On October 19, 2020, Law No. 27,566 was published in the Official Gazette of the Argentine Republic, which approved the Regional Agreement on Access to Information, Public Participation, and Access to Justice in Environmental Matters in Latin America and the Caribbean (hereinafter, “the Agreement”) signed in the City of Escazú, Republic of Costa Rica, on March 4, 2018.
The objective of the Agreement is to ensure the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in environmental decision-making processes, and access to justice in environmental matters, as well as the creation and strengthening of capacities and cooperation, contributing to the protection of the right of every person, and of present and future generations, to live in a healthy environment and to sustainable development.
Below we will analyze the most important points of the Agreement.
Access to environmental information:
With respect to accessibility to environmental information, each Party shall guarantee the public’s right to access environmental information in its possession, control, or custody, in accordance with the principle of maximum disclosure.
The exercise of the right of access to environmental information includes:
- Request and receive information from the competent authorities without mentioning any special interest or justifying the reasons for the request;
- To be informed promptly as to whether or not the requested information is in the possession of the competent authority receiving the request;
- Be informed of the right to challenge and appeal the non-delivery of information and the requirements for exercising that right.
Denial of access to environmental information:
When the requested information, or part of it, is not provided to the applicant because it falls within the exceptions regime established by national legislation, the competent authority must communicate the denial in writing, including the legal provisions and reasons justifying this decision in each case, and inform the applicant of their right to challenge and appeal it.
Access to information may be denied in accordance with national legislation. In cases where a Party does not have an exceptions regime established in its national legislation, it may apply the following exceptions:
- When making information public could put the life, safety or health of a natural person at risk;
- When making information public would negatively affect national security, public safety, or national defense;
- When making information public would negatively affect the protection of the environment, including any threatened or endangered species;
- When making information public poses a clear, probable, and specific risk of significant harm to law enforcement or the prevention, investigation, and prosecution of crimes.
It is important to note that the Agreement establishes that when the information contained in a document is not exempt in its entirety, the non-exempt information must be provided to the requester.
Public participation in environmental decision-making processes:
The Agreement establishes that each Party must ensure the right to public participation and, to this end, undertakes to implement open and inclusive participation in environmental decision-making processes, based on domestic and international regulatory frameworks. Public participation mechanisms will also be guaranteed in decision-making processes, reviews, re-examinations, or updates related to projects and activities, as well as in other environmental authorization processes that have or may have a significant impact on the environment, including those that may affect human health. This will be carried out in relation to environmental matters of public interest, such as land use planning and the development of policies, strategies, plans, programs, standards, and regulations that have or may have a significant impact on the environment.
The public shall be informed in an effective, understandable, and timely manner, through appropriate means, which may include written, electronic, or oral media, as well as traditional methods, at a minimum about:
- The type or nature of the environmental decision involved and, where appropriate, in non-technical language;
- The authority responsible for the decision-making process and other authorities and institutions involved;
- The procedure provided for public participation, including the start and end dates, the mechanisms provided for such participation, and, where appropriate, the locations and dates of public consultation or hearing;
- The public authorities involved that may be required to provide further information regarding the environmental decision in question, and the procedures for requesting such information.
The Agreement further states that the public’s right to participate in environmental decision-making processes shall include the opportunity to submit comments by appropriate and available means, according to the circumstances of the process. Before adopting a decision, the relevant public authority shall give due consideration to the outcome of the participation process.
Access to justice in environmental matters:
The Agreement states that each Party shall ensure, within the framework of its national legislation, access to judicial and administrative bodies to challenge and appeal, on the merits and procedures of: Any decision, action, or omission related to access to environmental information; any decision, action, or omission related to public participation in environmental decision-making processes; and any other decision, action, or omission that adversely affects or may adversely affect the environment or contravene legal norms related to the environment.
To guarantee the right of access to justice in environmental matters, each Party, taking into account its circumstances, shall have: Competent State bodies with access to specialized environmental expertise; effective, timely, public, transparent, impartial, and non-prohibitive procedures; broad legal standing to bring proceedings in defense of the environment, in accordance with national legislation; the possibility of instituting precautionary and provisional measures to, among other purposes, prevent, halt, mitigate, or restore damage to the environment; measures to facilitate the production of evidence of environmental damage, where appropriate and applicable, such as the reversal of the burden of proof and the dynamic burden of proof; mechanisms for timely enforcement and compliance with relevant judicial and administrative decisions; and mechanisms for reparation, as appropriate, such as restitution to the state prior to the damage, restoration, compensation or payment of a financial penalty, satisfaction, guarantees of non-repetition, assistance to affected persons, and financial instruments to support reparation.
