SEMINAR OF THE EUROPEAN GROUP OF ENVIRONMENTAL LAW

Stefano Grassi

1. I would like to contribute some considerations of a general nature to our meeting:

The Italian Constitution is directly related, as a cultural product, to the constitutions of western democracies and to the deep roots of illuminist giusnaturalism and the principles of a State of law, integrated by catholic and social solidarity.

As is the case with many other constitutions of the second half of this century, born on the ashes of a war without precedent due to its dimensions and ferocity, aware of the irremediable risks of the conception of an ethical State and its inevitable totalitarian drift, the 1948 Italian Constitution did not limit itself to affirming the rights of freedom and social rights denied during the fascist experience: it placed them in a higher law that guarantees them, and even more importantly which recognizes them as rights which legitimize the exercise of power itself. The rights of freedom and social rights are the basis and at the same time the objective of a democratic legal system, which is such in as much as it is shared, by means of a constitutional pact, by all facets of the society that is recognized in the constitution.

The search of this legitimization and at the same time of this guarantee of democracy, by means of the recognition of rights and their positive regulation, constitutes a phenomenon that is increasingly broader in world experience.

The recent preparation of the European Union’s Bill of Rights confirms this tendency, as it verifies the passage from an institutional regime exclusively aimed at regulating the organization of power and the relationships among the governments of the States adhering to the Treaty, to a definition of principles that constitute a common heritage of values, as set forth in art. 6 of the Treaty of the European Union. It is a process that responds to the immediate need to identify guarantees of the rights of individuals and of intermediary communities with respect to the expansion of the Union’s powers, and at the same time ensure that the decisional mechanisms and the institutional organization of the European Union itself rest on the base of a stronger and more participated democratic legitimization.

It is a difficult process, because, as happens with increasing frequency in all contemporary societies, the universality of rights conflicts with the particularity of a legal system that is still an expression of the power/sovereignty of a plurality of diverse States.

It is not by chance that the uncertainties and difficulties in the process of European integration and its institutional reform correspond to the same difficulty of transforming the declaration of rights in a charter of values and, above all, to ensure that all citizens of the Union can identify themselves in those values. It means bringing social democracy to market democracy, and it is difficult for that to happen if the delay in the process of maturity of the culture of freedom and rights continues, of which xenophobic tendencies and local claims are a grave symptom.

2. In this context, there is a growing number of constitutions (more than sixty) that contain explicit references to environmental protection, and many of these recognize the right to the environment as a right of the person, with the intent of inserting it among the rights of man directly enforceable in court.

The concept of the environment as protection of the person (to be protected according to the classic framework of individual rights) raises, however, identification problems: the contents of the right, the holders of the right, the structural characteristics of the individual right that is recognized.

With respect to contents, a right to the environment can be connected with the right not to be damaged with respect to one’s health and well-being and not to be subject to intolerable damages due to mutation of the ecological equilibrium. Acknowledgment that such result can only be reached by means of the conservation and protection of nature suggests an opportunity to make reference to a right to environmental protection, aimed at maintaining its quality. The contents of the right can be broadened, up through recognition of a right to a higher standard of physical and mental health (the right to overcome infant mortality; to have hygienic guarantees at one’s workplace; to combat epidemics; to protect medicine and doctors: it is evident, from this standpoint, that it is possible to trace the so-called right to the environment to the frameworks – even though diversely articulated – of social rights); up to recognition of a right to enjoyment of resources and natural and cultural beauty and all of the important factors for environmental equilibrium (and it is evident that these rights can be traced to the framework of individual rights regarding public and private property).

With regard to who holds the right to the environment, the problem is raised as to whether this rests with individuals (that is, whether it is a right recognized as individual) or instead whether it must be interpreted as a right that can also be enforced by groups and non-governmental organizations, according to a formulation that sees the environment as society’s common heritage, and thus the object of individual rights that exceed the classical subdivisions between subjective rights and legitimate interests (introducing the figures of collective individual rights, collective interests and group interests).

Significant theoretical and practical problems are raised with respect to the interpretation of the right to the environment as an individual right of freedom of the person. Environmental movements and human rights movements find a convergence point in the need to affirm the right to the environment as a fundamental right of man in the context of international declarations. In fact, international declarations express values and principles, without giving rise (except on determined conditions) to active individual rights that are directly enforceable. Divergences can regard the need of an explicit recognition of said right in constitutional norms. But it is possible to note, next to the numerous norms that by now contain explicit affirmation of a right to the environment, the fact that, even in constitutions that lack an explicit formulation, legal scholarship and case law identify the implicit recognition of a right to the environment in the affirmation of other rights of the person: if the environment is a projection of the persona and the quality of the environment is an essential aspect of the right to the quality of life, the norms that guarantee the rights of the person and the right to a better life also implicitly recognize a human right to the environment.

A degraded environment damages the physical and moral health of the person, and by means of the exercise of the individual right that the person is recognized as having, it is also possible to exercise a right to the environment: from the right to health it is therefore possible to extract a right to a healthy environment; from a right to property it is possible to extract a right to the environment connected, on the one hand, to the right not to have property damaged by environmental modifications and phenomenon and, on the other, to guarantee the social function of property, including with reference to respect of environmental property, understood as a collective heritage.

The right to the environment becomes functional with respect to other rights of the person and vice-versa other rights of the person can be functional to the needs of environmental protection.

3. In Italy as well, the absence of an explicit regime in the Constitution has not impeded affirmation of the existence of constitutional principles of environmental protection, making reference to principles that protect property rights, or the right to health and the need to protect cultural and landscape heritage. These are principles that were developed in particular by Italy’s Constitutional Court.

The principles to which reference can be made in the 1948 Italian Constitution are those set forth in art. 9 ("the Republic ... protects the landscape and historic and artistic patrimony of the Nation"); art. 32 ("the Republic protects health as a fundamental right of man and interest of society"); art. 41 ("private economic initiative is unrestricted. It cannot be performed in contrast with social utility or in such a way as to cause damage to security, liberty, or human dignity"); and art. 44 (the part that subordinates agricultural activities to the principle of "rational exploitation of the ground").

More in general, the recognition of rights relating to environmental protection is connected to the complete and detailed regulation of social rights expressly guaranteed by the Constitution, in particular by the principle of equality affirmed in art. 3 ("it is the responsibility of the Republic to remove social and economic obstacles which, limiting de facto the freedom and equality of citizens, impede the full development of man and his effective participation in the nation's political, economic and social organization").

On the basis of this written law, the Constitutional Court has been able to develop case law in which social rights have assumed the formal level of constitutional rights entitled to immediate protection, independently of an implementing norm approved by the legislator.

Art. 9 of the Constitution protects "landscape" and the nation's "historic and artistic heritage". The norm guarantees the conservation and promotion of the objective results of man's multiple cultural activities. This affirmation of principle has allowed constitutional case law to extend such guarantee to man's "cultural heritage", protected by the UNESCO Convention of 1968 (i.e. material patrimony expressing the value of a civilization, goods or property of archeological, historical and artistic interest, historical centers, fishing villages, castles, farm houses and typical houses, etc.) and the landscape understood not only as the entirety of natural beauty to conserve, but as the land's manner of being, in its visual and dynamic perception and in perennial renewal.

The right to health is guaranteed by art. 32 of the Constitution as a "fundamental right of man", as well as an "interest of society". On the basis of such affirmation the Constitutional Court has determined it necessary to protect the right to a healthy environment, as a condition and guarantee of the effective exercise of said right to health.

The protection of economic initiative (both private and public) in view of the requirement that such initiative not conflict with security, human liberty and human dignity, has allowed environmental protection to be identified as a limit on industrial activity, thus supplying the legal basis for maintaining the difficult balance between economic development and environmental protection, synthesized in the formula of sustainable development.

The case law of the Constitutional Court has developed these principles with specific reference to the environment, which is defined as a fundamental value and principle to which legislative activity as well as the activity of all public authorities must adapt.

The use of the term "environment" can already be found in judgments issued by the Constitutional Court during the 1970's. During the second half of the 1980's, however, the Court gave a more important contribution to the definition of the environment as a uniform principle and reference value for the entire constitutional law system. The case law of the Court has in particular developed, with reference to the Italian legal system, the principles of environmental law taken from the European Community's legal system, which have also been affirmed by the case law of the European Community's Court of Justice.

The principles developed by the Court's case law can be sub-divided into two major categories.

The first category includes the principles that identify and qualify the environment and the essential characteristics of environmental protection. This category undoubtedly includes, in addition to the principal of man's centricity, the principle of the unitary nature of the environment, which allows not so much its individual factors or components to be protected independently of each other, as much as the harmonious assemblage of strictly inter-related physical, chemical and biological conditions generating a precious equilibrium that represents the true objective of environmental protection.

This unitary concept of the environment, understood not in an objective or material sense but in view of its finality and purpose, constitutes an effective representation that allows global objectives to be pursued (which is qualitatively different than the mere summation of diverse sectorial interventions). It is clearly manifested in Community directives regarding environmental impact assessments and integrated anti-pollution protection, to which the Constitutional Court has referred on more than one occasion.

The same category includes the principles that define the priority of environmental interests with respect to other interests and values that merit protection, as well as the principles that attribute an economic value to environmental resources and elements, among which the fundamental principle "who pollutes pays". In particular, among the principles which manifest the priority of environmental interests is that of integration, according to which the needs connected with environmental protection must be integrated in the definition and implementation of policies and public actions in order to promote sustainable development.

The second category of principles includes the need to balance and coordinate environmental protection with other public interests, which has allowed the Constitutional Court to establish a principle of the absolute prevalence of environmental protection when acceptable limits for human health are exceeded. Only in those cases in which such limits have been respected may the legislator exercise its discretion in balancing the relationship between the needs of development, consideration of the costs of applicable technologies, and the needs of environmental protection (see, for example, judgment no. 127 of 1990 on the best available technology).

Principles have been identified to which environmental protection measures and actions must conform, above all the principle of prevention (as a tool for modifying the source of damage caused to the environment) and the principle of precaution (according to which the lack of scientific knowledge can not be utilized as a shield to delay adoption of appropriate measures in cases presenting a risk of serious and irreversible environmental damage). In addition, the principles of balance and gradualness in pursuing objectives have been recognized, as well as principles relating to a right to environmental information, both active (research of available information and exercise of a right of access to information collected by public authorities and by private parties) as well as passive (the right to receive accurate, standardized and timely information from any party performing an activity that creates an environmental risk). The diffusion and knowledge of available technical and scientific data constitutes the basis for guaranteeing participation in the decision making process in environmental matters.

Constitutional case law has had to deal with many issues regarding the distribution of competence among the State, Regions and local entities, and has attempted to resolve the complexity of the organizational scheme of the Italian public administration by the use of principles of coordination, such as affirmation of the need for effective cooperation among the various levels of territorial government; coordination of program agreements, and joint services.

4. The rights of citizens and associations in relation to property and environmental interests are protected by the principles established by the Constitution. Reference can be made above all to the principle that allows access to the courts in order to defend subjective rights and legitimate interests (art. 24, par. 1, Constitution). The Italian legal system distinguishes between "subjective rights" (when the subjective position of the individual or association is directly and expressly recognized by law, as for example in the case of real property rights such as rights of passage, rights of use, etc.) and "legitimate interests" (when the position of the individual or association is only indirectly protected by law). An example of the protection of legitimate interests is the legal regulation of determined relationships in order to guarantee pursuit of public interests and purposes: the individual favored by the proper pursuit of such public interests can enforce this position of advantage both by opposing the improper exercise of public powers, (such as when regulations in favor of environmental or landscape protection are violated), as well as by insisting on adoption of necessary environmental protection regulations.

Art. 24 of the Constitution does not specifically refer to the concepts of group interests or collective interests. "Group interests" are a plurality of subjects entitled to juridical guarantee; "collective interests" arise when that plurality of subjects becomes a more or less organized collective (society) for purposes that are related to the protection of those interests. Starting from the 1970's, however, constitutional case law has also affirmed the right to juridical protection in accordance with art. 24 of the Constitution with reference to subjective positions other than subjective rights and legitimate interests, thus recognizing group and collective interests. Examples of this extension of constitutional protection are the rights relating to the protection of health and a healthy environment; television viewers; and consumer interests.

The Italian legislator has also recognized these interests, although in a less satisfactory manner, and it is significant to note that this first took place by reference to the protection of environmental interests: art. 18 of Law no. 349 of 1986 on environmental damage; art. 9 of Law no. 241 of 1990 which provides forms of protection of group interests in the context of administrative proceedings; as well as Law no. 281 of 1998 on the rights of consumers and users.

Art. 113 of the Constitution has clarified that the judicial protection of legitimate rights and interests can also be extended to the Public Administration, abrogating all of the norms that previously limited judicial supervision of the activity performed by public authorities (for example, the non-appealable nature of political acts). Judicial protection cannot, in fact, be excluded or limited to particular means of opposition or appeal, or determined categories of acts; whereas the law will determine the effects of judicial decisions on the illegitimate acts of the Public Administration (including the annulment of the same illegitimate acts). The protection of citizens with respect to the Public Administration can take place even before recourse to the courts and before issuance of administrative provisions, in accordance with the principle of the normal course and impartiality of the Public Administration sanctioned by art. 97 of the Constitution, coherently with the principle of equality guaranteed by art. 3 of the Constitution. Both the norms that guarantee the right to environmental information as well as the norms that guarantee the right to participate in environmental proceedings can be included in the implementation of these principles.

5. The European Bill of Rights limited itself to insertion of a norm that reproduces a principle that is already implicit in the outstanding regime (art. 37: "Environmental protection – A high level of environmental protection and improvement of its quality must be integrated in the policies of the Union and guaranteed in conformity with the principle that creates the European Community"). The formulation is disappointing, for the part in which it omits to consider explicit recognition not only of a right to the environment but also of those rights which are directly connected to environmental protection.

There is, for example, a strict correlation between needs of information and needs of environmental protection, in such a way as to render indispensable guarantee of the right to environmental information understood both in its active sense (research of available information, exercise of the right of access to information gathered by the public administration and even by private parties), as well as in a passive sense (the right to receive continuous, correct, standardized and timely flows of information from whomever intervenes with actions that are potentially harmful to the environment), with the consequent need to activate suitable organizational structures (both for the purpose of acquiring scientific and technical data, in a position of independence, as well as to affirm the right to environmental education as a basis of the right to information and as an instrument for the proper maturation of environmental conscience and the capacity to participate in decisions).

The right to participate in the decision-making process of public bodies also constitutes an indispensable basis for controlling and directing choices intended for an effective environmental protection. Such right is seen in practice not only in the right of access and consultation in decision-making processes, referable to interested individuals or groups, but also in the right to have the decision-making processes guarantee the consideration and valuation of the effects on the environment of projects or activities that must be performed (for example, according to the procedural system utilized for environmental impact assessments).

Affirmation of the need of environmental protection both for present as well as for future generations corresponds to the need to identify forms of recognition and guarantees for all juridical systems from which said values arise and which are instrumental and functional for the affirmation of said values (and therefore, above all, recognition of the rights of man). Such affirmation would not have any sense with respect to the environment unless it was accompanied by complex implementation regimes and by the definition of the rights and obligations both of citizens as well as of public authorities.

It is necessary to have a legislative policy aimed at guaranteeing achievement of the objectives of protection (which are dynamic objectives, to be verified from time to time on the basis of the status of scientific knowledge). The law must consider the indeterminate and complex nature of the environment, with a unitary and non-sectorial vision of the problems. The environment is instead a requirement and an objective from which juridical rules must start and towards which they must be directed (similar to life, peace, work, etc.). The problem for law is therefore that of giving an even broader sense to the so-called "right to the environment" and thus that of making it become a directive principle of a series of normative interventions, thus creating the principles of the "right to the environment". And, in fact, already in international and community settings (and thus also in Italy), the constitutional case law mentioned in paragraph 3 has affirmed juridical principles that are very broad, such as that requiring the legislator to evaluate the unitary nature of the environment; but also that of attributing priority to environmental interests with respect to other values and interests worthy of protection; or else those principles that attribute an economic value to environmental resources and property, among which the fundamental principal of "who pollutes pays"; and still more the principles that require laws that are aimed at prevention and precaution.

The defect of the "Bill of Rights" is that of not highlighting these principles and the correlation between human rights and environmental protection.

It is already positive, however, that the principle of integration of environmental protection in other policies was inserted in the "Bill of Rights". If such document has, as a minimum result, the value of a document which orients interpretation of current rights in the European context, the insertion of art. 37 can definitely be utilized to develop the theme of "environmental rights" in broad terms.

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