft NOMs shall be published in full in the Official Gazette of the

Federation so that interested parties may submit their comments to

the National Advisory Committee on Standardization for Environmental Protection (Comité Consultivo Nacional de Normalización para la

Protección del Ambiente) within 90 days of such publication.48 During

this time, the background analyses that preceded the drafting of a

NOM shall be available for public consultation at the premises of the

committee;

· Once the period of time referred to in the above paragraph has

elapsed, the National Advisory Committee on Standardization for

Environmental Protection shall review the comments received and

amend the draft NOM as deemed appropriate within the following 45

days; and

· The authority shall ensure that the responses to comments received

are published prior to the publication of a NOM.

This procedure shall be observed at all times in order for the issued

standard to have full legal validity. However, the law contemplates the

possibility that the procedure not be followed in cases of emergency. In

such cases, the competent authority can issue the Mexican Official Standard directly, without a project or draft having been tabled, but must

have it published in the Official Gazette of the Federation. The NOM

shall then be in force for a period of time not exceeding six months.

Under no circumstances may the same standard be issued twice consecutively invoking emergency reasons. However, if the authority that

issued the emergency standard wanted to extend its validity or even

make it permanent, it would have to table a draft project and follow the

regular approval procedure.49

Although making NOMs is primarily entrusted to the public

authority, the Federal Law on Metrology and Standardization contemplates the possibility for the public to present its own proposed NOMs.

The last paragraph of Article 44 of this Law provides that: “Interested

persons may submit proposals for Mexican Official Standards before

government bureaus who shall assess them and, where deemed appropriate, submit a draft project to the appropriate committee.”

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 147

48. Several interested parties and representatives from economic sectors participate in

the Committee, which is made up of 7 subcommittees in charge of: ecological

exploitation of natural resources, hazardous materials and waste, air, fuels quality,

water, environmental risk and polluting energy. Each subcommittee has one or

more working groups.

49. Article 48.
Right of Access to Laws, Regulations and Standards

In order for federal legal provisions including statutes, decrees,

regulations, agreements, circulars, orders and other administrative acts

issued by federal public authorities to be fully in force, they must be published in the Official Gazette of the Federation.50

Additionally, Article 120 of the Constitution provides that: “the

State Governors must publish and enforce federal laws.” Such publication is meant to make it easier for the country’s inhabitants to be aware of

federal laws. Specifically in connection with environmental issues, the

LGEEPA contemplates the publication of the Ecological Gazette as an

official means of information about applicable legal provisions:

Article 159 bis 2. The Department shall publish a Gazette compiling all

legal provisions, Official Mexican Standards, decrees, regulations, agreements and other administrative acts. It shall also contain other information of interest on environmental issues published by the Federal and local

governments, and international documents dealing with environmental

issues of interest to Mexico, whether or not such information is included in

the Official Gazette of the Federation or other dissemination media. Likewise, official information pertaining to natural protected areas and the

preservation and sustainable exploitation of natural resources shall be

published in this gazette.

Access Policy

The policy in regard to legal information is based on the criterion

that informed communities may objectively adopt those decisions that

better safeguard their interests and rights, while keeping abreast of what

happens in their milieus. Given the environmental conditions that prevail in certain regions and areas of the country, communities in particular and society in general must be aware of whatever occurs or fails to

occur in connection with their environment; therefore, the responsible

authority must guarantee that such information is made available to the

public on a continuous basis.

Ease of Access

The public is guaranteed access to the Official Gazette of the Federation, which is published by the Department of the Interior(Secretaría de

148 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

50. Article 2 of the Law regarding the Official Gazette of the Federation and Government Gazettes (Ley del Diario Oficial de la Federación y Gacetas Gubernamentales).
Gobernación) and is available to the public both at the Department’s own

offices and through distributors of newspapers and magazines. In addition, there are electronic on-line services which provide access to the

Official Gazette via the Internet.51 The Department of the Interior,

through the National General Archives (Archivo General de la Nación),

published a collection of CD – ROMs which contain an unabridged compilation of the Official Gazette from 1973 up until now, as well as the

index of all documents published from 1917 to 1972.

On the other hand, the Congress of the Union has a comprehensive

database containing all the federal statutes in force, which may be consulted at its library or through its Internet website at: <http://info.

cddhcu.gob.mx:80/leyinfo/>.

The Ecological Gazette is published by the National Institute of

Ecology and may be consulted at existing documentation centers in

Semarnap’s various offices.52 Currently it is published on a quarterly

basis. Searches may also be performed through its Internet website.

All federal environmental laws and regulations, as well as Mexican Official Standards in force have been compiled by Semarnap and

may be accessed through its Internet website at: <http://www.

semarnap.gob.mx/>.

In 1996 Semarnap itself published a CD – ROM, entitled “Mexican

Environmental Compendium: An Update on Environmental Management,” which contains a compilation of federal statutes and regulations

related to the Department’s activities, as well as of the NOMs issued on

environmental protection issues. In addition, it includes the environmental laws enacted by state Congresses. In 1992, Profepa concluded a

compilation of state and municipal legislation dealing with environmental protection, which is available in electronic format.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 149

51. Infosel Legal website at: <http://www.infosel.com.mx>.

52. According to its 1997 Planning Subdepartment Working Program, Semarnap

intends to promote and support the creation of information centers in its regional

offices for the purpose of facilitating their interaction with the main office but

which are, above all, aimed at increasing regional awareness of environmental

issues and expanding the opportunities available for the exploitation of resources

by local agents, whether they are government or academic entities, economic

agents or citizens’ organizations. In connection with this project, options are being

analyzed in order to allocate significant resources of the Program for Environmental Management and Decentralization currently at the approval stage by the World

Bank.
At the state level, searches concerning environmental legislation

may be made in the official gazette of each federate entity, as well as in

the libraries of each one of the state Congresses. In addition, several legal

libraries, such as those belonging to the Nation’s Supreme Court of Justice, the National General Archives and the Legal Research Institute of

the Universidad Nacional Autónoma de México, are currently compiling

state legislation.

Cost

The cost of official publications, such as the Official Gazette of the

Federation and the Ecological Gazette is quite moderate as the selling

price is merely intended to recover publication costs. Public services

provided through the Internet, as well as those offered by documentation centers and legal libraries, are free of charge. Private services bear a

higher cost, thus limiting access to persons and organizations that can

afford them.

6. ENFORCEMENT AND COMPLIANCE ACTIONS

This section provides an overview of the legal provisions governing public access to information collected by competent authorities in

connection with environmental law enforcement and compliance

actions.

Right of Access to Information

In respect to right of access, it is worth highlighting voluntary compliance measures such as environmental audits, through which those

responsible for managing a business may voluntarily perform a methodological examination of operations carried out in connection with the

contamination and risk they generate, as well as their degree of compliance with environmental legislation, international parameters and

sound standards of operation and engineering practices, for the purpose

of determining the preventive and corrective measures needed to protect the environment.

Persons who demonstrate that they are, or are likely to be directly

aggrieved by the activities of the audited business, may have access to

information generated during the environmental audit. In accordance

with Article 38 bis 1 of the LGEEPA, Semarnap “shall make available to

those persons who are, or are likely to be directly aggrieved, the preventive and corrective programs brought about by environmental audits, as

well as the information concerning the basic diagnosis which triggered

150 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
such programs. In any event, legal provisions governing the confidentiality of industrial and commercial information shall be abided by.”

However, the public does not have access to the information generated in connection with the actions (such as inspection visits, sanctions

and legal proceedings) undertaken by the authorities for the purpose of

enforcing compliance with environmental laws and regulations, whenever such actions are in process. As a matter of fact, the LGEEPA provides that the authority shall deny the requested information whenever

it pertains to issues that are the subject of pending legal proceedings or

unresolved inspection and surveillance actions.53 This limitation is

intended to, on the one hand, facilitate the discovery process and, on the

other hand, safeguard the honor and reputation of citizens or companies

involved in those proceedings until such time as a final decision is

reached by the competent authority.

Access Policies

In order to promote awareness of compliance and enforcement

actions, the 1995-2000 Environmental Program contemplates the need

for designing and implementing an information system that will allow

authorities to closely follow up on the inspection visits carried out in

each facility. This system will monitor the significance of detected irregularities, the technical corrective measures adopted, the sanctions

imposed, the compliance deadlines and reports, the implementation of

measures, the installation of control equipment and the quantity of

pollutants that are no longer discharged into the environment.

In addition, this program will set up a national system of environmental compliance indicators consisting of a database containing all the

information pertaining to irregularities detected during inspection visits. With such an index, it will be possible to make more accurate diagnoses, to program inspection visits according to clearly defined

environmental performance goals and to inform the public on the compliance levels reached.

Ease of Access

Profepa is developing an information system on compliance with

environmental and natural resources legislation (Sistema de Información

sobre el Cumplimiento de la Normatividad Ambiental y de Recursos

Naturales). This system is intended to design and operate the various

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 151

53. Article 159 bis 4, Section II.
subsystems which aim to increase public awareness regarding environmental compliance, and facilitate setting goals and programming

inspection and enforcement actions. This system will be composed of the

following subsystems:

· strategic information for decision making;

· monitoring natural resources for the achievement of environmental

compliance;

· environmental audits;

· environmental compliance indicators for industry; and

· citizen enforcement suits.

In 1997, a pilot project for the control of priorities and the follow-up

of overall goals will be implemented, and later a system accessible

through the Internet will be devised.

Currently, Profepa submits reports regarding activities undertaken, including data on the number of inspection visits and environmental audits performed, sanctions imposed on private parties, and

complaints filed by the population. This information may be consulted

in the Biennial Report on the General State of Ecological Equilibrium and

Environmental Protection, Semarnap’s Annual Activity Reports, the

Monthly Activity Reports of Profepa’s State Bureaus, and on Profepa’s

Internet website at: <http://www.semarnap.gob.mx/profepa/

index.htm/>.

Cost

Currently access to Profepa’s reports is not hampered by cost considerations. Access through the Internet is free of charge.

7. RELEASE INVENTORIES OF TOXIC SUBSTANCES

This section outlines the rights and mechanisms for accessing

information regarding the management and final disposal of hazardous

waste. Hazardous waste management requires knowing those businesses or activities that are responsible for generating them, and the volumes and types of waste produced, transported, stored, treated or

eliminated on a yearly basis. It also entails detecting the sites within the

national territory where these activities take place, and having information on both the companies involved in the transport, storage, or final

152 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
disposal of hazardous waste, and on spillage occurrences (and the way

such spills are taken care of), in order to minimize or control risks. To this

end, a notification system based on seven different hazardous waste

management statements and reports has been devised:

· statements from hazardous waste generating companies;

· statements concerning the delivery, transport and receipt of hazardous wastes;

· statements regarding accidental hazardous waste spills;

· statements from companies that may generate waste containing

polychlorinated biphenyl (PCB) compounds from electrical equipment;

· monthly reports on hazardous waste stored in final disposal sites;

· semi-annual reports on hazardous wastes sent for recycling, treatment, incineration or confinement; and

· semi-annual reports on hazardous wastes received for recycling or

treatment.

Right of Access to Information

These statements and reports constitute the basis for setting up the

inventory contemplated by Article 4, Section XI of the Regulation

adopted under the LGEEPA in regard to hazardous waste,54 which

entrusts Semarnap with the responsibility for establishing and updating

an information system in connection with the generation of hazardous

waste.

The information contained in this system is construed as environmental information in accordance with the provisions of Article 159 bis 3

of the LGEEPA, for it is indeed information in written or electronic format held by the authority pertaining to the activities or measures that

affect, or are likely to affect the water, air, soil, flora, fauna and the natural resources in general. Hence, any person is entitled to request

Semarnap to provide them with any information contained in the system.

Besides the information contained in the statements and the

reports, the public has access to additional information regarding the

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 153

54. Published on 25 November 1988 in the Official Gazette of the Federation.
companies involved in the management and final disposal of hazardous

waste, specifically, the risk assessments and accident prevention programs related to the performance of such activities.

Risk assessments must be submitted to Semarnap together with

environmental impact statements; thus, they are available for public

consultation and comments within the terms and time limits described

above in the section devoted to the environmental impact assessment

procedure. In addition, accident prevention programs must be submitted for approval by several public authorities: Semarnap, the Department of the Interior, and the Departments of Energy, Trade and

Industrial Development, Health, and Labor and Social Welfare. These

programs also fall under the definition of environmental information in

the hands of the authority and are therefore accessible to the public.

Access Policy

According to the 1996-2000 Program for the Minimization and

Comprehensive Management of Hazardous Waste in Mexico (Programa

para la Minimización y el Manejo Integral de los Residuos Peligrosos en

México), environmental information is an essential instrument in the

process of establishing long-term policies, goals and priorities, so that

their achievement may be permanently assessed. In addition, information contributes to facilitating collective actions and widening the

authority’s maneuvering leeway in establishing well-supported social

consensus. Reliable, complete and timely information is required for

sound decision-making and keeping the public informed. Hence, more

public involvement in obtaining information regarding the management and final disposal of hazardous wastes is promoted.

Ease of Access

Having a toxic release inventory is essential, however, as acknowledged by the Program for the Minimization and Comprehensive Management of Hazardous Waste, the majority of the efforts displayed in

this regard “face important limitations inasmuch as they are based on

waste generation indices estimated in other countries, which are mostly

obtained on the basis of the overall number of employees in a business.

There has been little field testing, and therefore a wide ranging exercise

of regional and sectorial coverage is required in order to set generation

indices that are more realistic and in line with the specific technological

conditions of Mexican industry.” A preliminary inventory, subject to

review, has already been established with the information available

154 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
from the impact statements filed, the environmental audits performed

and the data gathered in the industrial census.

In addition, hazardous waste information and tracking systems

are being developed. These will allow the information needed for the

evaluation of hazardous waste generation, movements and disposal to

be collected, stored and processed. These systems are:

· The Pollutants Release and Transfer Register (Registro de Emisiones y

Transferencia de Contaminantes – RETC). The RETC will allow the government and the general public to be aware of the discharges and

transfer of hazardous substances originating from industrial facilities

and other relevant sources. Other countries’ experience indicates that

the RETC actually promotes the detection of inefficient processes by

businesses while providing the public and the authorities with useful

data for setting up pollution prevention and control priorities;

· The Inventory of Generating Facilities and Hazardous Waste

Tracking Systems (Inventario de Establecimientos Generadores y Sistemas

de Rastreo de Residuos Peligrosos). Setting up a database relating to the

impact statements filed by hazardous waste generating businesses

will allow the systematic registration of general information about

the facilities themselves and the characteristics of the waste generated; and

· The National Tracking System (Sistema Nacional de Rastreo). The purpose of such a system is to monitor hazardous wastes from their originating source to their final disposal based on the reports and

statements submitted to Semarnap by waste generating industries

and waste management companies.

8. GENERAL CONSIDERATIONS

Inasmuch as many of the aspects related to the accessibility of environmental information have just recently been incorporated into Mexican legislation, it is still too early to evaluate how the law has actually

been carried out, or to identify the barriers or obstacles that may hinder

information access. It is worth mentioning, however, that prior to the

new legislation being introduced, access to information was obstructed

by a series of factors which encompassed inadequate administrative discretion, severe resource limitations, inconsistent policies in regard to

information collection and dissemination, as well as an excessive centralization of information depositories in the nation’s capital.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 155

THE UNITED STATES

1. CONSTITUTIONAL AND LEGAL FRAMEWORK

FOR PUBLIC ACCESS TO INFORMATION . . . . . . . . . . . 159

1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 159

1.2 Overview of Constitutional Provisions. . . . . . . . . . . 159

1.3 Overview of Federal Access Legislation, Policies,

and Practices. . . . . . . . . . . . . . . . . . . . . . . . . . 160

1.3.1 Freedom of Information Act . . . . . . . . . . . . . 160

1.3.2 Congressional Collection and Dissemination

of Information . . . . . . . . . . . . . . . . . . . . . 164

1.3.3 “Voluntary” Agency Collection and

Dissemination of Information . . . . . . . . . . . . 165

1.3.4 Judicial Branch . . . . . . . . . . . . . . . . . . . . 166

1.3.5 “Government in the Sunshine” – Open Meeting

Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 166

1.4 Overview of State Access Legislation, Policies,

and Practices. . . . . . . . . . . . . . . . . . . . . . . . . . 167

1.4.1 The Ohio Public Records Act . . . . . . . . . . . . 167

1.4.2 The Ohio Open Meetings Act . . . . . . . . . . . . 168

2. ENVIRONMENTAL IMPACT ASSESSMENTS . . . . . . . . . 169

2.1 Federal Regulations and Policies . . . . . . . . . . . . . . 169

2.2 Selected State Regulations and Policies. . . . . . . . . . . 172

2.2.1 California’s Environmental Quality Act . . . . . . 173

157
3. LICENSES OR PERMITS FOR PROPOSED PROJECTS. . . . . 173

3.1 Federal Regulations and Policies . . . . . . . . . . . . . . 174

3.1.1 Legal Right of Access . . . . . . . . . . . . . . . . . 174

3.1.2 Access Policies. . . . . . . . . . . . . . . . . . . . . 175

3.2 Selected State Regulations and Policies. . . . . . . . . . . 177

3.2.1 Tennessee . . . . . . . . . . . . . . . . . . . . . . . 178

3.2.2 New Jersey. . . . . . . . . . . . . . . . . . . . . . . 179

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS,

OR PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 179

4.2 Federal Regulations and Policies . . . . . . . . . . . . . . 180

4.3 Selected State Regulations and Policies. . . . . . . . . . . 183

4.3.1 California’s Administrative Procedure Act . . . . 183

5. TOXICS RELEASE INVENTORY . . . . . . . . . . . . . . . . . 184

5.1 Federal Regulations and Policies . . . . . . . . . . . . . . 184

5.2 Selected State Regulations and Policies. . . . . . . . . . . 188

5.2.1 New Jersey’s Worker and Community

Right-to-Know Act . . . . . . . . . . . . . . . . . . 188

6. ENFORCEMENT AND COMPLIANCE ACTIONS . . . . . . . 190

6.1 Federal Regulations and Policies . . . . . . . . . . . . . . 190

6.1.1 Citizen Enforcement Suits . . . . . . . . . . . . . . 190

6.1.2 Information from the Regulated Community:

Monitoring and Reporting Requirements . . . . . 192

6.1.3 Accessing Information from the Government . . . 194

6.2 Selected State Regulations and Policies. . . . . . . . . . . 196

6.2.1 The New Jersey Water Pollution Law . . . . . . . 197

158 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
1. CONSTITUTIONAL AND LEGAL FRAMEWORK FOR

PUBLIC ACCESS TO INFORMATION

1.1 Introduction

This chapter documents public access to environmental information at the federal level in the United States and gives examples of similar

regulations at the state level. The five categories chosen for analysis are:

access to information regarding environmental impact assessment (Section 2), proposed permits (Section 3), proposed regulations (Section 4),

toxic release inventories (Section 5), and compliance and enforcement

actions (Section 6). The context for this discussion is provided by the following material, which provides an overview of the US constitutional

and legal framework for public access to information, specifically those

constitutional provisions, and federal and state laws that are relevant to

public access to environmental information in the United States.

Given their prime importance for public access to governmentally

held environmental information, freedom of information laws at the

federal and state level merit pride of place in any consideration of the

topic. Thus they are discussed in some detail in this section, as are some

general policies relating to access to information.

1.2 Overview of Constitutional Provisions

The United States Constitution establishes the framework for the

functioning of the United States government. The Constitution divides

the government into three branches – executive, legislative, and judicial

– and enumerates the powers of each. The executive branch functions

through a system of agencies, whose operations are regulated by administrative law. The rules, regulations and general orders promulgated by

an administrative agency, pursuant to its delegated powers, have the

force and effect of law.

The First Amendment to the US Constitution states, “Congress

shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the

159
press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” This amendment has been

interpreted as imposing limits on the Government’s ability to withhold

certain types of information from the public. This includes information

which is produced or released in a forum that, by its nature or by express

constitutional command, is open to the public and not wholly internal to

government. The First Amendment itself does not create a system for

providing information to the public nor does it create a threshold level of

appropriate disclosure of information to the public.1

In Article I, under the speech or debate clause, the Constitution

prohibits the courts or the executive branch from punishing a legislator

for making information public in the course of the legislative process. In

addition, Article I provides that “Each House shall keep a Journal of its

Proceedings, and from time to time publish the same, excepting such

drafts as may in their judgment require secrecy...”

1.3 Overview of Federal Access Legislation, Policies, and Practices

US law provides a number of legal tools that allow public access to

information related to the environment that is held by both governmental and private sources. The most basic and important mechanisms in the

United States for accessing environmental information are freedom of

information laws, right-to-know laws, permitting laws, and environmental impact assessment laws. Freedom of information laws and several supplementary tools for the public to obtain information will be

outlined in some detail in this section, while the right-to-know laws,

environmental impact assessment laws, permitting laws, and other

information access mechanisms will be dealt with in the following sections.

1.3.1 Freedom of Information Act

In the United States, the public can gain access to federal executive

agency records through the Freedom of Information Act (FOIA),2 a general

purpose law that applies to many kinds of governmental information.

Under this law, any person can request an agency to provide copies of all

documents it holds relevant to a particular subject. This system puts the

burden on the public to identify the desired information and demand its

disclosure, and applies only to information in the possession and control

of the government.

160 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

1. Tribe, L.H. 1988. American constitutional law, 2nd ed. New York: The Foundation

Press Inc., 814.

2. 5 U.S.C. §552.
Legal Right of Access

The FOIA works by establishing a presumption that any person

may have access to any record held by a government agency unless the

record is covered by a specific exception to the Act. The Act does not

define “record,” and there has been substantial litigation over whether

particular pieces of information requested from an agency are records

under the Act. In general, agency records do not have to be written documents. They can include items such as photographs, maps, tape recordings, and computer disks, but not personal notes of agency employees.

The FOIA also requires agencies to make adjudicatory opinions, policy

statements, and administrative staff manuals available for public

inspection and copying.

Certain documents – including those dealing with national security, private personnel records, ongoing criminal investigations, or confidential business information – are exempt from disclosure under the

FOIA. If the agency decides that a document contains information that

falls within one of these exceptions, it can withhold from disclosure only

those parts of the document that are subject to the exception. The rest of

the document must be given to the person requesting the information. If

the government refuses to disclose the requested documents, the person

requesting the information can challenge this decision in court.

To gain access to an agency record, a person must make a request

that “reasonably describes” the record desired. Most agencies require

that FOIA requests be made in writing. If an agency does not possess the

record asked for in the letter, it may simply deny the FOIA request – it

does not have to collect or develop new information. When an agency

denies all or part of a FOIA request, it must specify the reasons for the

denial in writing. Agencies must respond to the FOIA within certain

time limits.

Judicial review has been essential in enforcing the requirements of

the FOIA. Individuals, firms, or the press whose FOIA requests have

been denied have the right to challenge the denial in court. In such a lawsuit, the agency has the burden of showing either that an exception to

disclosure applies to the request or that the information does not exist.

This gives an advantage to the person making the request, and promotes

the presumption in favor of disclosure. Because many of the statutory

exceptions to disclosure are broadly worded, some agencies have tried

to expand the coverage of the exceptions. Having to prove in court that

they are entitled to assert an exception helps prevent agencies from

unjustifiably withholding information. Judicial review also has helped

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 161
clarify the scope of the exceptions to the FOIA and made their application more uniform from agency to agency.

Access Policies

In October 1993, President Clinton issued a directive calling upon

all federal agencies “to renew their commitment to the Freedom of Information Act, to its underlying principles of government openness, and to

its sound administration.”3 In a companion directive, the Attorney General announced that “it shall be the policy of the Department of Justice to

defend the assertion of a FOIA exemption only in those cases where the

Agency reasonably foresees that disclosure would be harmful to an

interest protected by that exemption. Where an item of information

might technically or arguably fall within an exemption, it ought not to be

withheld from a FOIA requester unless it need be.”4

Recent amendments to the Paperwork Reduction Act, with sections

concerning federal access policy, were passed on 22 May 1995.5 The

Paperwork Reduction Act has the overall goal of having federal agencies

become more responsible and publicly accountable for reducing the burden of federal paperwork on the public. Section 2, on the coordination of

federal information policy, states that each agency shall “ensure that the

public has timely and equitable access to the agency’s public information....” This includes encouraging a diversity of public and private

sources for information based on public governmental information; providing access to data maintained in electronic format; soliciting and considering public input on the agency’s information dissemination

activities; and providing notice when changing or terminating significant information dissemination products. The law explicitly holds that

user fees charged by agencies for disseminating information may not

exceed the actual cost of dissemination.

The Electronic Freedom of Information Act Amendments of 1996

introduced changes involving the maintenance of agency reading rooms

under Subsection (a)(2) of the Act. Agencies are required to make categories of records – final opinions rendered in the adjudication of administrative cases, specific agency policy statements, and administrative staff

manuals that affect the public – routinely available for public inspection

and copying. This means that, as of mid-1997, agencies will begin to

162 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

3. President’s memorandum to department and agency heads regarding the Freedom of

Information Act, 29 Weekly Comp. Pres. Doc. 1999 (11 Oct. 1993).

4. Attorney General’s memorandum to department and agency heads regarding the

Freedom of Information Act, Daily Report for Executives (BNA) No. 191, at 145 (5 Oct.

1993).

5. Public Law 104-13.
maintain both conventional reading rooms and “electronic reading

rooms” in order to meet their FOIA Subsection (a)(2) responsibilities.

The amendments apply a general “reasonable efforts” standard to the

matter of an agency’s search obligation.

Ease of Access

General access to information laws have been used very effectively

by environmental groups and journalists. However, because these freedom of information laws put the burden of identifying the information

to be disclosed on the public, their value is somewhat limited.

Even if the government does possess relevant information, the

FOIA can be an awkward and expensive means for disseminating government-held environmental information. The FOIA relies on

case-by-case responses to specific requests rather than an automatic system for disclosing information to the public. Often, the public is not

aware of information that the government possesses and is not able to

identify specific records for disclosure. FOIA requests must be specific.

General requests are rejected when the government employee processing the request is not able to identify the government documents that

would meet the request. Even if the public is aware that the information

exists, it can be time consuming for citizens or public interest groups to

determine precisely what information they need, write a request that

will identify this information specifically enough so that an agency

employee can provide the information in a reasonable amount of time,

and, if necessary, follow up on the request within the agency or in court,

as was discussed above.

Most information access laws in the United States exempt confidential business information or trade secrets from public disclosure. The

lack of any clear definition of what constitutes a trade secret has enabled

industry and government to invoke this exception frequently to withhold environmental information, and has generated costly and

time-consuming litigation over whether such information is properly

withheld. In addition, government employees can be held criminally liable if they improperly disclose confidential business information, which

gives an added incentive to err on the side of withholding information

from the public.

Timeliness

The FOIA requires agencies to respond to an information request

within ten days. If an agency does not do so (which may mean as little as

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 163
acknowledging receipt and stating an expected time when the requested

information will be provided), or if the agency denies the request, the

person who made the request may file suit within specified time limits

(for most agencies, a six-year statute of limitations). The statute authorizes the agency to seek a ten-day extension if responding within the

stipulated period is not possible.

Public interest environmental groups, who often use FOIA

requests to gain specific environmental information, find that the government’s actual response time varies greatly, depending on the department and the type of information requested. The public usually turns to

FOIA requests when informal requests have resulted in delays or when

the material is needed without delay.

Affordability

When a government agency receives a request for documents

based on the FOIA, the agency must provide copies of those documents

at no or nominal cost, or explain why it cannot. The FOIA allows agencies to charge a fee for processing FOIA requests. Fees can be imposed to

recover copying expenses, the costs of searching for documents and, in

some instances, the cost of reviewing the request to determine whether

any exemptions apply. The fee is not designed to recover the full cost of

developing the information.

In reality, different fees apply according to whom it is that requests

the information. For example, a member of the news media or an educational institution may be charged only for reasonable copying charges,

but a person requesting information for commercial use may also be

charged for reviewing the request and searching for the applicable

records. The fee is often waived if disclosure of the information is in the

public interest rather than the commercial interest of the requester.

Small requests are also often processed without a fee.

1.3.2 Congressional Collection and Dissemination of Information

Legislative committees in the US Congress have the authority to

require federal agencies, including the EPA, to provide documents and

testimony on the implementation of environmental laws. Although this

power is not limited, Congress exercises discretion to prevent disclosure

of national security information and other sensitive matters.

In addition to making individual requests for information from

executive agencies, Congress has created a special office of its own, the

164 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
General Accounting Office (GAO), to provide systematic oversight of

executive agency activities. The GAO reviews agency actions, evaluates

how well the agencies have carried out the law, and reports to Congress

on those subjects. The GAO pursues its investigations at the request of

congressional committees or individual legislators, by statutory directive, or on its own initiative. This systematic oversight often brings to

light problems or opportunities for improvement in environmental regulatory programs and activities.

Of special relevance for environmental matters is the public nature

of the GAO’s reports. Even though the information requested by the

GAO from the executive agencies may not be public, the final GAO

report on any topic usually is a public document. Unless they include

protected national security information, GAO reports become publicly

available thirty days after they are presented to Congress. These reports

not only provide the public with information, they also often save the

public much time and expense because they present the information in a

concise and organized fashion. The GAO will mail an index of their

reports at no cost to any requester and will mail a copy of any report at no

cost on request.

Finally, the information that Congress itself generates – its legislative bills, hearings, and debates – are generally available to the public.

Much of the printed material is also or will soon be available in electronic

form through computer networks. Debates in the two chambers are televised live (on cable television), as are selected committee proceedings.

Limited public seating is available to view official committee meetings

not involving national security secrets. Legislative committees must

give advance public notice of their meetings.

1.3.3 “Voluntary” Agency Collection and Dissemination of

Information

The FOIA is both a “fishing expedition” for the citizen and a

records management burden for the agency. To reduce FOIA requests,

as well as to comply with various specific legal directives for access to

documents, some federal agencies provide public reading rooms where

people may review (and for a nominal fee copy) agency reports, studies,

policies, and other selected documents. For example, the Department of

Energy maintains reading rooms with declassified environmental and

safety documents at some of its nuclear weapons production sites. These

give citizens a better sense of what records the agency has and faster

access to them, and they reduce the clerical demands that FOIA requests

would otherwise impose.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 165
Most agencies create rulemaking dockets, with complete copies of

public comments on proposed rules, available via some sort of reading

room arrangement. Some agencies will open their offices to accommodate reasonable, informal citizen requests to view agency working files

and documents. For example, the US Forest Service has the reputation of

allowing broad access to agency data for citizens interested in forest plan

development. Other agencies, such as law enforcement or defense agencies, have the opposite reputation.

1.3.4 Judicial Branch

Almost all judicial action takes place in open proceedings that may

be fully reported in the press. Many jurisdictions allow court proceedings to be televised. In addition, private citizens involved in civil court

actions with the government or other private parties have the power to

require opposing parties to produce information relevant to the case

through the process of “discovery.” Litigants may demand the production of documents, written responses to questions, the opportunity to

question potential witnesses under oath, and other means of garnering

information. Parties faced with discovery requests may ask the court to

block such requests if they are not relevant to the trial or if they are otherwise not allowed under the Rules of Civil Procedure. This paper

discusses discovery powers further in its explanation of citizen enforcement suits in Section 6.1.1 below.

1.3.5 “Government in the Sunshine” – Open Meeting Laws

The federal government and most state governments require

almost any group of people exercising official decision-making authority to open their meetings to the public.6 Thus, regulatory boards, commissions conducting specialized inquiries, or licensing boards must give

public notice of their meetings in the Federal Register and allow the press

and public to attend. [The Ohio Public Records Act and Open Meetings Act

(Sections 1.4.1 and 1.4.2) are good examples of “government in the sunshine” laws at the state level.]

Under the Federal Advisory Committee Act (FACA), even ad hoc committees of experts assembled to advise a federal agency on specific problems must announce their meetings and open them to the public.7 In

166 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

6. A number of laws require this at the federal and state level and are known as “government-in-the-sunshine laws.” See, e.g., 5 U.S.C. §552b prescribing when federal

agencies must conduct open meetings.

7. Federal Advisory Committee Act, 5 U.S.C. Ap. 2, §1 et seq.
some cases, the open government principle goes so far as to prohibit

decision makers from discussing business informally with one another

outside of public meetings. Also under the FACA, minutes and transcripts of the committee meeting must be made available for public

inspection and copying at a single location in the offices of the advisory

committee. Federal agencies sometimes avoid the requirements of the

FACA by signing individual consulting contracts with each expert and

by requiring each expert to submit an individual report.

1.4 Overview of State Access Legislation, Policies, and Practices

Records kept by state agencies are available to the public under

state freedom of information laws. Most states have some combination

of a freedom of information act, a community right-to-know act, an open

meetings act, provisions in an administrative procedure act regulating

permitting and rulemaking, and provisions in individual environmental laws which provide for access to information during permitting,

enforcement, and other stages of the implementation process. Many

states also have environmental impact assessment provisions, either in a

state EIA act or provisions within an environmental law.

1.4.1 The Ohio Public Records Act

Legal Right of Access

An example of a state general freedom of information act can be

found in Ohio’sPublic Records Act which provides access to publicly held

information.8 The law requires that all public offices maintain records

properly and make them accessible to the public, with only certain

exceptions. Exceptions to the Act include trial preparation records, confidential law enforcement investigatory records and medical records.

Access Policies

The state legislature has specified that the Public Records Actis to be

interpreted liberally to facilitate broader access to public records.9

Ease of Access

Under the Act, public officials must promptly prepare and make

available for inspection all public records at reasonable times, during

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 167

8. R.C. 149.43 and related sections of R.C. Chapter 149.

9. R.C. 149.43(B).
regular business hours. Where the public office keeps information in

databases that use microfilm or computer access, the equipment necessary to reproduce the information must be also made accessible to the

public. Upon request, a person responsible for public records shall make

copies of public records available at cost and within a reasonable

amount of time.

Timeliness

As mentioned above, copies must be made available within a “reasonable amount of time” and records must be “promptly prepared” and

made available for inspection at “all reasonable times during regular

business hours.”

Affordability

A public office may adopt a reasonable policy setting a fee for copies. The fee should reflect the actual costs involved in making a copy.

Public offices will usually not charge for copies where the requester is

indigent or represents a non-profit group.

1.4.2 The Ohio Open Meetings Act

Legal Right of Access

The Ohio Open Meetings Act requires all state and local officials to

take official actions and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically

excepted by law.10

Public bodies must promptly prepare minutes of all public meetings. The minutes do not have to detail discussion during executive sessions, but need reflect only their general subject matter. In terms of

openness, all public bodies must take all official actions and hold all

deliberations in meetings that are open to the public. Public bodies may

only go into executive session during open meetings.

Access Policies

The state legislature has specified that the Open Meetings Act is to

be liberally construed within the goals of promoting public access to

information.

168 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

10. R.C. 121.22, et seq.
Ease of Access

Under the Act, public bodies must give notice that a meeting will

be held and, in certain instances, must identify the purpose of the meeting. Public bodies must establish by rule, a reasonable method by which

the public can determine the time and place of regularly scheduled

meetings. A “regular meeting” is one that is held at scheduled intervals.

For special meetings, the purpose of the meeting must also be communicated to the public.

Timeliness

In Ohio, the appropriate state body must provide at least 24 hours

advance notification of a particular meeting to all news media that have

requested such notification. In addition, the public body’s meeting rules

must provide for reasonable advance notice of all meetings at which a

specific type of business is to be discussed to all persons requesting such

notice.

Affordability

A reasonable fee may be requested by the agency to provide

advance notice of meetings where a specific type of business is to be discussed.

2. ENVIRONMENTAL IMPACT ASSESSMENTS

Public access to information is an intrinsic part of the laws, policies,

and practices associated with environmental impact assessments

(EIAs). The federal regime under the National Environmental Policy Act

(NEPA) provides a legal guarantee of the public’s right to know, as do

related state regimes.11

2.1 Federal Regulations and Policies

Legal Right of Access

One of the key mechanisms in the United States for accessing information on anticipated environmental effects is found in the EIA policy

established under NEPA. The federal agency responsible for the project

must prepare an environmental impact statement (EIS) for each major

federal action significantly affecting the quality of the human environPUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 169

11. 42 U.S.C. §4321 et seq.
ment, and this includes legislation as well as proposed construction projects. The US Environmental Protection Agency (EPA) has the

responsibility to review and evaluate all EISs. These typically include a

detailed discussion of three essential subjects: (1) the proposed project

and its alternatives; (2) the environmental impacts of each alternative;

and (3) mitigation measures that can be taken to avoid or minimize

unwanted impacts.

Under NEPA the public is accorded a legal right to have access to

information concerning every step of the EIA preparation and decision-making process. The government is given an explicit duty to make

information readily accessible to the public at specific points in the process.

An EIS is rarely prepared outside the context of a specific project.

One reason for this may be that the EIS process is too cumbersome and

slow to be applied to rapidly evolving policies and proposals for legislation. Under NEPA, federal agencies are required to prepare an EIS as

part of recommendations or reports on proposals for legislation. These

“legislative EISs” have been performed only rarely. In the few instances

where they have, legislative EISs often follow an abbreviated process for

environmental impact analysis that dispenses with many of the opportunities for public review common in project-specific EISs. For example,

an agency recommending or reporting on legislative proposals often

does not need to engage in public scoping or, except in specified circumstances, prepare a draft EIS for public comment.12 Still, in some cases, for

example with Forest Service wilderness designation recommendations,

the proposal is both legislative and administrative and the full process of

preparing an EIS is followed.

In general, NEPA regulations require that the EIS, the comments

received, and any underlying documents be made available to the public

pursuant to FOIA. In the case of an action with effects of national concern, notice of the preparation and availability of draft environmental

impact statements must be published in the Federal Register and mailed

directly to interested parties. For federal actions with effects of local concern, such as the permitting of an individual plant, publication of notice

in local periodicals is also required.

As part of the NEPA process, federal agencies must hold or sponsor public hearings whenever appropriate and solicit appropriate comments from the public. Agencies must also explain in their procedures

170 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

12. For regulations regarding implementation of NEPA, see 40 C.F.R. §1506.
where interested parties can get information or status reports on environmental impacts and other aspects of the NEPA process. The US system puts great weight on this public disclosure and involvement,

requiring that scoping meetings be preceded by a public notice of intent

(NOI) to initiate the EIS process. The agency must publicize the availability of the draft EIS; provide a copy to any person, organization or

agency that requests one; and actively solicit comments on it from

appropriate state and local environmental agencies, Indian tribes potentially affected, and the general public. The agency must also hold public

meetings or hearings when there is substantial interest or controversy

about the proposal, or when requested by another agency with jurisdiction over the action.

Access Policies

Executive Order 11514 on the Protection and Enhancement of

Environmental Quality was issued in 1970 and updated in 1978 to further the purposes of NEPA.13 The Executive Order makes federal agencies responsible for developing procedures to ensure the fullest

practicable provision of timely public information, understanding of

federal plans and programs with environmental impact, and to obtain

the views of interested parties. Agency procedures must include public

hearings and provide the public with relevant information, including

information on alternative courses of action. Federal agencies are asked

to encourage state and local agencies to adopt similar procedures for

informing the public concerning their activities affecting the quality of

the environment.

Ease of Access

In general, NEPA requires very broad disclosure but provides for

certain exemptions, such as those found under the FOIA or if, for

instance, information is unavailable or too costly to find. Controversy

frequently arises over agency interpretations of terms such as “significant impact” and questions about what levels of hazard and risk an

agency must disclose. Agencies are not required to inform citizens about

a project until after screening to determine the extent of potential environmental impacts. If after screening the agency decides not to prepare

an EIS, it must prepare a Finding of No Significant Impact (FONSI) and

notify the affected public of its decision.14 The scoping process under

NEPA is also open to the public. This means that the public has access to

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 171

13. 3 C.F.R. §902 (1966-70); as amended by Executive Order 11991, 3 C.F.R. §123 (1978).

14. See generally, 40 C.F.R. §1501.
background information that will be considered during scoping. The

public also has access to all information that is developed during the

entire EIS process and incorporated into the draft and final EIS, as well as

all comments and underlying documents.

Agencies are required to circulate the entire draft and final EIS to

any person or organization that requests it. As a practical matter, it is

very easy for the public to get these documents; a letter, a phone call, or a

visit is enough. Agencies will often keep mailing lists of people who

have shown past interest in agency projects and automatically send

them a notice of availability of draft and final EISs. Agencies may automatically send copies of draft and final EISs to groups and individuals

with a well-known interest in a project, such as local politicians, journalists, and NGOs.

Timeliness

If a governmental agency intends to prepare an EIS, it must publish

a notice of intent as soon as practicable and, in any case, before beginning

scoping. Prior to preparing any detailed EIS, the responsible federal official must consult with and obtain the comments of any federal agency

which has jurisdiction by law or special expertise with regard to the

environmental impact involved. Copies of such statements and the comments and views of the appropriate federal, state, and local agencies

which are authorized to develop and enforce environmental standards

are to be made available to the public.

Affordability

Under NEPA regulations, material requested by the public is to be

made available by the agency at no charge, if possible, or at actual cost.

2.2 Selected State Regulations and Policies

Approximately two-thirds of the states in the United States have

environmental impact assessment requirements under state environmental law. Specifically, California, Connecticut, Hawaii, Indiana,

Maryland, Massachusetts, Minnesota, Montana, New York, South

Dakota, Virginia, Washington, Wisconsin, and Puerto Rico all have comprehensive EIA requirements. Virtually all states have procedures for

notifying the public of forthcoming meetings, among which are public

hearings on proposed environmental impact assessments, even if not

already specified by the EIA provisions of the law.

172 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
The California Environmental Quality Act, one of the most comprehensive state EIA laws, provides a good example of access to information concerning the EIA process at the state level.15

2.2.1 California’s Environmental Quality Act

Legal Right of Access

The California Environmental Quality Act (CEQA) was among the

models used by the US EPA in developing the provisions implementing

the National Environmental Policy Act. The Act requires that an environmental impact report (EIR) be prepared balancing the pros and cons of

any major project. In the case where a report is not required (i.e. where

the potential environmental effects are not significant), the agency must

prepare a negative declaration except when the project is specifically

exempted by law.

Ease of Access

The California EIA process gives the public two chances to receive

information concerning a proposed environmental impact report: first,

when the goals are being set and second, during the process which determines the scope of the environmental review process. Once goals are

drafted, several public hearings are usually held to present information

and to provide opportunities for public comment. At the different stages

of the process, the public has access to information on the proposed

goals, alternatives, the draft EIR, the final EIR, and the final proposed

action.

Timeliness

Notice of draft and final EIR and planning meetings must be made

at least 10 days prior to the meeting, be posted in or near the affected

area, and be published in a locally available newspaper at least 10 days

before the meeting. The notice must contain full information about the

location, time and agenda of the meeting and contain any rules to be followed at the meeting. Decisions may not be made at the meeting on matters for which notice was not provided.

3. LICENSES OR PERMITS FOR PROPOSED PROJECTS

Permits are issued to facilities under most of the major environmental statutes through federal programs and through state programs,

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 173

15. Cal. Pub. Res. Code §§21000-21177 (West 1986 & Supp. 1994).
including those which were delegated under the federal environmental

statutes. In this section, public access to environmental information

relating to the permitting process is discussed through examples of

approaches taken under federal and state law.

3.1 Federal Regulations and Policies

An environmental permit is a legal document that specifies the

conditions under which a regulated firm may operate, the types and

amounts of pollutants it may discharge, and requirements as to reporting, record keeping, operation, maintenance, and all aspects of monitoring, including frequency, methodology, and sampling locations. In

addition to providing specific limits on the pollution that a firm may discharge, a permit may specify a range of other requirements concerning

the firm’s operation, including the disclosure of important technical

(and even financial) information about the firm and its operations and

emissions.

In light of the many advantages of permits, environmental agencies in the United States use them to regulate a number of environmental

problems, including air emissions, the discharge of water pollution, the

operation of mines, and the treatment, storage, and disposal of hazardous wastes.16 Rules for issuing, modifying, and revoking permits under

these programs include procedures for public participation and access

to information.17

The public can play a significant role in the environmental permitting process. In some ways, the public’s involvement in permitting bears

many similarities to its involvement in notice and comment rulemaking

discussed in the next section.

3.1.1 Legal Right of Access

Generally, public interest will be greatest when a new facility seeks

a permit. If, however, a community has experienced problems with a

permitted facility, or new pollution control standards have become

applicable, the facility’s application for renewal also tends to generate

174 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

16. For air emissions, see Clean Air Act Amendments of 1990, Title V, §§501-507. For the

discharge of water pollution, see Federal Water Pollution Control Act, Subchapter IV,

33 U.S.C. §§1341-1345. For the operation of mines, see Surface Mining Control and

Reclamation Act, Subchapter V, 30 U.S.C. §§1251-1279. For the treatment, storage,

and disposal of hazardous wastes, see Resource Recovery and Conservation Act, 42

U.S.C. §§6925.

17. See, e.g., 40 C.F.R. part 124.
public attention. In either case, there are opportunities for the public to

submit comments or participate in public hearings prior to the decision

to grant or deny a company’s application.

When a government agency receives an application for a permit, it

first confirms that all necessary information has been provided. Once a

federal agency has received a complete application for a permit, it may

decide either to deny the application or to begin preparing a draft permit.18 Usually, the government provides notice and the opportunity for

comment before the agency actually begins to draft the permit. This

ensures that the permit writers review public comments before drafting

the permit language. On the other hand, notice may be delayed until

after a draft permit has been prepared. This allows the public to focus

their comments on actual provisions of the proposed permit.

Notice of permitting must indicate all relevant details concerning

each specific permit, such as the name and address of the facility, as well

as the business and industrial processes that will be carried out there. It

must also describe the nature, quantity, and frequency of the discharges

from the facility, and any anticipated environmental effects from these

discharges. Depending on the facility and pollutants involved, the

notice may provide additional information to assist the public in evaluating the likely impact of the proposed activity. For example, if a plant is

planning to release pollutants into surface waters, the notice identifies

the location of all discharge points at the plant, the name of the receiving

waters, any water quality standards applicable to the waters, and

whether the waters currently meet those standards. The notice must also

state whether an environmental impact assessment has been prepared.

3.1.2 Access Policies

EPA’s Policy Statement on Public Participation19 covers rulemaking

(when regulations are classified as significant), the administration of

permit programs, and program activities supported by EPA financial

assistance to state and local governments. The purpose of the policy is to

strengthen the EPA’s commitment to public participation and establish

uniform procedures for public participation in the EPA’s decision-making process. The policy affirms the view that only through

exchange of information between the EPA and the public can good environmental decisions be reached. Agency officials are expected to provide for, encourage, and assist public participation. The policy

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 175

18. 40 C.F.R. §124.6.

19. 46 F.R. 5740 (Jan. 19, 1981).
encourages officials to strive to communicate with, and listen to, all sectors of the public. The policy assumes that agency employees will strive

to do more than the minimum required, and is not intended to create

barriers to more substantial or more significant participation. Because

the policy recognizes the agency’s need to set priorities for its use of

resources, it emphasizes public participation in decisions where options

are available and alternatives must be weighed, or where substantial

agreement is needed from the public if a program is to be carried out.

On the whole, the policy clearly sets out that public participation

should begin early in the decision-making process and continue

throughout as necessary. The agency is required to set forth options and

alternatives beforehand, and seek the public’s opinion on them. Merely

conferring with the public after a decision is made does not achieve this

purpose, according to the policy. The role of agency officials under the

policy is to plan and conduct public participation activities that provide

equal opportunities for all individuals and groups to be heard.

Ease of Access

Federal permitting regulations in the United States require federal

agencies to maintain lists of all interested persons and organizations in a

region, and to mail notices of the proposed permit to these people.20

These interested parties might include local civic associations, local

chapters of environmental organizations, trade union representatives,

recreational associations, and other groups likely to be affected by the

proposed activity. Mailings of this nature, combined with official government bulletins, notices in local newspapers and radio broadcasts, are

used to alert interested members of the public of a pending permit application. The agency is required to notify all communities and political

jurisdictions whose environment might be affected by a facility’s operation, not just those situated in the immediate vicinity of the plant.

Because permit applications and draft permits are technical in

nature, they may be difficult for non-experts to understand. Under US

permitting laws, non-technical documents called “fact sheets” are often

required.21 The fact sheets give a brief description of the discharges from

the facility, the proposed limitations on those discharges, and requirements for compliance and monitoring. They also include an explanation

of the rationale used in developing the proposed discharge limitations.

Fact sheets are required to be made available to the public, and are

176 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

20. 40 C.F.R. §124.10(c)(1)(ix).

21. 40 C.F.R. §124.8.
mailed to anyone who requests a copy. They provide, in less technical

form, much of the information upon which interested citizens base their

comments.

Notice of a proposed permit typically instructs members of the

public about how they can participate in subsequent phases of the permitting process. The notice includes a description of the procedures for

submitting comments on the permit, and the procedures for requesting a

public hearing. The names and addresses of the agency personnel responsible for the permit are also provided, along with directions about

how interested parties may obtain copies of the permit application, the

fact sheet, and other relevant documents.

The use of other types of notice beyond official government notice

is important in the context of permitting because of the greater impact a

permitting decision is likely to have on the communities affected by the

plant’s operation. And the use of supplemental forms of notice is even

more feasible in the permitting context since the geographic scope of a

permit is typically fairly small. Local newspapers and radio stations in

the United States are likely to be a community’s major source of information. Notice of a proposed permit will reach the greatest number of people in a community if it is published or broadcast through those media,

and permitting laws require or encourage their use.22

Timeliness

The agency usually must notify the public of its action as soon as

possible, and preferably before a final decision is made.23

Affordability

The methods discussed above, such as advertising the permit

application and mailing fact sheets or copies of the application are done

at no or minimal cost to the public.

3.2 Selected State Regulations and Policies

Permitting is carried out at the state level both under state programs which have been delegated authority to implement the federal

environmental statutes, and under state environmental statutes and

state administrative procedure regulations. Permits issued under state

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 177

22. 40 C.F.R. §124.10(c)(2)-(4).

23. 40 C.F.R. §124.10.
programs which implement the federal environmental statutes come

under the federal permitting requirements for public participation and

access to information described above. For permits which do not fall

under federal law, most states have some sort of notice requirement

which vary in the detail and nature of the information provided, and

which concern to whom notice must be provided and in what fashion.

Permitting rules and practices in Tennessee and New Jersey are fairly

typical examples of access to information during the permitting process

at the state level.

3.2.1 Tennessee

Legal Right of Access

Environmental permits in Tennessee are generally issued under

the federally delegated state environmental programs for air, water and

waste. Each division creates its own specific rules for involving the public in the permitting process. The public notice provides the name of the

company applying for the permit, the type of operation, and the contact

information for the governmental engineer assigned to prepare the permit. In the past few years, some citizens have complained that this was

not enough information and the air division, for one, changed its process

to provide more explanation. If the division receives a substantial

amount of comments, a public hearing will be scheduled.

Ease of Access

The notice is published in the local newspapers, while both the

notice and the draft permit are available for review at public depositories, which are usually local libraries around the state. There is no hotline

or toll-free number provided for interested persons; to discuss the proposed permit with the engineer or to receive more information, any

interested member of the public located outside the capital will have to

make a long-distance call. If detailed information on the process is

requested, this will only be available in Nashville. Any individual can

call the engineer for more information and will usually be able to get limited information over the telephone. Private citizens are usually given

more assistance than commercial consultants.

Timeliness

The comment period will be anywhere from 30 to 45 days, depending on the division.

178 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
Affordability

The cost of the requested material depends on how much information is requested and who asks for it. If an entire file is requested, the

individual will most likely be asked to come to the office in the Capitol or

to their local library/depository to review it in person and make copies

themselves, with a price per page.

3.2.2 New Jersey

Legal Right of Access

The New Jersey Water Pollution Control Act is an example of a state

environmental law with access to information requirements regarding

the permitting process.24 In general, any information obtained by the

government pursuant to this Act must be available to the public, with

the standard exemption for trade secrets. The Act explicitly provides for

notice and opportunity for public hearings in the case of every proposed

new permit, as well as for every proposed permit suspension, revocation

or renewal, or any substantial modification of a permit. Notice of all

modifications to a discharge permit must be published in the New Jersey

Department of Environmental Protection Bulletin.

4. PROPOSED REGULATIONS, POLICIES, PROGRAMS,

OR PLANS

4.1 Introduction

This section addresses the extent to which the public has access to

the environmental information about proposed regulations, policies,

programs, or plans. The section focuses on notice and comment

rulemaking procedures under the Administrative Procedure Act (APA).

Like the FOIA, these procedures apply beyond environmental

rulemaking, but they have been useful to citizens who wish to have

access to the governmental decision-making process.

In the United States, the APA prohibits formal decisions by governmental agencies that are “arbitrary and capricious.”25Under this provision, the courts have required that agencies be able to justify their

actions by producing a written “administrative record” of the documents that support the action. The administrative record must be availPUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 179

24. N.J. Statutes Annotated, Title 58, Chapter 10A (amended 1993).

25. 5 U.S.C. §706.
able for public scrutiny and for submission of relevant information by

the public. In addition, it is open to FOIA requests and must be made

available if the agency decision is challenged in court.

Sometimes a program for environmental regulation is so complex

that industry and citizens require help understanding it. The government may establish information offices to respond to questions from the

public about regulations. The US EPA has set up several telephone “hotlines” that industry and the public can call without charge to ask questions about regulatory requirements, as well as to request information

about governmental activities. In addition, the EPA has a Small Business

Ombudsman to answer questions from small businesses and to advocate the point of view of the small business community in agency proceedings.

4.2 Federal Regulations and Policies

Legal Right of Access

Notice and comment or legislative rulemaking is a particular

method of developing legally binding administrative rules. Notice and

comment rulemaking has become the most common method of enacting

rules in the United States. The APA, enacted in 1946, represents the first

comprehensive codification of administrative procedure in the United

States and governs, among other things, the process of notice and comment rulemaking applicable to federal agencies.26 Notice and comment

rulemaking requires the agency to notify the public of a proposed rule

by publishing it in the Federal Register and to consider written comments

submitted by the public before adopting a final rule.

Many of the notice and comment rulemaking requirements derive

from judicial interpretations of the APA, and are not found in the words

of the statute itself. In general, the law allows affected members of the

public to challenge regulations in court and allows courts to overturn

regulations if, among other issues, the agency fails to provide the public

with proper notice and opportunity to comment on regulations or fails

to consider significant public comments.

Access Policies

In 1993, President Clinton issued Executive Order 12866 regarding

regulatory planning and review. The Executive Order describes, in part,

180 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

26. See, 5 U.S.C. §706.
a regulatory review process designed to be more open and accessible to

public scrutiny. The President ordered his administration to make its

regulatory review process more accountable and open to public examination. The Office of Information and Regulatory Affairs is in charge of

implementation of the Executive Order. The goals of this office are to

increase public involvement in the rulemaking process by using informal means in addition to the more traditional formal means represented

by the notice and comment process.

The Clinton Administration also encouraged “negotiated

rulemaking” which involves interested parties directly in the rule drafting process, even before the notice period. By involving interested parties directly in drafting a rule, and by having them negotiate out some

areas of disagreement, the Administration expects the rule will be more

intelligently drafted and less contentious when proposed. Section 6 of

the Executive Order directs agencies to explore and use regulatory negotiation in order to develop rules more by consensus.

For other policies relevant to rulemaking, see the discussion of the

EPA’s Policy Statement on Public Participation in section 3.1.2 on access

to information with regard to licenses or permits for proposed projects.

Ease of Access

Publication of the proposed rule in the Federal Register is meant to

reach a wide public audience. Unless potentially interested parties are

made aware of a proposed rule, they will be unable to express their

views on it, and public participation in the rulemaking process will be

effectively defeated.

In the United States, proposed rules of federal agencies are published daily in the Federal Register, the official government publication

for this purpose. The Federal Register is reliable, timely, and accessible. It

is available in many public libraries and government offices, and it collects in a single place the government’s entire rulemaking agenda. But

the very breadth of the publication can make it large and unwieldy. In

fact, few ordinary citizens actually read the Federal Register, and the publication is used primarily by lawyers and regulated firms having a special interest in particular cases.

Individuals not only have a right to know what the government is

saying, they have a right to know what others are saying to the government. The APA bans one-sided discussions and provides for open dockPUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 181
ets where any individual can examine the administrative record to see

what other people have said about the proposed rule. Agencies keep

copies of comments received on proposed regulations in the open

docket, available for inspection at agency offices or through the use of

the FOIA. Agencies will often designate a contact person, whose name

and phone number are then printed with the draft and final rule in the

Federal Register, to field inquiries about the regulation. Comments on a

proposed rule, however, must be in writing and must be submitted during the declared comment period.

However, even with publication requirements in the Federal Register and in local newspapers, large segments of the local population will

not have access to information concerning proposed regulations. For

example, if a rule is going to affect a largely Central American population in New York, notice in the New York Times (the main daily newspaper) of the proposed rule will not be effective in informing the target

population. The information would need to be in Spanish and disseminated through other means than the printed news media. When dealing

with a largely Hispanic community, for example, the most effective way

to give notice is through Spanish-language radio stations.

Timeliness

The APA does not give a specific time limit within which notice of a

proposed rule must be published. However, because an agency cannot

proceed to issue a final rule until an opportunity has been given for the

public to comment, there is pressure for the agency to make the proposed rule available to the public as soon as possible. The agency is

required to allow sufficient time to receive and consider public

responses before it adopts the final version of a rule. In the United States,

comment periods usually last at least 30 days.

Affordability

Under most agency rulemaking procedures, documents are made

available to the public at minimum cost and the agency may waive or

reduce the costs in the public interest.27 Moreover, under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),

for example, EPA can award “technical assistance” grants to local community groups to allow them to receive expert advice that will help them

understand, and comment on, proposed government decisions.28

182 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

27. See, for example, Clean Air Act, 42 U.S.C. §7607 (d)(4)(A).

28. Technical Assistance Grants to Groups at National Priorities List Sites, 54 Fed. Reg.

49848 (1 Dec. 1989). Provided for in 42 U.S.C. §9617(e), CERCLA §117(e).
In the context of the open meetings principle of the Federal Advisory

Committee Act and other similar laws, funds can be made available by the

government for travel expenses and reasonable per diem expenses of citizen organizations in order to facilitate their participation.

4.3 Selected State Regulations and Policies

Most states have some version of notice and comment or legislative rulemaking provisions, either in their administrative procedure acts

or directly in their environmental statutes. In general, these provisions

do not differ greatly from the federal procedures outlined above. The

California Administrative Procedure Act provides an example of access to

information concerning proposed regulations at the state level.29

4.3.1 California’s Administrative Procedure Act

Legal Right of Access

In California every agency drafting a regulation must make the

proposal, and an initial statement of reasons for proposing the regulation, available to the public upon request. Notice of the proposed regulation must be mailed to every person who has filed a request for notice of

regulatory actions and may be mailed to any person whom the agency

believes to be interested in the proposed action. Notice of the proposed

regulation must also be published in the California Regulatory Notice

Register. Individual statutes can prescribe more stringent notice rules. In

addition to the full text of the proposed regulation, notice must include

the time, place, and nature of proceedings for adopting the proposed

regulation, the date by which comments are due, the name and telephone number of the agency officer to whom inquiries concerning the

proposed administrative action may be directed, as well as information

concerning related laws and regulations. The agency officer in charge of

the proposed regulation must also make available to the public upon

request the location of public records, including reports, documentation, and other materials related to the proposed action. The agency

must notify the public of changes to the proposed action at least 15 days

before the agency adopts the resulting regulation. Also, state agencies

may not add material to the record of the rulemaking proceeding after

the close of the public hearing or comment period, unless adequate provision is made for public comment on that matter.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 183

29. California Administrative Procedure Act, Government Code §11340 et seq.
Access Policies

The general policy for the access to information concerning proposed regulations in California is to encourage the widest possible

notice distribution to interested persons.

Ease of Access

The California APA has a requirement that proposed regulations

be written in “plain English” which means language that can be interpreted by a person who has no more than an eighth grade level of proficiency in English. If it is not possible to use plain English due to the

technical nature of the regulation, the agency is required to prepare a

non-controlling plain English summary of the regulation.

Every agency must maintain a file of each rulemaking, including

copies of petitions received from interested persons, all published

notices, the determination, all studies and supporting documentation,

and the minutes of any public hearing. The file must also contain an

index or table of contents that identifies each item contained in the

rulemaking file and must be available to the public.

Timeliness

The agency must give notice of the proposed regulation at least 45

days prior to the close of the public comment period on the proposed

regulation. At the time of the close of the public comment period, a public hearing will typically be scheduled.

Affordability

The California Office of Administrative Law must make the Regulatory Notice Register available to the public at a nominal cost only.

5. TOXICS RELEASE INVENTORY

5.1 Federal Regulations and Policies

Legal Right of Access

The Emergency Planning and Community Right-to-Know Act

(EPCRA) is aimed at informing local governments, emergency responders and the general public about environmental emergencies. The

184 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
EPCRA calls for the creation of state and local emergency preparedness

bodies to plan for and receive notice of accidental releases of hazardous

substances.30 Although Congress designated an initial list of substances

covered by this provision, the EPA can add substances to or subtract

them from the list, and can set the threshold amounts for all listed substances.

Any facility that possesses listed substances in excess of the threshold amounts must notify the local emergency planning body of their

existence and give immediate notice of any accidental releases. On

request of the state or local emergency planning bodies, facilities may be

required to submit more detailed information on the storage and use of

each individual chemical present.

Section 313 of the EPCRA requires the EPA to conduct an annual

Toxic Release Inventory (TRI) of 654 listed toxic chemicals released into

the environment by manufacturing operations of a certain size. Many of

the listed chemicals are not regulated by the EPA under any other program but nonetheless must be reported.

In addition to release amounts, the TRI requires detailed substance-specific information on amounts emitted into the air from fugitive, non-point, and point sources; discharged to a stream or to a public

wastewater sewage system; and released as hazardous waste to underground injection, off-site treatment facilities (e.g., recycling or incineration), and disposal (i.e., landfills or surface impoundments).

The EPCRA, Section 313, adds significant procedural strengths to

US public disclosure laws, especially in regard to restrictions on claims

of confidential business information or trade secrets. It requires strict

substantiation, including proof at the time a claim is submitted, that the

information really is secret, that there is provable competitive harm

which would result from disclosure, and that the substance in question

is one which a competitor could readily reverse-engineer. If a manufacturer is exempted from disclosing the identity of a substance, he or she

must nonetheless report his or her own identity, the general physical

and chemical character of the substance, and the amount released. The

EPCRA also provides heavy penalties for, and citizen suit opportunities

against, facilities that do not comply with TRI requirements.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 185

30. EPCRA §§301-304, 42 U.S.C. §11001-11004.
Access Policies

The government policies governing the public’s access to information required by the EPCRA are further developed in the EPA’s Pollution

Prevention Strategy, published in 1991. Under this strategy, the EPA has

set a series of pollution prevention goals for its work with the regulated

community. In order to implement these principles in its programs, the

EPA will use and expand upon EPCRA reporting requirements. In the

pollution prevention strategy, the EPA acknowledges the need for

“more and better” information on the environmental performance of

both consumer products and industrial facilities.

Ease of Access

The public can obtain copies of the information made available

under the EPCRA from the local emergency planning committee, which

must publish annual notices of availability. State and local governments

also can impose information disclosure requirements stronger than

those in federal law. However, the EPCRA establishes protection to prevent disclosure of trade secrets, such as information kept confidential by

a business that would be of commercial use to its competitors. One

exception to this trade secret protection guarantees health care professionals access to chemical information if needed for treatment or prevention of injuries. In non-emergency cases, however, the health care

professional must agree to protect trade secrets before gaining access to

the information. Companies required to report under the TRI must submit an annual report to the EPA indicating which listed chemicals they

use, how much they use, how their waste streams are treated, and how

much of each chemical is released into the environment, by medium

(e.g., air, water, soil). Each year, the EPA releases a summary of the TRI

information reported by the covered companies, including detailed

analyses and breakdowns of the TRI data. This report is also made publicly available.

The EPCRA directs the EPA to maintain TRI data on a computer

accessible database. The EPA’s TRI Reporting System is accessible to

anyone with a computer and a telephone modem, who has applied for

and received a user identification code through the National Library of

Medicine. With this code, any individual can access the database

through the Internet. By accessing the database, a citizen can quickly

obtain a report on which companies are discharging what chemicals in

what quantities to what media in any part of the country. Citizens without telephone access can purchase computer-readable copies of the

inventory, and those without computers can ask the EPA to search the

186 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
inventory for particular information. In addition, the TRI database is

available on microfiche or compact computer disc (CD-ROM) format at

over 4,000 locations around the country – many of them public libraries –

where people can go to use the database free of charge. A toll-free hotline

also exists to answer questions from the public about the TRI system,

conduct searches, and explain other aspects of the EPCRA.

The EPCRA also presents several challenges worth noting. First,

because it imposes an affirmative obligation on a large and constantly

changing group of companies to come forward with information, the

law can be difficult to enforce. How does the government or citizen

enforcer identify the small company that mis-reports or should be

reporting but is not? How do they find the company that under-reports

its discharges? Finally, the important improvements in accessibility

achieved by the EPCRA, Section 313, are significantly offset by the scope

of the inventory, which exempts or excludes important emissions information, especially from non-manufacturing facilities and for small

quantities of extremely hazardous substances.

A further challenge is presented by the general lack of public

awareness of TRI data availability, even in areas with high levels of

chemical emissions. The EPCRA does not require the EPA to implement

a public outreach program, but the lack of an EPA strategy for assessing

the informational needs of different sectors of the public hampers the

goal of ensuring public access to TRI data.

Timeliness

The requirement to make information publicly available through

telecommunications directly from the EPA-maintained computer database gives the public access to new data as soon as EPA has updated the

computer collection.

Affordability

As mentioned above, the availability of information from the TRI

through computer modem, on CD-ROM, in public libraries, through

hotlines and information requests makes it possible for almost any citizen to access the database at little or no charge. The statute specifies that

the information is available on a cost-reimbursable basis.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 187
5.2 Selected State Regulations and Policies

Approximately half of the states in the United States have

right-to-know laws.31 Disclosure of information is often based on environmental surveys of the facilities conducted by the government. These

surveys generally identify the conditions at the facility and chemicals

that may be dangerous to community residents if released into the environment; the information from these surveys is made available to the

public. These surveys may be conducted as a result of the statute or a

public request for information. Generally, trade secrets, privileged, or

confidential information is not available to the public. Most of these statutes, however, provide for an exception to this rule in the case of a medical emergency, requiring disclosure of chemical information if it is

needed for a physician to treat or diagnose an individual exposed to the

substance. The New Jersey Worker and Community Right-to-Know Act provides a good example of a state right-to-know law.32

5.2.1 New Jersey’s Worker and Community Right-to-Know Act

Legal Right of Access

The New Jersey Worker and Community Right-to-Know Act enables

state and local officials and individuals to find the answers to many

questions about complex pollution problems. Industries using hazardous chemicals must submit annual inventory reports about the presence

and movements of toxic substances to the US EPA, the New Jersey

Department of Environmental Protection or the state’s Local Emergency

Planning Committee. All inventory information is available to the public. Each year, every facility covered by the law must conduct an environmental survey of all the chemicals and conditions at the facility that may

be dangerous to community residents if released into the environment.

These surveys are detailed reports about the amounts, hazards, and

locations of specific substances at the facility. The New Jersey Department of Environmental Protection has developed a list of hazardous

substances covered by the law.

188 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

31. The following states have right-to-know laws: California, Connecticut, Delaware,

Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Missouri, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon,

Pennsylvania, Rhode Island, Vermont, Washington, West Virginia and Wisconsin.

32. N.J. Stat. Ann. §§34:5A-1 to 34:5A-31 (West 1988 & Supp. 1990).
Ease of Access

Facilities must submit these surveys to the local police department,

local fire department, local emergency planning committee, a designated county agency and the New Jersey Bureau of Hazardous Substances Information. The law requires the New Jersey Department of

Environmental Protection to establish a central file for all the surveys

they receive.

If a citizen challenges information which is deemed to fall within

the exceptions for disclosure, the New Jersey Department of the Environment will ask the facility to show them why the information should

be shielded from public disclosure. If the facility does not give them sufficient or proper reason, the New Jersey Department of the Environment

may disclose the information to the person who requested it. In very limited circumstances, such as a medical emergency, the New Jersey

Department of the Environment will disclose this information to health

professionals who need access to the information to deal with the emergency. In almost all cases, the law requires that these health professionals enter into an agreement not to disclose the confidential information.

The public may obtain right-to-know information from several

sources in New Jersey. One source is the New Jersey Department of the

Environment. Information is obtained simply by sending a written

request to their Bureau of Hazardous Substance Information. By clearly

specifying the type of information requested, requests will be sped up.

At the very least, requesters should identify the name and location of the

facility about which they are requesting information. Another source of

this information is the county-lead agency. The Worker and Community

Right-to-Know Act provides funding to a designated agency in each

county, usually the county health department. Each county-lead agency

has a Right-to-Know Coordinator who responds to requests for information and assists facilities in complying with the law.

Timeliness

The New Jersey Department of the Environment will respond to a

citizen’s request for information within 30 days.

Affordability

The New Jersey Department of the Environment will not charge if

the information requested is less than 50 pages of material. If the request

is larger than 50 pages, there is a charge of ten cents per page.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 189
6. ENFORCEMENT AND COMPLIANCE ACTIONS

Access to information is the only way that the federal government

allows citizens to participate in governmental decisions to enforce environmental laws. The US common law doctrine of prosecutorial discretion denies citizens a voice in agency decisions on whether and when to

use governmental enforcement power.33 To preserve citizens’ participatory rights and supplement agencies’ enforcement capabilities, Congress established separate citizen enforcement rights, which now exist in

most of the major environmental statutes in the form of citizen suit provisions. For citizen suits to be practical, members of the public must have

access to accurate information about the compliance status of regulated

entities. Accurate information requires that the data be collected and

provided to the government by regulated facilities and that the government provide the data to members of the public on request.

Because the regulated community is so large, the most effective

way for the government to gather environmental data is to have the regulated parties monitor their own discharges and inspect their own facilities. Regulated parties must then submit regular, detailed reports of

monitoring results to federal and state agencies and must keep records

of their monitoring results. Because the monitoring reports of regulated

entities generally are sworn statements, reports that show violations are

usually enough to prove liability in enforcement suits, either by the government or by private individuals. Most US environmental statutes have

these monitoring, inspection,record keeping and reporting requirements.

The EPA collects this information and maintains a computer database

which also includes enforcement information. Aside from certain exceptions, the enforcement information is also accessible for private individuals and allows them to monitor the compliance status of regulated

facilities and enforcement actions of the government. Under the Freedom

of Information Act and various state open records laws, members of the

public also have a right to examine reports of regulated parties and government inspectors; and the Emergency Planning and Community

Right-to-Know Act requires regulated entities to collect and issue reports

about their discharges, which can then be used to document violations.

6.1 Federal Regulations and Policies

6.1.1 Citizen Enforcement Suits

In the United States, most environmental statutes contain citizen

suit provisions enabling citizens to prosecute violators of statutory

190 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

33. See Heckler v. Chaney, 470 U.S. 821, 830-31 (1985). (An agency’s decision not to prosecute or enforce is generally committed to an agency’s absolute discretion).
requirements. Citizen suit provisions have been used to enforce federal

regulations in diverse areas ranging from antitrust to consumer protection. Citizen suit provisions are said to create private attorneys general,

for they confer upon individuals the right to enforce public laws against

other entities, either public or private.

The US Clean Air Act (CAA), enacted in 1970, was the first federal

environmental statute of the modern era with a citizen suit provision.34

The CAA citizen suit provision is the basis for similar clauses in almost

every other major piece of federal environmental legislation. Today, any

person can bring a lawsuit against private parties or the government for

violations of certain sections of statutes regulating air, water, toxic

waste, endangered species, mining, noise, the outer continental shelf

and more. Under many statutes, the remedies available to the citizen are

equivalent to those granted to the federal agency charged with administering the statute, including the recovery of attorney fees.

The typical citizen suit provision permits “any person” (including

an individual, organization or corporation) to sue any other person

(including the United States) who is violating the requirements of a statute. The citizen can use information gained through discovery, or

through FOIA requests, such as discharge monitoring reports. Discharge monitoring reports are often accepted by courts as definitive

proof of a violation, because they are written and filed by the alleged violator. The right-to-know statutes and the Toxics Release Inventory have

also helped citizens identify and prove environmental violations.

Before filing a suit, a citizen must notify state and federal agencies

as well as the alleged violator that a lawsuit is pending. As long as the

violation continues past the time of the notice and the state or federal

government is not pursuing a “diligent enforcement” action against the

alleged violator in court, a lawsuit may be filed by the citizen after 60

days. Once the suit is filed, the government has no power to dismiss it

and may affect the outcome only by intervening in the case. If the citizen

wins, the court may order the defendant to stop the violating activities.

In certain circumstances, the court may award the plaintiff the court

costs and attorney fees associated with bringing the action. Some statutes allow the plaintiff to ask the court to impose civil penalties on the

violator, payable to the US Treasury.

Many citizen suits are resolved by negotiated settlements rather

than by trials. Courts have the authority to approve settlements which

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 191

34. 42 U.S.C. §7604(a), CAA §304(a) (citizen suit judicial enforcement).
they find to be reasonable, adequate and in the public interest. To ensure

that settlements are effective in causing defendants to comply with the

law, most citizen suit plaintiffs insist that settlements be as easy to

enforce as possible. Many settlements are “consent decrees” which, on

approval of the court, become enforceable as court orders. When the

government is party to a lawsuit, environmental laws sometimes

require notice to the public of proposed settlements and opportunities

for public comment.35 The public notice requirements do not apply to

citizen suit settlements.

6.1.2 Information from the Regulated Community: Monitoring and

Reporting Requirements

Legal Right of Access

Successful enforcement of pollution standards requires, among

other things, available evidence of whether a source is complying with

the set standards. Experience in the United States suggests that

self-monitoring and disclosure requirements are powerful enforcement

tools.

Almost every US pollution control law requires regulated industries to monitor their pollution discharges regularly and to keep records

of their monitoring data and other information relating to their polluting

activities.36 These laws require that the records either be provided periodically to the government or be available for inspection by the government on demand. In most cases, the laws provide for public access to any

such records in the government’s possession, so long as the records do

not reveal trade secrets or other confidential business information. Even

if the law lacks explicit public access language, government-held

records, including those generated by private individuals, still may be

available to the public through the FOIA, as discussed above. Usually,

the government or the industry bears the burden of proving that the data

should not be available to the public.

192 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

35. See, RCRA, 42 U.S.C. §6973(d) (when the United States seeks to settle certain claims

it must provide “notice and an opportunity for a public meeting in the affected

area, and a reasonable opportunity for comment...”). See, also 40 C.F.R.

§271.16(d)(2)(iii)(1994) (states generally must provide at least 30 days for public

comment on all proposed settlements of RCRA civil enforcement actions).

36. Examples of US environmental laws with monitoring and record keeping requirements include the Clean Air Act, the Federal Insecticide, Fungicide, and Rodenticide

Act, the Surface Mining Control and Reclamation Act, Toxic Substances Control Act, the

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund),

and the Federal Water Pollution Control Act.
In the United States, self-monitoring and record keeping laws are

indispensable to governmental enforcement programs because the government does not have the resources to monitor all regulated industries

itself. In addition, these laws can serve an important function in citizen

enforcement. Public access to such compliance records allows citizens to

identify regulated industries that are violating the law. With this information, citizens can notify the governmental enforcement officials and

encourage them to take enforcement action. Citizens can also publicize

the violations, using public pressure to force the industry to correct its

violations.

In the United States, the Clean Water Act is generally considered to

be the model for the use of self-monitoring.37 This Act outlaws all discharges of pollutants into surface waters without a permit from the federal or state government. The permits contain clearly stated discharge

limits and other conditions, and either the government or citizen plaintiffs can go to court to enforce the permits. Under the Clean Water Act, the

public is guaranteed access to the information collected by the government.

Ease of Access

Again using the Clean Water Act as a model, the government can

specify what sort of monitoring, sampling, and record keeping a permit

holder must undertake.38 The Clean Water Act guarantees public access

to any permit and to any records, reports, or information that the government obtains from a permit holder, except for trade secrets. Coupled

with the Act’s citizen suit provisions, these information access provisions allow citizens to seek relatively quick relief against violators. A citizen need only obtain copies of the polluter’s permit and the discharge

monitoring reports (DMRs) to see if the discharges have exceeded the

amounts allowed by the permit. If violations have occurred, the DMRs

can be used as evidence against the polluter in court.

To ensure that the monitoring reports are accurate, the government not only has access to a permit holder’s records, but also has broad

inspection powers. These powers include the right to enter a permit

holder’s private property without advance notice, to inspect monitoring

equipment and facility operations, and to take samples of effluents. This

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 193

37. The Federal Water Pollution Control Act, 42 U.S.C. §1318, states that any records,

reports, or information obtained under this section shall be available to the public,

with an exception for trade secrets.

38. 42 U.S.C. §1342(i), CWA §402(i).
authority, combined with stiff criminal, civil, and administrative penalties for violation of monitoring and reporting requirements, encourages

thorough and accurate record keeping by all permit holders.

Timeliness

By EPA regulation, Clean Water Act permit holders must file

monthly DMRs with the government, as well as notices of noncompliance if the monitoring indicates a violation.

Noncompliance serious enough to threaten health or the environment must be reported to the government within twenty four hours.

6.1.3 Accessing Information from the Government

Most environmental statutes contain requirements for public

access to information concerning enforcement and compliance. For

example, under the Clean Water Act, before issuing an order assessing a

civil penalty, the EPA shall provide public notice of, and reasonable

opportunity to comment on the proposed issuance of the order.39 Any

person who comments on a proposed penalty assessment shall be given

notice of any hearing held and of the final order assessing the penalty.

Enforcement-related environmental information is kept by the

EPA in a series of databases. These databases are divided into enforcement sensitive and non-sensitive sections. Enforcement sensitive data

are those records which the agency is currently using in order to maintain an enforcement action against a specific facility. At the moment, the

easiest way for an individual to access these databases is through the

nongovernmental organization OMB-Watch (Office of Management

and Budget-Watch), which has access to all of these databases and uses

this access to assist citizens who are in need of information. OMB-Watch

is a non-profit organization which monitors federal agencies in the

United States. It maintains a computer access system to information held

by the EPA. The public must register with OMB-Watch to receive a user

identification number and a manual, which are sent within one week.

The access is free if the public calls OMB-Watch directly or can be gained

through Internet.

In addition to the Toxics Release Inventory discussed above, other

examples of the EPA’s various databases relevant to finding environ194 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY

39. 42 U.S.C. §1319(4) on rights of interested persons.
mental compliance and enforcement information are the following: The

Facility Index System (FINDS) provides information on the location of

facilities regulated by the EPA. This information is updated by the various EPA program offices and is available to the public through the governmental agency National Technical Information Service (NTIS). The

NTIS can provide a member of the public with an EPA mainframe user

identification number. The FINDS system is located on the mainframe

and there is no charge to obtain this access number. The NTIS can also

provide the data contained in FINDS on magnetic tapes for which is

charged an at-cost fee. Other than the NTIS, the public can obtain access

to FINDS by writing a FOIA request specifying the subject matter of

interest in FINDS.

The Aerometric Information Retrieval System (AIRS) contains

enforcement information on all facilities which are permitted under the

Clean Air Act. The data on air quality and pollution emissions is collected

from state and local agencies. The information on AIRS includes a facility’s name, address, a quarterly report on the facility’s current compliance status, and a listing of enforcement actions taken at the facility both

by the state and by the EPA. The report for each facility also tallies the

number of violation notices issued and administrative actions taken at

the facility for the past two years. In order to obtain access to AIRS, one

must apply for a user identification number through the National Technical Information Service (NTIS). Once a user number is obtained, an

account is set up and on-line access to the database is available through

the EPA mainframe. There is a US $15 fixed monthly fee in addition to a

charge for actual computer time. FOIA requests can also be used to

access the information in the AIRS database.

The Resource Conservation and Recovery Information System

(RCRIS) is a national program management and inventory system of

RCRA hazardous waste handlers. Handlers are characterized as fitting

one or more of the following categories: treatment, storage and disposal

facilities (TSDFs); large quantity generators (LQGs); small quantity generators (SQGs); and transporters. The RCRIS captures identification and

location data for all handlers and a wide range of information on TSDFs

regarding permit or closure status, compliance with federal and state

regulations, and cleanup activities. Although there are no means for

direct access to this database by the general public, various forms of the

RCRIS are available in its non-sensitive format. These can be obtained

through FOIA requests which generate RCRIS reports in print. The first

US $25 of copies are free, after which there is a charge of 15 cents per

page. The RCRIS can also be accessed through the NTIS, which provides

data type in the form of magnetic tapes with non-sensitive information

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 195
through an annual subscription of US $1,700. Certain limited versions of

the RCRIS are also accessible through the Internet by using GOFER, FTP,

or the World Wide Web. The charge for this access is the subscription fee

charged by whichever channel is used.

The Comprehensive Environmental Response, Compensation,

and Liability Information System (CERCLIS) contains information on

abandoned or uncontrolled hazardous waste sites. In addition, the database contains information on pre-remedial actions such as the discovery

date and the completion date of a preliminary assessment, site inspection, and the date of final hazardous ranking determination. Of the sites,

over 1,200 are listed on the National Priority List (NPL). CERCLIS also

contains information such as a description of the NPL site, owner/generator information, regulatory and response history, waste description,

environmental impact information, water use information, and the

remedial events occurring at the NPL sites. Data is collected concerning

the inventories, assessments, and cleanup of uncontrolled hazardous

waste sites. EPA headquarters and regional offices maintain the data

in CERCLIS databases. This information is only available in a

non-sensitive format by informal request or through a FOIA request.

6.2 Selected State Regulations and Policies

In the United States, the EPA has a primary responsibility for

implementing programs under most of the US environmental statutes

and must report on its successes and failures to Congress. Most environmental statutes allow the EPA to delegate primary regulatory responsibility to the states, although the EPA remains ultimately accountable to

Congress. States, therefore, take the lead in most direct compliance and

enforcement activities and also take on specific responsibilities for providing the EPA with the information necessary to oversee and evaluate

state activities and national program implementation. The information

provided by the states to the EPA under the oversight requirements is

available to the public on request under the federal FOIA and under a

state’s open records laws and policies. States typically provide reports

on general enforcement and compliance records which include information on inspections, permit reviews, violations, and judicial cases filed.

Reports are required anywhere from quarterly to yearly. In addition,

many state environmental statutes contain specific provisions concerning public access to information during enforcement proceedings. The

New Jersey Water Pollution Law provides a good example of a state law

containing provisions for access to information concerning environmental enforcement.

196 NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
6.2.1 The New Jersey Water Pollution Law

Legal Right of Access

Under the New Jersey Water Pollution Law, the government must

provide an opportunity to the public to comment on a proposed administrative consent order prior to its final adoption if it would establish

interim enforcement limits that relax effluent limitations established in a

permit or a prior administrative order.

Ease of Access

The notice must include a summary statement describing the

nature of the violation necessitating the administrative consent order

and its terms or conditions. It must also specify how more information

on the administrative consent order may be obtained and to whom written comments may be submitted. Before any final action is taken, the

agency must notify everyone who submitted written comments and

include a response to those comments.

Timeliness

The comment period may not be less than 30 days after the date of

publication of the notice.

PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 197