4.

How to be an Effective Participant

in the EIA process
4
Principle 10 of the Rio Declaration states continue through to project implementation or
“[e]nvironmental issues are best handled with other future projects. For these reasons, it is very
participation of all concerned citizens”88 and important to understand and use every opportunity
outlines three essential elements to public to engage in the EIA process.
involvement: access to information; opportunity
to participate in the decision-making process;
and effective access to administrative and judicial PRINCIPLE 10
proceedings.
Environmental issues are best handled
These elements are often referred to collectively with participation of all concerned
as “public participation.” Each participatory citizens, at the relevant level. At the
element strengthens environmental decision- national level, each individual shall
making by facilitating information exchange and have appropriate access to information
concerning the environment that is held
understanding, increasing transparency, and by public authorities, including
improving accountability. information on hazardous materials
and activities in their communities, and
People living near the site of a proposed project the opportunity to participate in
know best about the possible impacts of a project decision-making processes. States shall
on the local environment or community resources, facilitate and encourage public
and may introduce new ideas or identify possible awareness and participation by making
impacts that may not have otherwise been information widely available. Effective
considered. Public participation can also forge
access to judicial and administrative
proceedings, including redress and
lines of communication among communities, the remedy, shall be provided.
project proponent, and the government, that will

88 Rio Declaration on Environment and Development,

Principle 10 (1992). United Nations Environmental Programme
(UNEP) Goals and Principles of Environmental Impact Assess-
ment, Principle 7(1987). http://www.unep.org/Documents.
Multilingual/Default.asp?documentid=78&articleid=1163

Chapter 4 85
 4.1 UNDERSTANDING THE REGULATORY FRAMEWORK
Therefore, it is important to review the general
Public participation encompasses many different regulatory landscape in a particular country where
activities – from seeking information about a a mining project is being proposed. In addition
project, to writing comments on a draft EIA, to a mining law, laws governing forests, protected
to filing a court case challenging a decision. areas, wildlife, wetlands, cultural resources, or
These opportunities will frequently be explained customary land tenure may contain requirements
in different laws within a jurisdiction where a that apply to mining projects.
proposed mine may be located.
Turning back to the EIA process, laws governing
The first step should be to identify the laws the EIA process might be found within a general
that apply to a proposed mining project and environmental law, sometimes known as a
what obligations are created on the part of the framework law or an umbrella law, or there
government and the project proponent by these may be a specific EIA law. As outlined in the
laws. Although this Guidebook focuses on following, access to information and administrative
the EIA process, there may be other permitting procedure laws are also important to the EIA
steps that occur before, during, or after the EIA process. Some countries’ constitutions may be
process. These permitting procedures may include part of the regulatory framework if they create
additional opportunities for public participation. rights to environmental information or have other
For example, a mining company may need to provisions that might be implicated in decisions
apply for pollution discharge permits, acquire about a proposed mine. Some EIAs may even
water rights, seek permission to build roads, or be prepared in the absence of a law that requires
obtain a source of electrical power for operations, one.89
any of which may be authorized in a distinct
procedure separate from the EIA process.
89 See, e.g., Save Guana Cay Reef Association Ltd. v. The
Queen & Ors (Bahamas) [2009] UKPC 44, at para. 12 (“The
preparation of the EIA in this case, and its submission to The Ba-
hamas Environment, Science and Technology Commission (BEST
Commission) was in accordance with what has become the usual
practice, but it is not a practice required by statute.”).

86 Guidebook for Evaluating Mining Project EIAs

4.2 UNDERSTANDING PUBLIC PARTICIPATION RIGHTS
AND OPPORTUNITIES
Public participation requirements and for public involvement. Agencies, ministries, and
implementation vary widely, depending on the project proponents may take advantage of this
particular EIA system. Some laws require extensive ambiguity to minimize or even eliminate public
public involvement as part of the EIA process,90 participation in the decision-making process.
while others make it discretionary, or are silent on
the matter. There is growing recognition that the Depending on the term used, public participation
public has the right to meaningfully participate in will fall in a range from passive to active.
the EIA process. Some courts have even ruled that
the public must be properly consulted, even when “Inform” represents the most passive form of
there is no law specifically governing the process.91 public involvement. To “inform” means the
flow of information is generally one way, from
The terminology used in EIA systems to describe the government or the project proponent to the
public involvement can be confusing. Terms such public. In this case, information can even be
as “inform,” “consult,” and “participate” may seem given after a decision has been made. “Consult”
similar, but in fact have very different implications or “consultation” is less passive, and means that
there is an exchange of information and opinions
among the public, the government, and the
90 Examples of EIA systems with more detailed public par- project proponent. In this case, citizens and other
ticipation provisions include China, the European Union (through
the Aarhus Convention), and the United States. See, e.g., The interested parties may be asked questions or given
Provisional Measures on Public Participation in Environmental opportunities to provide their views. Depending
Impact Assessment, 2006 (China); Convention on Access to
Information, Public Participation in Decision-making and Access on the EIA system, the decision-maker may be
to Justice in Environmental Matters (1998) (“Aarhus Convention”); required to take these views into consideration.
40 C.F.R. §§ 1502.19, 1503, 1506.6 (United States). See also
the European Commission’s legislation implementing the Aarhus “Participate” is more active and means that the
Convention, which is listed at http://ec.europa.eu/environment/ public has a substantive role in the EIA process,
aarhus/#legislation.
91 The Northern Jamaica Conservation Association v. The including opportunities to influence the project
Natural Resources Conservation Authority & Anor [2006] HCV design and permitting decision.92
3022 of 2005 (available at http://www.elaw.org/node/1629).
See also Regina v. North and East Devon Health Authority, ex
parte Coughlan [2001] QB 213, 258 (“It is common ground Regardless of the terminology used, citizens should
that, whether or not consultation of interested parties and the strive to engage as fully and effectively as possible
public is a legal requirement, if it is embarked upon it must be
carried out properly. To be proper, consultation must be under- in the EIA process.
taken at a time when proposals are still at a formative state, it
must include sufficient reasons for particular proposals to allow 92 For an example of how public participation terminology
those consulted to give intelligent consideration and an intelligent is defined, see Part 1 of the Public Participation Guide pub-
response; adequate time must be given for this purpose; and the lished by the Canadian Environmental Assessment Agency. The
product of the consultation must be conscientiously taken into guide is available online at http://www.ceaa.gc.ca/default.
account when the ultimate decision is taken.”). asp?lang=En&n=46425CAF-1&offset=4&toc=show

Chapter 4 87
 4.3 ACCESS TO INFORMATION AND EIAS
Under most systems, EIA documents must be made that are referenced in the EIA itself. Note that
available for public review. There is likely to be at other laws, particularly access to information laws,
least one designated public place where an EIA may govern what documents the public has the
will be made available. This might be an agency rights to access.
office, on the internet, or at public libraries.
It is not uncommon to find discrepancies between
Some EIA laws require that the public have the EIA and the underlying scientific and technical
access to background information or supporting documents. These discrepancies can be used to
documents used to prepare the EIA. If it is not demonstrate that the statements and conclusions
clear, citizens should insist that they have the right contained in the EIA are flawed.
to access these documents, especially documents

4.4 THE IMPORTANCE OF PARTICIPATING AS EARLY AS

POSSIBLE
Ideally, citizens should participate in an EIA process The earlier that citizens can get involved in the
as early as possible – even at the screening stage. process, the more likely they will be able to
In many EIA systems, however, the first opportunity influence decisions about the project. It is easier
for public involvement is during the scoping to change a project while it is being designed than
process. At this point, it is important to ensure after studies are completed and the EIA is already
that significant issues are identified and alternative drafted. Also, it is easier for the decision-maker
ways of implementing the project are considered. or project proponent to dismiss or ignore public
comments if they are received late in the process.
As soon as an EIA process is underway for a
proposed mining project, citizens need to find If a community learns about an ongoing EIA
a way to get involved in the process, to insure process and has missed the opportunity to
that the EIA includes accurate information that comment during the screening or scoping phases,
adequately reflects environmental concerns and the community should not give up hope. Public
concerns of local communities. participation is critical at all stages in the EIA
process and, in some systems, it is required to
have participated in the review process before one
can challenge the EIA in court.

88 Guidebook for Evaluating Mining Project EIAs

4.5 HOW TO PREPARE EFFECTIVE WRITTEN COMMENTS
In outlining the goals and principles of the EIA Rather than making generalized statements about
process, UNEP determined that “government how the project will affect you, your community,
agencies, members of the public, experts in or the surrounding environment, your comments
relevant disciplines and interested groups should will be more effective if they specify provisions
be allowed appropriate opportunity to comment of domestic laws and regulations that the EIA
on the EIA” before a decision is made on an or proposed project violate. If your constitution
activity that is likely to significantly affect the guarantees access to clean water or guarantees
environment. a right to live in a healthy environment, it
is recommended that these legal rights be
Laws governing the EIA process will likely specify a highlighted in your written comments if they are
period of time for the public to review a draft EIA likely to be affected by a proposed mining project.
and submit written comments. If the law does not
specify, the agency or ministry may issue a notice Submitting written comments is important
indicating the date when comments are due. If an for demonstrating, in later stages, that you
EIA is particularly long or involves complex issues, participated in the EIA review. If you decide to
consider seeking an extension of time to file written appeal the approval of an EIA for a particular
comments.93 mine project, your case will be stronger if your
written comments cover all the issues you may later
93 United Nations Environment Programme (UNEP), Goals want to raise in court.
and Principles of Environmental Impact Assessment, Principle 7
(1987).

4.6 HOW TO PARTICIPATE EFFECTIVELY AT PUBLIC

HEARINGS
Before participating in a public hearing, it is Before a hearing, it is a good idea to find
important to consider the target audience. Are respected experts, such as medical doctors or
you only trying to inform the decision-makers or toxicologists, who understand the likely impact
are you also trying to engage the public and the of a proposed project and are willing to testify at
media? Most participants in public hearings are the hearing. It is also a good idea to make sure
trying to address both audiences. Therefore, while that members of the local community who may be
your written comments may have tied most of affected by the project are there, in large numbers,
your concerns to the legal duties of the agencies to testify about their concerns.
involved, your oral testimony at a public hearing
should highlight impacts that will affect the At some public hearings it is a good idea to get on
community at large and explain why others should the agenda for the hearing as early as possible. If
share your concerns. the media is covering the event, they may not stay
for the whole hearing and may be influenced by
If there are issues of particular importance, what takes place early on. It is also important to
consider putting these on paper in a simple, alert the media, to make sure they cover the
bulleted form and handing them out at the hearing.
beginning of the hearing. This will encourage
others to address your points as well.

Chapter 4 89
 4.7 CHALLENGING ADVERSE DECISIONS MADE DURING
THE EIA PROCESS
The opportunity to seek administrative or judicial frustrating if there is corruption or delay due to
review of substantive and procedural outcomes improper outside influence or a backlog of cases.
of the EIA process is an important measure for
maintaining fairness and transparency. The Many jurisdictions guarantee citizens the right
prospect of having an independent arbiter review to administratively appeal a decision made by a
a decision imposes an element of accountability public authority. There are three basic principles
on the decision-maker. The availability of of administrative law that guide decision-making:
administrative and judicial review also enables
citizens to enforce their participatory rights and 1. The decision-maker must take into account
right to access environmental information. all relevant considerations and may not be
influenced by outside information or
4.7.1 Administrative review demonstrate bias;

For parties who disagree with a decision made 2. Discretionary powers must be exercised within
during the EIA process, or if the process itself the bounds of the legislation that grants the
was flawed, the next step will often be to seek authority (e.g., a decision cannot be ultra vires);
administrative review of the decision. In general, and
this means that the decision will be reviewed by a
higher-level official within the agency or ministry 3. People affected by an administrative decision
that made the decision, or by an administrative are entitled to procedural fairness.
court. In many jurisdictions, courts of law will not
accept a petition for judicial review if a party has If one or more of these principles is violated, there
not sought administrative relief first. may be grounds to seek administrative review of
the decision. It is very important to be aware of
Administrative appeals can be useful because they appeal deadlines, which are usually much shorter
tend to be less expensive and quicker than judicial than civil statutes of limitation. The EIA law or a
proceedings and provide an opportunity to refine general administrative procedure law will set out
arguments that may be made later in a court of these deadlines, stating that an appeal or petition
law. Agency officials or administrative courts may must be filed within a certain number of days of
be more familiar with the subject matter and issues the decision being made.
of law. But administrative appeals can be equally

Typical Appeal Points

- Failure to disclose certain adverse environmental impacts
- Lack of or inadequate opportunities for public participation
- Omissions in the required content of the EIA (e.g., inadequate range of
alternatives, lack of mitigation measures, failure to evaluate cumulative impacts)
- Improper or lack of adequate notice of availability of EIA for public review

90 Guidebook for Evaluating Mining Project EIAs

Administrative review, as the name implies, cost of obtaining legal representation and expert
typically involves a review of the documents that witnesses, the possibility of costs being awarded
were gathered or prepared during the EIA process against an unsuccessful petitioner, and standing
(also called a “record”) to determine whether requirements that severely restrict the scope of
the decision was proper. Usually, there is no possible plaintiffs. Some jurisdictions have enacted
opportunity to introduce new information and a provisions to reduce costs for public interest
party will be limited to providing a statement of cases or have softened standing requirements,
reasons supporting the appeal. Because the scope but litigation is still expensive. Even if a party
of review is limited, administrative appeals will be is able to get through the courthouse door to
most successful if they point to errors or flaws in challenge the approval of a mining project, judges
the EIA process or to specific examples where the are often reluctant to overturn or even scrutinize
EIA does not satisfy the content requirements set administrative decisions, particularly when a
forth in applicable law. dispute centers on technical issues that are within
an agency or ministry’s realm of expertise.94
4.7.2 Judicial review Despite these obstacles, judicial review can be a
very effective tool.95
If the decision-maker acts improperly or if the
decision does not meet substantive requirements In early 2010, an administrative judge in the U.S.
of the EIA law, then the decision may be reviewed Department of Interior overturned a controversial
by a court, provided that the jurisdiction permits surface coal mining permit issued in the state of
judicial review. Although Principle 10 of the Arizona because the agency overseeing the mining
Rio Declaration and other international laws project, the Office of Surface Mining (OSM), failed
recognize a citizen’s right to access effective to prepare a supplemental environmental impact
judicial proceedings and to obtain redress and statement (EIS) after the mining company changed
remedy in environmental matters, not all countries the project. A coalition of tribal and environmental
acknowledge this right and have insulated groups challenged the permit. The administrative
ministerial decisions from judicial review. law judge concluded: “As a result [of the OSM not
preparing a supplemental EIS], the Final EIS did
Even when judicial review is available, courts not consider a reasonable range of alternatives
are generally not permitted to exercise de novo to the new proposed action, described the wrong
review of an administrative decision. Rather, the environmental baseline, and did not achieve the
court will look to see whether the EIA process was informed decision-making and meaningful public
followed correctly and, in some cases, whether the
decision meets substantive requirements in the EIA
law. The court’s authority and permitted grounds
for review will be described by a statute – such
as an administrative procedure, civil procedure,
or judicial review act. Some jurisdictions have 94 See, e.g., Otadan v. Rio Tuba Nickel Mining Corp., G.R.
No. 161436 (2004) (Philippines) (http://sc.judiciary.gov.ph/reso
specialized courts to review administrative lutions/2nd/2004/2Jun/161436.htm) (“This Court has consis-
decisions. It is important to understand the bounds tently held that the courts will not interfere in matters which are
of the court’s discretion and what issues it may addressed to the sound discretion of the government agency en-
trusted with the regulation of activities coming under the special
review so that the claims may be properly stated. and technical training and knowledge of such agency.”).
A court case will not be successful, or may even 95 In April 2010, Bulgaria’s Supreme Administrative Court
revoked a permit for a proposed metals processing facility in
be dismissed, if a party raises issues that the court Chelopech because: (1) there was a two and one-half year delay
does not have authority to review. between the public hearings on the EIA and the date the EIA reso-
lution was issued; (2) the affected communities were incorrectly
identified by the Environment Ministry; and (3) the proposed tech-
Judicial review may be complicated by certain nology was deemed not to be based on best available techniques
for an industrial scale operation. See “Bulgarian Court blocks
legal and practical limitations, such as the high Dundee Precious Chelopech plant,” Reuters, April 16, 2010
(http://www.reuters.com/article/idUSSGE63F0H120100416).

Chapter 4 91
 comment required by [the National Environmental Similarly, India has very broad standing
Policy Act].”96 requirements and a robust system that encourages
public interest litigation to protect environmental
4.7.2.1 Standing to sue rights.98

One significant hurdle that potential environmental 4.7.2.2 Scope of judicial review
litigants may face is establishing “standing” (or
locus standi) to bring a case before a court. As mentioned previously, most jurisdictions follow
Standing means that a party has a sufficient general principles of administrative law and do not
legal interest in the outcome of a case or may allow a court to substitute its own decision for that
suffer impairment of a legal right. An interest in of an administrator or minister. Instead, the court
protecting the environment or in having public will evaluate the “reasonableness” of the agency or
authorities comply with the law is viewed in some ministry’s decision and whether all of the relevant
jurisdictions as insufficient to establish standing to information was considered before the decision
sue. was made. Courts will also review the EIA process
to make sure that required steps, such as proper
In many jurisdictions, associations or NGOs notice or public participation, have been met.
formed for the protection of collective interests of
the public (such as protecting the environment)
are not deemed to have sufficient legal interest
because the group’s members cannot assert
individual claims. This concept is generally called
“associational standing.” In such jurisdictions,
individuals who have a direct legal interest at stake
must file the case and bear the risks and costs.

On the other hand, certain countries (particularly

in Latin America) have open standing rules that
allow judicial review of government action at the
behest of any member of the public. These cases
are known as “acciones populares.”97

96 In re Black Mesa Complex Permit Revision, DV 2009-4-PR

(Jan. 5, 2010), at p. 36.]
97 An example is Article 88 of the Constitution of the Repub-
lic of Colombia, which states: “The law will regulate acciones 98 S.P. Gupta vs. Union of India, AIR 1982 SC 149, at para.
populares for the protection of collective rights and interests re- 19A (“It is for this reason that in public interest litigation -- liti-
lated to property, space, security and public safety, administrative gation undertaken for the purpose of redressing public injury,
ethics, the environment, free economic competition and issues enforcing public duty, protecting social, collective, ‘diffused’ rights
of similar nature defined therein. It will also regulate the actions and interests or vindicating public interest, any citizen who is act-
originating in damage to a plural number of persons, without ing bona fide and who has sufficient interest has to be accorded
prejudice to the relevant individual stocks. Also, it will determine standing.”); State of Uttaranchal v. Balwant Singh Chaufal & Ors
the cases of strict liability for damage caused to the collective [2010] INSC 54 (describing history of public interest litigation in
rights and interests.” India and relaxed standing requirements).

92 Guidebook for Evaluating Mining Project EIAs

4.8 ENFORCING PROMISES, COMMITMENTS AND
CONDITIONS RELATED TO THE PROJECT
In some legal systems, the EIA itself is an 4.8.2 Conditions contained in the
enforceable document and citizens can bring a grant of environmental clearance
court case to enforce an EIA.
In some countries, the environmental clearance
4.8.1 Promises contained in the that is based on the information provided
EIA in the EIA is an enforceable document. The
environmental clearance will generally include
As described in earlier sections, an EIA for a mine conditions on which the mine was approved.
is likely to include mitigation plans and perhaps In many jurisdictions, these conditions are
plans for restoring the area after the mine closes. enforceable in court.
The EIA may include specific commitments to use
certain technologies to protect groundwater from
contamination or restrict the hours of operation to
maintain the livability of the area near the mine. If
the mine violates commitments made in the EIA,
citizens in some countries will be able to challenge
those violations in court.

GENERAL TIPS FOR EFFECTIVE PARTICIPATION IN THE EIA PROCESS

- Identify the ministries or agencies that have decision-making authority over the
proposed project.

- Identify the key individuals who will be responsible for the decisions that concern you.

- Collaborate and join forces with organizations or groups that share a similar interest in
the issues that concern you.

- Monitor local newspapers for official announcements or articles about a proposed

project and opportunities to submit comments or attend hearings.

- Participate at every possible opportunity provided by the government or project

proponent, whether by submitting written comments or attending a public hearing.

Chapter 4 93