Implementation of EIA directives in Portugal

Environmental Impact Assessment Review 22 (2002) 249 – 269 www.elsevier.com/locate/eiar

Implementation of EIA directives in Portugal How changes in civic culture are challenging political and administrative practice$ Maria Eduarda Gonc¸alves* Instituto Superior de Cieˆncias do Trabalho e da Empresa (ISCTE), Avenida das Forc¸as Armadas, 1649-026 Lisbon, Portugal Received 1 November 2001; received in revised form 1 January 2002; accepted 1 January 2002

Abstract There is a widespread belief that a dichotomy exists between northern and southern European countries with respect to environmental policy leadership. This paper attempts to analyse some of the factors which underlie the so-called Mediterranean syndrome in environmental policy and legislation in the light of two case studies on the application of European EIA directives in Portugal. The paper shows that changes are taking place in Portuguese society, affecting civic culture, and, as a result, political – administrative practice, which are modifying the conditions under which EIA directives are applied. These changes led to legislative and institutional developments which, in some instances, have gone beyond existing European legislation. It can, therefore, be argued that contrary to the prevailing argument about the dichotomy between leaders and laggards, at the end of the day, the latter are also becoming pioneers in legal – institutional innovation in this field. This article purports to analyse these developments and the lessons that may possibly be drawn from them with a view to improving EIA procedures in southern European countries from the standpoint of both their scientific and technical grounds and their democratic legitimacy. D 2002 Elsevier Science Inc. All rights reserved.

$ This article is based on a paper presented at the ‘‘Environmental Programme Workshop’’ called, ‘‘Coming to Terms with the ‘Mediterranean Syndrome’: The Implementation of European Environmental Policies in Southern States,’’ organised by the European University Institute of Florence (Florence, May 2000). * Tel.: +351-21-790-3281; fax: +351-21-796-4710. E-mail address: [email protected] (M.E. Gonc¸alves).

0195-9255/02/$ – see front matter D 2002 Elsevier Science Inc. All rights reserved. PII: S 0 1 9 5 - 9 2 5 5 ( 0 2 ) 0 0 0 0 5 - 7

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1. Introduction There is a relatively widespread belief within the field of environmental policy in the European Union (EU) that a dichotomy exists between northern and southern member states. The former are seen as the leaders of legislative innovation and the latter (sometimes referred to as ‘‘laggards’’ or ‘‘latecomer’’) usually the mere ‘‘importers’’ of environmental legislation from the EU, who negotiate with their partners for more flexible conditions and sometimes also for financial support to apply the legislation (Brinkhorst, 1991). Even so, environmental legislation is most ineffective in the southern countries, it is argued. The reasons for the so-called Mediterranean syndrome are often put down to the combination of a low level of economic development, a weak civil society and a history of authoritarian regimes, as well as hierarchical, closed and, at times, nepotist public administrations (Borzel, 1999). The analysis in this article confirms in part the abovementioned belief, with the support of two case studies on the application of European directives on environmental impact assessment (EIA) in one southern European country, Portugal, dealing respectively with the Foz Coˆa dam and the installation of coincinerators of industrial waste. However, the analysis of these cases also shows that a process of transformation is taking place in Portuguese society, affecting both civic culture and action and political – administrative practices, which is modifying the conditions under which directives on EIA are applied. This process has also led to legislative and institutional innovations which have gone beyond European provisions in the same field. My starting point is that the difficulty of applying EIA legislation in Portugal has its roots in a double institutional limitation, which has affected the incorporation of scientific and public opinion into EIA procedures. The relative weakness of the Portuguese scientific system and the lack of institutionalised forms of scientific advice for public administration have limited the scope for the preliminary discussion of the grounds for decisions taken within the context of the EIA procedures. This state of affairs, together with an inactive civil society, has contributed to maintaining the status quo of traditional administrative practice, which is most typically centralised, hierarchised and secretive. In the cases analysed, the lack of institutional conditions which might have facilitated the participation of scientists and of skate-holders and the negotiation of their positions on the problems assessed underlay the public controversies which emerged after the EIA’s formal processes had been concluded. Lack of communication and understanding during these processes finally led to a highly politicised controversy in the informal environment of the mass media. These debates and social movements challenged the decisions taken by government and led eventually to their reversal. As a result, some of the limitations in the design and practice of the EIA procedures were corrected. New advisory bodies were created to ensure that political decision-making was based more effectively on scientific opinion.

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Innovative legal provisions for citizens’ rights were also introduced, which went further than those foreseen in the European directives on EIA. It can, therefore, be claimed that contrary to the prevailing argument about the dichotomy between the north and the south in the EU, at the end of the day, the latecomers are also becoming active promoters of the deepening of European environmental legislation. The examples of social mobilisation found in the cases of Foz Coˆa and coincineration show that the perception of new types of environmental risk is changing Portuguese civic culture. However, is the political and administrative culture changing at the same pace? Under what conditions can EIA procedures in Portugal contribute simultaneously to development which is environmentally more sustainable and to the democratisation of the decision-making processes?

2. The legal construction of EIA: the places and the roles of technical and of public arguments A preliminary impact assessment was made mandatory for certain public and private projects by legislation introduced into the European Community (EC) in 1985.1 Legislation on EIA was transposed to the Portuguese legal system in 1990, 4 years after Portugal joined the EC.2 The aim of the EIA procedure is to identify the probable consequences that the implementation of the projects being assessed would have on the geophysical environment (including natural and cultural heritages) and on people’s health and well being. Impact assessment involves technical and scientific studies. These studies (environmental impact studies, EIS) are usually coordinated by a company of consultants contracted for this purpose by a public entity or economic agent proposing the project. According to the applicable legislation, the public has the right to be consulted and to express its views about the project. ‘‘Public consultation’’ means, therefore, the dissemination of impact studies and their results, together with the most important aspects of the project, during which interested parties are given the opportunity to take part and influence the decisions taken. EIA procedure is generally supervised by the government’s department responsible for the environment sector, which also has the task of appointing the assessment committee. This committee submits its expert opinion to the Minister of the Environment based on the technical study and the results of consultations with the public. 1 Directive 85/337/EEC from the Council, 27th June 1985, amended by Directive 97/11/EEC from the Council, 3rd March 1997, JO no. L 73/5, 14.03.97. 2 Decree Law no. 186/90 of 6th June and Regulatory Decree no. 38/90 of 27th November. In 2000, new legislation was published: Decree Law no. 69/2000 of 3rd May. One of the main innovations of this law is the obligatory force of the decisions taken by the Minister of the Environment, in what is called the ‘‘Declaration of Environmental Impact.’’

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Three types of ‘‘argument’’ are possible in this process: a technical – scientific argument, from the authors of the EIS; a technical –bureaucratic argument, from the assessment committee; and a public or ‘‘civic’’ argument, from the private entities or citizens (members of the ‘‘public’’) interested in expressing their opinion, either verbally or in writing, on the projects being assessed and their implications for the environment (Jamison and Ostby, 1997). My assumption is that the arguments of the different actors are produced, as Foucault (1971) suggests, in a way which is ‘‘controlled, selected, organised and redistributed through a certain number of procedures for controlling and eliminating their powers and dangers, as well as random factors.’’ The relative power of the three kinds of argument referred to above will depend on the way the authority to decide on relevant questions, and the procedures for controlling and circumscribing the role of the different social actors are legally and institutionally regulated. Risk evaluation procedures as provided for in EIA directives open decisionmaking to the direct influence of the public and in that respect they go against traditional unidirectional administrative procedures. However, the way the authority to define the relevant questions is distributed gives a clear privilege to the projects promoters, as well as to scientific and technical experts. EIA procedures are indeed based on the assumption that science and technology make it possible both to assess impacts on the environment and to calculate the advantages and disadvantages of different projects. Science is used at each stage of the EIA process: fixing the agenda and assessing and mitigating risk. Science’s central role as provider of information and justification for decision-making originated in the ‘‘ideology of competence,’’ prevalent in modern industrial and democratic societies, according to which scientific knowledge is the only safe source of objective data to be used to support decision-making (Bouvier, 1994; Wynne, 1991). Jasanoff (1990) wrote that scientists are expected to ‘‘inject a much-needed strain of competence and critical intelligence into a regulatory system that otherwise seems too vulnerable to politics.’’ This is the logic which explains that the political system, and also the scientific system, have tended to reject the opinions of laymen in scientifically based debate on the grounds that they are a product of irrationality or ignorance. The official view of the public’s understanding of science assumes that it is ignorant about scientific and technological matters, according to Irwin and Wynne (1996). EIA directives leave a significant autonomy to member states to define the workings of the public consultation mechanism. The modalities and the contents of the information to be disseminated, the timing of the public consultation, the entities to be involved in the process, among other aspects, are left open. Amendments introduced by the 1997 EIA directive to the 1985 one were no more than mere adjustments aimed at rendering public involvement more effective, rather than a fundamental change in the place of public arguments within EIA decision-making. Major improvements have been the requirement that public should express its opinions before the development consent is granted

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(Article 6), and that the results of consultations and the information gathered must be taken into consideration in the development consent procedure (Article 8). As pointed out by one commentator, consultation procedures provided for in the EIA directives are far from best practice (Palerm, 1999). In the industrialised world, the use of scientific and technical opinion by public administration has increased with the expansion of areas which are economically and socially regulated. In the last few decades, new fields of regulatory action, such as the regulation of environmental risk, have been added to the other traditional areas (Francis, 1993; Majone, 1996). However, paradoxical though this may appear, this growing approchement of science and administration has been accompanied by a certain loss of social credibility for scientific authority. Science has, in effect, been faced with the consequences of the growing public perception, both of the risks deriving from some of its applications and of the way science is overlapped by extra-scientific economic, political and military interests. At the same time, the modern belief in science’s neutral attitude towards political interests has been eroded (Martin, 1995). Society’s doubt about the objectivity and independence of science and scientists is accentuated in situations where environmental risks are assessed. The uncertainties and complexities inherent to risk assessment prevent the specialists from simply giving the answers society needs or expects. Scientific and technical opinions, which used to be seen as exclusive to the specialists, are now open to discussion by a ‘‘reflexive public.’’ The subject of risk is indeed beginning to dominate the public debate and raise new types of conflicts and controversies (Beck, 1996). A central question is now how to produce the knowledge necessary for decision-making in situations marked by uncertainties on social, as well as on scientific levels. Contrary to other western countries, in less industrialised European countries with a newer and more limited democratic tradition, as is the case of Portugal, but also of Spain and Greece, science developed isolated from the political and public spheres (Gonc¸alves et al., 1996; Menendez, 1997). The social and intellectual conditions prevailing in a country like Portugal, for example, during the last few centuries, characterised by authocratic forms of power and religious dogmatism, prevented the country from participating fully in the modern revolution. In the 20th century, during the authoritarian regime led by Salazar and Caetano (1926 – 1974), science and scientific rationality continued to be viewed with suspicion by the dominant economic and social forces, and were subject to rigid control and even forms of repression. Lack of freedom, together with the lack of investment in scientific research has left its marks to this day, and can be seen, in particular, in the fragility of data systems and scientific information, and in the scarcity of administrative mechanisms for scientific consultation. Most of the time scientific opinion has been sought out in a ad hoc rather than an institutionalised way (Gonc¸alves et al., 1996; Petts, 1995). Orwin Renn shows that in certain institutional situations, rhetorical and legalistic arguments play an important role in determining what he calls the

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policy’s ‘‘style of using scientific expertise,’’ while in others, they actually prevail over logical proof and empirical evidence. Experts either present themselves as members of advisory boards, who are simply tolerated, or as real ‘‘designers’’ of policy. At times, the use of scientific opinion is mere ritual, while at others, it is a welcome contribution to a decision-making process, which would otherwise be guided purely by personal interests and intuition (Petts, 1995). According to the same author, most countries in the south of Europe would fit the former side of the dichotomy. Renn notes, however, that these countries are in transition to corporatist and possibly more ‘‘adversarial’’ styles of using scientific opinion. In Portugal, the culture of governance has traditionally tended to favour the exercise of political authority based on general beliefs, rather than decisions based on more solid grounds or on an open and pluralistic dialogue with interest groups and social movements. Scientific representation in political decisionmaking still reflects this state of affairs today. Despite a new political rhetoric which values the role of science and scientists in guiding political –legislative decision-making, the practices of government and administration have failed to create conditions for incorporating the participation of scientists in decisionmaking processes in a regular and systematic and pluralistic and open way (Gonc¸alves et al., 1996; Hellstrom and Jacob, 1996) During the controversies over Foz Coˆa (1994 –1995) and coincineration (1998 –1999), it became obvious that the use of scientific advice was poorly institutionalised, and that openness to public opinion was limited. My suggestion is that these limitations created a climate which favoured the emergence of these controversies. However, challenging prevailing convictions about the nature of civil society and of the State in Portugal, within the context of these controversies, science proved to be a decisive factor in the decisions that were finally taken. Furthermore, scientific knowledge was incorporated into decisions taken in an atmosphere of intense public debate and extensive social movement which were able to paralyse government decisions. At the same time, the way EIA legislation used to be applied in Portugal, particularly the limitations of the public consultation procedure and of the scientific foundation of decisions taken, were contested. The question can, therefore, be raised of the conditions that explain this change in the patterns of public and political behaviour, and the lessons that may be drawn from the analysis of these case studies to improve the application of European EIA directives.

3. The EIA on the Foz Coˆa dam: the strength and the weakness of the technical argument In November 1994, the media revealed the discovery of an important series of rock engravings in the valley of the river Coˆa which, it was suggested, dated back to the Upper Palaeolithic period. This discovery was made during

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prospecting in progress at that time, under the auspices of the Instituto Portugueˆs para a Protecc¸a˜o do Patrimo´nio Arquitecto´nico e Arqueolo´gico (IPPAR-Portuguese Institute for the Protection of Architectural and Archaeological Heritage). The study followed recommendations in the dossier of the EIA, concluded in 1992, for the Foz Coˆa dam, a hydroelectric undertaking under the charge of Electricidade de Portugal (EDP, the Portuguese Electricity Company). The assessment report included archaeological impact among the dam’s ‘‘negative impacts.’’ Nevertheless, the report weighed up the dam’s advantages and disadvantages and its conclusion left no doubt about the decision to be taken: the collateral effects of the undertaking planned did not justify questioning the project’s specific objectives (DGRN/INAMB, 1992; EDP, 1991). Based on that conclusion, a decision was taken in 1993 to build the dam, but under certain conditions. One of these conditions was precisely that an archaeological survey should be done. In 1989, an archaeological survey had already been carried out as part of the EIS itself. The resulting report referred to the identification of a series of locations and remains which documented successive phases of human occupation in the region, including prehistoric paintings, which would most probably be submerged by the waters of the dam (DGRN/INAMB, 1992; EDP, 1991). Though the report had not specifically mentioned the existence of Palaeolithic engravings and had not lent exceptional importance to the paintings (note that this survey was carried out in about a week under pressure of a deadline), it recommended that the valley should be explored archaeologically, which was estimated to take several years (Lemos, 1995). Even so, between 1989 and 1993, little or no attention was paid to this opinion, and no systematic research was done in the area. It was only in March 1993, once the dam project had been approved, that EDP and IPPAR agreed to sign an agreement for the coordination of the archaeological study (Baptista and Gomes, 1995).3 Consultations with the public carried out within the EIA showed poor civic mobilisation, confirming this cultural characteristic of Portuguese society, as referred to before. Consultations with the public showed that the landowners and managers of a Port Wine business, which was in danger of being submerged, had participated actively in the process (DGRN/INAMB, 1992; EDP, 1991). However, the general population and the environmentalist associations had remained passive during the whole process, which was interpreted by the assessment committee as meaning that they were favourable towards the construction of the dam (DGRN/INAMB, 1992; EDP, 1991). Curiously enough, while scientific associations in the fields of biology, geography and geology were invited to take part in the public hearing of the consultations, the same consideration was not shown to the archaeological associations. 3

In 1990, IPPAR’s predecessor had launched the Projecto Arqueolo´gico do Coˆa (PAC or the Coˆa Archaeological project), but according to information collected from archaeologists, no activities of importance were developed in the region.

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The archaeological survey, which began in 1993, was a typical example of rescue archaeology. The IPPAR archaeologist appointed for this purpose was given the task of identifying remains which could be recovered and then recorded and transferred to the municipal museum selectively, and as much as possible (DGRN/INAMB, 1992; EDP, 1991). In November 1994, the archaeologist drew the attention of some of his colleagues to the engravings he had identified. The foundations of the dam were already under construction at this time. Very impressed by what he had seen, one of the archaeologists who visited the location decided to pass the information to the media and to Portuguese and foreign colleagues, particularly through the Internet. From the moment the Coˆa rock art was made public in November 1994 until the general elections of October 1995, no formal decision was taken by the government to either suspend or continue the dam project, despite the pressure from the archaeological community which was supported by various social and political forces. The archaeologists demanded that the work be suspended to allow the study of the heritage revealed there. The archaeologists particularly protested against IPPAR, which they accused of concealing the precious information about the existence of the rock engravings from the scientific community (Gonc¸alves, 2001). Reacting to the controversy, both IPPAR and EDP decided to ask for the opinion of foreign experts. Jean Clottes, who chaired the UNESCO Rock-Art Committee, was consulted by IPPAR about the value of the engravings and possible measures to protect them. EDP, for its part, contracted foreign specialists in direct dating, a technique which uses the measurement of radiocarbon and other methods allegedly more objective than the stylistic methods normally used to support archaeological dating. The debate about the age of the engravings was, in fact, marked by strong differences within the scientific community. In the end, the plurality and variety of the opinions from the experts consulted, both about dating and about ways to preserve the engravings, fuelled the government and EDP’s arguments, as they sought to find a way out of the conflicts and to reconcile both the dam and the recovery of part of the engravings. These solutions, which it was hoped would lead to a commitment, were rejected totally at one point by the Portuguese archaeologists who had been most actively dedicated to the process: they claimed that the engravings should be preserved in the open air. As emphasised at the time, the discovery was really paradigmatic precisely because the location of the petroglyphs in the open air and in an area of sufficient size made it possible to gain an original perspective of the way the peoples of the Upper Palaeolithic period conceptually organised the landscape in which they lived. While EDP and the archaeologists argued over the age and value of this heritage, in Portugal, a very lively public debate developed in which intellectuals, opinion makers, university students and secondary school pupils all took part. Archaeologists from the world over visited the area and declared the importance of the location. It should be noted that throughout the controversy, the attitude

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of the different actors involved was mainly expressed through the media and not through institutionalised bodies for the discussion and confrontation of different points of view, which were almost nonexistent in reality. In October 1995, the Portuguese Social –Democratic Party, in power since 1985, lost the general elections. It was significant that one of the first decisions taken by the new government formed by the Socialist Party was to suspend the work. The Resolution of the Council of Ministers no. 4/96 of 17th January recognised that ‘‘the discovery of archaeological remains, which had not been identified during the EIS preceding the construction of the dam, required an innovative solution, whose cultural, economic, environmental and scientific dimensions were compatible with national interests.’’ The government decided to create conditions for a serious, extensive study of the ‘‘real value’’ and size of the archaeological heritage in the Coˆa valley. A report was to summarise existing knowledge and ‘‘definitively’’ clarify the real importance and effective size of the discovery. The resolution expressed the need felt by the new government for a solid scientific basis to support a political decision which would resolve the conflict between the dam and the engravings. The scientific report was published in May 1997. The government classified the Coˆa rock art as national heritage, based on the report’s recognition of the ‘‘indisputable’’ value of the engravings, and decided to submit a request to UNESCO for the site’s classification as World Heritage (Decree Law no. 32/97 of 2nd July). Note that in 1996, the Socialist government opened the Archaeological Park of Vale de Coˆa and laid the way to the creation of a new public institute for the archaeological sector called the Instituto Portugueˆs de Arqueologia (IPA). Later, provisions were adopted to guarantee the systematic involvement of archaeologists in procedures for EIA.4 The story I have just briefly told conformed, in the first phase, to the usual pattern of the relationship between political decision-making and science in Portugal. The results of the preliminary archaeological survey, including the recommendation for more research to be done in the area, were not followed by effective measures from the administration, based on scientific data and opinions. The archaeological information provided during the EIA procedure held no weight against the objectives and interests related to the economic development of the region that the decision-makers thought deserved protection, and which the public authorities thought the dam project would in fact protect. As I said before, the assessment committee acknowledged the fact that valuable remains had been found, but did not consider them sufficiently important to justify questioning the dam — the EIA clearly did not value national archaeological science. During the public controversy, EDP’s decision to use foreign experts to gain opinions on 4 According to legislation on EIA adopted in 2000 (Decree Law no. 69/2000 of 3rd May), assessment committees should include representatives from the IPA whenever undertakings are located in areas considered to be sensitive because national monuments and other property of public interest are situated there.

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the dating of the engravings, and the fact that these opinions were used immediately by the company, with no preliminary communication or a peer review from the Portuguese archaeological community, was an additional sign that national science had lost prestige to foreign science. In addition, EIA procedures were clearly closed and unrepresentative. As pointed out above, despite the information which existed on archaeological locations, no individual archaeologist or association of archaeologists was invited to take part in the public hearing held as part of the EIA process (DGRN/INAMB, 1992; EDP, 1991). The fact that until November 1994, neither the archaeologists nor the local population had put the defence of the Coˆa heritage on their official agenda was mainly because they did not know about the engravings or about their scientific and cultural value within the archaeological community. They did not know because no systematic archaeological surveys had been done of the region, and the studies begun there in recent years had been restricted and closed. At the end of the day, the fact that little was known about the archaeological remains reflected the weak position of archaeological science within the country. The old call of the Portuguese archaeologists for more attention to be paid to heritage and to the need for the development of scientific research in this field, had almost always been ignored, which led to general feelings of frustration and powerless and sometimes even to apathy or subservience. These are the circumstances which explain, to a large extent, how the engravings became the focus of a political struggle between archaeologists and the political and industrial apparatus. The cause of the archaeologists was transformed rapidly into a wider social cause in which, not only archaeologists, but also intellectuals, opinion makers, the younger generation and the general ‘‘progressive forces’’ were actively involved. Behind the vast social movement which campaigned to defend the Coˆa engravings was the public’s feeling of distrust for the authorities and for the company responsible for the project because they had kept both the scientific community and the public in the dark about the discoveries made during the EIA process. The force of the archaeologists’ claims actually increased along with their feeling that they had the growing support of society. At the same time, the very substance of their claims developed: until the spring of 1995, for example, the archaeologists had only wanted to suspend the construction of the dam to allow the prospecting of the area, but from that time they began to demand that the work be abandoned totally. The participation of the citizens lent social legitimacy to the claims of the archaeologists, which was translated into a political legitimacy. By challenging the Portuguese administration’s prevailing ‘‘style’’ of using scientific opinion, in the case of Foz Coˆa, the opinion of the archaeologists eventually justified the grounds for the decision firstly to suspend, and then subsequently to abandon the dam project. The need was recognised for more research to be done to attenuate the uncertainties that still existed about the age of the engravings and to help the government decide on what position to take. The

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decision-makers delegated the task of evaluating the scientific value of the rock art to the scientists, awaited their conclusions and then agreed to make the political choices which would naturally follow their scientific results. This development marked a clear contrast to the traditional attitudes and practices of the political – administrative system towards science. As already said, procedures for EIA include consultations and hearings with the public to enable the common citizen to familiarise himself with the project and to express his opinion. The objective of consultations with the public is to take into account, within the EIA process, of the social, cultural, economic and environmental concerns and values of the entities and citizens involved. Nevertheless, in general, this mechanism has not succeeded in resolving the complex social and psychological problems involved (Ministe´rio do Ambiente, 1998). In societies with a low level of organisation and activism, EIAs have consisted of more symbolic than real action in practice. Portuguese society has no tradition of public participation in the political – administrative decision-making processes on an institutional basis. Experiments in the public’s involvement, which have taken place in other countries, particularly in northern Europe, have not been reproduced in Portugal (Webler and Renn, 1995). Openness to the participation of the public in the decisionmaking processes in Portugal has largely been associated with the transposition of legislation adopted by the EU to the Portuguese legal system. The analysis of the EIA process for the Foz Coˆa dam shows the actual limitations of this regime’s application in Portugal, both due to a lack of institutional conditions (poor scientific research, a lack of databases and scientific information, and the limited use of scientific opinion in decision-making processes), and cultural conditions (the closed culture of the administration and the lack of a social culture of participation). The study of the Foz Coˆa case shows that the decision to construct the dam was based on a specific selection of the ‘‘relevant facts’’ to support the decision taken and a certain judgement of their importance. It also showed that the facts upon which the decision to construct the dam was based had been selected, and value judgements had been made by the people represented in the decisionmaking process, who had access to the data available (Hellstrom and Jacob, 1996). The impact assessment for the dam was, therefore, dominated by the judgement made by EDP and by representatives from Public Administration.

4. The EIA on the location of coincinerators for industrial waste: public protest and institutional reform Concerns about industrial waste management were only voiced significantly in Portugal in 1986, when the country joined the EC. The Portuguese authorities realised at that time that in order to comply with European legislation and gain access to the Community funds available, it was necessary to set up a system for

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industrial waste management. The bases of national policy in this area were introduced in 1985.5 The aims of this policy were to reduce the production of waste and to develop technological processes for its recycling, reuse and elimination, supported by mandatory record-keeping and clearly defined competencies and responsibilities. The plan was to set up an integrated system for the treatment of industrial waste between 1987 and 1991, which would include a physical – chemical treatment unit and a centralised incineration system, two landfill sites and a transfer station. However, the installation of the centralised incinerator in Sines faced strong opposition and even rejection by the local population and the Municipal Council. It was acknowledged later that the decision-making process had been prejudiced by the ‘‘bureaucratic way’’ it had been conducted. Both the company involved and Public Administration were accused of concealing data during consultations with the public (CNADS, 1998). The new strategy, launched by the government in 1997, was based on the conviction that the coincineration method would be preferable to centralised incineration.6 In accordance with this strategy, the Minister of the Environment and two cement plants, CIMPOR and SECIL, signed an agreement which contained guidelines for the intervention of both parties in this area (SCORECO, 1998). A new company, called SCORECO, was created for this purpose and presented a project for the coincineration of industrial waste, for which an EIS was carried out. The impact study, carried out in 1998, acknowledged the fact that the incineration of industrial waste (the method planned initially) would cause great and justified alarm among the public because of its pollution of the air, caused particularly by dioxins. The study report accepted that coincineration in the kilns of the cement plants would also create environmental risks, but defended the relative economic and environmental advantages of the second method (SCORECO, 1998). The report concluded that coincineration was ‘‘very safe’’ as long as an effective control of the system was guaranteed to prevent and reduce these risks. Monitoring mechanisms would, therefore, be critically important for the smooth running of the coincineration system. They would involve the public, as well as entities of recognised scientific and technical authority. Though it acknowledged that there were uncertainties about the risk to the environment and to public health associated with coincineration systems, the technical study came to the general conclusion that the project would not have negative impacts (SCORECO, 1998). It was also believed that the installation of special filters would significantly improve the environment and health of the population in the locations in question. Consultations held with the public about this process were among the most well-attended. The public hearings, carried out in the various alternative locations

5 6

Decree Law no. 448/85 of 25th November. Resolution of the Council of Ministers no. 98/97 of 25th June.

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suggested for the installation of the systems and the treatment stations, took place in the presence of 2710 people. The process appeared to be indisputably representative. The consultations also revealed the population’s great distrust of the performance of both the cement plants and the Administration. During the consultations, the opinion was often expressed that coincineration should merely be seen as part of a global policy for integrated industrial waste management, something that did not in fact happen. Reservations were also voiced about the technical study, due to uncertainties about the quantities of waste material to be treated and about the lack of data on air pollution, which was the most sensitive aspect (Ministe´rio do Ambiente, 1998). Complaints were also made about the lack of clear explanations about the monitoring system. The assessment committee, appointed by the Minister of the Environment, concluded, nevertheless, that the installation of coincinerators should not be delayed any longer. The committee admitted that problems of atmospheric pollution and more generally of public health, and the public’s accentuated perception of risk, were critically important. There had been great protests against the project. The committee thought that the resistance of the general population could be attributed to their distrust of the cement plants because of their long record of polluting the atmosphere, and of public administration, because of its poor system of pollution control. The committee also acknowledged that the risk analysis had not been exhaustive and had concentrated on meeting minimal specifications (for accidents and general risks). The characteristics of the project were such that it would not have been able to give the responses needed for aspects, such as conditions for the destruction and fixing of pollutants and accident control. However, the committee thought that none of these factors would hinder the project but would require minimisation measures to be taken to guarantee the best security for the operating of the system. The report also affirmed that the shortcomings of the project and the impact study would be resolved in the future by minimisation measures which would ensure a political and procedural framework appropriate to the project and the technical conditions for carrying it out well. The committee was counting on the phase of experimental work which would make it possible to decide on general requirements and restrictions to be applied to atmospheric pollution. It was hoped that the public health services would establish systems for the epidemiological monitoring and control of the impacts of coincineration on public health. The assessment committee proposed the selection of two of the four locations suggested by the EIS. The locations chosen were Souselas, in the district of Coimbra, and Maceira, in the district of Leiria, both in central Portugal. This choice was supported by two main criteria: the opportunity to improve the environment of the areas surrounding the cement plants, and their geographical situation (SCORECO, 1998). Among the control mechanisms set up were two committees: a local follow-up committee, chaired by the mayors of the respective councils; and a technical

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committee for controlling the operation of the systems, and emissions into the atmosphere and their effects. The latter committee would include representatives from the Directorate-General for the Environment (which would chair), regional directorates for the environment, the councils and the university. In view of the project’s political importance, the Minister of the Environment asked for the expert opinion of the Conselho Nacional do Ambiente e do Desenvolvimento Sustenta´vel (the National Council for the Environment and Sustainable Development, CNADS), a government advisory body whose members include representatives from central and local administration, environmental associations and independent specialists. In its opinion, CNADS stressed that the EIS dossier was lacking in information and communication, and that there were important questions of credibility and confidence. It also pointed out the continuous lack of quantitative and qualitative data and of an up-to-date description of the production, collection, transport, treatment and final destination of industrial waste in Portugal, despite the provisions of national and European legislation. The Council acknowledged that this would mean that the public had no objective information about the real situation of waste material in the country. For CNADS, the intense conflict which had already marked the decisionmaking process in this area for a decade, could be attributed mainly to the public’s ignorance of relevant data and facts (CNADS, 1998). Technical information was not disseminated punctually, rigorously and intelligibly. The cement plants had been reserved and closed in their attitude and had not promoted the elucidation of the citizens that was called for. The credibility of the institutions involved in the EIA process had also been prejudiced by the fact that the integrated plan, announced in 1985 and repeatedly demanded by the sectors with vested interests, had not been implemented. It was concluded that although the choice of coincineration was considered to be a feasible solution for industrial waste management, it was thought that an effective and persistent effort should be made to explain the technical, industrial and political aspects of the project to the people, to ensure that it was understood and accepted by one and all (CNADS, 1998). CNADS recommended, therefore, that a national campaign be launched urgently to provide information on the current situation of industrial waste in Portugal. Under these circumstances, the decision on the location of the two coincinerators was considered premature by CNADS. Despite the CNADS recommendations, 1 day after receiving the report, the Minister of the Environment decided to install the coincineration systems in Souselas and Maceira.7 This decision provoked the immediate social reaction of the local population. Public demonstrations, street blockades, night watches and discussion meetings once again showed the public’s reservations about the administration and the

7

Government Order from the Minister of the Environment, 28th December 1998.

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cement plants. Environmental protection associations and local associations were actively mobilised against the ministerial decision. University researchers, from the natural and social sciences, particularly from the University of Coimbra, were involved in the movement. There was a great distrust of arguments which supported the political decision to install coincinerators in the locations referred to. At the centre of the dispute was the belief that Souselas and Maceira, which had suffered the effects of industrial pollution for so many years, did not deserve to be victimised even more. The rules and procedures of the EIA, and the way they were put into practice, were once again in focus. As seen before, legislation on EIA seeks to combine a technical base with democratic legitimacy. However, its application configures it as an essentially technical procedure, which was confirmed by the coincineration case. In this situation, the public was more involved in the debate than in Foz Coˆa, but even so, CNADS found that the attempt to resolve the serious problem of waste management ‘‘overestimated the technical aspects and underestimated the human and social aspects.’’ In the opinion of the Council, the actual normative structure of the EIA was such that it limited the independence of the entities responsible for the EIS. Under great public and political pressure, both from the opposition parties and the members of the government party elected by the districts in question, in February 1999, the Assembleia da Repu´blica (the Portuguese Parliament) approved a resolution calling for the process to be suspended and for the decisions already taken to be revoked. On 15th April of that year, legislation was adopted by the Portuguese parliament, which obliged the government to present a strategic plan for industrial waste management within the same legislature.8 The law decided to suspend both coincineration and the decision about its location. The Portuguese parliament recommended the setting up of an independent scientific committee, which would submit its expert opinion to the government on the treatment of dangerous industrial waste. The ‘‘independent scientific committee for environmental control and the monitoring of coincineration’’ was created by the government the following day.9 The composition and mandate of this committee were considerably different to those of the technical committee, as stipulated in the official order of December 1998 from the Minister of the Environment. The new committee included six experts, competent in the areas of medicine, air quality and chemistry, to be appointed by the Council of Rectors of the Portuguese Universities, one member appointed by the mayors of the municipalities affected and one other member appointed by the Minister of the Environment. The committee’s functions went beyond the purely advisory: the coincineration system, both in its experimental and definitive phases, would only operate if the committee took a

8 9

Law no. 20/99 of 15th April. Decree Law no. 120/99 of 16th April.

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positive decision on its environmental impact. By nature, its powers were the same as those of an independent administrative authority, and could only be legally questioned by the courts. Behind the status of this committee was a concern with simultaneously protecting both its independence and impartiality, and the legitimacy and acceptability of the process.10 Though its scope was limited to a specific EIA process, the new framework established for the scientific basis of the decisions taken on coincineration was an important advance in two directions: scientific pluralism (shown by the explicit inclusion of the different relevant scientific disciplines) and the open uses of science in decision-making (shown in the publicity given to the production and use of scientific opinion, and its monitoring by parliament). Decree Law no. 120/99 also foresaw the creation of two local follow-up committees formed by interested representatives from the local authorities and environmental and civic associations. These committees should function as advisory bodies and promoters of public debate. The citizens of the municipalities of Coimbra and Leiria and their respective organisations were legally guaranteed the right: to access all information on the coincineration process; to express their opinion on the measures to be taken and for the people to take action. This was undeniably a new configuration of the citizen’s right to participate in environmental matters. It can also be seen that in this case, similarly to what happened in Foz Coˆa, the politicisation and involvement of the media played a decisive role in the political changes which took place. Here again, the measures taken as a result of social pressure (and pressure from scientists) particularly helped to create conditions for scientific expertise to be used more in the decision-making process. In the case of coincineration, public protests were instrumental in associating researchers from the exact and natural sciences with mechanisms for assessing and monitoring the system. Here again, after a first phase during which scientific discussion was either avoided or inhibited by the industrial and political forces, the public authorities decided to promote research into the environmental impact of the undertakings and introduced reforms which improved the status of the experts and reinforced their contribution. They also agreed to support their actions almost exclusively with orientations from expert scientific opinion. In both cases, the social movement provided the framework and legitimated scientific claims. Nevertheless, changes brought about to the ways the public is effectively associated with the decision-making processes do not appear to be as significant as changes to the relationship between science and administration. There were, in fact, some practical developments: the right of access to information on the coincineration process provided for in the legislation has been met by a new information system which includes a special web site and a 10

In January 2001, another scientific report had been publicised from a committee, which was set up after a debate provoked by the first report from the Independent Scientific Committee, to assess the risks of co-incineration for public health.

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forum for public discussion run by the Independent Commission.11 However, the decision-making system as such does not seem to have evolved substantially in its attitudes towards public participation. In a report of the Independent Committee on the results of a public consultation held at the beginning of 2001, a report endorsed by the Ministry of the Environment, the committee asserts that ‘‘facts and arguments presented by the public cannot question the technical and scientific conclusions and arguments that guided the reports of the Independent Committee,’’ namely that coincineration is the more appropriate methodology for the treatment of an important set of dangerous industrial waste.12 This emphasis on the relevance of scientific arguments parallels a certain contempt for the nonexpert based arguments of the public. One may draw from here the conclusion that the procedures for public participation that were established by law, citizens’ capacity to mobilise them and the degree of attention assigned to public claims by decision-makers and their scientific advisers have not come up to the requirements of a more trustful relationship between decision-makers, experts, and the public.

5. Conclusions The analysis contained in this article has pointed to some of the cultural and institutional factors that hindered a scientifically sound, and pluralistic and open debate on the environmental impact of the Coˆa dam and of the coincineration of industrial waste, within the EIA’s formal processes. I suggest that these limitations underlay the social and political controversies, which erupted after the first decision had been taken about the work. In both cases, scientists from the relevant areas took an active part in the social protest. Lack of communication and understanding between the decision-makers, the scientists and the general population during the EIA caused very politicised debates in the informal environment of the mass media. As no institutionalised structures and processes existed for the debate and negotiation of the conflicting positions, the decisive space for discussion ended up being the mass media. The fact that the development of the public controversy was politicised and media-driven meant that it became dominated by the campaign of actors with more defined strategies, who were able to make themselves heard more easily. It was clear that those who were in a position to assume the leadership of the protests were members of the scientific community, who had both information and a network of relationships that allowed them to be heard.

11

See http://www.incineracao.online.pt/home.htm. This public consultation discussed the report of a working group on public health formed under the auspices of the Independent Commission. 12

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In both cases, the social movement had a decisive influence on the political choices made. In Foz Coˆa, the risk to the cultural heritage, which was initially minimised by the experts working for EDP and by the public administration, was subsequently overestimated by the archaeologists and the public campaign against the building up of the dam. In the case of coincineration, technical assessments equally underestimated the risk involved, while the general population emphasised it. The examples of social mobilisation referred to showed that social culture is changing in Portugal, both due to people’s greater sensitivity to environmental and public health risks and to the fact that more participation is required today than in the past. Underlying this direct interest of laymen in environmental risk management, including risks to the cultural heritage, a sign can be detected of the transformations which have taken place in Portuguese society during the last three decades. These transformations have been confirmed by social indicators, particularly in education, of a growing school population and a corresponding decrease in levels of illiteracy and in culture, of an expansion and use of cultural institutions and increased consumption together with an improvement in the quality of life in general (Barreto, 1996). These developments have been related to the improvement in social and economic conditions which have accompanied the democratisation and modernisation of the country. The growing sensitivity of the Portuguese to so-called immaterial values accounts for their apparently increasing attentiveness to the behaviour of political authorities, as well as for their claim to be more effectively involved in decisionmaking. The question of the credibility of the institutions and their centralised and secretive practices became one critical focus of the controversies. The intensity of the controversies appeared, indeed, to be closely related to the perception of some of the interested parties and the public at large that they had been left out of the decision-making process. However, though these changes can be seen in social and civic culture, changes to attitudes and practices within the political–administrative system have been less obvious. There is no doubt that significant institutional reforms have been introduced in areas such as environmental policy and specifically within the system for EIA, in particular concerning the public consultation mechanisms. My interpretation is, nevertheless, that these reforms were, above all, ‘‘conquered’’ from the government by the social movements, and were not a result of a process of reflection within the administration. Social research on risk perception has shown that different cultures and styles of governance, which are either more inclined towards negotiation and achieving consensus or are more centralised and subject to hierarchical control, underlie different ways of dealing with the uncertainties and shortcomings of science and their political consequences (Petts, 1995). As I have already suggested, though they have been formally democratic since the middle of the 1970s, decision-making processes in Portugal have failed to incorporate scientific expertise and public participation in a regular, systematic

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way. In the past, the political system usually managed to control the contribution of scientific institutions and civil society towards decision-making. In the situations studied, the decision-making processes which preceded the emergence of the controversies were in fact supported by technical– scientific opinions and specifically the EIA. However, this resource appears to have fulfilled a function that was more legitimative than informative. It was marked by various shortcomings and limitations, partly resulting from the actual rules for the EIA process, which give the owner of the project the authority to ask for the technical opinion of experts, rules which did not prevent the contribution of certain scientific areas (such as archaeology in the case Foz Coˆa) from being excluded. It was only when doubt was cast over the authority and credibility of the public administration, that the discussion of alternatives was made possible. The social movements and media campaigns, including the mobilisation of scientists and the politicisation of the scientific debate, converged to create conditions for the recognition of the role that science can play in both informing and legitimating political decision-making within EIA. The result of the public controversy was that the frontiers between science and politics were somewhat redefined in Portugal. The technical – scientific basis for decision-making processes was improved. However, this evolution did not mean that the institutionalisation of new forms of public participation was effectively reinforced at the same time. The gap which still exists between the aspirations and expectations of citizens and their participation in practice have been manifest in their feelings of distrust shown again in 2000, when the report from the Independent Scientific Commission on coincineration was made public. The reaction of the local population and movements (which could be explained, to a large extent, by the little attention paid to their positions and to information on environmental impact produced by local citizens’ associations) eventually affected the scientists themselves. Controversy about the content of the scientific report, which included attempts to publicly ‘‘disauthorise’’ the opinion of the Independent Scientific Commission meant that the government was once again unable to achieve the consensus it sought on the coincineration method to be used and on the choice of locations for setting up the system. And because the process had not been made more democratic, this attempt to base decisions on sounder scientific grounds was not sufficient to produce a consensus. This analysis suggests that Portugal is undergoing a ‘‘modern revolution’’ of the relationships between science and public administration, albeit a little late in the day. The ‘‘postmodern revolution,’’ in the sense of constructing forms of deliberative or discursive democracy likely to facilitate participation, dialogue and negotiation among interested social actors, will possibly have to wait some time. However, in my opinion, only such an institutional reform is an essential condition for better informed and socially more acceptable procedures for EIA.

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SCORECO. EIA do projecto de eliminac¸a˜o de resı´duos industriais pelo sector cimenteiro, Resumo Na˜o Te´cnico, 1998 (July). Webler T, Renn O. A brief primer on participation: philosophy and practice. In: Renn O, Webler T, Wiedemann P, editors. Fairness and competence in citizen participation. Dordrecht: Kluwer, 1995. pp. 17 – 33. Wynne B. Establishing the rules of laws: constructing expert authority. In: Smith R, Wynne B, editors. Expert evidence. Interpreting science in the law. London: Routledge, 1991. pp. 23 – 55. Maria Eduarda Gonc¸alves, LLM, Harvard Law School, Doctorat d’Etat en Droit, University of Nice, is Associate Professor and Head of the Law Department at the Higher Institute for Labour and Business Sciences (ISCTE), University of Lisbon. Besides her scientific work in the fields of international and European law, she has been involved in various research projects at the domestic and EU levels, and published extensively on science and public policies and environmental policy and law.