Background and Methodology

Environmental Democracy Background

Environmental democracy is rooted in the idea that meaningful public participation is critical to ensure that land and natural resource decisions adequately and equitably address citizens’ interests. At its core, environmental democracy involves three mutually reinforcing rights:

1. the right to freely access information on environmental quality and problems
2. the right to participate meaningfully in decision-making
3. the right to seek enforcement of environmental laws or compensation for harm.

Protecting these rights, especially for the most marginalized and vulnerable, is the first step to promoting equity and fairness in sustainable development. Without essential rights, information exchange between governments and the public is stifled and decisions that harm communities and the environment cannot be challenged or remedied. Establishing a strong legal foundation is the starting point for recognizing, protecting and enforcing environmental democracy.

The international community first recognized these rights as part of Principle 10 of the 1992 Rio Declaration on Environment and Development, which 178 governments signed. The legally binding Aarhus Convention, established by the UN Economic Commission for Europe (UNECE) in 1998, now has 47 ratifying parties (46 countries and the European Union). The Aarhus Convention defines minimum standards and obligates parties to the convention to implement these rights. It also creates a compliance mechanism that is accessible to citizens from the countries that are parties to the convention.

While these rights are broadly acknowledged to be central to responsive, fair, and effective environmental governance, the extent to which countries have established them through laws and regulations has yet to be systematically measured. If environmental democracy is to serve sustainable development, rights of access to information, participation, and justice on environmental matters need to be recognized and established by the laws of a country. Measuring the extent to which the laws of a country establish and recognize environmental democracy rights is essential to an understanding of whether these rights have true force. “Measuring the extent” means not merely determining whether laws exist, but the breadth of their coverage across the range of environmental decision making processes and how proactively they address barriers and constraints to the public’s fulfilling these rights. These could include requirements for timely information release, for public participation at the earliest stages of decision making (rather than late-stage consultation), and to ensure the public can challenge the effectiveness government agencies if enforcement of the law is lacking.

The Environmental Democracy Index was developed by The Access Initiative (TAI) and World Resources Institute (WRI) in collaboration with partners around the world. The index evaluates 70 countries, across 75 legal indicators, based on objective and internationally recognized standards established by the United Nations Environment Programme’s (UNEP) Bali Guidelines. EDI also includes a supplemental set of 24 limited practice indicators that provide insight on a country’s performance in implementation. The national laws and practices were assessed and scored by more than 140 lawyers around the world. Country assessments were conducted in 2014 and will be updated every two years. Scores are provisional until September 15th, 2015 as results are being shared with governments and civil society for feedback until July 15. 

EDI is a unique online platform that aims to raise awareness, engage audiences and strengthen environmental laws and public engagement. It includes:

• In-Depth Country Information. The platform provides in-depth information and scoring for 70 countries, including a summary of strengths and areas for improvement, and contextual information to help users better understand the economic and demographic situation of a country.
• Country Comparisons. EDI allows users to compare countries’ performances at multiple levels and download data on environmental democracy measures.
• Rankings. Countries around the world are ranked on their national laws according to their progress in legislating environmental democracy.
• Government Feedback. To promote a collaborative dialogue around environmental democracy, each country page provides a space for the government to respond to their country’s scores. All countries in the index will be given the opportunity to respond to their individual assessment. Feedback is expected until July 15 and scores will be final as of September 15th, 2015.
• Public and Civil Society Engagement. EDI is a powerful tool that will increase transparency around environmental laws. The country assessments involved extensive consultation and input from civil society. The platform creates a free, public space for sharing information and dialogue. 

Methodology

EDI measures the degree to which countries have enacted legally binding rules that provide for environmental information collection and disclosure, public participation across a range of environmental decisions, and fair, affordable, and independent avenues for seeking justice and challenging decisions that impact the environment. In addition to the legal index, EDI contains a separate and supplemental set of indicators that provide key insights on whether environmental democracy is being manifested in practice. 

WRI developed the EDI indicators using the framework of the 2010 UNEP Bali Guidelines to enable governments, civil society, and other stakeholders to benchmark national legislation against internationally recognized voluntary guidelines. The UNEP Bali Guidelines consist of 26 total guidelines organized under each “pillar”—with seven guidelines each for access to information and public participation and 12 guidelines for access to justice. The guidelines unpack Principle 10 with specific guidance drawing on a body of good practice and norms developed through the experience of the Aarhus Convention and by legal advocates. Unlike the Aarhus Convention, the Bali Guidelines are voluntary. However, they represent the first time that several nations outside of the UNECE region have agreed upon specific guidelines on Principle 10 that deal with issues of cost, timeliness, standing, the quality of public participation, and several other issues on which it can be more difficult to achieve government consensus.

EDI Legal Indicator Scoring

The EDI legal indicators assess laws, constitutions, regulations and other legally binding, enforceable, and justiciable rules at the national level. The scope of the first EDI assessment specifically includes:

• The Constitution and interpretations of the Constitution by competent bodies (e.g. The Supreme Court or Constitutional Court)
• The main national freedom-of-information law, public participation law and access to justice law (including access to administrative justice), if these exist
• The apex environmental management law
• Laws and regulations governing pollution control (including air and water quality laws), environmental impact assessments, terrestrial biodiversity (protected areas and wildlife), extractive industries, and forests
• Laws governing the creation of environmental policies
• Interpretations of these laws through case law

EDI does not currently include marine, coastal, fisheries, or energy production and distribution laws in its assessment. While provisions that govern transparency, participation, and access to justice for decision making in these sectors may well be embedded in overarching environmental or administrative laws, and would therefore be considered, this cannot be guaranteed across the index.

Research and Review

All participating lawyers and environmental experts had at least five years of experience, though most were mid or late-career lawyers from civil society, academia, government, and the private sector.

1. National Researcher: This role is held by a lawyer native to the country who is well-versed in laws and statutes surrounding environmental democracy. The researcher was responsible for scoring the indicators, providing the sources to justify the scores, and providing relevant comments to explain the score. After completing the initial scoring, the research is submitted to the National Reviewer (indicated by the top-left arrow). This role is typically filled by a public interest lawyer.
2. National Reviewer: This role is held by another legal expert from that country (one exception was China, where the review was conducted by an American-born, Chinese law expert who is familiar with the relevant laws and statutes. This person was independent and unaffiliated with the first. This role was often filled by senior lawyers from academia, the public sector, or civil society.
3. First Secretariat Reviewer: WRI staff held this role. The Secretariat reviewer reviews the researcher’s scores and comments as well as the national reviewer’s comments. The Secretariat also provides a second review of the scores, sources, and rationale, and raises his/her own questions to the researcher. He/She then sends questions back to the researcher and reviewer to mediate between the two parties ensure quality control. In the diagram above, the wider arrow to the researcher represents the greater frequency in which questions are sent to the researcher. Each country’s indicators received at least one review by an environmental lawyer at the TAI Secretariat.
4. Final Secretariat Review: The TAI Secretariat staff also fills this role, although the final reviewer is never the same person as the secretariat reviewer for any given country. The final reviewer checks scoring and reviews for consistency and sends any final questions back to either the National Researcher or National Reviewer. WRI reserved the right to alter scores if the evidence provided after multiple reviews did not support the score suggested by the researcher.

2013 EDI pilot testing

WRI, in partnership with TAI partners, pilot tested the Environmental Democracy Index legal indicators in 2013 in 13 countries. The countries tested in the pilot study were Cambodia, Cameroon, Colombia, Ecuador, Hungary, India, Indonesia, Ireland, Kenya, Mexico, Panama, Turkey, and Uganda. Following the pilot test, WRI revised the legal indicators and developed the 24 practice indicators. An example of a practice indicator is provided below.