Brief outline regarding recent environmental law developments in Italy

Stefano Grassi

1. The modification of the electoral system in 1993 is the cause and effect of a strong evolution of the entire Italian political system which, starting from 1989, is no longer conditioned by the equilibrium between a western block and an eastern block; instead, it is recognized that Italy must position itself among the States guiding the European Union by means of an adequate organizational structure. This is one of the reasons why significant modifications of its institutional structure have recently been studied and implemented; among others, such modifications have helped develop a process of modernization and simplification of administrative procedures that play a decisive role in the environmental regulatory framework. Among many others, the following laws deserve particular mention: Law no. 241 of 1990 on administrative proceedings, as well as Laws no. 59 of 1997 and no. 127 of 1997, which initiated a complex process of reform of the central as well as regional and local administrations (Law no. 267 of 2000 regarding local administrations is the most recent measure in this reform). Only some aspects of the reform contemplated by these Laws are already operative.

The results of the reform of Italy’s institutional structure will be decisive with respect to the distribution of competence among the central State, the Regions and the local administrations in the context of environmental protection. The tendency is that of attributing the major part of the various responsibilities in this sector primarily to the Regions and Provinces, leaving to the organs of the central State, and in particular to the Ministry of the Environment, responsibility for coordination and implementation of international undertakings and obligations resulting from Italy's adherence to the European Community (in this respect, it should be noted that Legislative Decree no. 300 of 1999 has instituted a global reform of Italy's central ministerial organization, which will start with the next legislature: this general reform has provided for the constitution of a new Ministry of the Environment and Land Protection).

2. Public sensitivity to environmental issues is continuously increasing, but the level still remains among the lowest in Europe.

Italy's cultural and landscape heritage constitutes one of the fundamental aspects of the environment that Italy must protect and which the rest of the world must be allowed to enjoy. These rich archeological, architectural, landscape, and natural beauty resources have sizeable dimensions from both a quantitative as well as qualitative viewpoint. Less than 1,5 million Italians, however, appear to be members of environmental protection organizations.

The schools and universities have only recently developed themes relating to environmental information and education. More than sixty university courses exist relating to the environment, for example forestry and environmental science; environmental engineering; soil conservation and territorial planning; history and conservation of cultural resources, etc. The press and television instead dedicate very little space to environmental protection themes. For example, in 1995, just 0.1% of the total number of hours of television transmissions dealt with environmental issues. It is easy to predict an increase in the near future.

Work habits and consumption by Italians varies noticeably between the regions in the North and those in the South. Those in the North are similar to those of other industrialized European countries, but with anomalies in many industrial districts tied to the family nature of local businesses. In the South, the habits of a society undergoing a phase of development are still present. Over the past years, a strong process of urbanization has been consolidated both in the North as well as in the South, which initiated during the period following the end of the Second World War. Today, more than 70% of the population live in centers having more than 10,000 inhabitants, and 55% live in centers having more than 20,000 inhabitants. Family consumption can be broken-down as follows: 17,2% alimentary and 82,8% non-alimentary (housing and energy 18%; clothing and shoes 8,6%; transportation and communications 12,4%; health 6,6%; leisure time, culture and cultural events 8,6%; others 28,6%: 1996 ISTAT data).

Consumer protection organizations have not yet been adequately developed (they are promoted, however, by recent legislative acts: Law no. 241 of 1998 and Law no. 300 of 2000; in particular, article 9 of Law no. 267 of 2000, allows environmental associations to file appeals in court with respect to all acts of the regions, provinces and municipalities that are harmful to environmental interests). Environmental protection initiatives have been promoted both by consumer protection associations as well as by the numerous environmental associations active in Italy. Such associations are recognized by the Ministry of the Environment and are empowered to intervene and initiate actions in front of the competent judicial organs.

3.1. The Italian Republic has adopted as its own objectives for the twenty-first century those set forth in Agenda 21 approved by the Rio Conference (see the CIPE resolution of December 28, 1993: approval of a national plan for sustainable development as implementation of Agenda 21) and, as a member State of the European Union, has undertaken to implement the Fifth Action Program of the European Community for sustainable development. The first problem is therefore that of integrating environmental policies in key sectors of sustainable growth: industry (where environmental protection legislation is already rather well-developed); energy (where the objective of a satisfactory reduction of carbon dioxide emissions remains distant); transportation (where the significant increase in the number of vehicles in circulation has resulted in insufficient progress regarding emissions and fuel quality); and tourism and agriculture (where environmental norms still need to be adequately developed).

3.2. Italy's present waste management system is noticeably underdeveloped. In 1997, 88% of all wastes were disposed of in dump sites, only 5,1% of all wastes were incinerated and only 6,9% were recycled or re-utilized. This situation led to the creation of illegal landfills and the verification of many emergency situations, in a manner that favored corruption and illegal activity by operators in this sector (the Italian Parliament has instituted an "eco-mafia" investigative commission). A reform was recently initiated (Decree no. 22 of 1997) intended to promote more rational management methods for waste products. Its objective is to reach a level of 35% re-utilized and recycled waste; favor the energetic recovery of fuels obtained from urban wastes and assimilated products; and render the system of waste disposal in landfills and the incineration of wastes marginal, including by use of incentives for differentiated collection. Decree no. 22 of 1997 has been modified twice, first by Decree no. 389 of 1997 and secondly by Law no. 426 of 1998. Decree no. 22 of 1997 has also been implemented by secondary laws: Ministerial Decree of February 5, 1998, Ministerial Decree no. 141 of March 11, 1998, Ministerial Decrees no. 145 and no. 148 of April 1, 1998, Ministerial Decree no. 350 of July 21, 1998, Ministerial Decree no. 372 of August 4, 1998, Ministerial Decree no. 370 of September 3, 1998, Ministerial Decree of August 4, 1999.

3.3. The quality of domestic superficial water and, in many cases, of underground water as well is particularly worrisome: 1997 data released by the Ministry of the Environment reveals that only 31% of the water wells (located near springs) are of good quality; 29% are of average quality; 28% are of poor quality; and 12% are of extremely poor quality. More importantly, even underground water is polluted in the Padana plain, where Italy's most intensive urbanization and agricultural and industrial development is located.

Marine water near the coasts also raises particularly urgent problems given its influence on the tourist industry. There has been a noticeable improvement in recent years due to activation of efficient water treatment systems in almost all of the most important public swimming areas. More than 600 km of coastline unsuitable for swimming remains, however: in fact, more than one-third of the total number of discharges still do not undergo treatment and more than 40% of the existing treatment plants only utilize a primary treatment. A recent Decree (no. 152 of 1999) implements Community directives regarding wastewater treatment (EEC no. 271/91), which lay the foundation for a vast program of extraordinary investments in the wastewater treatment sector. Legislative Decree no. 152 of 1999 has recently been modified by Legislative Decree no. 258 of 2000, which introduces some modifications and additions with regard to its definitions, authorizations of discharges, and criminal sanctions.

3.4. Air pollution and noise pollution from traffic is particularly consistent and present in all cities (where the major part of the 30 million motor vehicles and 6 million motorcycles and scooters circulate). Only one-third of the motor vehicles in circulation are equipped with catalytic converters, even though vehicles without catalytic converters have in excess of 60% more emissions than vehicles equipped with catalytic converters. Restrictive circulation measures adopted in the major cities are totally inadequate. The problem will only be resolved by the creation of efficient public services for mobility (favoring fast tramways and bicycle paths), incentives to improve fuel quality, and car models that have lower emission levels. Carbon dioxide emissions could also be reduced subsequent to interventions in the development of infrastructures, which take into account the environmental impact of new works and which are directed towards a re-equilibrium of the relationship between road transport (approximately 84%) with respect to train transport (approximately 12%) and sea transport.

Air pollution also derives in large measure from the production of energy. The problem that Italy is facing, together with other European nations, is that of increasing energy efficiency and the production of energy from renewable sources (solar, eolic, geothermal, hydro and biomass) on the one hand, and of rationalizing electrical consumption on the other. The reduction of greenhouse gases is also entrusted to transportation and traffic energy plans that are to be prepared by the Regions and by local entities. A recent law, Legislative Decree no. 351 of 1999, which implements Community Directive no. 96/62, provides greater and stronger protection of ambient air quality.

3.5. Due to its climate and geographical location, Italy's natural heritage is among the most beautiful and interesting of all of Europe. In the context of Community programs, Italy has identified 2,800 sites of importance due to the presence of species and habitat of European interest (EEC Directive no. 43/92, "Habitat"). The "Flora" list specifies 5,599 superior plants, whereas the "Fauna" list specifies 57,344 different species. Natural areas are, however, threatened by human presence (the medium density of 191 inhabitants/square km reaches five hundred inhabitants/square km in the plains and along the coasts), by a strong industrial presence (625,000 local units of companies having more than one employee, of which 129,000 have more than 10 employees) and by the expansion of building construction and infrastructures. Forests have a lower extension than the European average (28,8% forests, with resect to a European average of 33,9%); and many species of fauna are threatened with extinction (38 mammals out of 118; 125 birds out of 473; 32 reptiles out of 58; 3 amphibians out of 38; 39 fish out of 489). The system of protected areas is, however, undergoing a phase of strong development: it presently consists of 18 national parks and approximately 2 million hectares of regional protected areas (equal to approximately 6,58% of the national territory; an increase of up to 10% is forecast within the year 2000).

In this context, article 57 of Legislative Decree no. 112/1998 provides for the "Piano territoriale di coordinamento provinciale" (land-use plan), which coordinates all of the planning instruments relating to nature, national and regional parks, water, soil and natural beauty.

3.6. The industrialization of the 1950's, 60's and 70's created a significant number of gravely polluted areas (14 areas have been declared at a high risk of environmental crisis; 10 areas have been declared critical). Programs aimed at compiling a census of polluted areas and sites (which are much more than the number identified to date) have been initiated and the necessary clean-up programs, recovery of abandoned industrial areas and re-location of certain industrial activities have also begun. Land reclamation procedures are now defined by Ministerial Decree no. 471 of 1999, which provides for pollution limit values for ground, surface water and underground water, in relation to the specific destination or use of the sites.

3.7. Soil conservation constitutes one of the most dramatic problems facing Italy, which is often subject to floods, landslides and even earthquakes. There are also many volcanic areas in the Italian peninsula and the islands. In addition to the torrential nature of the rivers and relative water basins, the causes are to be found in inadequate preventive work and the construction of buildings and infrastructures in areas that are at hydrogeological risk. Recent legislation addresses the problem by means of the study, monitoring and census of areas at risk (by now a complete data bank exists of events that took place between 1918 and 1990); planning the work to be done and the restrictions to impose in individual water basins (basin plans and hydrological requirements in accordance with Law. no. 183 of 1989); as well as by reorganizing the control organs and organs that have been entrusted with performing preventive and emergency work, which to date have acted in an inefficient and confused manner. A recent law, Legislative Decree no. 112 of 1998, has given most of the competence in this area to the regions (article 89).

4.1. The historical evolution of Italian environmental law can be summed us in the following terms.

Prior to the entry into effect of the Constitution of January 1, 1948, protection of Italy's natural resources and environmental patrimony was entrusted to general laws requiring the payment of compensation for damages deriving from an illicit act (art. 2043 of the Civil Code), the law regulating relationships between neighbors (art. 844 of the Civil Code on emissions, and art. 890 on distances from unhealthy or dangerous installations), norms intended to protect health (1934 Uniform Text of Health Laws and laws of the 1930 Criminal Code) and landscape, natural beauty and Italy's archeological, historic and artistic national heritage (special laws of 1922 and 1939, and laws promulgated even prior to the criminal laws of the 1930 Criminal Code).

The 1948 Italian Constitution does not contain laws that expressly refer to the environment as a juridical object entitled to protection, but it introduced principles that have allowed development of both legislation as well as case law recognizing rights connected to environmental protection.

Notwithstanding numerous petitions aimed at rationalizing legislation regarding environmental protection and creating coordinated and organic sources of law, at present no general environmental protection law has been promulgated in Italy. The relative laws all relate to different sectors faced with environmental protection problems.

Even the 1986 law that created the Ministry of the Environment only introduced some general norms that are applicable to environmental protection (such as the payment of compensation for environmental damage and procedures for environmental impact assessments).

4.2. During the first 20-30 years that the 1948 Constitution was in effect, Italian legislation only indirectly protected environmental interests. Protection continued to be effectuated on the basis of prior legislation and was, from time to time, connected to the protection of health interests (1934 Uniform Text and its subsequent modifications), urban planning (Law no. 1150 of 1942 and Law no. 765 of 1967), and interests connected with Italy's historic and artistic heritage as well as its landscape heritage (Laws no. 1039 and no. 1497 of 1939).

Competence in matters of environmental protection was entrusted to the Ministry of the Interior (responsible for all police and security functions) and to the Mayors, as the competent organs entrusted with protecting the hygiene of land and buildings.

The protection technique consisted of imposing restrictions and emanating prohibitions that the competent authorities were responsible to ensure were enforced (including by recourse to occasional and urgent ordinances).

4.3. The initiation of a legislative regime directly related to environmental interests took place in Italy prior to promulgation of a law at the level of the European Community. Law no. 615 of 1966 on air pollution control and prevention constituted an important anticipation with respect to protection from pollution caused by thermal and industrial plants and factories, as well as by motor vehicles. It is a law intended to directly protect the air's state of health, but it also contains norms whose primary purpose is to impede the alteration of atmospheric conditions rather than merely control individual sources of emissions.

In addition, Italy already had laws generally intended to protect health and environmental interests at the same time: examples are the law regarding solid urban waste disposal (Law no. 366 of 1941) and laws regarding protection of the population from ionized radiation (Law no. 1860 of 1962).

4.4. During the 1970's, Italy, similar to other European nations, manifested a new sensitivity towards environmental protection at the same time that positions were being taken at an international and regional level (UNESCO declarations on cultural heritage in 1968; Club of Rome 1970; UN Conference in Stockholm 1972; First Action Program of the European Community 1973).

The legislative system of environmental protection remains sectoral and specific, however, in terms already foreshadowed by Law no. 615 of 1966 on air pollution control (authorizations issued on the basis of tables of polluting substances and acceptable limits; implementation of technical controls and surveillance organs, etc.). Environmental protection always refers to individual resources and is connected to the need to protect health: its purpose is the repression of activities that pollute natural resources. Law no. 319 of 1976 on water pollution control is an example (although it also provides for sectoral planning instruments such as regional water clean-up plans which, however, remained unimplemented for a long period of time).

During the 1970's, environmental protection became identified as a law of an autonomous sector, but it was always connected with the protection of the interests related to it. There is, therefore, environmental protection connected with the national health service (Law no. 833 of 1978); environmental protection connected with land use planning and zoning law (with competence attributed to the Regions by means of DPR no. 616 of 1977); and landscape protection (Law no. 431 of 1985).

4.5. Contemporaneously with the evolution of European directives issued during the course of the 1970's and the beginning of the 1980's, sectoral law specifically referring to environmental interests began to develop (as in the case of modifications to the water pollution control law introduced by Law no. 650 of 1979 or the first organic waste disposal law: DPR no. 915 of 1982).

During this phase, competence in environmental law was expanded to include the Regions and Provinces, and protection techniques also began to be linked to planning forecasts.

Throughout the 1980's, increased attention to environmental protection developed at the same time that European Community initiatives were intensified (the European Community's Second, Third and Fourth Action Programs) and the seriousness of environmental emergencies was verified (calamitous events such as Chernobyl). This assisted identification of the attribution of environmental protection interests at a central level, by means of the creation of the Ministry of the Environment (Law no. 349 of 1986).

Law no. 349 of 1986 constitutes an essential passage in determining that the environment should be the object of an autonomous regime. The 1986 Law did not specify, however, whether the Ministry and the competent organs in matters of environmental protection simply coordinate competence connected with environmental interests (health, urban planning, agriculture and forests, hunting and fishing, local police, etc.), or whether they are able to act in an autonomous manner in a determined sector, with their own uniform characteristics.

4.6. The tendency towards a non-sectoral but autonomous regime in environmental protection manifested itself during the second half of the 1980's and during the 1990's on an international level (Brundtland Report of 1987, UN Rio Conference of 1992 and UN Kyoto Conference of 1997), on a Community level (the Third and Fourth Action Programs of 1982, 1986, 1992, and even more so the Fifth Action Program of 1993-1999, aimed at dealing with environmental problems on the basis of the principle of sustainable development, the integrated management of protection instruments, and the principle of collaboration between public and private authorities), as well as on a national level, with legislation modelled on a uniform view of the problem. The following laws cal be cited in this regard: the laws on the prevention of major industrial risks (DPR no. 175 of 1988), soil conservation and the planning of water basins (Law no. 183 of 1989), environmental planning and, more in general, the protection of special areas (Law no. 341 of 1985 on landscape protection and Framework Law no. 394 of 1991 on protected areas).

Subsequently, there was a move in the direction of protection aimed at prevention and the rational management of resources by means of sectoral laws implementing Community directives adopted at the end of the 1980's and during the 90's. They include implementation of directives on air pollution control (DPR no. 203 of 1988), laws on water resources and the disposal of wastewater (Law no. 36 of 1994 and Decree no. 152 of 1999, modified by Legislative Decree no. 258 of 2000), as well as the law on the management and disposal of urban and industrial wastes (Decree no.22 of 1997, modified by Decree no. 389 of 1997 and most recently by Law no. 426/1998).

4.7. The tendency to no longer protect only individual environmental factors but instead ecological equilibrium, i.e. the environment understood in its entirety, has not yet found mature legal expression. Protection techniques have, however, been refined and exceed a merely restrictive and sanction-imposing conception, as quality objectives and principles of co-responsibility in the protection of environmental resources have been introduced (in particular, this prospective is present in Decree no. 152 of 1999 on water pollution control, as well as in Decree no. 351 of August 4, 1999 on ambient air quality assessment and management and in Decree no. 372 of August 4, 1999 on integrated pollution prevention and control).

An important move in this direction can be seen from the initiatives taken by the Ministry of the Environment as well as by various studies that have been made, including at the time of formulation of the laws, by the National Environmental Protection Agency and by the regional environmental protection agencies: the first was created by means of Law no. 61 of 1994, and the latter by numerous regional laws during subsequent years.

4.8. On an administrative level, reform of the Public Administration as well as of administrative procedures favors greater direct access of citizens and industry to environmental information and allows the use of collaboration mechanisms between private industry and the Public Administration, in accordance with the orientation indicated in the Community's Fifth Action Program. The Fifth Action Program has only been partially implemented in some Italian laws: for example, Decree no. 22 of 1997 provides for programmatic agreements between private parties and public authorities regarding waste disposal, and there are forms of collaboration evidenced by voluntary agreements or program contracts regarding air pollution caused by motor vehicles. Community regulations regarding eco-labels and eco-audits have been implemented but are not yet commonly utilized (Regulation no. 880/92 regarding ecological quality marks was implemented by means of Legislative Decree no. 216 of July 6, 1993, converted into Law no. 294 of August 9, 1993; Regulation no. 1836/93 regarding the voluntary adherence of companies in the industrial sector to a Community eco-management and audit system (EMAS) was first implemented by art. 5 of Law no. 70 of January 25, 1994, and subsequently by Ministerial Decree no. 413 of August 2, 1995).

4.9. Other important laws were also promulgated during the 1990's: laws on energy savings (Laws no. 9 and 10 of 1991), hunting (Framework Law no. 157 of 1992 on fauna protection); numerous laws intended to implement international Conventions such as the law to safeguard stratospheric ozone (Law no. 549 of 1993); the Convention on climate change (Law no. 65 of 1994); the Convention on environmental impact assessments in a transborder context (Law no. 640 of 1994); the UN Convention of the Rights of the Sea of Montego Bay (Law no. 89 of 1994); the Geneva Convention limiting the use of certain conventional weapons harmful to the environment (Law no. 715 of 1994); the Paris Convention prohibiting the development, production, storage and use of chemical weapons (Law no. 496 of 1995); the Treaty of New York regarding a total nuclear test ban (Law no. 484 of 1998); the Convention of cooperation and common fight against hydrocarbon pollution (Law no. 464 of 1998); the Conventions on protection of the Mediterranean Sea (Laws no. 175 and no. 193 of 1999).
 


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