Environmental protection and the evolution of the discipline: between simplification and guaranteeing primary interests

Giacomo Gargano

Ricercatore a tempo determinato Università Kore di Enna

 

ABSTRACT:

Environmental goods are primary public goods according to the Italian legal system and in many administrative procedures they are identified as a sensitive interest. The recent so-called Madia reform which, in general, has concerned public administrations has also regarded the matter of environmental protection, introducing interventions of procedural simplification which affect profoundly the subject matter.  The reflexions are, therefore, oriented towards understanding what the balance of interests in an efficient administration, on the one hand, and guarantees of primary interests, on the other hand, should look like, also at the cost of burdening completion time of relative procedures. It is, in brief, the plagued relationship between good and bad administration, despite the belief that the solution to reaching a level of good administration should not occur by reducing the system of garantees.

Parole chiave: Environment; protection; legislation; precautionary; preventive; simplification.

 

1. Introduction

 

The relationship between the environment and administrative law, consequently between administrative authorities and environmental protection, is particular because interventions in this field are mostly governed by the mindset of precautionary and preventive measures or, in short, of “revealing in advance” the so-called environmental risks. In addition, it is led by an approach which, on the one hand, has to face up to technological progress that allows to spread new scientific discoveries with direct impacts on environmental regulations; on the other hand, it deals with the necessity to balance interests in environmental protection and in economic growth[1].

In this respect, environmental law is, therefore, commonly defined as planning law. That is, it is aimed at preventing, disclosing beforehand and directing future actions relative to the environment and from this challenging perspective is called upon to reconcile different interests (public and private) which constitute the substantial basis[2]. It means protecting a main public interest which, however, has to necessarily coexist and be balanced with other economic and social interests of the same level and importance.

 

2. Environmental protection in international law

 

The distinctive features of the discipline are characterized by the difficulty to define the notion of “environmental goods” which for long time has been unclear in terms of its real substance, and often the interpretations existing in this domain questioned the possibility of the legal system to protect the environment as an autonomous good.[3].

Until the mid-1980s, i.e. until the approval of the law establishing the Ministry of the environment[4], it was supposed that within the Italian legal system the environment did not exist as a unitary and autonomous good, often considering it as a “mere” sum of other goods and protecting it only indirectly, that is, through the protection of other goods.

It was, therefore, regarded as protection of property or even protection of health, landscape, cultural heritage with indications also regarding the environment. Yet, environmental law did not exist yet given that there were no environmental goods.

The lack of a legal status with regard to environmental goods can be extended to the reading of the Constitution of Italy which in its original formulation did not envisage any regulation on environmental protection[5]: article 9[6], for example, referred to the concept of landscape, in other words, something different than the environment; article 32[7] called for health protection.

Also the law of urban planning n. 1150/1942 has never dealt with environmental issues.

In the 1970s, however, the topic of environmental protection started to obtain international importance, with the first conventions on climate being introduced. Such international meetings saw the beginning of a discussion on the matter of environmental protection[8].

The issue of environmental protection was included as a transnational matter in the Maastricht Treaty[9] and the Amsterdam Treaty[10], thus assuming that it is not possible to discuss, even today, about the environment as an exclusively national good, since it is, first of all, a good of supranational legal importance, inasmuch as environmental damage becomes real cross-border damage and concerns various industrialized nations[11].

 

3. Environmental protection principles in the national legislation: from an “anthropocentric” to an “ecocentric” concept

 

As has been said, environmental awareness in the field of law develops, first of all, in international law and at a second stage in positive national legislation.

The principles concerning environmental matters which are introduced in the national legal system can be ascribed, in particular, to the legislative intervention of 1986 (with law 349) which centralized at a ministerial level the control room of promotion, conservation and recovery of environmental conditions (art.1), recognized the associations of environmental protection (art.13) and, in addition, intervened on the subject of compensation of environmental damage (art.18).

However, it is twenty years later, after the modification of Title V of the Constitution in which only indirectly the concept of the environment was introduced[12],  that the so-called Environmental Code appeared[13], in other words, a unitary and organic discipline widely recognized for its impartial nature concerning environmental protection since it referred to an autonomous good with the aim of its best conservation[14].

This represents a movement of the focal point in the field of environmental protection, in the sense that evironmental goods are not protected anymore indirectly through the protection of landscape or health, with its own characterizing element in the anthropocentric protection. It rather shows the consolidation of the concept of the environment as an autonomous good which, undoubtedly, continues to correlate with other life goods (landscape, city planning, health, property etc.) but does not limit itself to them.

Therefore, it is certainly an ecocentric legislative protection and as a consequence it brings to the forecast of environmental damage as such and the emergence of numerous “specialized” institutes within administrative law[15].

In short, the principles which currently regulate environmental protection are:

- the precautionary principle;

- the preventive principle;

- the principle of intergenerational approach or sustainble development.

 

3.1. The precautionary principle

 

The precautionary principle, originating in the field of international law[16], provides for immediate counter measures in the event of a threat of “serious or irreversible” damage to the environment even if real dangers might not be absolutely assured scientifically.

The notion can be extrapolated from the Rio Declaration of 1992, subsequently transposed in many other conventions, according to which, in case of the existance of irreversible damage risks, the absence of an absolute scientific certainty about such hypothetical damage should not be the prerequisite to exclude the adoption of measures designed to prevent potential environmental damage[17].

Thus, despite the absence of scientific proof that a certain action can cause environmental damage, it is nevertheless necessary to take precautionary measures.

This is a principle which should be distinguished from the related and complementary principle of proportionality, which instead regards the accuracy in the correlation between the risks and the costs (economic/social) of the proposed measure. As a matter of fact, it is necessary to take into consideration that any human activity involves, albeit small, risks which have to be contained but which can be impossible to eliminate but at unbearable costs[18].

 

3.2. The preventive principle

 

The preventive principle, like the precautionary principle, is appropriate to contain environmental damage creating in advance limits to harmful actions before the damage takes place. However, unlike the first one, it is applied in situations where an environmenal risk has a scientifically proved basis.

It is therefore the element of the scientific certainty about environmental damage that characterizes the application of the preventive principle which, according to the traditional approach in environmental protection policies, has been the general principle of reference for international environmental law.

The principle has found recognition in many international conventions, all aimed at environmental protection[19] and also at the level of jurisprudence[20] with the purpose to oblige all states to act in such an efficient way that would prevent from any activity which could cause damage to the environment[21].

 

3.3. The principle of the intergenerational approach or sustainable development

 

Environmental goods, as autonomous goods, do not belong to the present but should be passed down to the future generations through actions aimed both at preservation and improvement[22].

Nowadays, all the legislation on environmental matters both at the EU and national level are based on this principle.

The notion of sustainable development to which the interpretations in the domain refer is the one inferable from the so-called Brundtland Report[23], which represents such development that allows to satisfy the needs of the current generations without, however, compromising the possibility of the future generations to satisfy their own.

It is, therefore, invalid to renounce a priori economic and developmental activities. Yet, such activities should be aimed at environmental protection.

A practical application of this principle, for instance, can be found in the “new” code of public procurement[24] in the part where green public procurement is envisaged[25], with minimal environmental criteria and attention to environmental certifications. This confirms the interest, also of the national legislature, in socio-environmental sustainability. This brings about the conferment of more points to those projects which provide for energy conservation or ecosustainable solutions.

 

4. Double-track environmental responsibility: the polluter pays principle. Substantive and procedural aspects

 

Environmental damage is a core issue, and the reasons for such importance are linked to the concrete difficulty to repair adequately the damage once it has appeared.

Afterwards, when the “precursory” principles operating in the environmental field, which today are envisaged in the first part of the Environmental Code, are clarified, it is necessary to deal with what actually represents the main difficulty in environmental protection: repairing damage potentially caused to the environment.

First of all, it should be made clear how the compensation “remedy” of the environmental damage, in its different forms of economic compensation and recovery, has to be coordinated and subordinated to the precautionary, preventive and sustainable development principles. Hence, any danger of environmental damage should be removed at source and, only if the former does not take place, the compensation remedy is introduced after the occurrence of damage.

The issue in its procedural aspects is dealt with, first of all, departing from the awareness that, in the past, it was thought that the discipline of environmental damage pertained to the jurisdiction of the Court of Auditors on the assumption that environmental damage was a damage to the treasury[26].

The jurisprudence[27], nevertheless, starting from the 1990s has gradually abandoned the given approach, and the legislature itself in part VI (art.299-318) of the Environmental Code[28], adapting to the Directive 2004/35/CE[29], has explicitly accredited the jurisdiction to ordinary judges, except for cases envisaged by the Presidential Decree of 10 January 1957, n.3, when the damage is due to serious negligence or malice of a public official, in which case it would still today fall within the jurisdiction of the Court of Auditors[30].

This legislative intervention also marked the overcoming of a heated debate which had emerged in the legal doctrine and jurisprudence on the substantive nature of damage. Indeed, in the initial formulation of article 18 of the law of 8 July  1986, n.349, it was questioned whether it was possible to consider environmental damage as damage which could be ascribed to the traditional frameworks of non-contractual liability referred to in article 2043 of the Civil Code[31] or, otherwise, to the framework of strict liability provided for in article 2050 of the Civil Code[32].

Currently it has become important to distinguish whether environmental damage is caused by an operator dealing with professional economic matters[33] or an ordinary person. In the first case, indeed, the business uses environment for its own economic objectives and in this case, should it produce environmental damage, by applying the polluter-pay principle originating in the EU, it produces strict liability of the economic operator, i.e. regardless of the type of recpective wilful misconduct or negligence[34]. In the second case, instead, environmental damage continues to be correlated to the prerequisite of wilful misconduct and negligence, although those typical cases existing in law 349/1986 have ceased to be qualified as harmful conduct.

Therefore, double-track environmental responsibility exists to which a particular system of expressing the environmental damage corresponds as in such a new regulatory context the only claimant is the state which can be exercised in two different procedures: jurisdictional and administrative[35].

 

5. Legislative interventions of simplification regarding environmental issues: towards reduced protection?

 

The main aspects of environmental protection, as it has been analyzed previously, have marked an important evolution of international and national principles and laws, producing a significant modification related to the obligation of environmental recovery and environmental damage.

As mentioned before, environmental goods are primary public goods in the Italian legal system and in many administrative proceedings this is defined as a sensitive interest. For this reason the particular and primary nature of environmental goods has often excluded the application of mechanisms of simplification which, in the course of the last twenty years, have pertained to the reform process of administrative activities.

Nevertheless, a recent reform should be highlighted which has generally concerned public administrations but which also affects environmental protection, introducing interventions of procedural simplification that impact profoundly on the subject.

The reference is made, in particular, to article 17 bis of the so-called Madia reform, law 124/2015, which introduced tacit approval between public administrations and providers of public goods or services.

The significant news concerns environmental matters, with the specific goal of this law reform being the simplification of numerous administrative proceedings characterized often by excessive tortuosity.

However, if it is possible to speak about simplification in hypothetically positive terms, then this, in a no less undeniable way, poses a series of questions regarding the more or less conscious intentions of the Italian legislature to start undermining the guarantees which were initially recognized as the so-called strong values[36], i.e. in proceedings in which a number of public administrations are appointed to protect the interests related to the environment, landscape, cultural heritage and health[37].

A further simplification launched in the Madia reform and concluded by the recent legislative degree 127/2016, regarding environmental matters, concerned the institution of the Conference of services[38]: articles 14 bis and 14 ter of law 241/1990, as reformed by the aforementioned legislative decree 127/2016 and related respectively to the Simplified conference and to the Simultaneous conference, should lead to a more straightforward Conference of services, except for extraordinary meetings between different institutions concerned with environmental protection[39].

The given context leaves out any further specific details about issues related to the recent Madia reform, and this should be reasoned on the true scale that the given discipline of simplification could have for the whole national legal system, also intending to highlight, above all, how it can represent a failure for the administrative apparatus rather than a circumstance which marks its progress. The sensation, indeed, is that of a legislature which, aknowledging the powerlessness of its own administrative machine to function swiftly, prefers to eliminate such burdens and restrictions to accelerate and relieve the pressure on regulatory measures. Nevertheless, while such burdens were laid to safeguard primary interests and had the main function of balancing and equilibrating different aspects of relevant importance, it might represent a risk which, in the long term, could also lead to environmental damage at unsustainable costs both socially and economically for the whole community.

 

6. Final comments

 

The simplification of the regulations relative to administrative procedures, with the intention to reduce the deadlines for their completion and avoid situations of standstill often caused by the passiveness of public administrations, is certainly a praiseworthy and welcome intention.

Yet, what appears to be less desired is that such an operation of simplification may also regard some sensitive interests, thus putting itself in evident contrast with the  principles developed and nowadays vastly consolidated in the jurisprudence. On the subject of silence, for example, the Court of justice has specified how in environmental protection matters the lawsuits should presume the evaluations expressed by the administrative institutions concerned and conclude with explicit measures given the particular importance of the subject[40].

Therefore, two final aspects should be taken into account: is it possible today to consider environmental goods equal to any other goods and exclude a system of special institutions for their protection? Can a potentially “bad” administration justify such a sharp intervention on primary and fundamental interests?

Actually the system of reforms launched in Italy during the last twenty years, including the last one which has been referred to, does not seem to be a real antidote to the “bad” administration because often it is caused by the legislature itself which continues to carry out a series of reforms that, despite being all aimed at improving the administrative system of the state, produce themselves a slowdown effect on the administrations performance.

As Police points out[41], such a consideration is further exacerbated when the legislature lacks the responsibility to consider and balance the needs, as, on the one hand, more control, assessment and restrictions are needed to guarantee a series of very important interests, among which is environmental protection; on the other hand, there is the necessity to simplify. However, the necessity to increase the guarantees may also lead to a slowdown of such decision-making procedures when recourses, also economic, are lacking to employ bureaucratic authorities of public administrations. Nevertheless, in order to get to an efficient administration the solution cannot be the one of eliminating guarantees to reduce time limits, with the risk to make the interventions of simplification appear merely demagogic. This inability of the political authorities to represent to the society the real and concrete difficulty of satisfying simultaneously both primary and social interests in a “good” and efficient administration, is supposed to have led to the renouncement of sensitive interests to attest to a functioning administration to all appearances which, though, is the synthesis of the true and really bad administration.



[1] It is important to note the predominant character that the EU jurisprudence has attributed to environmental and health protection compared to economic considerations. See the judgements of 5 May 1998, cases C-157/96 and C-180/96; the judgement of 16 July 1998, case T-199/96; the order of 30 June 1999 (case T-70/99), on www.iusexplorer.it. On the subject see C. Clini, Presentazione, in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Padova, 2012, p.VI. On the interrelated topic of sustainable development refer to P. Sands, Principles of International Environmental Law, Cambridge, 2012, pp.253 ss..

[2] P. Dell’Anno, Ambiente (diritto amministrativo), in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., p.288.

[3] Not accidentally the interpretations in the 1970s with regard to environmental goods referred to partly protected goods. The main references on the subject can be found in M.S. Giannini, Ambiente: saggio sui diversi suoi aspetti giuridici, in Riv. Trim. Dir. Pubbl., 1973, pp.15 ss.. In addition, for a detailed revision on the topic see F.G. Scoca, Tutela dell’ambiente: impostazione del problema dal punto di vista giuridico, in Quad. Reg., 1989, pp.550 ss..

[4] The Law of 8 July 1986, n.349

[5] On the subject refer to G. Cordini, Principi costituzionali in tema di ambiente e giurisprudenza della Corte Costituzionale italiana, in Riv. Giur. Amb., 2009, pp.611 ss.. For a detailed revision on the attempt of the constitutional jurisprudence to provide for the shortcomings of the text of 1948 see D. Amirante, Profili di diritto costituzionale dell’ambiente, in in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., pp.247 ss..

[6] See A. Predieri, Significato della norma costituzionale sulla tutela del paesaggio, in Studi per il XX anniversario dell’Assemblea Costituente, II, Firenze, pp.387 ss..

[7] R. Ferrara, Il diritto alla salute: i principi costituzionali, in Salute e sanità (edited by R. Ferrara), Milano, 2010.

[8] For more details see P. Dell’Anno, Principi del diritto ambientale europeo e nazionale, Milano, 2004.

[9] The Treaty on European Union, signed on 7 February 1992 in Maastricht, entered into force on 1 November 1993. For an in-depth revision on the evolution of the EU regulation on the subject see R. Rota, Profili di diritto comunitario dell’ambiente, in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Padova, 2012, pp.151 ss..

[10] The Amsterdam Treaty which modifies the Treaty on European Union and the founding treaties of the European Communities and some correlated documents, signed on 2 October 1997 in Amsterdam, entered into force on 1 May 1999. Art. 174 of the Amsterdam Treaty, which goes back to art. 130 R of the Maastricht Treaty that modifies the founding treaty of the EC calling to the precautionary principle, lays out that “the policy of the Community in environmental matters is aimed at a high-level protection, taking into account the different situations across the regions of the Community. It is based on the precautionary principle and preventive measures, on the principle that environmental damage should as a priority be rectified at source, as well as the polluter-pay principle.

[11] The Conference of Stockholm, organized by the United Nations in 1972, is considered to be the first international assembly on environmental issues. On that occasion, the principle that the environment is common heritage of the hummanity was recognized, and new environmental awareness at an international level started to emerge. The following Aarhus Convention, which Italy ratified with the law of 16 March 2001, n. 108, is particularly significant, with the objective being that of “contributing to the protection of rights of every person, of present and future generations, to live in an appropriate environment that would safeguard their health and well-being. All parties guarantee the right of access to information, of public participation in the desion-making process and of access to justice on environmental matters according to the provisions of the present convention. For more details see M. Montini, Profili di diritto internazionale, in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., pp.13 ss..

[12] In particular, article 117 of the Constitution, concerning the distribution of the legislative powers between the central government and the regional authorities, attributed to the exclusive competence of the former also “the protection of the environment”. For comments on the reform refer to M. Cecchetti, La materia “Tutela dell’ambiente e dell’ecosistema” nella giurisprudenza costituzionale: lo stato dell’arte e i nodi ancora irrisolti, on federalismi.it; A. D’Atena, L’Italia verso il “federalismo”. Taccuini di viaggio, Milano, 2001; E. Picozza, Teoria Politica: trasformazione della sovranità e tutela dei diritti nel nuovo Titolo V della Costituzione, in Riv. Dir. Gest. Amb., 2002, pp.305 ss..

[13] The Legislative Decree of 3 April 2006, n.152.

[14] The interest in environmental issues from 1970s onwards became a primary concern and found its own constitutional basis in article 117 of the Constitution. Nevertheless, such a principal interest should not concern a complete protection of environmental goods to the exclusion of any other potentially dangerous activity. The primary nature, therefore, in a constitutional law system inspired by the coexistance of different fundamental constitutional values, abstractly organized in an equal way, imposes a concrete balancing through a cautious legislative intervention. An exclusion a priori of environmental goods from the assessment considered by the legislators and leaving it out of the judgement on balancing different fundamental rights would be in any case illegal. Environmental impact assessment has the goal to measure and compare environmental impact to economic and social benefits.

[15] As, for example, the so-called right of access to environmental information and of collaborative participation insofar, in accordance with article 3 sexies of the code, introduced in the recent reform of law 116/2014, the applicant does not have to show a legally relevant interest to access to information regarding the state of the environment and landscape within the national territory.

[16] On the origins of the principle in international law in the mid-1980s refer to S. Di Benedetto, La funzione interpretativa del principio di precauzione in diritto internazionale, in Dir. Comm. Int., 2006, pp.321 ss..

[17] Refer to the recent decision of the Council of State, 27 December 2013, n.6259, in Urb. App., 2014, pp.551 ss., regarding the subject of the precautionary principle

[18] For more details see A. Fodella – L. Pineschi, La protezione dell’ambiente nel diritto internazionale, Torino, 2009.

[19] Among these are, just to give an example and cite the most important ones, the Vienna Convention for the Protection of the Ozone Layer of 1985, the Geneva Convention on Long-range Transboundary Air Pollution of 1979, the Helsinki Convention on Transboundary Watercourses of 1992. For more details on the subject see M. Montini, Profili di diritto internazionale, in in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., pp.34 ss..

[20] See the fundamental judgement of the International Court of Justice, 25 September 1997, Gabcikovo-Nagymaros case.

[21] For revision see L. Butti, Principio di precauzione, codice dell’ambiente e giurisprudenza delle corti comunitarie e della corte costituzionale, in Riv. Giur. Ambien., 2006, pp.890 ss..

[22] See D. Covino, Un approccio sistematico alla dimensione ambientale dello sviluppo sostenibile, in Riv. Stud. Sostenib., 2011, pp.65 ss..

[23] In 1983, following a resolution of the United Nations General Assembly, the World Commission on Environment and Development was established, with the aim to elaborate “a global agenda for change”. The Commission was chaired by G.H. Brundtland, from whom it conventionally took its name, and in 1987 published its own report introducing the essential cited theory of sustainable development. On the subject see M. Montini, Profili di diritto internazionale, in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., pp.37 ss..

[24] The legislative decree of 18 April 2016, n.50.

[25] In short, it oncerns critera designed to choose procuts and services which have a minor or reduced effect on human health and the environment compared to other products and services used with the same goal. Recently the legislators have intervened on the subject with law 221/2015 which has made appeal to “green” public procurements obligatory. In particular, article 34 of the Code of procurements of 2016 envisages the so-called energy and environmental sustainability criteria, while article 96 of the same Code regulates the so-called life-long costs of a service or work, among which are “end-of-life costs, such as costs of garbage collection, disposal and recycling”.

[26] See the sentence of the Court of Auditors of 15 May 1973, n.39, in For. It., 1979, pp.282, with comments by P. Maddalena, Nuovi indirizzi della Corte dei Conti in materia ambiente.

[27] Refer to the sentence of the Court of Cassation on civil cases of 28 October 1998, n.10733, on www.iusexplorer.it.

[28] The Code envisages, on the subject of the compensation of environmental damage, two alternative instruments: 1) compensation actions through legal proceedings (art.311, co,1); 2) administrative actions which lead to a decree by the Ministry of the environment (art.312-314).

[29] The scope of the Directive in terms of individuals was circumscribed to professional operators.

[30] Such reasoning stems from the consideration that the produced environmental prejudgment concerned directly the public administration in charge which should have done something to improve and refresh the polluted area. Clearly, it meant spending public money, and environmental damage, thus, was calculated as the damage which the treasury experienced to restore the state of the place. See    A. Scacchi, Profili civilistici, in in Trattato di diritto dell’ambiente (edited by P. Dell’Anno – E. Picozza), I, Cit., pp.323 ss..

[31] L.V. Moscarini, Responsabilità aquiliana e tutela ambientale, in Riv. Dir. Civ., 1990, pp.489 ss.. In the interpretation of law 349/1986, it was maintained that for the damage caused by wilful misconduct or negligence compensation may be due. However, such form of compensation was based on the model of a typical offence, i.e. a certain unlawful act defined by the provisions of laws or measures adopted according to laws was necessary. The model, therefore, resembled at times a criminal offence inasmuch as apart from damage and the element of wilful misconduct or negligence an act violing a certain provision was necessary.

[32] On the subject see F. Giampietro, Il danno ambientale tra l’art.18 l. n. 349/1986 ed il regime ordinario di codice civile, in Giust. Civ., 1996, pp.777 ss..

[33] These are individuals who undertake qualified economic activities, that is, they present an environmenal risk and are specified in a special attachment to Directive 2004/35/CE as well as in the Environmental.

[34] The judgement of the Regional Administrative Court of Venezia Giulia of 17 December 2009, 837, on www.iusexplorer, attributes the responsibility for environmental damage to ordinary non-contractual absolute liability, excluding any form of strict liability. The Court of Cassation, however, ends up establishing real strict liability maintaining that for ensuring the compensation for damage only the existance of causation between an omission or an act and harmful conduct is necessary (excluding, thus, any enquiry on the subjective element of wilful misconduct or negligence).

[35] This has important consequences also for the jurisdiction since an “ordinary” compensatory action under the civil or criminal law (in the name of the plantiff) can be conducted, or administrative proceedings can be launched which issue an order-injunction to quantify the damage and to require the defendant to provide the payment. The contesting of the order-injunction is submitted, instead, under the administrative law. The interpretation of obligations to environmental restoration induces another reflection on the connection between environmental damage and environmental restoration. Environmental damage, indeed, can be quantified economically, however article 18 of law 349/1986, on the basis of article 2058 of the Civil code, cite how compensation exceeding the equivalent to the loss can take place also in specific forms. This consequently makes it possible to oblige the one responsible for the pollution to act with obligations of restoration and renewal. Nevertheless, Part 4 of the Environmental code, entirely dedicated to waste management and the recovery of polluted sites, envisages a complex procedural framework according to which the offender responsible for the pollution, at their own expense, has to elaborate a recovery plan to be submitted for approval to the municipal and regional authorities through the Conference of services and subordinated to Environmental impact assessment (EIA) and Stratetig environmental assessment (SEA). On the subject see B. Pozzo, Danno ambientale, in Codice dell’ambiente (a cura di S. Nespor-A.L. De Cesaris), Milano, 2009, pp.883 ss.. See the recent judgement of the Regional administrative of Trento of 13 April 2016, n.202, on www.iusexplorer.it, on the complex procedure of environmental recovery.

[36] See the detailed analysis by F. de Leonardis, Il silenzio assenso in materia ambientale: considerazioni critiche sull’art.17 bis introdotto dalla cd. riforma Madia, in federalismi.it.

[37] The relative procedures of the reform on tacit approval  between public administrations regard all administrative proceedings, with the only difference that for the interests in reinforced protection the deadline of presenting tacit approval is within 90 days instead of 30 days in the case of interests in ordinary ptorection.

[38] The procedures of EIA, SEA and IEA (Integrate Environmental Authorisation), for example, providing often a multilevel competence of different institutions concerned with environmental issues, before their approval produced a real “institutional conflict” which cannot always be solved, not even when resorting to the instrument of the Conference of services. For more details on the functions of administrative procedures of EIA, SEA and IEA, also in the light of the recent legislative reforms, see  P. Dell’Anno, Diritto dell’ambiente, Cit., pp.175 ss..

[39] The Conference of services, introduced in the Italian legal system by law 241/1990, has the function of concentrating in a unique time and legal context various assessments of public administrations presenting different public interests related to the same administrative proceedings. Refer to D. D’Orsogna and F. Degni, Commento agli articoli 14, 14 bis, 14 ter, 14 quater, 14 quinquies della legge 241/1990, in La pubblica Amministrazione e la sua azione (edited by N. Paolantonio - A. Police - A. Zito), Torino, 2005.

[40] The reference is to the first of such sentences of the Court of justice, 28 febbraio 1991, C-360/87, in www.iusexplorer.it.

[41] The reference is to the speech by A. Police at the recent Conference of AIPDA on 7-8 October 2016 in Rome.

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