Basic Structures of the Draft General Part of the Environmental Code Act

• Author: Hannes Veinla
• Position: Docent of Environmental Law University of Tartu
• Pages: 128-137

1. Introduction

Contemporary environmental law has a relatively short history¹. The development of this branch of law can be characterised by randomness and lack of a systematic approach. At times, fast reaction has been sought to problems under particular public attention (e.g., environmental disasters) ² , while at other times the development has constituted following the periodically changing 'fashion trends' of environmental law. Of the latter, energy and climate policy has lately been especially dominant. M. Kloepfer has noted relevant examples from German environmental law. The large-scale accident in the Sandoz chemical plant served as impetus for the development of the German Environmental Liability Act, and even the creation of the German Ministry of the Environment was a reaction to the nuclear disaster of Chernobyl³.

The incoherent development of environmental law has brought about a need for thorough reform of the current environmental law. Codification of environmental law constitutes a common characteristic of this renovation process. Attempts, with varying levels of success, to codify environmental law have been made in several countries-Sweden, the Flemish and Wallonian regions of Belgium, Germany, the Netherlands, Denmark, and France⁴. The list could be continued with, for example, Poland, Hungary, Slovenia, and a number of other countries where environmental law reforms have taken place in different forms and with different objectives. As of 2007, codification of environmental law has also been in progress in Estonia⁵. The author of this article has been the leader of the working group for the codification of environmental law since then.

Nowhere has the codification process progressed without difficulties. In 2007, Kloepfer, a leading figure in the arena of codification of German environmental law, wrote the following: "According to the future plans of politicians as well as the coalition agreement between the Conservatives and the Socialist Democrats, at least the regulation of the General Part of the Environmental Code, if not more, will be adopted during this election cycle. It was about time; I'd like to cry!" ⁶ Among other elements, Kloepfer also stressed that preparations for the codification of German environmental law had continued for over 30 years⁷. Unfortunately, his optimism proved futile. The previous coalition failed to adopt the Environmental Code, and the new coalition (Christian Democrats and Free Democrats) are pessimistic with regard to codification. At best, the General Part of the Environmental Code will be adopted in Germany in the near future, with the specific laws amended proceeding from that⁸. Even in Estonia, the codification of environmental law is progressing with problems. Within the codification process, numerous innovative ideas have been proposed, which will surely provoke debate. The first stage of the codification process constituted the preparation of the Draft General Part of the Environmental Code Act (the General Part of the Environmental Code), which is in its final stage at present. The purpose of this article is to analyse a selection of the more significant main structures of the Draft General Part of the Environmental Code. The selection of the questions to be discussed stemmed from the topics that the author of the article addressed in more detail during the preparation of the draft and the explanatory note⁹. At the same time, it must be stressed that the draft was, naturally, prepared as a joint effort of all members of the working group¹⁰. The first part of the article discusses the reasons for the codification of environmental law, the main objectives of codification, and briefly also the organisation of codification.

2. Reasons for the codification of environmental law

The reasons for the codification of environmental law are relatively similar across various legal orders. Kloepfer has outlined the following factors, which served as impetus for the codification of environmental law in Germany.

- External over-regulation: Legislation containing environmental regulation is too abundant. Also, there is an excess of procedures that are partially redundant and excessively increase administrative burden.

- Internal over-regulation: Legal regulation is too particular and detailed, and at times it is excessively burdening for entrepreneurs and other users of the environment.

- There is no systematic and harmonious concept of environmental law: The legislation has thus far been fragmentary and random¹¹.

The above-mentioned problems are also characteristic of Estonian environmental law. We, too, have too many pieces of environmental legislation. The large amount of legislation is mostly due to Estonian environmental law being dominated by an area-based approach to environmental protection. Water protection, ambient air protection, and other areas of environmental protection are regulated separately from each other. Nature, however, is not so divided and requires integrated measures of protection. The relationships among the various elements of the environment must not be ignored also upon the legal regulation thereof. The most remarkable example here is the existing system of environmental permits, which is almost completely area-based¹². There are many types of permits-the permit for the special use of water, the ambient air pollution permit, waste permits, radiation practice licences, authorisation for the release of genetically modified organisms into the environment, the extraction permit, etc. A person who simultaneously affects the environment in various ways (uses water, pollutes the air, produces waste, etc.) must at the same time have multiple permits, with all of them having been applied for and issued in different procedures. The requirements of these permit procedures are often also differently regulated. Such an area-based system creates a need for a very large amount of legislation, causing external over-regulation. The problems are compounded by variations between regulations of different types.

Internal over-regulation is also inherent to Estonian environmental law. There are too many specific and very detailed regulations. There is a clear lack of provisions with a greater level of abstraction. Particular regulation entails an incessant need for amendment of the acts adopted, because in the case of overly detailed regulation it is impossible to foresee all of the details in the original redaction of the act. For example, the Water Act ¹³ has been amended 31 times, twice this year already. The Nature Conservation Act ¹⁴ , adopted only in 2004, has already been amended 16 times.

Estonian environmental law also contains regulations that are clearly unjustified and excessively burdensome. An apt example would be the obligation to hold an ambient air pollution permit. The existence of an ambient air pollution permit is often required also for activities that probably do not have the least impact in reality on the state of the environment. The threshold quantities have been laid down by the Regulation of the Minister of the Environment of 2 August 2004¹⁵. The concept of the Special Part of the Environmental Code cites as an example a boiler plant with a capacity of 0.3 MW-this is the threshold at which the possession of an ambient air pollution permit becomes required. Boiler plants with such capacity do not have a significant impact on the quality of the ambient air, and, for the purpose of collection of statistical data, such plants could be burdened only with a reporting obligation. Another example is fuel filling stations with a throughput (loaded) of 2,000 m³, which in their essence also do not constitute significant affecters of the quality of ambient air. According to this logic, an ambient air pollution permit would also be requisite for a medium-sized private residence that uses logs for heating, a household with two dairy cows, or a house-owner who is covering a larger surface with solvent-based paint, as the pollutant emission thresholds applied are unreasonably low¹⁶. Environmental regulation must be justified and proportional, in order not to burden the users of the environment excessively and unreasonably.

Estonian environmental law also lacks a systematic and harmonious concept binding it together. Estonian environmental law consists of a large number of acts and other pieces of legislation of general application adopted at different times and often also proceeding from different underlying principles. Our environmental law has lacked a scientific foundation and thus also predictability and transparency in its regulation. Examples are abundant. Ranking first, however, would be the terminological chaos. Let us look at the term 'hazard'. The concept is used in very different environmental legislation, but it is difficult to understand what precisely is meant by 'hazard'. Is a hazard a situation in which it is likely enough that negative environmental impact might ensue, or does a hazard also involve the possibility of the occurrence of negative environmental impact? It is thus unclear what the likelihood of the occurrence of negative consequence must be in order to qualify a situation as a hazard. Neither is it clear what legal reaction must follow the situation of a hazard. Should hazards be averted (e.g., through prohibition or suspension of an activity), or should hazards be endured to a certain extent? An...