Exploring a Right to Submit Environmental Information Under International Environmental Law

Abstract

Discussions on how the public engages with environmental information within environmental governance matters are primarily centred around the supply of environmental information to the public by the state. However, this focus downplays the importance of environmental information held by members of the public and the difficulties that individuals can experience when submitting such information to the state outside formal environmental decision-making procedures. This article examines the benefits of guaranteeing a general right to submit environmental information before considering the extent to which environmental law, specifically the Aarhus Convention, supports the creation of such a right. The article then concludes by constructing a hypothetical regime to implement the proposed right, identifying how the proposed right can be balanced against the needs of the state and points of divergence between this hypothetical regime and the current environmental information regime set out in the Aarhus Convention.

1. Introduction

From 2020 onwards, there has been a noticeable upward trend of water companies discharging raw, untreated sewage into the United Kingdom’s rivers.¹ Such discharges have a significant detrimental impact on public health, as this water is used for consumption and recreational purposes, as well as on the health of the environment.² The public, understandably concerned about the discharge of raw sewage, have begun to take an active interest in the regulation and reporting of such discharges. In 2021, 44 per cent of ‘serious [sewage discharge] incidents’ were reported by members of the public and other parties to the Environment Agency.³ Beyond the reporting of visible sewage discharges, citizen-scientists have also submitted data and analysis unknown to the state highlighting the extent of permit breaches by water companies⁴ and the increase of water pollution due to sewage discharge.⁵ As a result, we now better understand the scale and spread of the issue of sewage discharge and can start to take measures commensurate with the nature of the problems to be solved.

This level of engagement by the public on the topic of sewage discharge is replicated across a wide range of environmental topics, such as flood risk management⁶ and biodiversity.⁷ The positive, real-life impacts of the state engaging with environmental information submitted by the public are well-documented within academic literature. Ranging from influencing and improving the quality of environmental decisions⁸ to the broader development of environmental citizenship and sustainable development,⁹ these benefits had led to a claim that we are in the ‘third era’ of environmental information rights: an era where environmental information is created ‘by experts and the public for experts and the public’.¹⁰ The purpose of this article is to explore whether the provision of such information should be seen as more than just a useful practice but an exercise of a legal right, accompanied with a commensurate duty on the state to pay heed to publicly sourced environmental information.

The primary legal instrument governing the treatment of environmental information is the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).¹¹ Acting as the leading normative legal instrument within this area of law,¹² the Aarhus Convention guarantees the right for the public to participate in environmental decision-making procedures.¹³ Within such procedures, the public can submit environmental information, empowered by the parallel right to access environmental information,¹⁴ that must be taken into account by the state.¹⁵ Public participation in environmental decision-making procedures is viewed as essential to effective environmental governance, yet the role of the public and civil society in environmental matters appears to be shrinking. As identified by Lee’s analysis of the Environment Act 2021, the state has been granted significant discretion in determining the goals of environmental governance without an accompanying general requirement to consult the public at large.¹⁶ The granting of such discretion is significant, as it represents a significant erosion of the role of the public within environmental matters.

If this fundamental pillar of environmental governance is under threat, then the public’s ability to submit environmental information beyond formal public participation processes is even more precarious. Currently, there is no legal obligation imposed on the state to accept environmental information which has been submitted by a member of the public outwith a formal participatory procedure. The state may compel a member of the public to provide environmental information,¹⁷ but where a member of the public voluntarily submits environmental information the state is free to accept or reject that information as it sees fit. This lies in stark contrast with the right to access environmental information, which is explicitly guaranteed in law¹⁸ and allows members of the public to access environmental information held by the state. In this way, it is common to characterise the relationship between the state and the public as one-way: with the state holding all relevant environmental information and the public acting merely as recipients of that information.

It is this characterisation of the public’s role and the lack of legal rights extended to the submission of environmental information beyond formal participatory processes that lie at the heart of this article and its exploration of the proposed general right to submit environmental information. The article begins by introducing the general right to submit environmental information and exploring how the right can positively contribute to environmental governance (Section 2). The article then considers the extent to which the Aarhus Convention supports the creation of the proposed right, before moving to construct a hypothetical ‘right to submit regime’ as a means of exploring the challenges in guaranteeing the proposed right in practice (Section 3). The article then concludes by briefly considering how the proposed general right to submit environmental information may develop and what this may represent for the future of the public’s role in environmental governance (Section 4).

2. The General Right to Submit Environmental Information

Environmental information, and the ability of the public to access environmental information held by the state, has been considered to be of particular importance to the success of environmental governance for a significant period of time.¹⁹ At the basic level, the state needs to hold up-to-date and high quality environmental information in order to make informed decisions on measures and actions that have an impact on the environment. Beyond this, granting the public access to environmental information is necessary in order to promote effective participation in environmental governance—whether through participating in environmental decision-making procedures or in holding the state to account in environmental matters. The provision of environmental information to the public is achieved through the right of access to environmental information, which guarantees the right to have environmental information disclosed on request and to have environmental information proactively disclosed by the state.²⁰

In guaranteeing the right to access environmental information, the law implicitly embodies the ‘information deficit’ model’s conceptualisation of the public. Under this model, the public are considered to hold little to no information on the environment: that members of the public are ‘empty vessels […] that need scientific information in order to be replete.’²¹ This acts as the foundation of the traditional view of state–public interactions within environmental governance, with the state positioned as the ‘supplier’ of environmental information and the public as a ‘recipient’ of environmental information. The majority of legal regimes engaging with environmental information rights have adopted this traditional view of state–public relations, providing minimal support for the public expanding beyond this role as mere recipients of environmental information.

It is this traditional conceptualisation of state–public relations under the ‘information deficit’ model that this article seeks to combat through proposing the creation of a general right to submit environmental information. Building on the work of Suman,²² the proposed general right to submit environmental information is an inversion of the right of access to environmental information. It seeks to shift the role of the public from ‘recipients of’ environmental information to ‘providers of’ environmental information, with a corresponding shift in the role of the state and public authorities. The proposed general right to submit is a new approach to considering how the state and the public interact on environmental issues, bringing new perspectives and avenues through which environmental governance outcomes can be improved.

The novelty of this prospective right brings with it exciting opportunities to improve and refine how we protect and enhance the environment for current and future generations under the Aarhus Convention and/or national legislation. However, because the public can already submit environmental information to the state within participatory procedures or through simply sending it to a public authority, there is a question as to whether a general legal general right to submit environmental information is required. This section of the article addresses this question by identifying and considering the various benefits that arise from the state recognising the proposed general right to submit environmental information. Throughout this section, this study distinguishes the benefits of the proposed right with the benefits of submitting environmental information through the participative procedural rights embedded in the Aarhus Convention and from simply submitting environmental information without the protections granted by the proposed general right.

2.1 Benefits of a General Right to Submit Environmental Information

The potential benefits to implementing the proposed general right to submit environmental information can broadly be grouped into three categories. Each of the identified categories is framed through how the public perceives and experiences environmental decision-making procedures—with the substantive benefits category primarily centred on the outcome of environmental decisions; the ‘citizenship’ benefits engaging with the public’s own role in environmental decisions; and the normative benefits being concerned with the perceived role and legitimacy of the state in environmental decisions. Together, these benefits show the value that the proposed general right to submit can bring to environmental governance and to environmental protection efforts more generally.

The first of these categories is the substantive benefits that recognising this proposed general right can bring to environmental decisions. Through enabling the public to submit environmental information at any time, the public is empowered in challenging and enhancing the robustness of the information upon which environmental governance and decisions is based.²³ Such challenges may identify out-of-date information or gaps in the state’s information records—gaps which the state itself may be unaware of—and allow the state to remedy these issues, leading to improved environmental governance outcomes.²⁴

These potential impacts of imperfect information records, and the state’s awareness of and ability to address these issues, have been explored and conceptualised within the theory of ‘epistemic humility’.²⁵ Based on the pluralistic value of ‘democratic humility’,²⁶ epistemic humility concerns itself with the validation of knowledge, how knowledge is used within decision-making procedures and the way in which states can remedy gaps in the information that it holds.²⁷ In order to embody epistemic humility, the state should be willing to recognise that it is unlikely to hold all information relevant to an environmental matter and that it should be willing to engage with alternative sources of environmental information—such as environmental information submitted by the general public. An illustration of this theory in practice can be identified in the ongoing discussions surrounding the discharge of raw sewage.²⁸ Here, the state did not hold sufficient information on the extent that raw sewage was being discharged into the United Kingdom’s rivers. By exercising epistemic humility and engaging with publicly submitted environmental information the state was able to remedy this information gap, leading to the quicker identification of pollution events and a greater ability to address this issue.²⁹

These substantive benefits arising from the proposed general right to submit distinguish it from those arising from the public being invited to submit environmental information through formal participatory processes. Under the current right to participate in decision-making procedures, any information submitted within formal participatory procedures is limited to information which is related to the specific decision being taken by the state.³⁰ As a participatory exercise in decision-making, this approach is logical to ensure that the process is not unduly extended by irrelevant submissions and that only relevant information in incorporated into the decision-making process. Yet as a means of allowing the public to challenge potential issues in the state’s information records this approach is inherently limited. To reframe this point through the lens of epistemic humility: within the context of formal participatory procedures the state is willing to accept its own limitations in holding and understanding information, but only within the specific areas in which it has invited the public to participate and only in regard to information it has already determined to be relevant.

The proposed general right to submit environmental information goes beyond that of the right to participate in environmental decisions by ceding the power to select the topic of conversation. Through empowering the public to select the topics that it submits environmental information on—a selection not influenced by the authority’s own understanding of the information that it holds—the state is exposed to a wider range of environmental information than it would normally encounter. This then leads to the state reflecting on its own information records in ways it may not have expected or thought about on its own initiative, leading to a positive impact on environmental governance that is distinct yet parallel to the benefits that invited public participation can bring.

The second category of benefits arising from the proposed legal right to submit environmental information is the right’s ability to enhance ‘citizenship skills’ among the public.³¹ The underpinning logic of this benefit is that through the experiential learning of engaging with the environment and the state through the submission of environmental information, the public is able to better understand the interactions between the two and their own role in shaping environmental governance.³² Such knowledge can be described as ecological and civic literacy, key components of environmental citizenship³³ and in contributing to sustainable development and environmental protection efforts.³⁴

An example of this positive impact can have can be seen in the Coastal Observation and Seabird Survey Team (COASST) in America.³⁵ Members of the public who engaged in the gathering of data on seabirds, which was then used in conservation activities and highlighting issues to the state, reported an increased understanding of ‘coastal ecosystem ecology and conservation’.³⁶ These members then went on to engage politicians about the issue of seabird conservation or contribute to other citizen-driven environmental programmes,³⁷ thus further enhancing environmental protection efforts. Not all members of the public will engage with programmes like COASST or continue to participate in other environmental activities after engaging with such programmes. Nevertheless, the COASST project demonstrates both how involving the public in gathering and submitting environmental information can enhance their environmental citizenship skills, and the positive impact this enhancement can have on environmental governance more generally.

The third and final category of benefits arising from recognising the proposed general right to submit environmental information lies in the normative benefits associated with the right. Primarily concerned with the legitimacy of decisions taken by the state, these benefits engage with the Kantian values of citizen-led deliberation and reason³⁸ and the correlative democratic right to engage with the state due to the impact that state decisions can have on public life.³⁹ This broad democratic right is significant, as it can be viewed as imposing a ‘[…] duty [on the state] to listen, receive, and meaningfully hear the views of all affected persons’⁴⁰—a duty that goes beyond specific formal participatory process and extends to all areas in which may impact on the lives of the public.

It is these citizen-led values and the duty to meaningfully hear the public which animates the proposed general right to submit environmental information. By allowing the public to select the topics they submit information on, without the need for state approval, the proposed right creates a two-way channel of communication that embodies the democratic and Kantian values of citizen-led deliberation. Further, by enabling communication on matters that are not the subject of formal participatory processes, the public is able to influence the exercise of state powers on matters that are of direct interest to them.⁴¹ This reinforces the legitimacy of the state⁴² in regulating and managing the environment, leading to better environmental outcomes.

This contribution to the state’s legitimacy in environmental matters is distinct from the benefits that can arise from the public submitting environmental information outside a legally recognised right to submit.⁴³ As a matter of public policy, the state has always been able to accept environmental information submitted by the public even where there is no law obliging them to do so. Yet while this is true, treating the acceptance of environmental information submitted by the public as a matter of policy allows the state to reject publicly submitted information regardless of the value of the submission or the public’s interest in the topic.⁴⁴

Ultimately, treating publicly submitted environmental information in this way is problematic because this approach fails to redistribute power from the state to the public within environmental matters. While the challenge raised by the public in submitting environmental information is intended to allow the state to reflect on its information records, the discretion provided when such submissions are supported merely by public policy allow the state to avoid this reflective exercise. This, in turn, prevents the state from improving both how it engages with environmental matters and the outcome of environmental governance. Further, because the state can freely discard publicly sourced environmental information as a matter of policy, members of the public may be disincentivised from gathering and preparing their environmental information for submission. This not only undermines the public’s potential role in environmental matters, but also inhibits the development of environmental citizenship skills through engagement with environmental governance.

2.2 Looking Beyond the Benefits of a General Right to Submit Environmental Information

As an inversion of the right to access environmental information, the proposed general right to submit environmental information represents a drastic departure from the traditional view of state–public relations in the context of environmental information. By ‘bringing new actors into the fold of law’,⁴⁵ the proposed right seeks to redistribute power to the public in a way that is different to the procedural environmental rights which are currently guaranteed by law. This is reflected in the substantive, educational and normative benefits arising from the proposed right, which operate in parallel to and complement more formal public participation procedures. In this way, the recognition of a general right to submit is not an expansion of a pre-existing right. Rather, it is a new right which can be seen as necessary for securing a healthy environment for current and future generations.

Nevertheless, merely identifying the benefits of the proposed general right to submit environmental information is insufficient to usher in the ‘third era’ of environmental information rights. In addition to identifying the benefits of the proposed general right to submit, what is also required is general support for an increased role of publicly submitted environmental information in environmental governance. This support needs to come from various sources, but in the context of the law itself the currently unaddressed question is whether the trajectory of environmental law complements and can accommodate the proposed general right. Answering this question requires further research into the vast number of environmental law instruments and how they conceptualise public engagement with environmental governance—an exercise which is beyond the scope of this paper. However, it is possible to begin this research by considering the extent to which the Aarhus Convention, as the normative instrument that innovated environmental information rights and how the public engages with environmental governance, supports the creation of the proposed right.

3. Identifying the ‘Third Era’ of Environmental Information in Practice

The Aarhus Convention represents the first substantial attempt in international law to create a detailed legal framework for securing access to information, public participation, and access to justice in environmental matters. Developed under the auspices of the United Nations Economic Commission for Europe (UNECE), the Aarhus Convention is structured into three interlocking pillars of procedural rights: the access to environmental information pillar, the public participation in environmental decision-making procedures pillar, and the access to justice in environmental matters pillar.⁴⁶ Under these procedural rights, the public is empowered to seek out environmental information primarily as a means of engaging ‘civil society in the environmental policy-making process with a view to increasing [the process’s] democratic nature and legitimacy…’.⁴⁷ While this is not the sole way in which the public can use environmental information disclosed under the Convention,⁴⁸ it is reflective of the Convention’s primary focus on involving the public in environmental governance.⁴⁹

The significance of the Aarhus Convention is not solely sourced from the procedural rights enshrined within it. Prior to the Aarhus Convention and its foundational predecessor, the Rio Declaration,⁵⁰ environmental information was considered to primarily be of relevance only to ‘experts and scientists’⁵¹—the general public was considered to lack the necessary skills and interest to engage with environmental information held by the state.⁵² Through explicitly guaranteeing both the right to access environmental information and participate in environmental decision-making procedures, the Aarhus Convention fundamentally altered the relationship between the state and the public through re-contextualising the public as active participants in environmental governance.⁵³

Notwithstanding the impact that the Aarhus Convention has had on environmental governance, these roles of the state and the public have not remained in stasis.⁵⁴ Increasingly, the public are acting not just as recipients of environmental information, but as sources of environmental information both within and beyond formal participatory processes.⁵⁵ Described as the ‘third era’ of environmental information,⁵⁶ this expanded role of the public goes beyond the one-way flow of environmental information envisioned by the environmental information pillar of by the Aarhus Convention. In light of these developments, there is the possibility of the Convention’s environmental objectives lending support to the creation of the proposed general right to submit environmental information.

This section considers the extent to which the text, context and the object and purpose⁵⁷ of the Aarhus Convention support the creation of the proposed general right to submit environmental information. It is identified that the text and context of the Aarhus Convention are restricted by its framing of state–public interactions outwith participatory procedures as one-way. However, it is also the case that the Convention’s objectives and purpose strongly encourages the two-way exchange of environmental information, and thus supports the creation of the proposed general right. The section then concludes by proposing a hypothetical regime to implement the proposed right, detailing the scope of such a regime and how it would address some concerns that can be raised regarding the proposed right.

3.1 Finding Support for the General Right to Submit Environmental Information

Initially, placing the proposed general right to submit environmental information alongside the Aarhus Convention may seem like an unusual choice. While it is true that the Aarhus Convention did act to push the forefront of environmental information rights, its provisions and construction do not actually engage with the wider ideas of the proposed right. The procedural rights within the environmental information pillar of the Convention only guarantee the flow of environmental information from the state to the public.⁵⁸ Further, under the Convention’s public participation pillar, the public is able to submit environmental information to the state only within formal participatory procedures.⁵⁹ The procedural rights contained within both pillars are specifically designed to implement their respective rights, and cannot be repurposed to encapsulate the proposed general right to submit environmental information.⁶⁰

This is further reinforced by the framing of the rights enshrined in the Aarhus Convention. Both sets of procedural rights are contextualised by Principle 10 of the Rio Declaration, which states:⁶¹

Environmental issues are best handled with the 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 […]

A core element of Principle 10 is the focus placed on the need for state to disclose environmental information and to ensure that the public can participate in environmental decision-making procedures. Such a framing presupposes a specific relationship between the state and the public: where the state is primarily viewed as a supplier of environmental information and the public as submitting its own views on environmental matters solely within formal decision-making procedures. This precludes the broader communication channels necessary under the proposed general right to submit, and thus prevents the proposed right being implemented into law based on an interpretation of the Aarhus Convention.

However, while the text and context of the Aarhus Convention do not allow for the proposed right to be inserted into the Convention, its environmental objectives and purpose are far more accommodating to the proposed right. At the core of the Aarhus Convention lies the desire to protect and enhance the environment for present and future generations.⁶² Shaping the values which underpin the Aarhus Convention, this broad environmental objective is comprised of various, more specific environmental aims and purposes. In her account of the Aarhus Convention, Barritt identifies three ‘animating purposes’, which are fundamental to the Convention and support the proposed general right to submit: environmental democracy; environmental rights; and environmental stewardship.⁶³

The first of these animating purposes, environmental democracy, is famously difficult to define due to the complexity of its two intersecting conceptual components: democracy and environmentalism.⁶⁴ Noting this difficult task, Barritt sidesteps this issue by instead identifying the outer limits of what constitutes environmental democracy.⁶⁵Through focussing on these ‘boundary markers’ of environmental democracy, it is possible to dissect the environmental democratic aims of the Aarhus Convention without becoming tangled in providing a specific definition of environmental democracy. In applying this approach, Barritt identifies four ‘boundary markers’ which are relevant to the proposed general right to submit environmental information.

The first of these markers is the presumption that human knowledge is fallible; that no one person can have ‘perfect knowledge’ of a situation, which consequently necessitates the gathering of information from a wide range of sources.⁶⁶ The second marker is that in gathering this information, there needs to be political equality amongst the public in how their knowledge, views and interests are considered.⁶⁷ The third marker identified by Barritt is that of autonomy: that individuals should be accorded the autonomy to act as the best judges of their own interests within environmental governance.⁶⁸ The final marker relevant to the proposed general right to submit environmental information is the view that only democracies which represent the greatest majority count as the sole justifiable form of a political system.⁶⁹

All of these boundary markers are connected by the same overarching aim: to ensure that the public has an ‘equal right to influence public deliberation’ in environmental matters.⁷⁰ Traditionally, this is achieved through allowing the public to engage in environmental decision-making procedures. However, it can also be achieved through allowing the public to shape environmental deliberation through submitting environmental information at any point in time. The first identified boundary marker is of particular significance to the proposed general right to submit. Through highlighting the fallibility of human knowledge, this marker overlaps with the proposed right’s engagement with the concept of ‘epistemic humility’⁷¹ and the value of engaging with multiple sources of environmental information to decrease this fallibility.⁷²

Such an application of the Aarhus Convention’s objective and purpose in supporting the proposed general right to submit is further supported by the broad recognition of the ‘roles that individual citizens […] can play in environmental protection’.⁷³ This is explicitly separated from the benefits arising from public participation in environmental decision-making procedures,⁷⁴ which suggests that the public has a role in environmental issues beyond merely participating in formal environmental decision-making procedures.⁷⁵ Consequently, at least at the theoretical level, the environmental democratic aims of the right act to support the recognition of the proposed general right to submit environmental information.

The second animating purpose identified by Barritt are the substantive and procedural environmental rights enshrined within the Aarhus Convention.⁷⁶ The Convention’s substantive environmental rights can be generally understood as the right to a healthy environment,⁷⁷ rather than merely ‘greening’ pre-existing human rights.⁷⁸ While the exact nature and scope of this substantive right within the Convention is contested,⁷⁹ there is clear consensus that this substantive right is the primary goal of the Aarhus Convention.⁸⁰ The substantive right is relevant to the proposed general right in the abstract—any proposed right which can contribute to securing a healthy environment is likely to align with, and thus be implicitly supported by, this substantive right. While the generality of the support provided by the substantive right does not provide a strong basis for the proposed general right to submit, this support should be viewed in parallel with the Convention’s procedural environmental rights.

The Aarhus Convention’s procedural environmental rights encapsulate the procedural rights to access environmental information, to participate in environmental decision-making procedures, and to enjoy access to justice in environmental matters. These procedural rights are a key component to the Aarhus Convention not just for the normative benefits associated with enhancing the legitimacy of the state in environmental matters; they are also necessary to securing the substantive right to a healthy environment.⁸¹ It is here, in the intersection of these two benefits, that the proposed general right to submit can have a positive contribution. The shared concern with the legitimacy of the state in environmental matters allows the proposed right to contribute to the legitimacy goals of the Aarhus Convention in a way that is not currently seen within the Convention itself. Further, the procedural nature of the proposed right means that it seeks to secure the right to a healthy environment through the similar procedural approach seen within the Aarhus Convention itself. In this way, there is a complementary overlap between the proposed general right and the Aarhus Convention that imputes support for the creation of a legal general right to submit environmental information.

The third, and final, animating purpose of the Aarhus Convention is environmental stewardship. Broadly understood as an ethical position which emphasises the need to protect and enhance the environment,⁸² this purpose is not explicitly referenced within the provisions of the Aarhus Convention⁸³ but rather is embedded within the construction of the Convention itself. The procedural rights enshrined within the Convention are designed to provide a channel for the public to act as environmental stewards and help guide the state to better environmental outcomes. Indeed, the public’s desire to get involved in environmental governance, in essence to become environmental stewards, is critical for the achievement of the Convention’s goal to protect the environment.⁸⁴

A shared connection between environmental stewardship within the Aarhus Convention and the proposed general right is that it seeks to actively involve the public in environmental matters. Within the context of the Aarhus Convention such involvement takes the shape of participation in environmental decisions, but this could also be extended to the creation of environmental information by the public at all stages of environmental governance.⁸⁵ This creation aspect of environmental stewardship is not addressed in the current legal regimes, but it could become incorporated and implemented through recognising the proposed general right to submit environmental information. Equally, the proposed general right to submit contributes to the educational and citizenship elements of environmental stewardship. Through the experiential education of gathering environmental information, guaranteed by the proposed general right, the public is more likely to obtain the necessary skills and knowledge to become environmental stewards.⁸⁶ Not only does this contribute generally to environmental stewardship, but it both motivates and prepares members of the public to engage with the procedural rights enshrined in the Aarhus Convention.⁸⁷ As such, there are clear parallels and overlapping objectives between this animating purposes of the Aarhus Convention and the proposed general right to submit environmental information.

Overall, there is a clear argument for the objectives and purpose of the Aarhus Convention supporting the creation of the proposed general right to submit environmental information. The proposed right and the environmental objectives and purpose of the Aarhus Convention are mutually supportive, with their overlapping and interlinked aims creating the environment necessary for the public to fully engage with environmental governance at all stages. While the text and broader context of the Convention do not accommodate the proposed general right, there is sufficient support within the Convention for the proposed right to develop and usher in the ‘third era’ of environmental information.

However, notwithstanding this support, there are a range of practical questions regarding how the proposed general right to submit environmental information is to be implemented. The power of these practical arguments is not to be underestimated. In the related field of freedom of information, arguments based in the practical difficulties in establishing a freedom of information regime stymied the development of the United Kingdom’s Freedom of Information regime for years.⁸⁸ Beyond responding to such potential arguments, detailing a hypothetical ‘right to submit’ regime also acts as a method of engaging with the broader questions surrounding the balance that would have to be drawn between the identified benefits of the proposed right and the administrative burdens it would place on the state. As such, the final section of this article addresses this deceptively simple question: what would a regime guaranteeing the proposed right to submit environmental information look like?

3.2 Constructing a General Right to Submit Environmental Information

In designing a hypothetical regime to guarantee the proposed right, it is tempting to base this regime on the pre-existing environmental information regime within the Aarhus Convention. This is due to the normativity of the Aarhus Convention in the area of environmental information rights, and the broad support the Convention provides to the creation of the proposed right. Yet the broad two-way communication that lies at the centre of the proposed general right to submit does not perfectly overlay onto the Aarhus Convention’s environmental information procedures, which are primarily concerned with the flow of environmental information from the state to the public. While some elements of the Aarhus Convention can be slotted into a hypothetical regime guaranteeing the proposed right, certain aspects of the proposed right require bespoke procedures to reflect the differences between the two rights.

One place where the similarities and divergences between the two rights can be evidenced within the hypothetical ‘right to submit’ regime is in how the regime determines the scope of the proposed right. Similar to the Aarhus Convention,⁸⁹ the general right to submit guaranteed by this hypothetical regime would be open to open to all members of the public—a reflection of the shared aims of empowering the public at large to contribute to environmental governance. Equally as broad is the hypothetical regime’s definition of ‘the state’. To ensure that the proposed right provides effective channels of communication to all areas of the state the proposed regime should encapsulate all public authorities across the national and local levels of government.⁹⁰ Further reflecting the definition of ‘the state’ adopted by the Aarhus Convention,⁹¹ the hypothetical regime would also need to extend to private bodies performing public services, or having public responsibilities or functions, relating to the environment. As evidenced by the public’s role in identifying issues with raw sewage discharge by private water companies, there is an intersection between publicly sourced environmental information and the trend of privatisation in the provision of public services.⁹² In this way, this broad definition allows the proposed right to accommodate this trend within the broader correlative democratic right to engage with ‘the state’.

Another critical question to determining the scope of the proposed right is what constitutes ‘environmental information’ which can be submitted. Traditional forms of information, such as raw data on the environment⁹³ and any analysis of this data, would need to be accommodated in any proposed definition. However, less traditional forms of environmental information, such as information gathered through an individual’s lived experience of the environment,⁹⁴ should also be included in order to prevent the erection of obstacles to the public submitting environmental information in the form that they hold it in. This is reflective of the substantive benefits that can arise from such informal observations. For example, where a member of the public observes that the water in their river has turned black their reporting this to the state may identify that this colour change is due to the unlawful discharge of raw sewage.

One aspect regarding the scope of the proposed right that diverges from the pre-existing right to access environmental information concerns the quality of any publicly sourced environmental information. As publicly sourced environmental information is submitted through a multiplicity of different individuals, the quality of the submitted information may differ drastically: ranging from high-quality, well-researched submissions⁹⁵ to ill-informed or methodologically unsound submissions.⁹⁶ Equally, some submissions under the proposed right may come from individuals who are seeking to influence the authority through seeking the incorporation of their own, favourable, information into the state’s information records—such as a developer looking to amend the state’s records detailing the number of white-tailed eagles nesting on land in Scotland they intend to develop.⁹⁷

Such concerns require specific procedural obligations on those using the proposed right in a way not seen in the right of access to environmental information. One such procedural obligation would be to require those submitting environmental information to provide methodological details on how the publicly sourced environmental information was gathered. Another obligation would be a duty for members of the public to identify themselves when submitting the publicly sourced environmental information—an obligation imposed in order to alert the state to potential conflicts of interest⁹⁸ and any possibility of these conflicts adversely affecting the objectivity and veracity of any gathered information. Additional procedural obligations could also be imposed that require the public to submit environmental information electronically or to submit it in a particular file format. This would allow the state to better read the submitted information,⁹⁹ as well as shape the expectations of both the state and the public as to how the state will ‘meaningfully engage’ with that submitted information.¹⁰⁰

The existence of these proposed procedural obligations does conflict with the Aarhus Convention’s approach of imposing minimal procedural obligations on individuals using their environmental rights.¹⁰¹ The logic underpinning this approach is that the limited number of procedural obligations erects fewer obstacles to the public’s use of their rights—a goal which the proposed right to submit environmental information shares in order to secure the substantive, education and normative benefits that it promises. However, divergence from this approach is justified by the proposed right due to its inversion of the state–public relationship. As the publicly submitted environmental information can lead to substantial alterations in how the state responds to environmental matters and on the environmental information that it holds, a greater degree of scrutiny on those submitting environmental information is required to ensure the integrity of the state’s information records.

The final aspect of this hypothetical regime that will be addressed are the specific obligations that should be imposed on the state once it receives publicly submitted environmental information. Under the proposed right this is framed as the duty to ‘meaningfully engage’, a term which encapsulates a wide range of state actions. Identifying how the state meaningfully engages with publicly submitted environmental information acts as the crux of the proposed general right to submit. Indeed, beyond formalising the procedures through which the public can submit environmental information, this duty to meaningfully engage is what distinguishes the proposed right from the current discretionary practice of sometimes accepting publicly sourced information as a matter of public policy.

Yet despite the significance of the duty to meaningfully engage under the proposed general right, it can be difficult to define what this means in practice. The volume, nature and significance of the information supplied by the public can vary greatly and, similar to public participation,¹⁰² what amounts to meaningful engagement does not come in a singular form and may be contested. Rather, there are different responses the state can take when receiving environmental information under the proposed right, with each response by the state having the potential to constitute ‘meaningful engagement’ depending on the various factual circumstances of the submission. Consequently, a precise definition of meaningful engagement is impossible to provide.

However, this is not to suggest that it is impossible to outline of what constitutes meaningful engagement under the proposed general right to submit environmental information. As the benefits of the proposed general right are predicated on the epistemic humility of the state, it stands to reason that the required meaningful engagement will take the form of actions which engage and expose the state to new information and different ideas. This can be described as ‘dialogical interaction’,¹⁰³ and this idea forms the foundation for establishing the minimum level of meaningful engagement under the proposed right. At a minimum, in order for the state to be exposed to new ideas under the proposed right it must first read any environmental information that has been submitted to it. This reading must be sufficiently deep for the state to fully consider the quality and veracity of the submitted information,¹⁰⁴ as without this depth the state would not be truly exposed to new ideas and perspectives sourced from the public.

After this reading, the standards for what constitutes ‘meaningful engagement’ will diverge depending on the quality of the submitted environmental information. If the submitted information is flawed in some way, then the state may be justified in not engaging with the submitted information further while still discharging its duty to ‘meaningfully engage’. Such flaws may arise due to poor quality of the submitted information—a distinct possibility considering the variable expertise of the public in gathering and collating environmental information¹⁰⁵—or where the information was illegally gathered¹⁰⁶ or breaches the rights of others. Additionally, where the submitted environmental information is not submitted through the appropriate channel¹⁰⁷ or is inappropriate or otherwise improper,¹⁰⁸ the state may have discharged its duty to meaningfully engage under the proposed right by simply by reading the submitted information.

Where submitted environmental information is not flawed, then the state may wish to further engage with the submitted environmental information. Further engagement can take a variety of forms. The state may wish to amend information held by it in response to the publicly sourced information,¹⁰⁹ or initiate dialogue with the individual(s) who submitted the environmental information.¹¹⁰ At the broader level, the state may decide to take action to remedy any environmental governance deficiencies identified by the submitted information¹¹¹ or effect a change to an environmental policy or outcome of a decision that is not subject to a participatory procedure.

In discharging the duty to meaningfully engage under the proposed right, there is a degree of discretion available to the state in determining what constitutes ‘meaningful engagement’. This is because the state itself is best positioned to determine how the submitted information relates to their environmental activities. While this flexibility is valuable for ensuring that the proposed right can respond to the wide range of potential submissions appropriate it does result in greater uncertainty for the public, who are not guaranteed that a specific action will occur in response to their submission.

Accordingly, it is important for the state to respond to the person that submitted the information, regardless of whether the submitted environmental information was flawed or not, in order to demonstrate that there has been meaningful engagement with any submission. This requirement is derived from two key elements of ‘dialogic interaction’. First, dialogue is a two-way process, requiring both involved parties to listen and respond appropriately. Thus, in the context of the proposed general right, it is not enough for the state to merely receive environmental information: it must also respond to the information that it has received from the public. Second, similar to the principles of good administration,¹¹² dialogic interaction requires the state to give reasons for the decisions that it has taken.¹¹³ Not only does this reflect the democratic relationship between ‘the government’ (the state) and ‘the governed’ (the public),¹¹⁴ but it acts to counter the negative public perception that might arise when the exercise of the proposed right is not seen as having a direct impact on the state or environmental governance.¹¹⁵ In this way, meaningful engagement with submitted environmental information under the proposed right requires an effective response to the submitted information—with the response’s effectiveness based on the extent to which it explains the extent to which the state engaged with the submitted information, the actions the state took in response to the information and the reasons why it chose to engage with the submitted information the way that it did.

3.3. Closing Observations

In considering the practicalities of the proposed general right to submit environmental information, the proposed right is conceptually grounded in the Aarhus Convention. Similar to the Aarhus Convention when it was negotiated and ratified, the proposed right seeks to challenge how the state and the public engage on environmental matters and invert the traditional state–public relationship. While the proposed right expands the scope of public involvement in environmental governance beyond what was envisioned within the Aarhus Convention, there is a shared theme of empowerment which connects the Convention and the proposed right. It is this shared theme which enables the Aarhus Convention to provide support for the proposed general right, despite the inability of the text and context of the Convention to support the proposed right within the Convention itself.

Equally, the operation of the Aarhus Convention through its procedural obligations can also inspire the creation of a regime to guarantee the proposed general right to submit environmental information. Drawing from the Aarhus Convention in how it structures state–public interactions is valuable for the proposed right, as many issues regarding state–public interactions—and the inversion of these interactions—are shared between the Convention and the proposed right. In addressing these shared issues there is a logic to shaping any hypothetical regime which implements the proposed right to reflect the successes of the previously successful environmental governance regime.

Yet equally the proposed general right to submit environmental information and the Aarhus Convention are fundamentally different. Expanding public engagement outwith of formal participatory procedures raises a host of novel considerations and issues which the Aarhus Convention, by design, did not need to address. This is not unexpected: in proposing a shift to the ‘third era’ of environmental information¹¹⁶ to empower the public to shape what environmental issues and matters are being considered by the state, new operational issues will need addressed. However, this move towards the new era of environmental information does not mean that the Aarhus Convention needs to be discarded. Rather, the complementarity of the Convention and the proposed general right means that a partnership between the two will likely act as a transition point into this new environmental information era—with the beneficiaries of this transition being humanity and the environmental itself.

4. Conclusion

Effective environmental governance necessitates the collection and processing of environmental information, as such information acts as the foundation for the design and implementation of environmental regulation and policy.¹¹⁷ While the public were initially viewed as having a limited interest in such information, over time this perception has shifted to recognise both the value of granting the public access to environmental information and to enabling the public to act as a source of environmental information for the state. There is thus an impetus on states to consider incorporating publicly submitted environmental information into their own records, even where such information is submitted outwith formal participatory procedures.

Yet while the value of publicly sourced environmental information is recognised, the law is lagging behind these developments in environmental governance. A legal right to submit environmental information has not been recognised in law, and this lacuna risks the state being deprived of valuable environmental information that would enhance its environmental governance. It is on this basis, reinforced by the support provided through the overlap of the proposed right and the Aarhus Convention, that the proposed general right to submit environmental information should be created and guaranteed in law.

Framing this argument in terms of the ‘third era’ of environmental information, the conclusion that can be drawn from this article is that this era is within reach. In these modern times the public is better able to gather and analyse environmental information than ever before: both in terms of the greater availability of data-gathering tools and in the increased public awareness of environmental issues. In order to secure the benefits that this publicly sourced environmental information can provide to environmental governance, the law needs to evolve to reflect this growing capacity.

Such growth is possible; as evidenced in the hypothetical ‘right to submit’ regime, the proposed right can take shape through adopting procedural elements of the Aarhus Convention while diverging from it when necessary. However, despite the support provided by normative environmental law instruments such as the Aarhus Convention this evolution is unlikely to be easy. It will require pushing beyond the current ‘one-way’ conceptualisation of state–public relations within environmental information rights; a conceptualisation which fundamentally shapes current environmental information rights in law. Yet, as evidenced by the activity of citizen-scientists in submitting evidence on sewage discharges by private water companies, such an evolution in legal rights is necessary as a response to the environmental issues humanity currently faces.

Acknowledgements

I am grateful to the Scottish Universities Law Institute for providing funding for research that has provided the basis of this article. I am likewise grateful to my colleagues at the University of Dundee for their comments on the article. Any errors remain that of the author.

Footnotes