The right to access environmental information and its role in promoting participation in environmental matters has been enshrined in various international instruments. The right performs a vital role in many areas, including the provision of water and sanitation services. However, the scope of this right is limited by how the term “public authority” is defined within national environmental information regimes.
This paper examines the Fish Legal judgment, which was recently determined by the European Court of Justice on 5 September 2013. It will explain the background to the case and explore how the judgment interacts with the provisions of the Aarhus Convention and Directive 2003/4/EC on Public Access to Environmental Information  OJ L41/26. The paper then applies the principles emerging from the judgment to the environmental information regimes in both England and Scotland, analysing how the two jurisdictions guarantee the right to access environmental information with regard to water and sanitation services.
The paper argues that the law in both England and Scotland will be impacted by the Fish Legal ruling. By placing private companies that supply water and sanitation services outside the scope of England’s environmental information regime, it is argued that England is in breach of its international obligations and inhibits citizen participation in this area. While Scottish Water differs through its designation as a “public authority” for Scotland’s environmental information regime, the private partnership within Scottish Water, and the potential for future privatisation, indicates that the current regulatory structure is likely to inhibit citizen participation in this area. This reduction in public participation will impact negatively on the public’s ability to influence environmental protection efforts in both jurisdictions.