Jusletter IT

The explicit recognition of the public’s right to access environmental information came in Aarhus in 1998 at the UN/ECE Convention,¹ which the European Union then adhered to with proclamation 2005/370/EC of 17 February 2005, and many of its provisions have since been transposed into EU law by way of decree 2003/4/EC. The European Parliament’s and Council’s regulation EC no. 1367/2006, issued on 6 September 2006, also adheres closely to the Aarhus directives as they apply to institutions and organizations within the EU with respect to access to information, the public’s right to participation in decision-making processes, and accessibility to environmental law resources.

The principles set forth in the Aarhus Convention relating to full access to environmental data and to citizen participation in decision-making processes resonate strongly with recent perceptions of environmental issues, and they point to a widespread understanding that an effective environmental protection policy cannot be based on adherence to the status quo but should instead strive to effectively promote policies aimed at improving current conditions, with the aim of assuring each person’s right to «live in an environment conducive to ensuring health and wellbeing.»²

The Aarhus Convention marks an important milestone in international environmental protection policies, not only in relation to its enumeration of specific and detailed directives to this effect with respect to the implementation of rights of accessibility, but particularly in the principle it set forth that «wide access to environmental information and greater public participation in decision-making processes result in better and more effective decisions, contribute to increased public awareness of environmental issues, and allow concerns to come to the surface, where public entities will be able to address them.» The aim is «to increase accountability and transparency in decision-making processes and to increase public support for environmental initiatives» (principles stated in the opening statements). This convention represents the first step in a process of public involvement with public entities in the dynamics of horizontal integration of decision-making processes, based on the principles of the widespread availability and accessibility of environmental data, which are indeed the very conceptions that have been codified and defined in the international directives discussed herein.

Additionally, by adhering to and ratifying the measures set forth in the convention, participating member states have undertaken to guarantee the availability and accessibility of environmental information in electronic form. In this way, Article 5, c. 3, setting out the modalities for gathering and making environmental data available, calls for «each Entity to ensure the progressively expanding availability of environmental information in databases easily accessible by the public through open telecommunication networks.» The way this directive is formulated is significant, because it not only requires participating member states to make data and information freely available to the public, but specifies the manner in which it will be archived in databases and assures that access is to be available through public electronic telecommunications systems. There are two groundbreaking principles present in this conception: first, member states are to identify a specific technological mode of accessing information, selecting from a variety of available technologies the one best suited to its purposes; and second, access to territorial information is a legally protected right, and the entities that store the data are accordingly obligated to make the information available electronically. According to the letter of the treaty, environmental information is to progressively become the object of services designed and distributed through the use of Communication and Information Technologies (ICTs).

The language of the convention, which has already been ratified by a number of EU member states, was formally become part of the EU system of law by way of a 2005 Council decision. From a substantive point of view, however, the rules set forth in the Aarhus Convention have been in effect since 2003, considering they have been transposed and expanded by way of Directive 2003/4/EC, concerning public access to environmental information.³

The legislation setting out general provisions on the digitalization of public-administration records also contains rules applicable to the modernization of strategic sectors. One such area of law is that regulating territorial and geographical information, an important innovation in the process of reorganizing the public administration, where the ICTs can play a key role if properly deployed. Specifically, this concerns Territorial Information Systems (TIS), otherwise known as Geographical Information Systems (GIS) when referred to an international context, which may be defined operationally as systems designed with the aim of archiving, managing, analyzing, and then presenting in graphical or alphanumerical form data contextualized in a spatial and topological manner: these are in essence designed as ways to present data in a spatial relationship. The fundamental functions of TISs consist in gathering, pre-processing, and transforming multiple-source spatial data; maintaining and retrieving spatial data, with the ability to modify and update it; manipulating and analyzing data; aggregating and disaggregating data, assessing parameters; modelling data; generating reports; synthesizing data.

TISs have some unique features in relation to traditional information systems, since territorial data is obtained by linking information or data to geographical elements. As a result, information managed by different governmental agencies must be collected for each such geographical element. This is one of the key points concerning territorial information: this data is the object of protection of the public’s right to access the environmental information just mentioned, since territorial data is classed under the same type as environmental data, at the same time as it serves as a strategic tool for shared management of a single territory by different public administrations. Three needs must be borne in mind in implementing TISs: (1) simplification and transparency of the public administration, entailing modernization of overall organizational parameters, improved procedural efficiency, and democratic accountability of decision making and results; (2) accessibility to territorial information maintained by a public agency, and collective participation in the formulation of public policy relating to the development and protection of the territory; and (3) the promotion of collaborative activities among agencies operating in the same territory, both as concerns the activation of intervention policies and as concerns the implementation of TISs (data integration, cross-platform exchange, and interoperability).

Geo-tagged data constitutes an important resource both in planning as concerns territorial planning and management and fiscal policy, and also as concerns the protection of the citizen’s right to access environmental data, so as to foster collaboration, participation in environmental decision making, and monitoring the outcome of administrative activity. In order for such data to function as a common resource, both for citizens and for the public administration, it is necessary that the implementation of TISs be undertaken with the aim of making it easier to share information; and from an ICT point of view, such sharing means that data must be integrated, systems must be made interoperable, and information must be available for reuse. It is thus necessary to do the following:

• To consolidate the creation of databases that are integrated within shared structural service mechanisms that will permit the exchange and integration of data, for example by merging cadastral and regional topographic data. A regional integrated territorial databank is formed by various tiled layers, or layers represented in a single system of coordinates. These types of databases it would make it possible to manage territorial data through a single interface, at once making it easier to retrieve and consult data, share information, and set out homogeneous standards for managing information.
• To implement TIS interoperability, which is necessary for effective cooperation among agencies operating and existing in a single territory; and to work out shared operational models aimed at avoiding information redundancy.
• To frame a coherent and organic set of rules for reusing public data within the private sector, fully implementing Directive 2003/98/EC. Reuse, as defined in Article 2 of the directive, «means the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute reuse.»

The subject referred to here—natural risk zones—is defined in Annex III.12 of Directive 2007/2/EC,as «vulnerable areas characterized according to natural hazards (all atmospheric, hydrologic, seismic, volcanic, and wildfire phenomena that, because of their location, severity, and frequency, have the potential to seriously affect society), e.g. floods, landslides and subsidence, avalanches, forest fires, earthquakes, volcanic eruptions.»

On a worldwide scale, the data points to a significant net increase in damage caused by natural phenomena. Various explanations may be considered as causes for this increase, among which is climactic change, and in relation to this article, an increase in population density in locations characterized by economically privileged demographics, but where risks of floods, earthquake, and other natural catastrophes are nonetheless present.

It is generally recognized that in order to mitigate risks and their consequences, it is necessary to understand physical processes in relation to natural risks, and to evaluate the various risks that may strike a geographical area; these activities can be undertaken by processing, updating, and distributing a cartography on natural risk, which would make it possible to identify geographic areas susceptible to such damage.⁴ It should be pointed out in this regard that among the thematic categories relating to territorial data, Annex III.12 of the INSPIRE Directive refers to natural risk zones, which are of evident importance in the context of environmental planning, in relation to natural catastrophes and public safety, but especially, they are also important if one considers preventive measures when doing land use planning. But even if one supposes that all European member states already have geographic data sets thanks to the widespread diffusion of GIS, which has favored the autonomous production of data—and hence also the potential for duplicate and nonuniform data sets—the problem remains of making such data easy to compare,⁵ since there exists a great variety of formats for the presentation of geographical data; data may be incomplete; reference parameters may not have been harmonized; data sources may not be consistent; scales of measurement may not be compatible; and data may not function in conjunction with other data.⁶ These difficulties become even greater in countries such as Spain and Italy, where the public administration is highly decentralized and where territorial data-gathering occurs at the local, regional, and national levels simultaneously; and this is especially pertinent to cases of data-gathering relating to natural risk zones, where a variety of agencies and organizations are involved in the process.⁷ Particularly in regard this last point, a great improvement could be attained through the ICTs, which INSPIRE aims to implement, based on the ICTs already functioning in member states, which should be compatible and operable in an international context (Whereas 5); meaning they should be homogenous at the national level. Unfortunately, data pertaining to natural risk zones were included in Annex III of INSPIRE, and this has meant that information in this regard has not been considered urgent, as can be appreciated, for example, from the fact that the implementing rules are to be put in place by December 3, 2013, while the rules relating to territorial data set forth in Annexes I and II have a deadline of December 3, 2010.⁸

As far as Spain is concerned, the Ministry of the Environment is the entity in charge of defining natural risks, while risk prevention falls under the tutelage of the Directory of Public Safety (which operates under the Interior Ministry), which in turn manages the Web portal Inforiesgos;⁹ other entities contribute data to this portal, among which are the Environmental Protection Agency, the Agency for the Public Administration, the National Geographic Institute, the National Meteorological Institute, IGME, and the Spanish Institute for Oceanography.¹⁰

In practice, an abundant cartography exists on natural risk, but it is in fragmentary and widely dispersed form, and without legal mandates, such as are in existence, for example, in France.¹¹ In addition, many maps are not available online, even though access to them is one of the objectives set out in PRIGEO (Cartographic Initiative of Geological Risks), approved in 2005 with the aim of providing a system for the dissemination of data pertaining to the management and planning of Spanish territories with respect to geological risks.¹² Here are some of the maps currently available online: IIT for Cataluña;¹³ seismic maps provided by the National Geographic Institute (2003);¹⁴ maps outlining risks relating to the expansion of clay, created by IGME in 1987 and digitized in 2003,¹⁵ which are available on request; and the plan delineating flood risks in Tenerife, created by the Insular Water Council in 2005.¹⁶ This notwithstanding, the existence of dozens of sources of information on this specific subject alone, often not in electronic format, make real interoperability virtually impossible.

Some progress in the legislation has been made toward homogeneity of information relative to natural risk: on the one hand, Real Decreto 1545/2007, regulating the national cartographic system, considers to be official thematic cartography the «cartografía de riesgos y emergencias,» meaning «that which identifies geographic areas susceptible to catastrophic damages in cases of natural risk, technological risks, or other types of risks for people and their property» (art. 5.7.k), and art. 2.2.a states that the National Cartographic System must guarantee homogeneity of the information produced by its many member agencies which concurrently do national cartography, this for the purpose of ensuring coherence, continuity, and interoperability. Also, Code 8/2007 (which in 2008 was incorporated into Real Decreto 2/2008), applicable to the entire country, mandated that land use plans be include natural risk assessment plans:¹⁷ this in essence means that information on natural risk is to be available to those individuals who will be working with maps that are to be coherently interoperable, and here the implementation of the directives set forth in INSPIRE will be invaluable in achieving this goal.

As far as Italy is concerned, the directive in the national legislature falls under the tutelage of the Ministry of the Environment (Ministero dell’Ambiente) and the main players in the implementation of ICT will be the states’ various national cartographic entities and all the other entities that manage cartographic data at the national and local level.¹⁸ At the national level, the management of geographic information is undertaken by state cartographic entities such as the Military Geographic Institute (Istituto Geografico Militare), the Marine Hydrographic Institute (Istituto Idrografico della Marina), the Geo-topographic, Aviation and Civil Information Center (Centro Informazioni Geotopografiche, Aeronautiche e Civili), the Territorial Agency (Agenzia del Territorio), and the Agency for Environmental Protection and Technical Services (Agenzia per la Protezione dell’Ambiente e per i Servizi Tecnici, formerly known as the National Geologic Service, or Servizio Geologico Nazionale).¹⁹ In addition, every region and other ministries (for example, the Ministry for the Environment (Ministero per l’Ambiente) and the Ministry for Innovation and Technology (Ministero per l’Innovazione e la Tecnologia) are currently responsible for producing environmental data;²⁰ in Italy, a wide variety of norms and regulations exist which govern the roles and responsibilities of various entities, both with respect to the active management of projects as well as with respect to coordinating national and local efforts, making it extremely difficult, if not impossible, to effectively share environmental and territorial data.²¹

The coexistence of a great variety of entities and regulations involved in the production of territorial data is especially noticeable when considering natural risk data. In Italy, a vast amount of cartographic data for at-risk areas is available online, produced by separate entities, often using dissimilar scales and reference systems.

An example of this is ARPA (Agenzia Regionale Prevenzione e Ambiente, or Regional Agency for Prevention and the Environment) in Piedmont, which in the last few years has been involved in an effort to make available online a system for the dissemination of geo-referenced environmental data, particularly for areas at risk from natural causes, with the aim of implementing a process for sharing and making available information resources both for other public-administration entities and for the public.²²

More specifically, as concerns seismic and volcanic risk, we should call attention to the work done by INGV (Istituto Nazionale per la Geofisica e la Vulcanologia, or National Institute for Geophysics and Volcanology),²³ which was established in 1999 and has produced maps detailing seismic risk for the purpose of monitoring geophysical phenomena;²⁴ for example, in 2008, a map of seismic activity covering the years from 2000 to 2007²⁵ was made available online through the Kharita portal,²⁶ which is the new gateway for the dissemination of basic cartographic and digital data managed by the National Earthquake Center (Centro Nazionale Terremoti). More specifically, in 1998, Italian law entrusted the regions with oversight of seismic data; as a consequence, a number of agreements have come into being between the various regions and research institutes for carrying out research on seismic data at the regional level, with the aim of identifying municipalities sharing homogeneous risk assessments.²⁷

The cartography relating to forest-fire risks in national parks is accessible through PCN,²⁸ which is administered by the Ministry for the Environment (Ministero per l’Ambiente), while for hydro-geological risk (landslides and floods), the maps are produced by the CNR Research Institute for Hydro-Geological Protection (Istituto di Ricerca per la Protezione Idrogeologica).²⁹

The adoption of CAD (Digital Administration Code) in 2005 has brought about a greater standard of efficiency and transparency, and it represents an important breakthrough, since by its nature it is a tool programmatically aimed at establishing a network of regulations that have been framed and essentially intended to structure in a general organic manner the uses of ICT both within public-administration bodies in relation to citizens and enterprises. The era of separate regulations for managing information and its distribution within specific compartments of the public sector has passed, and CAD contributes to the development of shared strategies aimed at optimizing the management and growth of ICT. Thanks to CAD and to the implementation of the mandates enumerated in INSPIRE, and to the application of INSPIRE principles, one can see in the future a drive to make less dispersed information relating to areas susceptible to natural risk, as well as to make such information more homogeneous as compared to the current situation sketched out in the examples cited.

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Maria Elena Sanchez Jordan, Professor of Civil Law, Faculty of Law, University of La Laguna, Camino de La Hornera, s/n, 38071 La Laguna ES
mejordan@ull.es
Cesare Maioli, Full Professor of ICT Law, CIRSFID and Faculty of Law, University of Bologna, Via Galliera, 3, 40121 Bologna IT
cesare.maioli@unibo.it