In the light of scientific developments, we can easily say that greenhouse gases emitted by coal-fired power plants are one of the leading causes of climate change. It becomes crucial whether the emission data on greenhouse gases emitted by these power plants are among the data that should be transparently disclosed to the public.
Within the scope of the Paris Agreement, whether or not countries can reach the nationally determined contributions (NDCs) they have committed is closely related to the activities of these power plants.
On the other hand, it is not possible to reach the emission data of coal-fired power plants in Turkish practice. The Ministry of Environment, Urbanization, and Climate Change considers this data a “trade secret” and rejects information requests. The Ministry has recently rejected the request to share the data of two thermal power plants operating in Afşin Elbistan with the residents.
The use of lignite as a fuel in coal-fired power plants causes the formation of very high amounts of sulfur dioxide (SO2), nitrogen oxides (NOx), carbon monoxide (CO), ozone (O3), hydrocarbons, particulate matter (PM), and ash. For this reason, under the Industrial Air Pollution Control Regulation, there is an obligation to establish a Continuous Emission Measurement System within the power plants to monitor the emissions and other legal actions.
With the Continuous Emission Measurement System established following the legislation, emissions are continuously and regularly monitored. Whether the limit values determined by the Regulation are exceeded or not, these Continuous Emission Measurement System data are processed within the Ministry. When the emission data and emission measurement reports are requested, the Ministry; stated that such data could reveal the operating/production time of the facilities, the amount of fuel used in the facilities, and the amount of energy produced. For this reason, the Ministry argues that these data are commercial/industrial data and that unfair competition may arise if they are shared. (In case the competitors of the business have access to the data transmitted with the citizens) Citizens’ right to request emission value/data and emission measurement reports is within the scope of the right to live in a healthy environment defined in Article 56 of the Constitution of the Republic of Turkey.
In the face of the fact that the relevant data has already been made public on another platform since 2016, it is clear that this defense has no legal validity.
Based on Law 6446 on Electricity Market adopted in 2013, the Energy Markets Operation Joint Stock Company was established in 2015. In line with the goal of ‘being the central country in Turkey’s energy trade’; Established for the efficient, transparent, reliable, and sustainable operation and development of energy markets, the company made the ‘Transparency Platform’ available to the participants the public in 2016.
Many general data and company/plant-based data on electricity generation are included in the “transparency platform” accessed from the Energy Markets Operation Joint Stock Company website. The page opening screen has real-time generation, real-time consumption, a day-ahead market, intra-day market, and balancing power market data. At the same time, information from electricity generation companies is presented to the public through the “market message system.”
In other words, on the transparency platform established by Energy Markets Operation Joint Stock Company, the total electricity production of thermal power plants in any selected period and from which source this generation is obtained are disclosed to the public hourly. In addition to the generation data, there are also notifications about the production disruptions that occurred at the power plant between the same dates, which were notified to Energy Markets Operation Joint Stock Company by the power plants’ companies. In this context, many data are available to the public, such as hourly production amounts, the total capacity of the power plants, their capacity in operation by the hour, when and what failure they experienced, when precisely the failure was terminated, when production was interrupted.
Apart from the fact that the so-called confidential information is already publicly disclosed, it should be emphasized that there is no ‘trade secret‘ based on a legal provision in the technical sense. The expression “information and documents qualified as trade secrets in-laws” in Article 23 of Law 4982 on Access to Information should refer to information clearly defined as ‘trade secret’ in the relevant Law. On the other hand, although the Ministry claims that the emission data is a trade secret, it cannot base this claim on any legal provision. Therefore, the Ministry’s defense is baseless.
No provision in the law accepts emission data as a trade secret. Article 30 of the Environmental Law: “Everyone has the right to access information about the environment within the scope of the Law 4982 on Access to Information. Information requests that will harm environmental values (such as growing areas and rare species) if disclosed may be rejected under this Law.” With this article, the right of access to all kinds of environmental information is clearly emphasized. As the only exception to this legal obligation, rare species protective information is shown in breeding areas. In other words, in any law, it is not possible to define some information about the environment as a “trade secret.” On the contrary, a law article includes the right to obtain information about the environment even wider.
In addition, it is possible and out of the question to consider all kinds of data as trade secrets within the scope of commercial law. In the light of the evaluations made in the light of the Supreme Court decisions, a trade secret is any formula, order, model, etc., that the trader uses during his commercial activities and that creates an advantage for him against his competitors, defined as “total information.” The data produced by the companies with research and development efforts such as know-how, invention, marketing strategy, and thus distinguishing itself from its competitors can be considered as trade secrets. Within the scope of this definition, emissions data are not considered trade secrets.
From another point of view, these data should be considered environmental information, not commercial information, within the scope of a supreme constitutional right.
Article 56 of the Republic of Turkey Constitution includes the right of every citizen of the Republic of Turkey to live in a healthy environment. Based on this constitutional right, it is indisputable that there is a paramount public interest in keeping all “environmental information” available to citizens.
In the decision of the Constitutional Court of the Republic of Turkey dated 24.03.2016 in the application of Hüseyin Tunç Karlık and Zahide Şadan Karluk (Application no: 2013/6587), the importance of access to environmental information was emphasized as follows:
61. Due to the broad discretion of public authorities in the context of environmental issues, it is seen that many international agreements also include obligations in the context of ecological rights. The Rio Declaration is particularly noteworthy for emphasizing the relationship between development and environmental protection. Principle 10 of the Rio Declaration states that environmental issues could only be best addressed with the appropriate level of participation of all concerned. Involvement of all concerned; it is possible with the right to access environmental information appropriately, to participate in decision-making processes, and to have adequate access to judicial and administrative proceedings (§ 26). In addition, the second supranational document adopted by the United Nations Economic Commission for Europe on 25.06.1998, in which environmental procedural rights are recognized, is the Aarhus Convention. The right to access environmental information held by public authorities in Articles 4 and 5 of this Convention, the right to participate in environmental decision-making processes in Articles 6, 7, and 8, and the right to take legal action in environmental matters in Article 9 are recognized.
64. Within the scope of the aforementioned procedural rights, the relevant administrations must inform the public about environmental risks. Especially in the context of the right to environmental information, information held by public authorities and private individuals carrying out the relevant activity should be made accessible. Environmental pollution is on the agenda, mainly in the context of activities carried out by private individuals that necessitate this issue. Because the responsibility of public authorities in environmental pollution issues usually arises from the horizontal application of fundamental rights.
65. It is an essential procedural obligation to ensure that people whose participation in environmental decision-making processes must take judicial remedies in line with the information provided if they think that their legal interests are not sufficiently taken into account in environmental decision-making processes.
In this decision, the Constitutional Court referred to the Rio Declaration, also signed by Turkey. It stated that citizens should have access to information not only in public but also in private companies, within the scope of activities that impact the environment. Court also made it clear that the obligation to provide access to this information was a positive obligation imposed on the State.
Article 12 of the Paris Agreement, which became a part of Turkish domestic law after being approved on 06.10.2021, should also be considered. This article states: “Parties shall cooperate in taking measures, as appropriate, to enhance climate change education, training, public awareness, public participation and public access to information, recognizing the importance of these steps for enhancing actions under this Agreement.” With this article, the importance of ensuring public access to environmental information is expressed once again. There are also several regulations in EU law regarding how important it is to access emission information, especially for industrial facilities.
EU law recognizes a supreme public interest in sharing emissions data. Article 6/1 of the EU Regulation on the Implementation of the Aarhus Convention No. 1367/2006 clearly states that. (“when the information requested is about emissions to the environment, it should be accepted as a presumption that there is a tremendous public interest in the disclosure of this information.”) The only exception to this principle is the ‘confidentiality of the investigation and, in particular, of investigations into possible violations of union law.’
For this reason, blocking access to the requested environmental information also violates the right to seek rights and access to a court.
Following the 56th provision of the Constitution, the 8th article (prohibition of pollution) and the 28th article (polluters’ responsibility) of the Environmental Law have been regulated. With these substances; It is stated that it is forbidden to pollute the environment, and those who pollute/degrade the environment are obliged to repair the damage by strict liability provisions. Within the framework of these articles, for people damaged by environmental degradation to exercise their right of claim, they must have ‘rights of access to environmental information that demonstrate their right to claim.
Similarly, article 71/1 of the Turkish Code of Obligations (danger responsibility and equalization): If a loss arises from the activities of a business that poses a significant danger, the owner of the business and the operator, if any, are responsible for this loss. With this article, liability is regulated by the general provisions for the damage caused by the activity of a business that poses a danger. Under these provisions, citizens need to access information originating from industrial activities that affect their living spaces.
In the event that the Continuous Emission Measurement System information subject to information requests cannot be accessed, people will not have the chance to be aware of the adverse effects. Since this will prevent them from exercising their right to sue based on the provisions of the legislation listed, they will also be deprived of their right of access to the court.
As can be seen, the emission data of coal-fired power plants are not commercial/industrial data/information. It is “environmental information” within the scope of Environmental Law. These data should not be kept confidential. All kinds of precautions should be taken and kept open to the public. It is a positive obligation that falls on State. Unless there is a choice and development in this direction, the signing of the Paris Agreement and the agreed targets will have no meaning.
This article has been translated into English by Trainee Lawyer Çimen Tatar.