EXECUTIVE SUMMARY

      The United States has one of the most advanced legal and institutional systems in the world that seeks to ensure access to information, public participation, and access to justice in environmental matters. At the national level, the specific mechanisms are found in federal statutes and regulations; generally speaking, there is no explicit constitutional right of access to information, participation, or justice. At the state and local level, innovative approaches provide models that may be extended to other states or scaled-up for federal programs. A strong NGO sector facilitates public participation in decision-making and develops information in user-friendly formats. Technology such as the Internet is widely available and used regularly to solicit public input and disseminate data and ideas. Finally, environmental education is increasingly incorporated into primary and secondary school curricula. Since the terrorist attacks of September 11, 2001, a number of steps have been taken to limit public access to information. It remains to be seen whether this narrowing of access is temporary or permanent, bona fide or opportunistic.

Access to Information: The United States has a strong legal framework to enable public access to information generally, as well as specifically in the environmental context. Laws broadly grant the public access to government-held information and provide mechanisms for the public to know about factors that could affect the environment, including emissions, proposed projects, and regulatory developments.

• Progress: Freedom of Information Act (FOIA, 1966/1974), the National Environmental Policy Act (NEPA, 1969), and Emergency Planning and Community-Right-to-Know Act (EPCRA, 1986). In the last decade, Electronic FOIA (1996) and wide public access to the Internet have also been important. Strong NGO initiatives and innovative practices are gaining momentum.

• Gaps: Environmental information needs to be better integrated across media and with public health and economic data sets. No annual Environmental Quality reports were published at national level over last four years (1997 report published in 2000).

Public Participation: The principles of participatory democracy have been extended in the last decades through administrative procedures generally and more recently in the environmental context. Through federal laws, public participation, public notice requirements, and opportunities to submit public comments are guaranteed in federally funded projects. Some agency policies address public participation, although many of these need to be updated and strengthened to make public participation more effective. State hurdles and progress are unclear.

• Progress: Open meetings of government agencies; public input through advisory committees; innovative approaches such as good-neighbor agreements and citizen audits; environmental justice claims increasingly are recognized by government agencies.

• Gaps: Private projects and state projects that do not receive federal funding and do not require federal approval do not need to follow the Environmental Impact Assessment (EIA) process, except where states have adopted parallel requirements (e.g., California EIR process). Requirement for public participation in developing policies and programs is inconsistently followed.

Access to Justice: Building on the base of a fair, independent, and credible court system, access to justice in the United States is fairly comprehensive and widely used. Few states have established citizen suit provisions in their laws. Access to courts remains difficult for lower income populations.

• Progress: Administrative Procedure Act; Equal Access to Justice Act; Ombudsmen; Offices of the Public Interest Council.

• Gaps: Generally, only people with recognized injury have "standing" to bring a case; states are immune from citizen suits. Costly and lengthy trials.

Conclusions

The U.S. has many strong laws promoting access, but the practice is uneven across federal, state, and local levels. Progress in the right-to-know and access information, and in dissemination of information has outpaced access to justice and public participation, particularly at the state and local levels.

• Innovations at the state and local level and within NGO community provide useful models for federal initiatives.

• Technological advances have improved the integration of data and should be widely shared and better accounted for in new policies and laws. The integration of environmental, economic, public health, and social data sets are key to sustainable development. The lack of integration within U.S. is a major impediment for public access and education.

• Due to our experience, the U.S. has a unique responsibility to promote access internationally. Good governance is essential to sustainable development, domestically and internationally. On the international scene, the United State’s role needs to be less ambiguous. Effective engagement and concrete steps that fully support the access principles through international agreements need to be taken.

• A strong domestic constituency supporting further progress on the access principles at the federal level is needed. Simply passing laws and formally implementing them is not sufficient. Building an informed public constituency and citizen participation are necessary to actively employ and protect these rights and mechanisms.