Environmental law


Environmental law is the set of national, European and international regulations aimed at avoiding or reducing pollution of water, soil and air, as well as defending the landscape and all living species found on the planet.

In our country, unlike other European states, there has long been a fragmentation of the discipline due to the absence of specific references within the Constitutional Charter.

To make up for this gap, and in order to legitimize the necessary protection to be accorded to the matter, the Constitutional Court, with sentence no. 641 of 1987, referring to art. 9 and 32 of the Constitution, in terms of landscape and health, has raised the protection of the environment to a primary and absolute value.

In the wake of this interpretation, the road towards a more detailed regulation has been traced.

And so, the first laws on the subject arose, through sources of ordinary law, up to the evolution, which took place in recent decades, thanks to the impetus of EU law and the transposition of European directives.

The objective of this column, without claiming to be exhaustive, is to address the most common problems and highlight the guarantees in place and possible solutions to cases, deepening the environmental issues related to the prevention and repair of damage.

The column is edited by the lawyer. Rita Sivori who you can contact at [email protected]

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The rules, laws and regulations


Environmental Law

ABSTRACT In a world that is looking for new legal forms to protect and defend the environment, the author traces the phenomenon of the legal anthropomorphization of nature and its entities. This is not an isolated phenomenon, but this solution to environmental problems is adopted on three different continents by five countries: Ecuador, Bolivia, New Zealand, Colombia and the Indian state of Uttarakhand. The author first of all observes the phenomenon as it develops at the constitutional, legislative and juridical level in the individual states. Once it has been noted that this phenomenon is the result of the acceptance of the tradition and ancestral culture of the peoples who live in the individual territories, it analyzes the cultural values ​​and the tradition handed down. Finally, the author analyzes the main issues that emerge from the manifestation of the phenomenon of legal anthropomorphization and comes to the conclusion that the environmental protection systems that have opted for a biocentric vision, in addition to maintaining the coherence of the entire system, arise from a remarkable plan of effectiveness in solving environmental problems.

In a world which is seeking new legal forms to protect and defend the environment, the author identifies the phenomenon of the juridical anthropomorphization of nature and its entities. This is not an isolated phenomenon, but this solution to environmental problems is adopted in three different continents by five Countries: Ecuador, Bolivia, New Zealand, Colombia and the Indian State of Uttarakhand. First, the author observes the phenomenon in its development at the constitutional, legislative and jurisprudential level in each mentioned State. After he has found that this phenomenon is the result of the transposition of the ancestral tradition and culture of the peoples who live in these Countries, he analyzes the cultural values ​​and the tradition handed down. Finally, the author analyzes the main issues that emerge from the manifestation of the phenomenon of legal anthropomorphization and concludes that the environmental protection systems that have opted for a biocentric vision, in addition to maintaining the coherence of the entire system, place themselves on a remarkable plan of effectiveness in solving environmental problems.

Summary: The law is not static, but is constantly evolving. In environmental matters, this evolution is moving in the direction of abandoning juridical anthropocentrism. The author observes the success in various places on the planet of the recognition of nature or its entities as subjects or persons, with real rights. To this end, he first analyzes several of these experiences. This new way of thinking about nature and its entities takes place at the constitutional, legislative, jurisprudential level. In the light of the examination of the phenomenon, the author reflects on the fact that now is the right moment to overcome the anthropocentric vision of law. He bases this claim on two factors. The first is the change in the way in which the human being conceives himself and the author speaks in this regard of Homo Ecologicus. The second factor is closely related to today's societies. The openness to the equal dignity of each people who make up each country has led to the emergence of the environmental sensitivity of the indigenous tradition in political and legal debates. Furthermore, this change of perspective would not have been possible without a widespread environmental sensitivity within society and if the provision of the rights of non-human natural entities had not been considered an effective response to the environmental problem.

Abstract: Law is not static, but continuously evolves. In environmental matters, this evolution is going in the direction of abandoning legal anthropocentrism. The author observes the success in various places on the Planet of recognizing nature or its entities as subjects or people, with real rights. For this purpose, he first analyzes several of these experiences. This new way of thinking about nature and its entities takes place at a constitutional, legislative and jurisprudential level. In the light of examining the phenomenon, the author reflects on the fact that now is the right time to overcome the anthropocentric vision of law. He rests this claim on two factors. The first is constituted by the change in the way in which the human being conceives himself and the author speaks in this regard of Homo Ecologicus. The second factor is closely related to today’s societies. The openness towards the equal dignity of every people that makes up each Country has led to the emergence of the environmental sensitivity of the indigenous tradition in political and legal debates. Furthermore, this change of perspective would not have been possible without a widespread environmental sensitivity within society and if the provision of the rights of non-human natural entities had not been considered an effective response to the environmental issue.

Speech held at the European Researchers' Night Friday 27 November 2020 h.18: 00 - 18:30

"At the present time a new concept is emerging in some countries (Ecuador, Bolivia, Colombia, India, New Zealand) which identifies Nature as a subject and gives them real rights. This new concept has its roots in the tradition of indigenous peoples. In this way, environmental protection systems abandon juridical anthropocentrism and offer a possible solution to the environmental problem ".

Event information:
The European Researchers' Night is an initiative promoted by the European Commission since 2005, which every year involves thousands of researchers and research institutions in all European countries. The aim is to create opportunities for researchers and citizens to meet in order to spread scientific culture and knowledge of the research professions in an informal and stimulating context.
The University of Sassari is a partner of the EARTH (EnhAncing Resilience Through Humanity) project, led by Frascati Scienza. The theme launched for the year 2020 is that of resilience, declined in our communities to increase collective awareness of the risks and actions to prevent, respond and adapt to the changes imposed by crises by promoting networking and communication between citizens and scientists by teaching practices of resilience by encouraging researchers and citizens to play an active role, sharing and enriching their knowledge through dialogue.
The role that research is playing in the ongoing global crisis is crucial as it is and will be in the many sectors highlighted in the 17 sustainability goals launched by the UN in 2015 and included in the 2030 agenda, which also for this year they constitute the frame of reference for the activities related to the Night and the Science Week.
The extraordinary emergency situation we are experiencing, with the containment measures in place and the postponement of the usual end-September date set by the European Commission, have imposed an edition reduced to online events only, also for the University of Sassari.
During the two days, 36 researchers and guests alternated, 4 moderators and over 600 people participated in the events via the web.


Environmental and business law: sustainable risk prevention tools

ATTILIO BALESTRERI

Environmental and business law: sustainable risk prevention tools ">

Abstract

Almost all companies, especially today, have to deal with environmental law and the related risks. The legislation is constantly evolving and, especially in the experience of recent years, has shown in many sectors the trend towards an increase in the burdens for operators and the stiffening of penalties. There are "tools" in the hands of the company that, at sustainable costs, can contribute to better business management and reduce environmental risk.

Environmental legislation: characteristics and risks

  • it is based on formal provisions issued by the Authorities for the exercise of business
  • although "codified", it is fragmentary (diversified legal provisions, administrative measures, technical standards, good operating practices)
  • has a strong technical and operational data
  • provides for criteria for the extension of liability unknown to other branches of law (e.g. in terms of waste management)
  • and often, poorly specific about the charges in the hands of the operators.

Environmental risk can manifest itself in various forms. There are many cases of relevance criminal (expanded by the entry into force of the "ecoreati", Law no. 68/2015). Moreover, in many cases, these are crimes of a negligent nature or which are independent of the production of actual damage. The consequences of this are extremely relevant both for individuals and for the company (Legislative Decree 231/2001), in addition to the well-known risk of business interruption and the significant implications in terms of image and market. On the plane administrative, the numerous cases - even minimal and purely formal - punished with pecuniary administrative sanctions are matched, and it is reasonably the most significant risk for the operator, the modifying or disqualifying effects of the exercise of activities connected to the violation of the authorization requirements (warnings, suspensions or revocations of authorizations) as well as, in specific sectors, significant limitations of company operations (eg limitations on use of sites subject to remediation proceedings). On the plane civil law the environmental aspects generate significant litigation in which, often, the compensation profiles intersect with the contractual aspects (the latter, increasingly valued by the jurisprudence).

Some important tools in the "hands" of companies

There are several effective, useful and affordable protection tools to cope with environmental risk.

Among these, in the first place, the presence of procedures, operating instructions, company guidelines governing the correct procedures for carrying out activities. They constitute both the "guide" for operators in the exercise of the activity and an important proof - for third parties or in court - of the company organization and the preparation of specific operating standards. They must be clear, periodically updated, consistent with each other and understandable to operators, who are periodically trained on them, in order to be judged as effective and effective procedures. The system of procedures can then be formalized as part of a Certified Environmental Management System (eg. ISO 14001: 2015 or EMAS), which must be effective for both technical and legal aspects.

Central, and connected to company procedures, is also the Organization and Management Model pursuant to Legislative Decree 231/2001. The goal, in this case, is to create a system (in fact, a "model") to be updated continuously and which is suitable for the prevention of crimes through:

  • there risk mapping (fundamental activity that must be as punctual as possible, specific with reference to company processes and defined in comparison with company functions)
  • the definition of specific prevention measures,
  • the creation of a structured system of internal verification (information flows, code of ethics, disciplinary code, etc.)
  • the monitoring carried out bySupervisory body.

The function delegations they are also an additional important functional tool for distributing tasks and responsibilities, enhancing the role of corporate functions and making them responsible in carrying out the activity. With the delegation of function, the "delegating party" transfers to the "delegate" the exercise of certain tasks (and the related obligations) which he / she is the owner of by law. To be effective, effective and relevant externally (and in court), the function delegations must:

  • ensure effective decentralization of tasks and responsibilities
  • have specific content
  • be accepted and have actual advertising
  • forecast decision-making autonomy of the delegate
  • forecast spending autonomy and have an effective and continuous nature in the operational reality.

The delegate must have the capacity and suitability and be able to act without interference or intervention by the delegating party otherwise, the delegation will lose its effect.

Central to effective environmental management in the company are the regulatory and technical audits (both internal and third party) finalized identification of risk areas and improvement actions. These are tools that, if used in a specific and timely manner, can significantly contribute to monitoring and continuous improvement.

Many other "tools" could be identified, but what is important to note is that - overall - it is a question of guaranteeing a preventive and specific approach in relation to the activity, an element that, in environmental law, is becoming increasingly relevant both for the operational reality and in the dynamics of judgment.

Environmental law and judgment

The adoption of a "preventive approach"Environmental issues will also be relevant in court. Environmental law is a specialized sector, characterized by structured sectoral jurisprudence and consolidated judgment dynamics. In addition to compliance with the strict procedural deadlines (eg. Those for challenging administrative measures, failure to comply with which may lead to the "crystallization" of even illegitimate or unenforceable prescriptions for the company), a strategy must be defined in the comparison between legal and technical areas, to build specific, effective and punctual defenses in the various judicial offices.


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The polluter pays principle and environmental responsibility

WHAT IS THE AIM OF THE DIRECTIVE?

It establishes rules based on the 'polluter pays' principle. This means that a company that causes environmental damage is responsible for it and must undertake to undertake the necessary prevention or repair actions and to bear all related costs.

The directive defines environmental damage as:

  • damage that significantly affects the environmental status (ecological, chemical or quantitative) of aquatic resources, as defined in directive 2000/60 / EC, the European directive on water, and in directive 2008/56 / EC, the directive on the strategy for 'Marine environment
  • land damage that creates a significant risk to human health
  • damage to protected species and natural habitats that adversely affects conservation, as defined in Directive 2009/147 / EC, on the conservation of wild birds, and in Directive 92/43 / EEC, the Natural Habitats Directive.

The definition includes the discharge of pollutants into the air (as they affect the conditions of the soil and water), into internal surface or underground waters and any deliberate release into the environment of genetically modified organisms, as defined in Directive 2001/18 / EC.

There are two scenarios in which liability occurs:

environmental damage caused by one of the professional activities listed in Annex III of the directive, such as:

  • energy industries,
  • metal production and processing,
  • mining industries,
  • chemical industries,
  • waste management,
  • large-scale production of cellulose, paper and cardboard, textile dyeing and tanneries,
  • large-scale production of food, meat and dairy products

environmental damage to protected species and natural habitats (or imminent threat thereof) caused by one of the professional activities not listed in Annex III, in the event of willful or negligent conduct of the company.

The exceptions include armed conflicts, natural disasters, liability for types of environmental damage covered by international conventions (for example marine pollution) and nuclear risks covered by the Euratom Treaty.

Preventive and remedial actions

  • If there is an imminent threat of damage occurring, the company must take the necessary preventive measures without delay.
  • If the damage has already occurred, the company must inform the authorities as soon as possible and take actions to manage the situation, in order to prevent further environmental damage and threats to human health, and take appropriate remedial actions.

The company must pay for the preventive and remedial actions, except in some situations, for example if the damage was caused by a third party, despite the appropriate safety measures, or resulted from the observance of a compulsory instruction .

  • A 2016 implementation report examined the experience of implementing the directive between 2007 and 2013, including an evaluation carried out in the framework of REFIT, the European Commission's regulatory fitness and effectiveness program.
  • The report confirms that the directive, although it has not yet fully realized its potential, has been effective in repairing environmental damage and encouraging prevention.

Amending Regulation (EU) 2019/1010

The directive was amended in 2019 by regulation (EU) 2019/1010 which harmonises and simplifies the reporting obligations on environmental legislation. The new rules introduced, effective from 26 June 2019, are the following.

  • EU countries report to the Commission on the experience gained in implementing this directive. The information they must provide is set out in Annex VI of the directive and must be collected by 30 April 2022 and every five years thereafter.
  • By 30 April 2023, and every five years thereafter, the Commission will publish an evaluation of the directive based on information provided by EU countries.
  • By 31 December 2020, the Commission must develop guidelines that provide a common interpretation of the term "environmental damage" as defined in this directive.

FROM WHEN DOES THE DIRECTIVE APPLY?

The directive entered into force on 30 April 2004 and had to be transposed into the national laws of the EU countries by 30 April 2007.

For more information, see:

Directive 2004/35 / EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of damage (OJ L 143, 30.4.2004, p. 56).

Subsequent amendments to Directive 2004/35 / EC have been included in the original text. This consolidated version is for informational purposes only.

Report from the Commission to the Council and the European Parliament: Report from the Commission to the Council and the European Parliament pursuant to Article 18 (2) of Directive 2004/35 / EC on environmental liability with regard to the prevention and remedying of environmental damage [ COM (2016) 204 final of 14.4.2016].

Commission Staff Working Document: REFIT Assessment on the Environmental Liability Directive, accompanying the Report from the Commission to the European Parliament and the Council under Article 18 (2) of the Environmental Liability Directive 2004/35 / EC in matter of prevention and remediation of environmental damage [SWD (2016) 121 final of 14.4.2016].


by Pierluigi Mascaro Published 23/02/2021 Updated 23/02/2021

Summary: 1. Notions on the subject of access to environmental information at national and supranational level. - 2. The facts at the origin of the dispute before the TAR for Sicily - Catania section. - 3. The interpretation proposed by the administrative judge.

  1. Notions on the subject of access to environmental information at national and supranational level.

The Aarhus Convention of 25 June 1998, promoted by the United Nations Economic Commission for Europe, consists of three "pillars": access to environmental information, participation in decision-making processes and access to justice in environmental matters. .

With regard specifically to the first pillar, Article 4 of the Convention establishes the right of the public to have, upon request, access to environmental information without having to prove a qualified interest in this regard, according to the assumption that the transparency of decision-making processes can improve and make environmental legislation and policies more effective, increasing trust in public authorities and raising awareness of public. The latter is constituted, pursuant to Article 2, paragraph 4, of the Convention, by "One or more natural or legal persons and, in accordance with national legislation or practice, the associations, organizations or groups constituted by such persons".

Pursuant to Article 2, paragraph 3, of the Aarhus Convention, it is environmental information any information, in written, visual, audio, electronic and any other form, which concerns:

  • the state of the elements of the environment, such as air, atmosphere, water and soil, the territory, landscapes and natural sites, biodiversity and its components, including genetically modified organisms, and the interaction between these elements
  • factors such as substances, energy, noise and radiation, administrative activities and measures, environmental agreements, policies, laws, plans and programs that affect or may affect the state of the environment, as well as cost-benefit analysis and other economic analyzes and hypotheses used in environmental decision-making processes
  • the state of health, safety and living conditions of people, as well as state of thesites and buildings of cultural interest to the extent that they are or can be influenced by the state of environmental elements or, through these elements, by the factors, activities or measures referred to in the previous point.

Paragraphs 3 and 4 of Article 4 of the Convention exhaustively list the cases in which a request for access may be rejected in this case, if the public authority to which the request is addressed does not have the information to be accessed if the request is manifestly unreasonable or formulated in too general terms if it concerns documents in progress or internal communications of public authorities, if such derogation is provided for by national law or practice.

It is also provided that the grounds for refusal must be interpreted strictly and that the rejection of the request is formulated in writing is motivated.

Pursuant to Article 9 of the Convention, theaccess to justice against violations of Article 4 of the same through appeal procedures before a court or other independent and impartial body established by law, which guarantees quick and inexpensive procedures.

In the European context, the Directive n. 2003/4 / EC transposed the provisions of the Aarhus Convention on the right of access to environmental information: it was implemented in our internal system by legislative decree 19 August 2005, n. 195, in article 3, paragraph 1, it is prescribed that public authorities are required to make environmental information available "to anyone who requests it, without the latter having to declare their interest[1].

Based on the national, EU and supranational regulatory body examined so far, the right of access to environmental information [2] is also governed byart. 3 sexies [3] of the environmental code (Legislative Decree 152/2006).

The TAR for Sicily - a detached section of Catania (section IV) - recently ruled on the issue in question with sentence 30/11/2020, n. 3199, which will be commented on here, for the profiles of interest.

  1. The facts at the origin of the dispute before the TAR for Sicily - Catania section.

On 17/02/2020, the company "Commerciale Sicula" srl forwarded to the Municipality of Valdina an application for access to the documents through which it requested the release of a copy of the documents relating to the assignment and execution of the leasing and cleaning-purging of ecological mobile toilets carried out on the occasion of the “VI Sagra della Ciauna” event, entrusted to the company “Milae Servizi”.

In particular, access former art. 3, Legislative Decree 195/2005 concerned the waste identification forms which, pursuant to art. 193, Legislative Decree 152/2006 and Environment Ministerial Decree 145/1998, were issued by the latter at each cleaning-purging operation carried out for the collection of waste produced by the use of portable toilets. With regard to such a request for access, a silence-refusal of the municipal administration was formed, against which the company "Commerciale Sicula" srl filed a judicial appeal before the TAR, defined by the same with the sentence that this paper aims to comment .

  1. The interpretation proposed by the administrative judge.

The TAR for Sicily - detached section of Catania (section IV) - accepts the request of the applicant company, finding its validity in the combined provisions of articles 3, paragraph 1 and 2, paragraph 1, lett. a), no. 2 of Legislative Decree 195/2005, which includes, in the notion of "environmental information", also "Factors such as emissions, discharges and other releases into the environment".

In fact, it is noted that the ostensive request concerns the observance of the basic legislation of the special sector of common belonging of the operators in conflict, the respect of which calls into question the collective importance of environmental protection, deriving from the rules on access in this matter of pursuant to Legislative Decree 195/2005 [4], regardless of the demonstration of the existence of a qualified interest in access, by reason of the certificate regulatory prevalence - at both constitutional and community level - of the interest in environmental protection on any antagonistic interests [5].

[1] Under the provisions of art. 3, paragraph 2, of Legislative Decree 195/2005, the environmental information is made available to the applicant within 30 days of the request (60 days in the case of a complex request) against the determinations of the public authority regarding environmental access and in case of failure to reply within the terms indicated above (hypothesis of silence-refusal), the applicant can present a judicial appeal former art. 116 c.p.a. or request a review of the decisions in question from the competent ombudsman for the area (in the case of acts of municipal, provincial and regional administrations) or from the Commission for access under art 27, l. n. 241/1990 (in the case of acts of central or peripheral state administrations).

[2] For further information, please refer to A. Crosetti, R. Ferrara, F. Fracchia, N. Olivetti Rason, Introduction to environmental law, ed. 2018, pp. 194 ff.

[3] For the sake of completeness, the text of the first paragraph is reported: “In implementation of the law of 7 August 1990, n. 241, and subsequent amendments, and the provisions of the Aarhus Convention, ratified by Italy with law no. 108, and pursuant to the legislative decree 19 August 2005, n. 195, anyone, without being required to demonstrate the existence of a legally relevant interest, can access information relating to the state of the environment and landscape in the national territory ".

[4] See, on this point, C.G.A.R.S., sent. 17 January 2018, n. 15.

[5] In these terms TAR Palermo, sent. 21 July 2017, n. 1947.

I graduated in Law at the LUISS Guido Carli University of Rome on April 23, defending a thesis in Law of territorial autonomy entitled "The contribution of the Regions to the formation of European Union law" - Supervisor Prof. Antonio D 'Athena.

During my university studies, I attended the administrative profile, deepening the legal disciplines pertaining to this area of ​​law.

I have always been particularly interested in the world of writing, in different fields and, as regards, specifically, the juridical one, I try to write comments and notes to the judgment of the ordinary, administrative judge, of the Supreme Court, of the Council of State. and the Constitutional Court.

Starting last June, I have the pleasure and honor of collaborating in the Administrative Law area of ​​the legal review "Ius in Itinere".

Attualmente collaboro, a titolo di cultore della materia, con la Cattedra di Diritto dell’Ambiente presso il Dipartimento di Giurisprudenza della LUISS Guido Carli.

Dal prossimo gennaio, inizierò il mio percorso nell’ambito del Master di II livello in Diritto Amministrativo presso l’Università LUISS di Roma.


University of California, Irvine - School of Law, Planning, Policy & Design, and Transportation Studies

Date Written: December 5, 2013

Abstract

Italian Abstract: Fonti energetiche transfrontaliere e diritto ambientale, politica e politiche: il caso del gasdotto Keystone Pipeline in Canada e negli Stati Uniti (*)

Una delle decisioni più difficili per il secondo mandato dell'amministra­zione Obama è in materia di tutela ambientale e riguarda la Keystone Pipeline XL.

Antefatto. La Pipeline XL è un tratto del grande progetto multi-fase che ha come obiettivo quello di trasportare alle raffinerie negli Stati Uniti il greggio ricavato dalle sabbie bituminose dell'Alberta. Le prime tre fasi sono sia già operative con il greggio che viene recapitato ai mercati Mid-West, che ancora in costruzione. È la quarta fase quella che impegna il Congresso nel momento in cui questo articolo è stato scritto.

1. Antefatto. —2. Chi decide e perche. —3. lmplicazioni per l'ambiente e per Ia politica ambientale durante il secondo mandato di Obama. —4. Altre possibili azioni legali. -5. Conclusioni.

English Abstract The Keystone XL pipeline refers to one segment of a multi stage set of projects which is aimed at bringing oil sands bitumen from the sand tars area of Alberto, Canada to refineries in the United States. The first three phases of the project are either operational or under construction and crude oil is being delivered to Mid-West markets. It is the fourth that confronts Canadian and United States officials as this article is being written. In this brief summary I describe the background of the controversy and the decision making framework and outline possible legal actions that may be taken whatever the decision of the Obama and relevant Canadian administrations.


University of California, Irvine - School of Law, Planning, Policy & Design, and Transportation Studies

Abstract

One of the public policy decisions in American history with the largest impact on the quality of the urban environment was to site freeways in urban areas. In this article, after a short section on the history that brought urban freeways into existence, I briefly describe efforts now being made in some cities to come to grips with the effects of placing high speed, limited access, multi-lane roads through city centers. Imminent actions are required since many of these roads have reached their engineered life expectancies -- a half century after they were built.

Note: Downloadable document is in Italian.

Joseph F. DiMento (Contact Author)

University of California, Irvine - School of Law, Planning, Policy & Design, and Transportation Studies ( email )

Irvine, CA
United States
(202) 466 1135 (Phone)


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