Public hearings for EIAs in post-communist Bulgaria: do they work?

Environmental Impact Assessment Review 24 (2004) 473 – 493 www.elsevier.com/locate/eiar

Public hearings for EIAs in post-communist Bulgaria: do they work? Heather L. Almer, Tomas M. Koontz* The Ohio State University School of Natural Resources, 210 Kottman Hall, 2021 Coffey Rd., Columbus OH 43210, USA Received 1 May 2003; received in revised form 1 December 2003; accepted 1 December 2003

Abstract The participatory practices required as part of the established systems of Environmental Impact Assessment (EIA) practiced in the United States, Canada, Western Europe as well as several international agencies are more recent to the countries of Eastern Europe. The most common official forum for citizen participation in EIAs is the public hearing, which can provide important benefits. However, public hearings have been criticized as exhibiting several problems that preclude meaningful citizen input. This research explores three cases of public hearings held for EIA projects in Bulgaria. It argues that the public participation process and the public hearing in particular share the same problems that have been observed in other countries (including the United States and Canada). At the same time, however, Bulgarian public hearings do provide important indirect benefits that can contribute to the capacity for democratic governance and an active civil society. In the face of substantial economic obstacles and dramatic governmental reforms the country has endured since the end of communism, forums such as the public hearing are important means to foster institutional restructuring of a newly democratized country. D 2004 Elsevier Inc. All rights reserved. Keywords: Public participation; Public hearings; Bulgaria; Civil society; EIA; Nature parks

1. Introduction The Environmental Impact Assessment (EIA) process has come to be viewed as a valuable tool for making better environmental decisions. EIA entails an * Corresponding author. Tel.: +1-614-688-8166; fax: +1-614-292-7432. E-mail address: [email protected] (T.M. Koontz). 0195-9255/$ – see front matter D 2004 Elsevier Inc. All rights reserved. doi:10.1016/j.eiar.2003.12.004

474

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

investigation into the potential impacts of a given project and relies on public participation, largely through the use of public hearings, to supplement the decision-making process. Originating in the US after the passage of the National Environmental Protection Act (NEPA) in 1969, the EIA process has since been adopted by policy makers in many other countries. In fact, EIA is the most widely practiced environmental management tool in the world, instituted in 100 countries and used for government as well as business decision-making (World Bank, 2001; Dorais, 1996; Sadler, 1996). Given that the EIA process in the US has relied on a firm legal infrastructure, longstanding constitutional rights, and an active civil society, its effectiveness in political settings with significantly varying institutional structures has been called into question. For example, Appiah-Opoku (2001) found that the EIA procedures practiced in Ghana may face considerable limitations, due largely to that nation’s socioeconomic and institutional conditions. Similarly, analyses of EIA implementation in countries such as Chile (de la Maza, 2000) and Brazil (Glasson and Salvador, 2000) have shown that economic constraints and political pressure greatly alter how such a process is carried out. A recent trend has been the adoption of EIA mandates in the former Eastern Bloc countries, where most legal systems have yet to respond to new constitutional rights and the civil sector is still in its infancy. In the last decade, 27 former socialist countries of Central and Eastern Europe and Central Asia have adopted EIA regulations (Cherp, 2001). An important question is what the EIA process can accomplish in such settings. Does the lack of established institutions and an underdeveloped civil society make EIAs an empty exercise, or might they generate positive results? To address this question, we examine the EIA process in one former Eastern Bloc country. This study examines the participatory practices that are occurring as part of the EIA regulations in Bulgaria, a country without firm legal infrastructure or a strong civil society. We focus on the primary mechanism of the EIA process, the public hearing, which is a public forum where attendees receive information and pose questions about a given project. In so doing, we seek to identify the major challenges in this component of the EIA process, as well as some of the indirect benefits that are possible. The article proceeds as follows. First, an introduction of the EIA process and more specifically, the integral element of the public hearing is given, along with critiques that suggest this type of participatory activity fails in many respects to be an effective tool for utilizing public input. This is followed by background information about EIA regulations in the Bulgarian context. Subsequently, we describe the study methods and results of a comparative case analysis of EIA processes for three projects. Discussion then centers on evaluating several criticisms that have been leveled against public hearings. Finally, the challenges of the EIA process and some indirect effects of the hearing on the EIA process and Bulgarian society are considered.

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

475

2. The EIA process According to the United Nations Environment Programme (UNEP), the EIA process is an ‘‘integrated approach to preventing environmental problems’’ which ‘‘provides the decision-maker with an integrated picture of the environmental consequences of a proposed activity and its alternatives’’ (UNEP, 2002). EIA laws and regulations typically mandate the types of projects for which an EIA must be completed, as well as which impacts shall be addressed and how the public will participate (UNEP, 1996). The goal of environmental impact assessment is to investigate the range of effects that are likely to result from an activity such as a development project. These include effects on the natural environment (such as air, land, water, and plant and animal life) as well as the manmade environment (including society, cultures and the economy). Such investigation, while conducted by experts, also includes public involvement to solicit view of interested stakeholders. This component recognizes that specialists can contribute their scientific expertise to the planning process, but they cannot speak on behalf of the community in which the project will be located. The most commonly used method to solicit public participation in the United States and Canada has been the public hearing (Jefferson Center, 2001; Parenteau, 1988; Sinclair and Diduck, 1995).

3. The public hearing 3.1. Function Public hearings can be useful venues for people who would like more information about a project, as they often include a brief presentation on the proposed plan before the question and answer period. Citizen questions and comments allow project planners to have a better idea of the issues important to the public. Public hearings have been found to allow people from diverse backgrounds an opportunity to share ideas and experiences and encourage their participation in planning, publicizing, moderating, and evaluating activities, which are often part of the EIA process in the US and Canada (McKilip, 1987). In settings without strong legal, constitutional and civil infrastructures, hearings may provide a formal opportunity and valuable experience for individuals and organizations who otherwise may not feel empowered to express their opinions to government officials (Shapiro, 2001; McKilip, 1987). 3.2. Critiques A fundamental critique of the public hearing has been that it is not an adequate tool for incorporating public concerns into final decisions (Checkoway, 1981; Parenteau, 1988). Empirically, this has been demonstrated by Cole

476

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

and Caputo (1984), who found public hearings had no demonstrable long-term effect on government allocation of resources. Similarly, Renn et al. (1995) describe instances where individuals and groups have had to use different forms of participation (such as protest and legal action) to affect a project. Conceptually, hearings have been described as ‘‘tokenism’’—symbolic gestures that give the illusion of citizen power without actually granting such power (Arnstein, 1969). Such criticisms of the public hearing are manifested in three related sets of problems: legal, administrative, and citizen representation. Legal problems refer to how requirements are written in the law itself, while administrative problems center on how government officials implement the law. Finally, citizen representation refers to the degree to which citizen participants are representative of the affected public. 3.2.1. Legal problems The hearing has been criticized because opportunities for public input may be lost when it occurs too late in the decision-making process. When the hearing takes place after the decisions have been made concerning what is subject to investigation in the study (scoping), it is too late for public concerns to affect decisions in a meaningful way (Connor, 2000; Duram and Brown, 1999; Shindler and Cheek, 1999; Shepard and Bowler, 1997; Hadden, 1989). In other words, when the party proposing an action has already invested substantial time and resources preparing an EIA for a project, alteration of project plans is not likely to result from the public hearing. The timing of the hearing in the EIA process is regulated by legislation. 3.2.2. Administrative problems In most cases, administrators are responsible for implementing EIA processes, including public hearings. All too often, according to some researchers, administrators conduct hearings in perfunctory manner, to satisfy regulatory requirements rather than to facilitate meaningful public input (Hadden, 1989; Checkoway, 1981). As Duram and Brown (1999) note, there is an important distinction between ‘‘forced minimal inclusion’’, on the one hand, and ‘‘proactive beneficial inclusion of the general public’’, on the other. Studies suggest that particular administrative efforts can enhance the value of citizen input to inform decision-making (Duram and Brown, 1999; Sinclair and Diduck, 1995; Shepard and Bowler, 1997). Such efforts include conducting prehearing educational programs, ensuring accurate EIA reports, recording hearing minutes thoroughly and accurately, making information accessible to the public, and providing neutral facilitators at hearings. Conducting prehearing educational programs may serve to better inform the public of the EIA process and consequently make stakeholder contributions more meaningful. Such efforts can include training programs for citizens and NGOs (Duram and Brown, 1999; Sinclair and Diduck, 1995).

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

477

If data used in EIA reports are not accurate and complete, then the public is not in a position to be meaningfully involved in decision-making (Guttman, 1998). This has been especially problematic in developing countries, as there may not be adequate quality control of documents (Appiah-Opoku, 2001; Sheate, 1994). At public hearings in the US, a court reporter and/or tape recorder are present so that verbatim transcripts can be made. The completeness of the transcripts is important in that they provide direct evidence of what transpires at the hearings, and they may be used by policy-makers and the public to better understand the hearing dialogue (Moore, 1997; Kreske, 1996). Likewise, all information related to the EIA process, which includes the hearing transcripts, the EIA report, correspondences between the agency and interested parties, should be accessible by the public. Sinclair and Diduck (1995) suggest several techniques to make these documents more accessible, such as open houses, publications and videos, in addition to the minimal requirements, which are to hold the documents in an information room or similarly accessible site. Particularly when the local or central government oversee public hearings (as is the case in Bulgaria), neutrality on the part of administrators is important to keep the focus on the EIA process without discussing the approval or disapproval of a project (Kreske, 1996). If interested publics are made to believe a decision has already been reached prior to the hearing, and that they were simply ‘‘consulted’’ of that decision, public resentment may be problematic for the agency (Shepard and Bowler, 1997), and citizens may be wary of future participation. 3.2.3. Citizen representation problems Those who participate in the public hearing may not be representative of all of the affected stakeholders. In fact, hearings have been found to attract people who are better educated, more politically active and better informed than most community members, as well as those with economic stakes in the project (Godschalk and Stiftel, 1981). To the extent that broad participation among different groups and individuals is lacking, the opinions and comments presented at the hearing will not give voice to all those likely to be affected by the proposed action.

4. The Bulgarian setting The legal, administrative, and citizen representation problems documented in nations with substantial public hearing experience, such as the US and Canada, cast doubt on the potential success of the public hearings for EIA in settings where institutional infrastructures are less robust. In the US, environmental interests played a large part in creating national EIA legislation (The National

478

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

Environmental Policy Act), requiring agencies to solicit public input and prepare and disclose their assessments. Important precedents included the Administrative Procedures Act of 1944 and the Freedom of Information Act of 1966, which increased the federal government’s accountability and transparency in policy-making. In contrast, creation of similar legislation in Eastern Europe was largely from above, that is, under the influence and direction of the European Union. In many countries, including Bulgaria, EIA legislation preceded statutes guaranteeing citizen access to administrative documents. Also, these countries are marked by substantial disdain for the rule of law that has characterized the post-communist period. The economic transition has been difficult for people in many ways, not made easier by the predominant message in society that in essence urges people to become more self-sufficient, and the persistent inequalities accompanying it have been met with great resentment. In comparison to other East European countries, Bulgaria has lagged behind in the development of an independent civil society. Both Troxel (1995) and Ramet (1995), describe the societal legacies left by communism as leaving the populace ‘‘weak’’. They argue that dominance of the communist party in civic affairs left little to be organized by independent groups.1 Crampton (1997) likewise emphasizes the relative complacency of Bulgarians during the Communist period, in comparison with uprisings that took place in Berlin, Budapest and Czechoslovakia. Although a post-communist constitution and a number of ‘‘Western’’ and ‘‘democratic’’ laws have been in place since the early 1990s, most Bulgarians would argue they have yet to benefit from them. Given the economic hardship that has continued to plague the country, the ‘‘right to information’’,2 for example, means little when the seeker of a given document literally cannot afford to purchase a photocopy. Overall, the institutions of Bulgaria have been very slow to change from their authoritarian past, challenging the procedural component of the EIA process in a fundamental way. 4.1. EIA practice in Bulgaria The Bulgarian regulations for EIA are found in Chapter IV of the Environmental Protection Act (EPA) passed in 1991. The provisions were taken largely from the 1985 and 1997 European Union Directives on EIA, (85/337/EEC and 97/11/EC). Amendments to the Bulgarian legislation were made in 1995 and 1 There are examples of introversion of Bulgarians from earlier periods in history. Crampton (1997) notes the hermatism of the medieval time period; the presence of the Bogomil sect in the twelfth century, who rejected secular affairs; and the Ottoman period, during which Bulgarian culture survived only by its separation from the state—in monasteries and villages, distanced from administration. However, this does not characterize more recent generations. 2 Access to Public Information Act of 2000.

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

479

1998 to bring them more in line with the EU. By law, six different types of activities are subject to EIAs: urbanization and territorial plans, national and regional investment plans, construction plans, projects for expansion, objects in exploitation, and objects subject to privatization or restitution. For each of the abovementioned activities except urbanization and territorial plans, the law requires a preliminary EIA (pre-EIA) to be prepared, along with public discussion (through a hearing) of this document. If significant impacts on the environment are identified by the pre-EIA, then it must be followed by a final report of EIA (final EIA), which is accompanied by another public discussion prior to a final decision being made.3 If no significant environmental impacts are found in the pre-EIA, then a second report and hearing are not conducted. The public is not included in the scoping stage of environmental assessment. The Ministry of Environment and Water (MoEW) is charged with administering the EIA process, which is to be funded by the developer proposing the project and prepared by ‘‘independent experts’’, who have no affiliation with the developer, the MoEW or the expert council4 responsible for the final decision. The independent experts represent a variety of disciplines, including biology, chemistry, hydrology, and ecology, and they must have licenses from the MoEW.5 Public hearings are to be organized by the municipal government, along with either the MoEW or one of the Regional Environment Inspectorate (REI) offices, and funded by the developer. The organizers arrange the time and location of a public hearing, which is announced via the mass media or in ‘‘another suitable way’’ at least 1 month in advance. For at least 30 days before the hearing, the EIA document must be available to the public. Representatives from one of the convening organizations are required to collect public comments and facilitate the hearing. They also are responsible for creating and maintaining a record of the hearing. The public has 14 days after the hearing to submit comments. The developer is expected to address the public commentary in the final EIA report by either making revisions or explaining why the public concern could not be accommodated in the project. The final decision for project approval is made by the Superior Expert Ecological Council of the MoEW or the Expert Ecological Council of the respective regional inspectorate for environment and water. The councils include representatives from municipal administrations and various governmental Ministries (MoEW EIA Decree, Ch. 5, Cl. 23). When the public is not satisfied with

3

Ministry of Environment and Water, Decree No. 4, 1998 Ch. 1, Cl. 2 Ibid. Ch.2 Cl. 7 – 12. The expert council is a body of representatives of the respective municipal administration, the Ministry of Territorial Development and Construction, the Ministry of Health, the Ministry of Agriculture and the Food Processing Industry. 5 The requirements for these ‘‘independent expert’’ licenses are not always viewed positively. One Ministry employee interviewee commented that ‘‘licenses are another way for [the Ministry] to gain money since anyone can get one [it’s easy to pass] if they pay the money for the exam’’. 4

480

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

the final decision, they have the legal right to appeal the decision ‘‘in a period of 14 days for local projects and 30 days for national projects from the time of the announcement’’ (MoEW EIA Decree, Ch. 5, Cl. 22.3).

5. Methods This investigation of public hearing records from EIA projects in Bulgaria uses multiple sources of evidence in a comparative case study design. Comparative case studies are well suited to understanding complex, contemporary phenomena in real-world settings, where many factors are potentially important (Yin, 1989). The study began with a visit to the MoEW to consult with their protected areas specialist and environmental impact assessment coordinators to review all development proposals in the past 5 years with potential impacts on designated protected areas or areas of significant biological diversity. These types of projects were of particular interest because of the importance of biodiversity in Bulgaria, which is considered to be one of the most biologically diverse countries in Europe (due to diverse landscape and climate types and strict protection regimes of natural areas imposed during communism) (World Resource Institute, 1994). Three cases were selected based on their proximity to protected or ecologically significant areas: Razlog, Gorna Arda, and Vitosha. Investigation focused on the most recent public hearings, which were the pre-EIA hearings for Razlog and Gorna Arda and the final EIA hearings for Vitosha. After the cases were determined, documents relating to the cases that are legally accessible to the public were collected, such as the protocol, public participation notice records, and public hearing minutes. Reflecting the limited accessibility of the information to citizens, obtaining the public hearing records from the Ministry was not a simple task. After multiple meetings and requests, the principal investigator eventually was granted access to these ‘‘public’’ records. To gain additional information beyond legal documents, personal interviews were held with three employees of the EIA department of the MoEW, two MoEW employees from other departments, the head of one of the Regional Environmental Inspectorates, and three members of two environmental NGOs involved in EIA public hearings. Also, additional information was gathered from newspaper and internet sources. The data are analyzed following the style of Miles and Huberman (1994) cross-case analysis, regarding their correspondence to the legal, administrative, and citizen representation criticisms of public hearings. Are they held too late in the EIA process in Bulgaria? Do administrators (the MoEW) fail to engage in any extra activities to educate the public about the process? Does the MoEW fail to ensure accurate and complete EIA reports, and are these and related documents inaccessible to the public? Are MoEW officials biased in their facilitation of the hearing and do they fail to carry out a standard procedure for recording the hearings? Are the attendees at the hearings only a narrow subset of the affected

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

481

publics? The discussion is extended to explore how these hearings may contribute to institution and state building in new democracies. In particular, we argue that the public hearing aspect of the EIA process has contributed to an increased public demand for transparency in the administrative affairs of postcommunist Bulgaria.

6. Results 6.1. Razlog The proposed project in Razlog, a large municipal area in the mountainous southwestern part of Bulgaria, was for the development of a large-scale tourist complex to increase the number of visitors to the area. The area is well known for its unique ecosystems, partially protected in Pirin National Park, which include glacial lakes, waterfalls, caves, rugged cliffs and several trees older than 1000 years. Bulgaria formally recognized the area as a park in 1962 and a region within the park, Bayovi-Dupki-Djinjirnitsa, was declared a UNESCO World Biosphere Reserve in 1977 (UNESCO, 2003). The project called for the building of two golf courts, three ski runs, two ski lifts, a hotel, and two new playgrounds, as well as the rebuilding of an old road. A group of Bulgarian architects wrote the project plan, and two engineers prepared the EIA report that was discussed at the hearing. Given the large-scale dimensions of the project, there was broad participation at the hearing for review of the pre-EIA, including representatives from several different NGOs, government, business, as well as citizens of Razlog. In this case, the hearing was organized by the Municipality of Razlog in conjunction with the MoEW. The report authors’ basic argument was that the project would not harm the environment, but to the contrary, would enhance the natural resources of the area and ‘‘bring order to the region’’. Comments and questions by the attendees varied from those who gave emotional speeches of full support to those who were opposed to the project due to the unstated impact on the area’s fragile environment. The major difference in opinion was split between the citizens, NGOs, business and government representatives located in Razlog, and those individuals (mostly NGO representatives) who came from outside the region. The people in and around Razlog argued in favor of the project to bring prosperity to the area, the economy of which heavily relies on tourism and local craft production, whereas those from outside the region argued the importance of preserving the natural state of the environment. One problem observed from the hearing record was that a Ministry representative claimed that there had been private discussions in the Ministry and the project would not be approved. Although this may have been a singular emotional outburst during a heated debate, it points to a MoEW employee’s

482

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

failure to act as a neutral facilitator. The Razlog case is summarized, along with the other cases, in Table 1. 6.2. Vitosha The name Vitosha refers to a twin-ridged mountain that sits next to Sofia, the present day capital of Bulgaria. Long recognized for its natural beauty and

Table 1 Summary of cases

Project

Designation of area around project

Case 1: Razlog

Case 2: Vitosha

Case 3: Gorna Arda

Major tourist infrastructure: hotel, golf courses, ski runs and lifts National Park and Biosphere Reserve

Reconstruction of a ski lift

Building three dams for hydroelectric power

Nature Park

None, but ‘‘one of the most biologically diverse rivers in the country’’ None

Changes after hearing Yes—some areas not allowed to be developed Environmental impact Project will improve the (as presented by natural resources project proponent) Major points of Potential for economic discussion growth versus preservation of natural areas

None

Environmental topics covered

National groups wanted protection of resources, locals argued they are good stewards of nature

Problems encountered

MoEW personnel gives unofficial opinion of MoEW at hearing

Effect of construction on the breeding cycle of animals in the park; future impact of more users Inaccurate data used in EIA (old records of plant and animal species)

No statement at hearing about impacts Safety of current lift, potential for new jobs, and construction schedule

Project will have no negative impact on the environment Classification of water, safety of local water supplies, new jobs (Ardino hearing), property rights of owners (Madan hearing) Safety of water briefly mentioned

EIA only prepared for one of three dams; no environmental groups despite stated interest

Sources: Ministerstvo na Okolnata Sreda i Vodite (Ministry of Environment and Water [MoEW]) (2000). Protokol ot obshtestvenoto obsuzhdane (Public Hearing Minutes)-Gorna Arda; MoEW (2000a,b,c,d). Protokol ot obshtestvenoto obsuzhdane-Razlog; MoEW (2000a,b,c,d). Protokol ot obshtestvenoto obsuzhdane-Vitosha; MoEW (2000a,b,c,d). Spravka za Izdadenite Reshenija po OVOS v Period 01.01.97 – 01.07.99 (List of Approved Projects for the period January 1997 – July 1999). Interview with Director of REI Veliko Turnovo, E. Grigoreva, August 17, 2000. Interview with Head of EIA Department of the MoEW, Elizaveta Zgurovska August 31, 2000. Interview with Protected Area Specialist of the MoEW, Vanya Grigoreva, August 12, 2000.

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

483

resources, it was declared a national park in 1934, making it the first protected area on the Balkan peninsula (Vitosha Nature Park, 2003). Vitosha is one of the several mountain areas in the country that host the last refuges for species long extinct in most of Europe, such as brown bears, wolves, otters, and various owls and birds. In 1998, the Protected Areas Act converted Vitosha from a ‘‘people’s park’’ to the less-protected category of ‘‘nature park’’. But the area is held in high esteem by Bulgarians, especially the over one million inhabitants of Sofia, many of whom frequently visit the mountain for fresh air and relaxation. For this reason some groups opposed the new ‘‘nature park’’ designation, as it opened up the area for new roads, hotels and other developments, and there has been a movement to protect the intact areas of the park (Csagoly, 1998). The project that required an EIA was for the reconstruction of a ski lift at Romanski-Maluk Resin. While the area has had ski facilities since the 1970s, the project would allow a greater number of skiers, increasing the income of the park but also adding more stress to its natural areas. The public hearing for the project’s final EIA took place in May of 2000. According to the transcript, all of the citizens who attended the hearing seemed to have direct connection with the proposed project: there were no NGOs or unaffiliated individuals. Those who are known to have interest in the preservation of natural areas of Vitosha, such as the Bulgarian Green Party, the Bulgarian Society for the Protection of Birds, the Green Balkans NGO and various citizens of Sofia (Csagoly, 1998) were not present at this hearing. According to an interviewee familiar with the case, their absence was probably due to the fact that there was no legal means to block such development from taking place, i.e., the battle of fighting for the protection of Vitosha had already been lost when the park’s status was changed. Also, since the new lift would replace an older lift, the project was less controversial than one proposing to develop an untouched area in the park. There was no major disagreement at the hearing about the development. The Director of Vitosha Nature Park raised some questions about the data used for preparing the report, as well as details about the construction. Although no debate ensued from his inquiry, the Director did point out a significant flaw in the EIA report, which used ‘‘old’’ records of plants and animals of the area. The EIA report did not list any major impact on the plants and animals or on other aspects of the environment, nor was it discussed at the hearing. The project, according to the report, would take place in accordance with the breeding schedule of the animals in the park. Therefore, it is difficult to understand based on the hearing records, whether there is an environmental impact at all. The lack of focus on this topic may be connected to the fact that no environmental groups were present at this hearing. There were no changes to the project as a result of the hearing. 6.3. Gorna Arda Gorna Arda is the name of the upper section of the river Arda, located in the southeast part of Bulgaria in the Rhodope mountains, but more recently refers

484

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

to a major hydroelectric energy project on this river. The project, which was to include three dams, was initiated by both the Bulgarian and Turkish governments in 1998, who declared it to be a sign of improved relations between the countries. The original plan was for the investment to be split evenly between a company in Turkey, Ceylan Holdings, and in Bulgaria, the National Electric Company. At the ground breaking ceremony on October 26th of 1999, Turkish and Bulgarian flags were hung next to each other while the Prime Ministers from each country spoke of the ways the project would benefit both Bulgarian and Turkish citizens alike. According to the Bulgarian environmental NGOs that protested the dam (using forums other than the public hearing such as websites, meetings, and local media), any project in or near the biologically rich Arda River should consider the national laws and conventions signed by the Bulgarian government that protect rare and endangered species, such as the Bulgarian Nature Protection Act and the Bern Convention for the Protection of the European Flora and Fauna. They also noted that the EIA prepared for the project investigated the impact of only one of the three proposed dams. They contested the main argument of project proponents: that the construction would bring employment to the residents of the area. Instead, they argued that the most sustainable source of jobs in the area would be ecotourism. Finally, they argued that the substantial sums of money invested in the project by the Bulgarian government would be better spent on energy efficiency programs. Yet the environmental groups that raised these concerns were not present at either of the two public hearings held on the final EIA, one in the town of Ardino, and the other in the town of Madan. No concerns about biodiversity were brought up at either of the meetings, other than in the comments by the EIA authors about the prepared EIA (which reported no negative impact). At the hearing in Ardino, the only person to criticize the project was a representative from a health institute who questioned the validity of a water classification used in the report. At the hearing in Madan, two individuals raised their concerns about the impact of the dam on their property.

7. Analysis across cases 7.1. Critiques We can now revisit the critiques of the public hearing introduced at the outset of this article with regards to the three cases. These critiques include obstacles that may occur at the legal level, such as the timing of the public hearing, the administrative level, which entails what the MoEW does—or does not do—to facilitate meaningful public participation, and in citizen representation. Across the cases, evidence supports most of these criticisms, and as such it is unlikely that the public hearings directly affected project decisions (see Table 2).

Type of critique

Specific criticisms

Case 1: Razlog

Case 2: Vitosha

Case 3: Gorna Arda

Legal

Was it too late in the EIA process? Was there a lack of prehearing educational efforts? Did MoEW fail to ensure accurate and complete information in the EIA report, according to the public?

Yes: citizens lack formal means to comment on scoping Yes: nothing in addition to required notification process Yes: lack of social and economic evidence, too many generalizations, and no assessment of planned ski runs

Yes: citizens lack formal means to comment on scoping Yes: nothing in addition to required notification process Yes: inaccurate data used in EIA (old records of plant and animal species)

Were meeting minutes recorded in an incomplete manner?

No: verbatim transcript and full account of individuals present and their affiliations

Was information inaccessible to the public? Did MoEW employees fail to be neutral facilitators? Was there a lack of broad public participation?

Not entirely, but significant limitations Yes: employee gave unofficial opinion at hearing No: there was significant representation

Yes: some verbatim recording and some summations of comments, incomplete list of participants Not entirely, but significant limitations No: focus was on process, not outcome Yes: narrow representation

Yes: citizens lack formal means to comment on scoping Yes: nothing in addition to required notification process Yes: claimed no impact and did not address Bulgarian Nature Protection Act or Bern Convention for the Protection of the European Flora and Fauna Yes: mostly summations of comments rather than verbatim recording, no list of participants Not entirely, but significant limitations No: focus was on process, not outcome Yes: narrow representation

Administrative

Citizen representation

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

Table 2 Public hearing critiques and case study findings

485

486

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

Nevertheless, data suggest that they can play a positive role in the EIA process by encouraging greater transparency in decision-making. 7.1.1. Legal problems The problem of public hearings occurring too late in the EIA process to make a difference is evident in Bulgaria. Like most countries in Europe, Bulgaria’s EIA statute does not formalize requirements for public involvement in the beginning stages of the project, i.e., the scoping stage. Indeed, in none of the three cases studied was the public included in the process until the EIA was already written. 7.1.2. Administrative problems The problem of administrators implementing public hearings in ways that minimize citizen opportunities for meaningful contributions holds true in many respects. Five key components contribute to this result. First, in all three cases, MoEW personnel carried out their standard ‘‘notification procedure’’, which includes announcements in the government bulletin and local newspapers, and specific letters of invitation to ‘‘potentially interested groups in the area’’, but they did not conduct any additional activities to improve public knowledge of the rules. The MoEW officials seemed to reach several NGOs in Razlog with this method, but may not have had full listings of interested NGOs in the cases of Gorna Arda. Such a problem is documented in a public participation study of dozens of countries, which found Bulgaria’s notification practices to be lacking (REC, 1998). Second, administrators have not been successful in ensuring that EIA documents include accurate and complete information. In all three of the cases, stakeholders identified weaknesses in the EIA reports. At Razlog, critics pointed to the lack of social and economic evidence to support the proponents’ claim of being ‘‘positive for the environment’’, the overuse of generalizations, and the lack of investigation on the effects of planned ski runs. At Vitosha, the criticism was due to outdated information on plants and animals. At Gorna Arda, NGO groups pointed out that the EIA report failed to address national and international laws and conventions that protect rare and endangered species. Moreover, MoEW interviewees stated that the ‘‘experts’’ who are supposed to write original documents for the EIA, have, in several instances, plagiarized background information, borrowing verbatim passages from former EIA reports. Third, meeting minutes were not always recorded completely. Because the hearing transcript may be the only evidence the Expert Council sees related to public opinion before deciding on a project, the completeness of the hearing minutes is critical to the EIA process as a whole. Yet despite regulation stipulations, there is no standard procedure followed by MoEW and municipal employees in recording the minutes, as there was great variation in the three cases. EIA regulations call for either an MoEW official or a municipal official to chair the public hearing and take minutes (but not necessarily the same person). At the Razlog meeting, a separate secretary took detailed notes in full sentence

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

487

style, while the MoEW representative at Vitosha not only chaired the meeting, but also had to take the hearing minutes, which included some summations of commentary by participants and some verbatim transcripts. The MoEW official who chaired the Gorna Arda hearings also had to multitask by taking hearing minutes as well, and he summed up speakers’ comments in a very brief style without elaboration. This implies that there is a potential loss of objectivity in that the recorder has the option of allowing certain comments fully on the record and others merely summarized. Fourth, administrators have made information relevant to the hearings accessible to the public, but only marginally. As mandated by law, the public is allowed to view the EIA report for 30 days before the hearing, which may be kept at the MoEW headquarters in Sofia or the local municipality of the proposed project. In practice, this is more difficult for the public than it appears. The visiting hours of the MoEW are for only 2 h/day, and in order to read specific documents such as hearing protocols, a written request and scheduled appointment are necessary. Photocopies of EIAs, which are typically over 100 pages in length, are expensive, costing approximately 10 dollars, which is 10% of the average Bulgarian monthly salary. Since there is minimal time to read the document, and the cost of copies is beyond most people’s budgets, accessibility is limited. Fifth, MoEW officials facilitating the public hearings do not always maintain neutrality. In two of the three cases, MoEW employees tended to emphasize how the EIA process worked, without stating their side on the case. But at the Razlog hearing, a MoEW employee argued with an attendee’s comments, claiming that the project would ‘‘not be approved anyway’’. It was clear, however, that other MoEW employees present were aware that this was not acceptable behavior and shortly after their colleagues’ comments, insisted that his were not the ‘‘official viewpoint’’. But this comment was probably enough to raise some doubts among those present at the hearing regarding the intentions of administrators in holding the public hearing. 7.1.3. Citizen representation problems There was a large presence of outside groups (mostly environmental groups from the capital) at the Razlog hearing, as well as a diverse array of local organizations, businesses, specialists and individuals. It is fair to say that the Razlog case on its own attests to the growing network of NGOs and the willingness on their part to challenge proposals that may be fully backed by the government. In the other two cases, the representation of environmental groups was scant despite the notification procedures taken by the MoEW. The hearing for the ski lift project in Vitosha attracted the developers, the Park administration and some specialists. The reasons why others, such as park users, did not attend may be because they did not stand much to gain by doing so. If the intent was to protest such a project, the law on land use in the different categories of protected areas had already been established; therefore, development for

488

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

ecotourism purposes was inevitable. Moreover, the project was not to build a new lift, but to replace an old one—which, according to Bulgarians familiar with the case, seemed reasonable given the safety requirements and the need to accommodate the increased number of skiers in the park. The debate about the hydroelectric project in Gorna Arda began before the public hearing took place. A number of different nongovernmental organizations were involved in this debate, some of whom attended the hearing, but most of whom did not. The lack of environmental groups at the hearing could be due to the dearth of groups in the local area, and the distance required to travel to Arda or Madan from Sofia, the home of most groups who protested the dam. 7.2. Indirect effects Clearly, the public hearings examined in this study exhibit substantial legal, administrative, and citizen representation problems. Yet the public hearings, and the EIA process more generally, have contributed to progress in information access, public knowledge of rules, and the ‘‘opening’’ of the authoritative bodies (the MoEW and the REIs). For example, in the Gorna Arda case, early on several environmental NGOs protested the fact that the government had not begun an EIA process. Once the EIA was prepared they contested how it did not consider the hydroelectro facility in its entirety. Even though the EIA report did not fully assess potential environmental impacts, the EIA process did significantly contribute to the government’s decision to grant affected property owners compensation. In the Razlog case, several of the environmental organizations were knowledgeable enough about the regulations to raise detailed points on the number of EIA authors and on the validity of the information used in the report. If we expand our view of public hearings beyond the impacts (or lack thereof) on particular projects, we can discern indirect effects that are important for building civic capacity in a new democracy. As Rakowski (1995, p. 525) argues, in evaluating Social Impact Assessment in developing countries, an important result is ‘‘more subtle outcomes, such as increasing awareness of social issues or generating public debate’’. Such awareness and debate can encourage the evolution of civil society from government domination to institutionalized guarantees of an independent social sphere. According to Weigle and Butterfeld (1992), there are four stages of civil society: defensive, emergent, mobilizational and institutional. Bulgaria has shifted from a defensive society, in which most organizations were organized by the state and therefore few independent groups or movements existed, to an emergent society, in which groups and movements may exist but have limited goals. To what extent Bulgarian civil society may be considered mobilizational is debatable, as it entails that these groups and movements function to the point of providing viable alternatives to government practices. Yet in two of the three cases examined in this study, Razlog and Gorna Arda, organizations met before the hearing to discuss their interests and the EIA report, showing ‘‘mobiliza-

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

489

tional’’ trends. Although Bulgaria may not be at the institutional stage, in which elected leaders pass laws guaranteeing independence of social sphere and outline an agreement between state and society, activities that strengthen the interaction of groups with each other and with government may help Bulgaria advance to this stage. Another important indirect effect is the growth of the participants themselves. Some of those attending may be learning EIA procedures for the first time, and in so doing, they may be more prepared to contribute to future hearings. Conversely, MoEW employees, in the facilitation role, are likely to learn what makes meetings more productive. The size and space of the chosen venue, the presentations given by proponents, as well as the way people are invited to speak may be changed and adapted as the MoEW learns from experience.

8. Challenges and opportunities for improving the EIA process in Bulgaria While many problems are evident in the cases examined here, opportunities do exist for improvement. First, the crucial need for the public to have access to information must be addressed. While the legal right has been made stronger by the passage of the Freedom of Information Act in 2000, interested parties still must find a way during limited hours and with limited funds to access and copy documents. The increased use of the internet, by both administrators and by citizens, may significantly offset the information challenge. Through this means and a variety of news and radio sources, Bulgarian citizens are becoming well versed in the new regulations. Second, for citizens to increasingly engage in participation, there is a need to build trust that government officials will be tolerant and responsive to citizens who dissent and voice concerns, and that government-provided information will be accurate and unbiased. For years under communist rule, government officials worked to obscure and conceal information; it is no small feat for citizens to now view government officials as trustworthy information providers, and for government officials to take on this new role. As citizens and officials gain experience, over time, in the give and take of citizen-state interactions and information sharing, such trust can be increased. Third, the courts are an underutilized vehicle for public participation in Bulgaria. In countries such as the US and Canada, citizens have relied on the courts to contest public participation procedures and ensure processes and information access that increase opportunities for meaningful participation. Court remedies are less prevalent in public participation in Bulgaria, because legislation providing information rights is rather recent, individuals must wait several months to file their claims, which are often repeatedly delayed, and there is a dearth of lawyers with expertise in this area. With the passage of the Freedom of Information Act in 2000, the statute is in place for future use of the courts to increase citizen access to government decision-making.

490

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

Fourth, the quality of the EIA reports may be improved as citizens become more informed of the procedural guidelines of EIA, and their own rights in participating in the process. The more often individuals or NGOs challenge the administration on the contents of the reports, through independent quality reviews, the more likely they are to improve credibility in the long run. Corruption, however, still threatens credibility issues since the ‘‘independent’’ agencies are not necessarily anonymous to the developers and their interests. Lastly, an important challenge is the fact that the decision-makers, the expert councils, typically do not attend public hearings. Instead, they rely on public hearing transcripts, which are not necessarily complete and accurate. Thus the decision-makers are likely to be under-informed about the comments and concerns raised by affected parties. It is possible to encourage expert council members to attend public hearings, but to do so would require the MoEW take the initiative to demonstrate the benefits associated from interacting directly with the public.

9. Conclusion In closing, the three public hearings in Bulgaria observed in this study, for the most part, correspond to the critiques of hearings in general that have been articulated by numerous scholars. The hearing happened at a later stage in the EIA process, as opposed to what occurs in the United States. The hearing also seemed to be a formality in that administrators did not go beyond the minimum requirements necessary. The attendance and the distribution of opinions of the project at the hearings varied, but those attending tended have economic stakes or some other direct connection with the project rather than representing interests of the broader public. The hearings themselves did not make significant, direct impacts on the final decision. However, the hearing seems to be a reasonable strategy for a country like Bulgaria given its low cost and the useful indirect effects it may generate. These results suggest several implications for similar countries with poor economies and struggling democracies. First, on the part of governments, countries have the option of fostering earlier involvement of the public in the EIA process, during the scoping phase, which would go beyond what is called for in regional models, such as the EC Directive. This modification, which was recommended at conferences such as the ‘‘Environment for Europe’’ in 1998, could enhance the way the public participates in the EIA process. Otherwise, as the critique of the hearing suggests, it may be too late for contributions from the public to be meaningful (Hadden, 1989; Checkoway, 1981). Second, it is logical that the hearing be different in developing countries given the specific challenges such countries face. The ‘‘option’’ on the part of

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

491

administrations to go beyond what is called for by law to generate publicity for a hearing, and that of attendees to take the time and occasional risk to attend, is less plausible than it would be in a more developed country. Contributing to a public hearing related to environmental impacts will likely remain a low priority for most citizens, especially when securing the basic necessities of life commands immediate attention. Third, in order for public hearings to be worthwhile events, administrators must carry out a systematic notification process, including NGOs. Even though budgets may be very limited, this is perhaps the best chance to overcome weak attendance at hearings, as demonstrated by the Razlog case. Once NGOs are notified, they are more likely to provide a case to the public why they should attend, as commonly occurs in the United States. Finally, even if public hearings do not directly impact the final decision in a given project, they can yield other important effects, such as improving government accountability and increasing the knowledge and activity of groups willing to be involved in the process. In Bulgaria, the public hearing is one of the most obvious examples of the government’s shift from a closed door to an open door policy, since it admits that citizens have a fundamental right to participate in decisions about policies that affect them. The work of the government on EIA has gone hand-in-hand with that of environmental NGOs who have been engaged in training the public about ways to participate in EIA. Thus, this study suggests that the ‘‘officially generated’’ participation in the EIA process, the public hearing, despite its weaknesses, can contribute to the institutional restructuring of a newly democratized country.

Acknowledgements The authors acknowledge assistance from the Bulgarian Ministry of Environment and Water and environmental group representatives who shared their insights and experiences, and who provided invaluable help in document retrieval. Funding for this research was provided by the Fulbright Program of the US Department of State, Grant number 01-12-04, and by the Foreign Language Area Studies Fellowships of the US Department of Education.

References Appiah-Opoku S. Environmental impact assessment in developing countries: the case of Ghana. Environ Impact Asses Rev 2001;21:59 – 71. Arnstein SR. A ladder of citizen participation. J Am Inst Plann 1969;35:216 – 24. Checkoway B. The politics of public hearings. J Appl Behav Sci 1981;17:566 – 82. Cherp A. EA legislation and practice in Central and Eastern Europe and the former USSR, a comparative analysis. Environ Impact Asses Rev 2001;21:335 – 61. Cole RL, Caputo DA. The public hearing as an effective citizen participation mechanism: a case study of the General Revenue Sharing program. Am Polit Sci Rev 1984;78 – 72:404 – 16.

492

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

Connor D. Public participation and impact assessment: an overview. Constr Citiz. 2000;27 – 34. Crampton R. A concise history of Bulgaria. Cambridge, MA: Cambridge Univ. Press; 1997. Csagoly P. City mountain or nature mountain? Bull-Region Environ Cent Cent East Eur. 1998:8 – 12. de la Maza CL. NEPA’s influence in developing countries: the Chilean case. Environ Impact Asses Rev 2000;21:169 – 79. Dorais M Preface. In: Sadler B, editor. International study of the effectiveness of environmental assessment: final report. Ottowa (ON): International Association for Impact Assessment and Canadian Environmental Assessment Agency, Ministry of Supply and Services; 1996. Duram L, Brown K. Assessing public participation in US watershed planning initiatives. Soc Nat Resour 1999;12:455 – 67. Glasson J, Salvador N. EIA in Brazil: a procedures – practice gap. A comparative study with reference to the European Union and especially the UK. Environ Impact Asses Rev 2000;20:191 – 225. Godschalk D, Stiftel B. Making waves: public participation in state water planning. J Appl Behav Sci 1981;17:597 – 614. Guttman JS. What right-to-know means for environmental strategies. Corp Environ Strategy 1998;5:82 – 5. Hadden S. A citizen’s right to know: risk communication and public policy. Boulder: Westview Press; 1989. Jefferson Center. Retrieved from the world wide web on February 16, 2001 from the Jefferson Center website: http://www.jefferson-center.org/. Kreske D. Environmental impact statements. A practical guide for agencies, citizens and consultants. New York: Wiley; 1996. McKilip J. Need analysis: tools for the human services and education. Newbury Park, CA: Sage; 1987. Miles M, Huberman M. Qualitative data analysis. Second edition. Thousand Oaks, CA: Sage; 1994. Ministerstvo na Okolnata Sreda i Vodite (Ministry of Environment and Water [MoEW]) 2000a. Protokol ot obshtestvenoto obsuzhdane (Public Hearing Minutes)-Gorna Arda. Ministerstvo na Okolnata Sreda i Vodite (Ministry of Environment and Water [MoEW]) 2000b. Protokol ot obshtestvenoto obsuzhdane-Razlog. Ministerstvo na Okolnata Sreda i Vodite (Ministry of Environment and Water [MoEW]) 2000c. Protokol ot obshtestvenoto obsuzhdane-Vitosha. Ministry of Environment and Water (MoEW) 2000d. Access to Public Information Act. State Gazette No. 55. Sofia, MoEW, July 7, 2000. Moore E. The environmental impact statement process and environmental law. Columbus, OH: Battelle Press; 1997. Parenteau R. Public participation in environmental decision making. Ottowa: Federal Enviromental Assessment Review Office; 1988. Rakowski CA. Evaluating a social impact assessment: short- and long-term outcomes in a developing country. Soc Nat Resour 1995;8:525 – 40. Ramet S. Social currents in eastern Europe. Durham: Duke UP; 1995. Regional Environmental Center for Central and Eastern Europe. Doors to democracy: current trends and practices in public participation in environmental decision making in central and eastern Europe. Szentendre, Hungary: REC; 1998. p. 115 – 26. Renn O, Webler T, Weidemann P. Fairness and competence in citizen participation: evaluating models for environmental discourse. Dortrecht, Netherlands: Kluwer Academic Publishing; 1995. Sadler B. International study of the effectiveness of environmental assessment: final report. Ottawa (ON): International Association for Impact Assessment and Canadian Environmental Assessment Agency, Ministry of Supply and Services;1996. Shapiro L. Making the most of public hearings. Environmental enforcement project. New York, NY: Title V Publications; 2001. p. 1 – 3. Sheate W. Making an impact: a guide to EIA law and policy. London: Cameron May; 1994.

H.L. Almer, T.M. Koontz / Environ. Impact Asses. Rev. 24 (2004) 473 – 493

493

Shepard A, Bowler C. Beyond the requirements: improving public participation in EIA. J Environ Plan Manag 1997;40(6):725 – 38. Shindler B, Cheek KA. Integrating citizens in adaptive management: a propositional analysis. Ecol Conserv 1999;3(1):9. Sinclair AJ, Diduck AP. Public education: an undervalued component of the environmental assessment public involvement process. Environ Impact Asses Rev 1995;15:219 – 40. Troxel L. Bulgaria. In: Barany Z, Volgyes I, editors. The Legacies of Communism in Eastern Europe. Baltimore: John Hopkins Univ. Press; 1995. p. 227 – 44. United Nations Environmental Program (UNEP). Application of environmental principles to policies, plans and programmes (ECE/ENN WA/27). Environmental Series, vol. 9. Geneva: UNEP; 1996. p. 121 – 3. United Nations Environmental Program (UNEP). UNEP’s environmental impact assessment training resource manual. Second edition. Geneva: UNEP; 2002. United Nations Educational, Scientific and Cultural Organization (UNESCO). The MAB program, world network of Biosphere Reserves. Retrieved from the world wide web on January 5, 2003 from the UNESCO-MAB Website: http://www.unesco.org/mab/wnbr.htm. 2003. Vitosha Nature Park. Retrieved from the world wide web on March 3, 2003 from the Vitosha Park Homepage: http://www.park-vitosha.org/. 2003. Weigle MA, Butterfeld J. Civil society in reforming communist regimes: the logic of emergence. Comp Polit 1992;10:1 – 19. World Bank. Portfolio review of projects conducted by the World Bank’s social development department, fiscal year. Washington, DC: World Bank; 2001. World Resource Institute. Biodiversity in Bulgaria. World directory of environmental studies. Washington, DC: Biodiversity Support Program; 1994. Yin R. Case study research: design and methods. London: Sage; 1989. Heather L. Almer, MS, MA, is currently a PhD student at The Ohio State University. Heather served in the Peace Corps in an environmental program which focused on education and NGO development in Bulgaria. She subsequently conducted research as a Fulbright Scholar in Bulgaria in the area of public participation in national parks. Tomas M. Koontz is Assistant Professor of Environmental and Natural Resource Policy in the School of Natural Resources at The Ohio State University. His primary research areas include collaborative environmental management, citizen participation, and agency policy-making related to forest and land resources. He has authored articles in several public policy, public administration, political science, and natural resource journals, along with the book Federalism in the Forest: National versus State Natural Resource Policy (2002).