In recent years, scientific developments have clearly established that greenhouse gases emitted by coal-fired power plants are among the leading causes of climate change. These emissions significantly contribute to global warming, making it essential for the public to have access to emission data from these power plants. However, whether these greenhouse gas emissions data should be transparently disclosed to the public remains a contentious issue, particularly in Türkiye.

The Importance of Emissions Data Transparency in the Context of Climate Change

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 emissions 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.

Environmental and Health Impacts of Coal-Fired Power Plants

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 (SEÖS) 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.

The Debate Over Emission Data as Trade Secrets

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. 

Role of the Energy Markets Operation Joint Stock Company and the Transparency Platform

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.

Legal Perspectives on Emission Data and Trade Secrets

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. 

Constitutional Right to a Healthy Environment

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.

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.

Global and European Context for Emission Data Transparency

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.

Conclusion: The Need for Greater Transparency in Emission Data

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.