Juristica International

Environmental law has several characteristic features in comparison with some other, more traditional legal disciplines. In addition to having very complex and closely interrelated components, environmental law is dynamic and constantly evolving. This aspect requires that environmental regulations be flexible, but at the same time the legal framework of environmental law must look to the long term and be based on a systematic legal approach. The latter could be achieved by elaboration of the basic principles of this legal discipline accepted by the international community and their adoption into the body of national environmental law.

Among the characteristic features of modern environmental law, the international dimension plays a supreme role. Within the scope of international law, there is a developing body of environmental protection measures. International treaties and customs create directly binding norms while other sources of international environmental law (such as generally accepted principles) have a more direct influence on the development of national laws. At the same time, the world community consists of widely disparate nations. Some of them have highly developed free market economies, while others are unable to maintain even a sufficient standard of living for their growing population. For this reason, international environmental protection measures face similar difficulties as the other sectors of international law. In many cases, there are serious problems in finding a consensus on environmental protection issues across the international community. Various interrelated methods of legal regulation have developed in different countries to further the aims and objectives of environmental policy. States enact and implement regulations on the basis of environmental problems, legal traditions and the economic situation specific to a particular country. However, despite all of the aforesaid difficulties of harmonisation, it must be emphasised that some basic principles of environmental law have achieved broad acceptance at the regional and international level.

International environmental law, like other sectors of international law, has multiple sources. The sources consist of “soft” law and “hard” law. “Soft” law is not a traditional source of law and consists of declarations, recommendations and other instruments which are not binding in character. On the other hand, “hard” international environmental law¹ consists of generally recognised principles of law, customary law, treaties, judicial decisions and academic texts.

The following study aims to evaluate Estonian environmental legislation from the international law perspective. From amongst the principles of environmental law, this paper deals with the principles of prevention and precaution, the “polluter pays” principle and the best available technology principle.

Estonian environmental law is a relatively new legal discipline and is being continuously revised and amended. In addition to continuous amendment, another problem is the existence of conflicting regulations and policies within Estonia’s environmental laws. Environmental legislation has often been enacted in response to an urgent problem in a particular environmental sector and, therefore, Estonian environmental law is divided amongst many different pieces of legislation. The different laws overlap at times and also contain gaps, leaving some aspects unregulated. The need for a systematic legal approach is obvious.

Estonian environmental legislation is based on two “framework” pieces of legislation: the Nature Protection Act² of 1990 and the Sustainable Development Act³ of 1995. These Acts provide a basis for the elaboration of more detailed laws and administrative regulations on environmental protection and establish the general principles, aims and objectives of nature conservation, the use of natural resources and pollution control.

The Constitution of the Republic of Estonia provides the legal bases for the system of laws and regulations for nature protection. Section 5 of the Constitution states that natural resources are national assets which are to be used sustainably. Section 53 further requires that “Everyone has a duty to preserve the human and natural environment and to compensate for damage caused to the environment by him or her”. Unfortunately, the Constitution does not list among basic rights, the right to a clean environment and to environmental information.

From the environmental protection perspective, it must be pointed out that section 32 of the Constitution states that restrictions on property rights and land use regimes can be imposed only by law, that is, an Act of the Riigikogu⁴ and consequently, not by government regulation or by the regulation of local governments.

The Sustainable Development Act establishes a national strategy of principles for sustainable development. According to the Act, the purpose of sustainable development is to guarantee an environment which meets human needs as well as provides the necessary resources for economic development without causing significant damage to the environment while maintaining natural diversity. The freedoms to use property and to be engaged in enterprise are restricted based on the need to protect nature as the common property of mankind and to preserve the national wealth.

Section 2 of the Nature Protection Act provides the main objectives of environmental protection legislation. The task of the legislation is to provide the basis for the minimisation of pollution of the natural environment and the use of natural resources in amounts which maintain a natural balance. These principles are viewed as the fundamental requirements for economic activity.

In Estonian circumstances, taking into account ongoing property reform, property is considered to be a social institution. Absolute control of property by the owner does not exist in modern society. All property relations are the object of collective choice and influence individual choice in directions that may or may not be considered in the public interest. Without a doubt, these considerations play the most significant role in elaborating the body of modern environmental law in Estonia.

Estonia has ratified a number of international environmental conventions which directly or indirectly proclaim the above-mentioned principles of environmental law. Estonia being involved in these international instruments indicates that Estonia intends to be bound by these principles. In this connection, the Convention on the Protection of the Marine Environment of the Baltic Sea of 1992 (the “Helsinki Convention”) can be considered as a point of departure.

The principle of prevention means that the best environmental policy entails preventing the creation of pollution or nuisance at their source, rather than subsequently trying to counteract their effects. However, the consequences of decisions and human actions are not always fully known in advance. For this reason, in the 1980’s a much more stringent principle, the principle of precaution, was developed at the international level. The main idea of this principle is that certain precautionary measures should be taken in advance if there is scientific uncertainty about the likelihood of environmental harm. For example, Article 3 of the Helsinki Convention states that preventative measures must be taken when there is reason to assume that substances or energy introduced into the marine environment may create hazards or harm to the environment even if there is no conclusive evidence of a causal relationship between inputs and their alleged effects.

Unfortunately in Estonian environmental law, the principle of precaution is not reflected sufficiently. In the case of controlling industrial risks for example, Estonian law regulates mainly the response to an accident and preventative measures are less developed. Taken to the extreme, the principle of precaution could lead to the prohibition of a majority of economic developments and other human activities, as most of them constitute some risk of environmental harm. Thus, the main problem in implementing this principle in Estonia is to balance the risk of environmental harm against the economic costs of the pollution control measures. In order to justify pollution control measures, their costs must be less than the probable cost of the avoided environmental damage. Accordingly, a cost-benefit analysis is needed to answer the question “is this worth it?”, or in other words, “do the benefits justify the costs?”. In this case, the need for risk assessment, risk characterisation principles and a judicially enforceable criteria is obvious.

The crucial role of land use planning in the enforcement of precautionary measures is obvious. The Estonian Planning and Building Act⁵ was passed in July of 1995. The Act considers zoning and land use planning as one of the main tools for the implementation of environmental protection policy and for sustainable development. According to section 1 of the Act, the main purpose of land use planning is to guarantee a clean and healthy environment. Nature protection factors may be considered in overall regional planning procedures such as classifying a site, a region or the entire territory of a district into land use categories (such as residential, industrial, agricultural or nature conservation). Different rules for land use and requirements for economic activities apply from zone to zone. Land use planning and zoning regulations are normally expressed in negative terms, such as prohibitions or restrictions of property rights.

The “polluter pays” principle has developed as the basic method for the allocation of pollution control costs. These costs should be borne by polluters who can, as a rule, pass them on to consumers. This entails application of the rule that pollution control costs should be reflected in the cost of services and goods which cause pollution in its “life cycle” or “from cradle to grave”. Another important aspect of the “polluter pays” principle is the avoidance of distortion of international trade and unfair competitive advantages for industry of different countries.

In Estonia, the “polluter pays” principle has been implemented by pollution charges and resource pricing.⁶ This system aims to stimulate sustainable use and efficient utilisation of natural resources and on the other hand, create market forces to reduce pollution load and introduce the most efficient low waste producing technologies. At the same time in Estonia, it must be emphasised that the main problem is connected not with the stage of development of legal regulation, but with the stage of actual implementation of the principle.

Both, the principle of precaution and the “polluter pays” principle are closely linked with enforcement and remedial measures, especially with civil liability.

If nature protection regulations are violated, the law determines appropriate enforcement actions and remedies. Procedures include civil actions, administrative remedies and criminal prosecution. Estonian law is generally based on the concept which requires damage to have actually occurred to the natural environment, however in certain cases, liability can be based on a risk of harm in the future.

The aim of civil liability is concerned not only with implementation of the “polluter pays” principle but also with the identification of civil liability risks by industry to prevent environmental harm. A strict liability scheme can encourage polluting enterprises to find ways to minimise or eliminate the pollution they create. The producer has a strong incentive to take every possible step, even steps beyond those required by law, to ensure that no pollution occurs.

In Estonia, civil liability for environmental harm is created by the Civil Code. The Code provides who is liable, what they are liable for and how liability will be imposed. The tort of trespass is the most frequent action. According to trespass, any owner of land may prohibit the intrusion of gases, vapours, smells, smoke or other similar interferences emanating from another property if such emissions are significant and violate environmental protection standards, and measures to control the pollution are feasible for the polluter. If such measures are not feasible, the neighbour must tolerate the interference but may seek compensation. However, there are several other bases for liability other than trespass, such as strict liability and negligence, which are less developed in Estonia.

Strict liability is imposed in the case of listed hazardous activities and defendants under this liability standard are liable unless they can prove that all required pollution control measures were adopted to avoid damage. In contrast to fault-based liability, a strict liability scheme imposes an obligation to compensate for harm resulting from actions which do not necessarily constitute a breach of law or duty of care.⁷

The Nature Protection Act defines environmental damage and covers personal injury, property damage, economic injury and damage to natural resources or the environment. The liability scheme also identifies who can take legal action to obtain remedies for damage to natural resources. Estonian legislation allows both the injured party and the government to obtain remedies. The injured party is authorised to obtain remedies for personal injury, property damage and economic injury. Compensation obtained by government authorities may be used to restore the damaged environment or placed in the Estonian Environmental Fund.

Section 52 of the Nature Protection Act addresses the issue of citizen suits and provides that all citizens and legal persons (including non-governmental organisations) may file suits to seek compensation for the environmental damage incurred. However, there is no data concerning the implementation of citizen suits in Estonia.

Under the Estonian Civil Code, property liabilities are transferred with the property, unless otherwise provided by agreement. From this perspective, civil liability issues are to be taken into account in the process of property privatisation. In the process of transfer of enterprises or shares to private owners, the Estonian Privatisation Agency uses standard purchase and sale contracts. The provisions of such contracts indemnify the purchaser for certain costs incurred related to environmental damage which are found within five years after transfer of the property. The costs covered by the indemnification include any third party damages and clean-up costs assessed by a court of law.

In conclusion, Estonian environmental law is not prepared to implement modern environmental liability schemes. To take into account such specific features of environmental civil liability as problems with the burden of proof, the cumulative character of pollution and the time period covered by the liability scheme, a need for a corresponding law is obvious. Such law, essentially an Environmental Liability Act, must be accompanied by a regulation concerning liability insurance. These two laws seem to be among the most urgent priorities.

To implement the already discussed basic principles some additional subsidiary principles must be elaborated. Among them, the best available technology and the best environmental practice principles are most significant. These principles are directly derived from the principle of precaution and require that polluters use the generally accessible technology which is the most effective in preventing, minimising or rendering harmless pollution emissions.

The parties to the Helsinki Convention should take all appropriate administrative and legislative measures to adopt these principles into their national law. The criteria for best available technology and best environmental practice are set out in Annex II of the Convention. In determining what combination of environmental protection measures constitutes the best environmental practice, particular consideration should be given to the principle of precaution, the ecological risk associated with the product (taking into account its life cycle), the time limits for implementation and the social and economic implications. The term “best available technology” is considered to mean the latest stage of development of technology or methods of operation, which are most suitable for limiting or eliminating discharges.

In Estonian environmental law, the above-mentioned principles need more detailed regulation. At the present, these principles are enacted at the level of government regulation. Estonia must implement the internationally accepted principles of environmental law in a manner which fully meets the requirements of legal certainty and must consequently adopt their terms into national law as binding provisions. In Estonian circumstances, the most appropriate way for this would be regulation by primary legislation and not by government regulation. Another problem is that in many cases, the Government of Estonia has issued regulations which are not based on a clear delegation stated in an Act. This missing legal authority makes the legislation weak and a case based thereon possibly being refused or lost in court.

Appropriate adoption of the basic principles into Estonian environmental law is necessary not only from the international law perspective but should be considered as a basis for further development of the national body of environmental law which meets the standards accepted by the international community.

Estonia has assumed the necessity to achieve approximation of its legislation with the environmental law of the European Union (the “EU”). The entire environmental acquis of the EU consists of more than 250 different pieces of legislation consisting of regulations, directives, decisions and recommendations. In addition to the quantity of legislation, another problem is that this body of law is constantly being updated and revised to adapt to technological changes and to address new environmental risks.

The European Commission has stressed that even if a country completes approximation of its environmental law with that of the EU, its regulatory task is not over, since it has been estimated that the EU’s environmental acquis covers only 50 per cent of the legal requirements that should be in place for an adequate scheme of environmental regulation. Moreover, it should be noted that the White Paper which was prepared for the integration of Central and Eastern European countries only covers legislation which is directly related to the free movement of goods, leaving out some two-thirds of the environmental directives of the EU.

Experience shows that some Associated Countries have acted as if all they need do to obtain membership in the EU is to approximate the White Paper laws, ignoring the rest of the acquis. The European Commission tried to avoid issuing a strict list of approximation priorities, so as to avoid such a list being misunderstood by these countries. From this perspective, it is important to emphasise the importance of approximating the entire environmental acquis of the EU.

One of the key elements of the EU’s environmental policy and law is its integrated approach. According to Treaty provisions (Article 100a), environmental considerations must be incorporated into the other policies of the EU. From the national law perspective, this means that environmental control requirements are to be introduced into most of the other more traditional legal disciplines, such as property law, contract law and commercial law. This process can be characterised as the “greening” of the entire national legal system. The redesigned legal framework should be based on the principle of precaution, the “polluter pays” principle and the integrated pollution prevention and control approach.

Returning to priorities, the Working Document 96 (319) prepared by the European Commission in March of 1996 entitled “Preparation of Associated Central and Eastern European Countries for Approximation of Environmental Legislation of the European Union” provides the following seven main criteria for setting national approximation priorities:

1) legislation which has a significant impact on the functioning of the internal market of the EU;

2) legislation which relieves imminent dangers to human health;

3) legislation which protects species or habitats of European or international importance;

4) “framework” legislation which can be adopted to guide sectorial environmental strategies:

5) horizontal legislation which guides general environmental policy;

6) legislation which has a major impact on transboundary problems; and

7) legislation which assists in implementing existing international treaties.

Another very important criteria is the cost effectiveness of EU approximation. Most of the EU environmental directives require, considering Estonia’s financial capacity, a substantial investment.

The EU directives, the implementation of which would require the highest level of pollution control include the following:

1) Large Combustion Plant Directive (88/609);

2) Drinking Water Directive (76/170);

3) Integrated Pollution Prevention and Control Directive (96/61); and

4) the proposed Landfill Directive.

Economic theory has provided clear prescriptions regarding how much a country should invest in pollution control. The main rule is that pollution control cost should balance the social cost of pollution. This theory is sufficiently clear and unconditional, but the real problem is in its application in Estonia’s present conditions, where the social costs and clean-up costs are not known. Another problem is that the environmental law of the EU is under continuous development. Consequently, EU approximation is a “moving target”. To fulfill the task of approximation, the most important considerations will be the following:

1) Estonia must negotiate with the EU for a realistic timetable as overly restrictive time limits will be counterproductive; and

2) Different requirements should apply to old and new installations and plant, as pollution prevention and control for new installations is less expensive than for old. This latter consideration will give flexibility to investments. As well, it is efficient, from both an economic and environmental perspective, to require new sources of pollution to meet the entire range of EU standards, while for old plant, a phase-in period is used.