Harmonisation of Estonian and European Community Environmental Law: Present Situation and Expected Developments
At the time this article was being written, an extensive reform of Estonian environmental law was taking place, above all related to the desire to become a member of the European Union, and thus also the requirement to adopt the European Community’s environmental acquis. Hence the national environmental law will in future undergo a thorough re-structuring, new draft laws will be created and existing acts will be modified, using relevant European Community environmental sources and the principles of modern environmental law as a basis.
As in the case of other countries, Estonia’s environmental law is a complex and dynamic field of law. All the same, environmental problems in Estonia are very varied. There are industrial regions with serious environmental problems, territories with sensitive environments, but also areas in which the environmental situation is satisfactory or even good. Partly as a result of this, there is a real need for flexible, but at the same time far-sighted solutions and the elements of a system for environmental law. The above-mentioned leads to the necessity to take account of the following facts – that:
The choice of legal regulative instruments to be used in the construction of environmental law and in the inspection of environmental risks is largely the result of which goals are set for this field of the law and which fundamental principles are used in the realisation of these goals. As a result of the above, we will herein examine the primary objectives, principles and developmental peculiarities of the European Community’s environmental legislation.
Provisions regarding the primary aims and principles of the environmental policy of the European Community and other common measures of the Community are formulated in Articles 130r–t of the Treaty Establishing the European Community. Article 130r lays down the primary objectives of the European Community environmental law, which are:
In examining the aims of environmental policy, one must emphasise that there is no need for them to be separated from one another and narrowly defined. The European Community Directive on drinking water, for instance, guarantees both the protection and the improvement of the quality of the environment, the protection of people and also the sustainable use of natural resources. The realisation of the aims set out in Article 130r(1) may, in addition to environmental quality-related legislation, also be guaranteed through product-related legislation. A pertinent example is provided by the European Community noise legislation. The normalisation of noise emissions from machines and equipment essentially serves the environment, but above all the aim of protecting human health.
The framework of Estonian environmental legislation is composed of an Act for the Protection of Estonian Nature *1 and a Sustainable Development Act *2 . These two laws establish the general principles and aims of environmental law and form a starting point for the application of other, more detailed laws and regulations. The law on the protection of Estonian nature defines the points of departure for environmental protection, the exploitation of natural resources and pollution control. § 2 of that law defines the primary aims of environmental legislation – keeping pollution of the environment at a minimum and the sustainable exploitation of natural resources.
The Sustainable Development Act establishes the foundations of the national strategy for sustainable development, which are based on the principles agreed to at the UN Conference on Environment and Development (Rio de Janeiro, 1992). According to the Act, the aim of sustainable development is to guarantee people a satisfactory environment and the resources necessary for economic development, while maintaining natural diversity, avoiding significantly harming the environment and not infringing on the needs of future generation. The above-mentioned Act recognises the need to restrict rights of ownership and entrepreneurial rights with the aim of protecting the environment as the common heritage of mankind. The Act also establishes a principle, whereunder the exploitation of natural resources to an extent which maintains the balance of nature is one of the primary requirements of economic activity. These are entirely reasonable principles in the context of environmental protection, however problems will result from their applicability in Estonian legal practice, including in the courts.
There are many problems in existing Estonian environmental law. Firstly, a large number of Estonian legal acts regarding the environment have been introduced as government and ministerial directives. Under the Constitution, the government and ministers may legislate only within the framework of laws, as a delegation included in a law passed by the Riigikogu. In many environment-related situations (such as the government regulation on the procedure for the performance of an environmental impact assessment), this delegation provision does not exist, which raises the question of the conformity of such acts with the Constitution. The second main shortcoming of Estonian environmental law is the fact that the relevant framework laws contain determinations which are more political than legal in nature (lacking in legal magnitude and tangibility). Usually such an indefinite framework law remains valid for years until regulations implementing it take force. Before the entry into force of such regulations, the implementation of the framework law is most likely impossible. The third shortcoming of Estonian environmental law is the inappropriate incorporation of several internationally accepted principles (such as the precaution and prevention principle and the polluter pays principle) into Estonian law. In the harmonisation of our environmental law with EC environmental law, where the implementation of those principles relies upon the provisions of the Treaty Establishing the European Community, this empty space must be filled. The fourth significant shortcoming in Estonian environmental law is the lack of adequate systems of civil liability, which would provide those who have suffered from environmental pollution with the possibility to obtain compensation from the polluter. Regardless of the administrative or criminal sanctions relating to the illegal pollution of the environment, the person who has suffered personal injury or property damages should have the right to compensation through civil liability. Thus a well-functioning system of civil liability is, in addition to administrative and criminal sanctions, an effective means of restraining potential polluters. Therefore civil liability in environmental matters must, together with instruments of direct regulation and criminal sanctions, become an important part of the legal and administrative framework of environmental protection.
Article 130r(2) of the Treaty defines the primary principles of the Union’s environmental policy, which are:
(1) the precautionary principle;
(2) the principle that preventive action should be taken to avoid pollution;
(3) that environmental damage should as a priority be rectified at source;
(4) that the polluter should pay;
(5) that environmental protection requirements must be integrated into the definition and application of other Community policies.
The four latter principles were also included in the Single European Act, whereas the precautionary principle was added with the Treaty of the European Union.
One of the most important core principles of the European Community environmental law is not to deal with the elimination or correction of already-existing pollution, but instead to apply all available and economically and environmentally justified means to prevent the creation of pollution. It should be reiterated that the existing Estonian environmental legislation was based mainly on the ideology of controlling emissions and treated the pollution problems of different environmental elements separately. The latter may be most clearly seen in the sector-based system for the issuance of pollution permits, in which water, waste and atmospheric pollution permits are valid. In the case that an establishment’s operations create pollution of all of these classes, it is unavoidable to apply to for all of the above-mentioned permits separately. It must be kept in mind that if the planned activity is connected with construction, the entrepreneur must also apply for a construction permit. Such a permit-issuing system is relatively clumsy. The situation may be particularly paradoxical in situations where air, waste and water permits have been obtained, but a construction permit has not been granted. The sector-based permit system is also ineffective from the point of view of environmental protection, when one takes into account the fact that different sectors of the environment – soil, air, water – exist and work in a close mutual relationship, and pollution also affects them in this mutual relationship. In recently introduced environmental legislation, it has indeed been attempted to critically reassess existing views and to consider the objectives of both the quality of the environment and the ideology of integrated pollution prevention and control in the choice of regulatory instruments. The principle of the implementation of preventive measures is an inseparable part of any modern environmental strategy. The reason for this is obvious – the elimination of much damage to the environment is either very expensive or entirely impossible. Therefore it also makes better economic sense to prevent the creation of damage in the first place. The real aim of civil liability in environmental matters must be seen as not the compensation of created damage but the prevention of damage through the risk of liability.
At this point, we shall examine in greater detail the principle which requires that environmental requirements be integrated into all EC policy fields. Thus environmental policy and other EC policies are not seen as opposites, it is instead acknowledged as fact that measures for the active protection of the environment and the improvement of its quality may stimulate both economic growth and the creation of new jobs. Likely one of the stronger definitions of the part of the Treaty dealing with the environment, the above-mentioned principle requires that all EU institutions take environmental protection considerations into account in the planning of their operations and in the introduction of measures. The procedure provided for in Directive 85/337/EEC, for the application of the environmental impact assessment procedure to draft acts initiated by the commission, provides a concrete example. That principle is also to be implemented on the level of the Member State. Since environmental policy is an official EC policy, the commission may, according to Article 169 of the Treaty, take a country to the European Court for failing to fulfil the obligation ensuing from the Treaty to take account of environmental considerations.
Estonian environmental legislation also deals with the integration of environmental considerations into other policies as one of the main instruments for guaranteeing sustainable development. § 12 of the Sustainable Development Act establishes that to that end, national programs for the balancing of the condition of the environment and economic activity must be compiled for those fields which most endanger the environment, such as industry, energy, tourism, agriculture and transport. In the most environmentally endangered regions, regional development plans connected with national programs for the balancing of the condition of the environment and economic development are to be compiled. In their spirit, these provisions comply well with the contemporary principles of environmental protection, which consider the integration of environmental planning and other fields of policy (industry, transport, tourism, environmental protection) to be one of the most significant instruments for the implementation of active protection.
The Estonian environmental strategy is characterised by the movement towards the implementation of the principles of the best available technology and best environmental practice, since production and environmental protection technology are the factors which determine the effectiveness and economic practicality of environmental protection and the sustainable utilisation of natural resources. The implementation of the best available technology guarantees the sustainable utilisation of national resources and as little pollution as possible. The implementation of the best environmental practice, however, would guarantee the implementation of measures which take into account global practice for the best possible result in terms of environmental protection. Estonian Environmental Strategy considers it important that in the choice of environmental protection measures, greater attention be paid to: the environmental risks involved with the production and utilisation of products, and the waste processing involved with the same products; the prevention of pollution or the substitution of an activity or product with one which creates less pollution; developments taking place in science and know-how; and also the social and economic side effects of the implementation of the measures described above. Thus one may claim, according to the environmental strategy which has been accepted in Estonia, that among measures intended for the improvement of the environment, one must give preference to those directed at the prevention or reduction of pollution at the level of the source of pollution over those intended for the localisation or reduction in some other manner of the danger of existing pollution. Estonian environmental strategy has set itself the objectives of developing criteria, standards and norms for the assessment of the sustainability of technological processes and the environmental friendliness of products, implementing the best available technology and best environmental practice in new establishments and those under reconstruction and making the complete transition to these criteria in all production and fields of life by the year 2010. One may not exclude the possibility that Estonia’s imminent accession to membership in the European Union will lead to changes in this schedule, in the direction of the shortening of this transition period *3 .
Three main components are involved in the approximation of a future Member State’s environmental law with that of the European Community. The first of these is referred to by the term transposition, and consists of the transfer of EC provisions into the national legal system. In Estonian conditions one must particularly emphasise the principle that the above-mentioned process does not consist simply of the translation of an EC act but in the creation of such legal constructions as would guarantee the achievement of EU objectives through the national legal system. The legal systems of Member States are different enough to require that each country choose legal instruments appropriate to their system, and which guarantee the effective protection of individuals’ rights and interests. The second component of the process of legal approximation is referred to by the term implementation, and this consists of the application of mechanisms necessary for the actual implementation of the legislation. These mechanisms include the allocation of resources essential for environmental protection, the creation of relevant institutions, the training of personnel, the provision of equipment and many other necessary things. In the opinion of the author of this article, the first component of legal convergence has at certain times been overestimated at the expense of the legal implementation stage. In this manner legal acts may be compiled which contain elevated language and far-reaching aims, but which turn out to be entirely hopeless in real life. In this context, it is necessary to bring to mind the third component – enforcement – which designates the inspection necessary to enforce the legislation and, where appropriate, the application of sanctions on offenders.
The most diverse of legal devices and instruments are used in the implementation of the main objectives of environmental law. Different methods are combined for the legal regulation of the environment in different countries, depending on the character and seriousness of a country’s environmental problems, the local natural conditions, cultural and legal traditions, but also on the level of development of a particular society and its economic prospects. The level of priority given to environmental protection in national policy and public opinion are also of great importance in this connection. Public opinion is often influenced from outside, which is something one may also notice in the case of Estonia, where the likelihood of becoming a member of the European Union has given environmental questions a high priority. The list of the devices and instruments of legal regulation used in environmental law results from the idiosyncrasies of environmental law – at this point one of the most important of these, the dependence on impersonal natural laws, should be mentioned. Legislation provisions may only be directed at the regulation of human behaviour, since it is impossible to direct or influence the impersonal processes which take place in the environment. Therefore one must implement means to control environmental risks which take the natural-climatic particularities of a given country into account. Estonia has much to learn from the experiences of Finland and Sweden in joining the European Union. It was attempted from the earliest stages of negotiations to take the particularities of the mentioned countries’ environmental conditions into account. It must also be noted that in some cases our northern neighbours’ requests were accepted, and in some cases were not. In addition to the above, for the regulation of certain fields of life, one must find adequate means which are most consistent with the political, economic and social interests dominating at that moment. Public preparedness for certain regulations is also important. Environmental law is characterised by the necessity to co-ordinate the interests of the environment as such with the above-mentioned political, economic and social interests *4 . Taking into account Estonian conditions, one must add that our society, which is also going through radical economic, social and political reforms, must reach consensus as to which efforts for improvement and protection of the quality of the environment should be considered tolerable and which should not. In the search for an effective system for environmental law, it is worth taking both sides into account – in order to guarantee the preservation of a high-quality, life-ensuring environment and at the same time not exceed the level of expenditures for environmental protection acceptable to society.
In a country like Estonia, which has a relatively underdeveloped economy, attention is and must be paid to the connection between environmental protection and economic considerations. In so-called transition countries, this connection has the most diverse aspects, one of the most important of which is privatisation. The resolving of problems of environmental pollution requires extensive economic, organisational and intellectual resources, and that in both the public and private sectors. Thus the approach to environmental problems differs greatly from country to country, depending on the country’s level of economic and political development and the preferences of its consumers. In countries, such as Estonia, with lower levels of development, it is found that environmental problems reach the social consciousness only after other “more serious” problems (such as privatisation, land reform, etc.) have been resolved. Environmental protection is considered to be a luxury that only wealthy countries and spoiled consumers can afford. In actual fact, such an attitude means living at the expense of one’s children and grandchildren, to whom we thus submit bills for payment for the problems we have created. If one is at all familiar with the irreversible environmental problems now appearing in many poor developing countries, it is not difficult to understand how pointless and expensive it is to postpone the search for answers to today’s problems until tomorrow. The environment undoubtedly often requires very large investments, but at least in the context of environmental protection it is clear that the principle of getting rich first and only then begin to use sustainable environmental practices is seriously flawed. Unfortunately, it must be confessed that in the early stages of the privatisation of economic and natural resources, relatively little attention was paid to environmental problems. Fortunately the attitude towards this problem has radically changed, which is particularly evident in the execution of land reform, in which environmental conservation considerations have assumed a notable position.
The need to take the benefits and costs of environmental protection measures into account has once again led to different interpretations in Estonia. The guiding principle here should be that the costs connected with environmental protection measures should be smaller than the damage expected to be prevented. The problem is that in most cases the scale of costs and benefits is dealt with only from the purely economic standpoint, and nothing else is considered, such as the social benefits and the “price” of both a clean environment and environmental pollution. One must also consider the fact that the contemporary concept of environmental protection presumes not only restrictions and prohibitions for the preservation of the environment, but also active work to improve the quality of the environment.
In the achievement of environmentally-sustainable development, a large role is played by the awareness of producers and consumers, and the circulation of information which guarantees that. There are undoubtedly those in Estonia who are willing to change their habits simply because they love nature. One must expect, however, that when most producers and consumers decide in favour of environmentally sustainable behaviour they do so above all because of considerations of the economic benefits – from the moment they realise that such a choice is beneficial to them. The right to obtain adequate and timely information on both the condition of the environment and the development projects affecting it is an important part of the advancement of individual environmental awareness. Although the Estonian Constitution does not explicitly include the right to a “clean environment” and environmental information, § 44 provides all with the right to freely receive information which is distributed for general use. All government agencies, bodies of local government and their officials are required by law to provide citizens of Estonia, upon request, with information about their activities, except for information which is forbidden to be published or in-house information. At the same time, most of what is considered to be in-house information has not yet been legally defined, and thus officials have been given extensive discretionary powers, which may lead to individuals not being able to realise their constitutional right *5 , including the right to environmental information.
From the viewpoint of the increase in environmental awareness, it is also important to recognise the fact that a clean environment and existing natural resources are a value in themselves – this is not an abstract notion, but a category which in developed societies often has a clearly-expressed market value. At the same time, pollution resulting from human activity also has its “cost”. The problem is, however, not always so simple or uniformly measurable. It is often not possible to reduce the environment to purely commercial value, for the simple reason that such a relatively reliable measure, understandable to the primitive consumer, simply does not exist – neither clean air nor the aesthetic charm of a beautiful landscape participate directly in the market.
One of the most controversial problems in the evolving discussion in Estonia about joining the European Union is whether the Estonian environment will win or lose as the result of joining. At the heart of the problem is the question of to what extent a Member State will be able to implement environmental measures more (or less) stringent than those of the European Community. In requesting that exceptions be made, two examples are usually provided. The first of these concerns the protection of biological diversity. It is a fact that many natural habitats and animal and plant species which in the western part of Europe are extinct or endangered, and thus require strict protection, are ordinary in Estonia and it would be unjustified to take measures to protect them. The classic example of this problem is wolves for the protection of which, under the European Community law, reserves should be established. Estonian biologists, however, are of the opinion that there are too many wolves in Estonia, and that their protection would have a negative effect on our environment, in addition to which farmers’ economic interests would be unnecessarily damaged. The second example concerns the EEC Urban Wastewater Directive (91/271/EEC). According to the Convention on the Protection of the Baltic Sea, Estonia is bound by stricter deadlines and environmental standards than those prescribed by the above-mentioned Directive. Below we shall briefly examine one provision of the Treaty with which Estonia will have to reckon in the realisation of its above-mentioned application, both in the course of accession negotiations and later when a member of the Union.
Thus, there is no doubt that the common measures of the European Community for the preservation, protection and improvement of the quality of the environment place countries with different natural-climatic and economic conditions in an unequal situation. This same realisation led indeed to the acceptance of a principle requiring that the development of the Union as a whole and the balanced development of its regions take place simultaneously (Article 103r(3) of the Treaty). The initiators of the present formulation were Greece and Ireland *6 which like Estonia are relatively underdeveloped countries. One must assume that the consideration of this undoubtedly necessary criterion, which reflects the actual situation, must take place on the basis of the stipulations of Article 130t and within the framework of the procedure for adoption prescribed in Article 130s, in which countries have an adequate opportunity to express their interests.
Article 130t prescribes that protective measures in accordance with Article 130s do not prevent Member States from maintaining or taking more stringent measures, if those measures are in compliance with the Treaty and are announced to the Commission. In the latter case, however, the prior approval of the Commission is not necessary. The mentioned Article deals only with the case in which the Union has taken common measures regarding a certain question. When that has not been done within the framework of the Union, then the general provisions of the Treaty govern the relationship between Union and national legislation. Thus, Articles 30 and 36 establish that Member States are generally forbidden to implement measures which might lead to import restrictions, except in the case of restrictions motivated by the need to protect morality, public order or the lives and health of people, animals and plants and when the restrictions do not constitute measures for arbitrary discrimination or hidden trade restrictions. In other words, such measures must in fact be directed at the protection of human health, for example, and not be arbitrary pretences for a country to grant preference to its own producers.
As regards this topic, one must note that Member States have, subject to the above conditions, been granted permission to maintain or introduce only “more stringent measures”. The nature of the measures must thus comply with the arrangements approved by the Union. If the Union has, for example, decided to restrict the pollution of the aquatic environment with a certain substance, Member States are allowed, for the purpose of environmental protection, to absolutely prohibit all emissions of that substance into surface or subsoil water. At the same time, however, Member States are not allowed to prohibit the fields of production where these substances are used.
Article 100a of the Treaty Establishing the European Community, which deals with the approximation of laws required for the creation and functioning of the internal market, is also of significance from the point of view of the relationship between the environmental law of the Union and its Member States, and has been significantly updated with the Amsterdam Treaty. Article 100a provides the Member States’ scope for implementing more stringent environmental requirements within the context of internal market or so-called White Paper legislation. Paragraphs 4–7 of Article 100a establish the following principles and procedures.
Article 100a(4) prescribes that a Member State may, even after the acceptance of approximation measures by the committee or commission, apply its existing internal rules due to a significant necessity listed in Article 36, or in relation with protection of the environmental or labour. In this case, a Member State is, however, required to notify the Commission not only of those rules, but also of the reasons for their continuing application. Compared with the earlier version, the requirement to justify the application of internal rules has been added, whereas the earlier version stopped at the requirement to notify.
Article 100a(5), however, is an absolutely new addition, and prescribes that Member States have the right not only to continue to apply existing national rules after the adoption of the approximation measures, but when necessary also to introduce new internal rules. However, a Member State has the above-mentioned right only under the following conditions. Firstly, the grounds for the implementation of such rules must be scientific data on environmental protection. The second prerequisite is the reaction to the Member State’s specific problems, which appeared after the implementation of the common measures. Thirdly, a Member State must notify the Commission of such rules, and provide a relevant justification for them.
After receiving a Member State’s notification and justification provided for in Articles 100(a)4 and 100(a)5, the Commission has six months to approve or reject the continuing application or implementation of internal rules. Estonia must consider that the Commission makes a positive judgement only when it is convinced that the application or implementation of such rules in Estonia does not constitute an instrument of arbitrary discrimination or a hidden restriction on trade between Member States.
With an eye to the planning of the approximation of Estonian and European Community environmental law, it must be emphasised that it is not enough to simply convey the provisions contained in individual EC legal sources. Instead a significantly more ambitious objective must be set – of at the same time acting to refine the system and methods of Estonian environmental law, founding them in internationally recognised principles. So doing would in the long term logically lead to the codification of environmental law. To more clearly explain the above, the following priorities in the raising of the level of Estonian environmental law to a similar level to that existing in countries with highly-developed systems of environmental law may be presented:
To summarise what has been said above, it is likely that through the balanced planning and execution of the approximation of our legal system with that of the European Community, Estonia will be able to achieve two goals at the same time. The first of these is to adopt the EC acquis, which is based on the long-term experience of EU Member States, and the second is to create a national system of environmental law which corresponds to both the particularities of our natural environment and the readiness of Estonian society to protect the environment in the context of sustainable development.