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 >>>

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) >>>

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 >>>

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 >>>