The Escazú Agreement on access to information on environmental and other related matters

According to a new research on climate change, while the worst consequences of rising global temperatures may still be years away, the crisis caused by man-made greenhouse gas emissions has already begun. With each passing year, global average temperatures have continued to climb along with increased levels of carbon dioxide. This is evidenced by the following:

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In fact, climate change is already becoming visible in more frequent occurrences of secondary perils such as flash floods, droughts and forest fires. Natural disaster risks are increasing, and climate change will significantly exacerbate them. This underlines the urgency to better protect our communities against catastrophic losses while dramatically reducing carbon emissions. Unless mitigating measures are taken, such as greening the global economic recovery, the cost to society will increase in the future.

Swiss economist, Jérôme Haegeli

Dwindling levels of oxygen in lakes around the world that threaten various species of marine life. Since 1980, oxygen levels at the surface of freshwater lakes and in deep water have dropped 5.5 percent and 18.6 percent respectively;

More than one-third of all deaths from heat are attributable to climate change. The highest percentages of heat deaths caused by climate change were in cities in South America;

Wildfires are getting worse, increasing eight to ten-fold in the past four decades due mainly to climate change. Wildfire smoke accounted for up to half of all health-damaging small-particle (d) (e) pollution in the western United States in recent years;

Glaciers are melting, resulting in roughly 328 billion tons of meltwater being added to the world’s oceans each year; and

Storms and hurricanes are becoming more frequent and costly. Last year was the sixth consecutive year in which ten or more billiondollar disaster events occurred in the United States.

In today’s article, we highlight the key provisions of the Escazú Agreement on access to information on environmental and other related matters. The official name of the Agreement is “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in the Latin America and the Caribbean”. It was prepared in Escazú, Costa Rica on 4 March 2018 under the auspices of the United Nations and was signed by 33 countries, including Guyana, during the period 27 September 2018 to 26 September 2020 in New York.

The Agreement came into force on 22 April 2021 after the eleventh instrument of ratification, acceptance, approval or accession was deposited at the United Nations. It is the only binding one arising from the United Nations Conference on Sustainable Development in Rio de Janeiro, Brazil in 2012. It is also the first regional environmental agreement in Latin America and the Caribbean and the first in the world to contain specific provisions on human rights in environmental matters.

The Agreement reaffirms Principle 10 of the of the 1992 Rio Declaration on Environment and Development which states that:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Objective of the Agreement

The objective of the Agreement is to guarantee: (i) the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information; (ii) public participation in the environmental decision-making process and access to justice in environ

mental matters; and (iii) the creation and strengthening of capacities and cooperation, contributing to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.

General provisions

Each party to the Agreement shall, among others:

(a) Guarantee the right of every person to live in a healthy environment and any other universallyrecognized human right;

(b) Ensure that the rights recognized in the Agreement are freely exercised;

Generation and dissemination of environmental information

(c) Adopt the necessary legislative, regulatory, administrative or any other mechanisms to guarantee the implementation of the provisions of the Agreement;

(d) Provide the public with information to facilitate the acquisition of knowledge on access rights;

(e) Ensure that guidance and assistance is provided to the public — particularly those persons or groups in vulnerable situations — in order to facilitate the exercise of their access rights; and

(f) Guarantee an enabling environment for the work of persons, associations, organizations or groups that promote environmental protection, by rec ognizing and protecting them.

Access to environmental information

Each Party shall ensure the public’s right of access to environmental information in its possession, control or custody, in accordance with the principle of maximum disclosure. This includes: (i) requesting and receiving information from the competent authorities without mentioning any special interest or explaining the reasons for the request; (ii) being informed promptly whether the requested information is in possession or not of the competent authority receiving the request; and (iii) being informed of the right to challenge and appeal when information is not delivered, and of the requirements for exercising this right. Right of access shall include facilitating access for persons or groups in vulnerable situations, especially indigenous peoples and ethnic groups, and establishing procedures for the provision of assistance.

The competent authorities are to respond to requests for environmental information as quickly as possible and within a period not longer than 30 business days from the date of receipt of the request, or less if so stipulated in domestic legislation. Access to information may, however, be refused in accordance with domestic legislation. In cases where there is no domestic legal regime of exceptions, disclosure may be denied if the release of the information would: (i) put at risk the life, safety or health of individuals; (ii) adversely affect national security, public safety or national defence; (iii) adversely affect the protection of the environment, including any endangered or threatened species; or (iv) create a clear, probable and specific risk of substantial harm to law enforcement, prevention, investigation and prosecution of crime.

An important aspect relates to the establishment or designation of one or more impartial entities or institutions with autonomy and independence to promote transparency in access to environmental information, to oversee compliance with rules, and monitor, report on and guarantee the right of access to information.

Each Party must ensure that the competent authorities generate, collect, publicize and disseminate environmental information relevant to their functions in a systematic, proactive, timely, regular, accessible and comprehensible manner. The information is to be periodically updated, disaggregated and decentralised at the subnational and local levels. These agencies are also to ensure that the information is reusable, processable and available in formats that are accessible; and no restrictions are to be placed on its reproduction or use.

Additionally, one or more up-to-date environmental information systems are to be put in place containing, among others:

(a) Texts of treaties and international agreements, as well as environmental laws, regulations and administrative acts;

(b) Reports on the state of the environment;

(c) List of public entities competent in environmental matters and, where possible, their respective areas of operation;

(d) List of polluted areas by type of pollutant and location;

(e) Information on the use and conservation of natural resources and ecosystem services;

(f) Scientific, technical or technological reports, studies and information on environmental matters produced by academic and research institutions, whether public or private, national or foreign;

(g) Climate change sources aimed at building national capacities;

(h) Information on environmental impact assessment processes and on other environmental management instruments, including environmental licences or permits granted by public authorities;

(i) Estimated list of waste by type and, when possible, by volume, location and year; and

(j) Information on the imposition of administrative sanctions in environmental matters.

A pollutant release and transfer register is to be established covering air, water, soil and subsoil pollutants, as well as materials and waste. The register is to be updated periodically.

National environmental report

Each Party is required to publish and disseminate at regular intervals, not exceeding five years, a national report on the state of the environment. The report may contain the following:

(a) Information on the state of the environment and natural resources, including quantitative data, where possible;

(b) National actions to fulfil environmental legal obligations;

(c) Advances in the implementation of the access rights; and

(d) Collaboration agreements among public, social and private sectors.

The public may be invited to contribute to the report. Independent environmental performance reviews are also to be encouraged, taking into account nationally or internationally agreed criteria and guides as well as common indicators in order to evaluate the efficacy, effectiveness and progress of national environmental policies in fulfilling national and international commitments.

Environmental information in concessions, contracts etc.

Each Party shall promote access to environmental information contained in concessions, contracts, agreements or authorizations granted and involving the use of public goods, services or resources. This includes ensuring that consumers and users have official, relevant and clear information on the environmental qualities of goods and services and their effects on health. Necessary measures are to be taken to promote access to environmental information in the possession of private entities, in particular information on their operations and the possible risks and effects on human health and the environment. Public and private companies, particularly large companies, are also to be encouraged to prepare sustainability reports that reflect their social and environmental performance.

Public participation in the environmental decision-making process

Each Party shall ensure the public’s right to participation by implementing open and inclusive participation in environmental decision-making processes. This requirement is especially relevant for projects and activities having a significant impact on the environment as well as on health, and requiring the grant of environmental permits.

The public must be informed in an effective, comprehensible and timely manner of the following:

(a) Type or nature of the environmental decision under consideration;

(b) Authority responsible for making the decision and other authorities and bodies involved;

(c) Procedure foreseen for the participation of the public, including the date on which the procedure will begin and end, mechanisms for participation and the date and place of any public consultation or hearing; and

(d) Public authorities involved from which additional information on the environmental decision under consideration can be requested and the procedure for requesting information.

(e) Area of influence and physical and technical characteristics of the proposed project or activity;

(f) Main environmental impacts of the project or activity and the cumulative environmental impact;

(g) Measures foreseen with respect to those impacts;

(h) Public reports and opinions of the involved entities addressed to the public authority relating to the project or activity under consideration;

(i) Available technologies to be used and alternative locations for executing the project or activity subject to assessment; and

(j) Actions taken to monitor the implementation and results of environmental impact assessment measures.

Access to justice in environmental matters

Each Party shall ensure access to judicial and administrative mechanisms to challenge and appeal, with respect to: (i) any decision, action or omission relating to the access to environmental information or public participation in the decision-making process; and (ii) any other decision, action or omission that affects or could affect the environment adversely or violate laws and regulations related to the environment. Where appropriate, alternative dispute resolution mechanisms in environmental matters, such as mediation, conciliation or other means that allow such disputes to be prevented or resolved, are to be promoted.

Human rights defenders in environmental matters

Each Party shall guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity. Adequate and effective measures are to be taken to recognize, protect and promote all the rights of human rights defenders in environmental matters, including their right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement, as well as their ability to exercise their access rights.

To be continued