RICERCA ITALIANA     

The principles of the environmental administrative law

Università degli Studi di Firenze

Abstract

After the wide scientific production on Environmental Law adopted in the last years, it is now necessary to begin a research about the normative and the principles in force in the field of Administrative Environmental Law.
As the matter of fact, the most important problems about Environmental Law (referring to both Italian and European Law) have been analyzed yet. Recently a lot of studies about International Environmental Law too (with important Treaties and Conventions) have been proposed. On the contrary, there aren’t general researches about the fundamental principles of that matter, specially about the principles of Administrative Law in the field of Environment.
Now there are some useful developments of the normative and the jurisprudence about this type of research.
About the normative, it’s now in force the new Italian “Testo Unico dell’Ambiente” (adopted with d.lgs n. 152/2006), even if it has not the final version yet.
The European Community is approving new directives, as in particular the “waste” directive proposal (n. 667/2005) , that represent a new type of normative in the field of Environmental Law.
About the jurisprudence, the European judge and the Italian judge are consolidating some important general principles (applied in the specific cases judged).
Due to the connotation of the research, the analysis will develop,on one hand and retrospectively, the evaluation of the environmental law as arisen in recent years (since 1975); on the other hand, the study of the predictable role which general principles will have in the area of environmental and administrative law. We cannot underestimate the expansive power of general principles, beyond the specific area concerned (in this case, the environment): the precautionary principle, born in the field of environment and "exported" to others areas, is a great example.
The whole research will be developed by four team (from University of Florence, Pisa, Turin and Bologna), strictly connecter and coordinated.
The Florence unit will work on the general administrative principles of the environmental law, focusing on a few case studies from the EU law (first of all, the precautionary principle), and from the national system(starting from the principles included in d.lgs. n.
152/2006). Consequently, it will examine the importance of such a principle on the waste sector, which is a key-issue when we talk about environment.
The Pisa research unity will study the general principles of the administrative environmental law in the perspective of the relations between empiric sciences, institutions and law, with a regard to the changes induced on the public administration’s organization and activity and to the regulatory and disputes resolution instruments
The Torino research unity will examine themes (concerning the diffuse interests’ protection, the public access to the environmental information, the “environmental participation”, the access to the justice in the environmental matter) particularly considered in the Aarhus’ Convention (1998) and partially transfused in the d.lgs. 152/2006. Although these principles appear relevant for the European and national constitutional point of view, the research in this matter are not still adequately developed.
Finally, the Bologna unity will study the economic and consensual instruments of the environmental law, completing for this particular aspect the exam of the general principles. Maybe this matter represents the research theme of environmental law less studied, so that the research work – directed to individuate the relevant normative context and the original remarkable principles – will be complex for this particular aspect. Through this method we will, then, try to put in evidence how the environment doesn’t simply represent a cost, that the enterprises and the citizens are obliged to sustain, but also a resource, that, adequately protected, is at the origin of advantages, direct and indirect, for the whole community. <<<

Principal Investigator

Mario Pilade Chiti Università degli Studi di FIRENZE

Research Objectives

The aims of the research are:
1) in the field of EU law, to identify the environmental law principles, as risen in the last 30 years, and the guidelines of EU policies, as emerging in the new EU directives; in the domestic law field, to describe the way EU principles are translated and executed (at the national – with the d.lgs. n. 152/2006 mainly - as at the regional level). All this taking into account the jurisprudence as well. This target will be pursued, by a renewed comparative approach, observing: the multilevel structure of the environmental law system, with an international, an European, a national and a sub-national level, the connections among these levels, the measure of their mutual contamination and the intensity of the “primacy” of EU law (which is a “constitutional” principle in the European system), by a renewed comparative approach;
2) by the analysis of specific areas (like rules on waste), to focus the mix between tradition and innovation. The innovation, in particular, take place by analyzing the profiles concerning the “economic and consensual instruments” used in environmental law. These instruments affect significantly the conduct of companies and citizens, modifying their behaviors towards more environmentally compatible paths, and creating a deeper awareness of the value of the environment, to be protected not only through the public powers decision making, but also through the voluntary contribution of all the stakeholders involved). The target concerning “economic and consensual instruments” will be pursued by identifying the international, EU and national principles affecting the issues at stake; analyzing the administrative instruments adopted by the national legislation, often implementing the EC legislation; putting forward proposals directed to support and promote the diffusion of such instruments;
3) by the study of legislative and judicial materials in the field of environmental democracy, participation and justice, to understand if it is possible to recognize the existence of an "individual position", worth to be protected in environmental matter, not linked to property's right or health's right;
4) to define the environmental issues (in a broad sense, including problems of human health) in the framework of the relationship among Empirical Sciences, Institutions and Law, with special attention to the transformations concerning administrative organization and activities as well as rule-making and adjudication of competing claims. <<<

First Results

The research would consent to understand (also with the end of a reform of the most problematic aspects of d.lgs. 152/2006) the different indicated themes.
In particulare: 1) – the research would consent to evaluate the consistent and significant European case law in the indicated matters (for example, /Francia, C-280/02 e ARCO, C-418-419/97), the European soft – law and normative acts (for example, the Commission’s Communication of 2000) and national case – law in the same matters, so to underline the general environmental law principles (able to influence the national discipline and the public policies in the environmental matter) – in particular, it will be examined (for a first study of the indicated themes) the normative concerning the Italian (and European) waste discipline;
2) – the research would then show like those principles (on the base of the different sector disciplines examined in the different unities) consent to put in evidence the problems concerning the “Environmental democracy” (and how this questions can influence the national public policies), with a specific regard to the international or European acts in this matter (for example, the Aarhus Convention) and to their influence for the national approach to, for one hand, the access to the environmental information and, for the other, the jurisdictional protection of the environmental interests: also in this case, then, the research would represent a contribution to individuate the general principles of European law, able to influence the national public policies and legislations (in particular, inducing the italian one to adopte the opportune modifies);
3) – the project would, then, consent to obtain (through the exam of the indicated points) other specific results, in particular, for the sector concerning the “economic and consensual instruments” of environmental law, contributing, then, (not only to individuate some general aspects useful de jure condendo for a more rational debate in the national State and in the scientific community in the indicated themes, but also) elements able to orient the economic operators activity; for one hand, then, we will try to rationalize and make clearer the study of the instruments directed to found the environmental law (non only on the traditional “command and control” approach, but also) on innovative “incentive – disincentive” normative systems (directed to the private and public economic operators) – studies only partially approached form the doctrine (in the second half of 90’s) and able to be also examined according to a juridical approach (directed to rationalize the existing studies for the same themes); for the other, then, the scientific contribute of the research would consist on the underlining the specificities of the same juridical approach (individuating the pertinent instruments – for example, in the procurement’s procedure matter or in the product’s quality certification – able to realize the European and national environmental policies);
4) – finally, a general result of the research will concern a (not usually proposed from the doctrine) reflection about the environmental law’s contribution (in the indicated themes and sectors) to conform the relations between Empirical Sciences, Institutions and Law and about how this relation (with the other generally studied new international and European administrative law’s features) intervenes to modify the traditional approach to the discipline of public administration’s organization and of public administration’s activity: the examined sectors would, then, finally, consent to show in a clear and evident way the most relevant changes intervened in the last years in the national administrative laws and, so, contribute to the doctrine’s studies in this particular matter. <<<

Timescale

24 months

National and international background

The protection of the environment concerns basic elements such as water, food, oxygen and energy, and has to be studied and regulated not having regard on Countries’ boundaries. The EU and the global regulation has acted lately as a protagonist, focusing on climate changes, nature and biodiversity, environment and health, natural resources and waste managing.
European environmental policies, executed on national level, has a basis on Treaty establishing the European Community, and in particular on Articles 174 and following, and consists of a large number of Directives and Regulations, as well as of some principles of administrative law which find in this case a excellent “playground” (the preventive and the precautionary principles, the "polluter pays" principle; the principle of the correction of environmental damages at the source, the principle of integration with others EU policies).
First of all, we have to be aware of the new relation between law and science, which feed the corpus of environmental rules and regulate their application. In the matter of environment and health, science, law and institutions constantly collide, and rise problems which claim for a refreshing the “State of law” concept itself, and of the value of science discoveries. Science is no more an independent “land”, in which data are discovered and updated; and Law receive no more those data blindly. Law has increased its power of bridging the gap of science uncertainties, mainly in case of basic social needs. Science has made constant and impressive advances (in genetic, biochemical, biotechnologies and in digital revolution), but it became also more and more no exact. Globalization amplifies this issue, as we can see anytime we have to face dangerous and uncertainties which no legal system can stand with alone.
Strictly in the area of administrative law, there are issues which have found no solution yet. The relation between environment and economic law, for instance, has to be re-analyzed. There is now a large number of economics and consensual legal tools, in the frame of environmental values and private interests, which allow the pursuing of a better environmental protection. In many cases, traditional command and control models have been replaced by more dynamics and modern solution (such environmental certificates, quality labels, environmental taxes, subsidies, …). All these tools tend to establish a better and more equal distribution of the financial and economic weight of pollution and resources consumption. They’re based on the “the polluter pays” principle, and work on a voluntary basis. The analysis of such a group of measures have been carried until today on an economic more than on a legal basis.
Other issues, like transparent and open access to environmental information, the citizen’s participation in regulation process, and the instauration of an effective and efficient legal protection in the field of environmental rights offer an enormous area for investigation.
Those interests have been established by fundamental environment acts, like the Declaration of Rio, the Aarhus Convention, the EU Programs and legislation (in force and in progress); in Italy, they’ve been updated in d.lgs. n. 152/2006. But they have to be consolidated and completed, and have to be tested when colliding with other public/private interests.
More in general, during last three decades the analysis of environmental law has became more and more intensive. Organic such as specialized studies have explored the main aspects, taking into account the national and the European level. But just a more limited effort has been lately dedicated to the specific analysis of one of the more relevant principles in the environmental law, the precautionary principle.
The evidence says that administrative law principles will have more and more importance in the field of the environment protection, according to the evolution of general administrative law. Italian system is a great example, having regard on the Law n. 241/1990, art. 1, c. 1, which reserves to Italian and European administrative law principles a huge role. For the environmental law (for the general rules such as for the ones concerning specific sectors like waste, air pollution and protection of waters and energy), these principles are becoming the keys to orient and apply a corpus of rules even more complex and rich. <<<