Environmental Exploitation Plan as Administrative Form of Action

• Author: Ivo Pilving
• Position: Chairman of the Tartu Circuit Court Docent of Administrative Law, University of Tartu
• Pages: 138-150

1. Subject

In addition to legislation of general application and individual decisions of the state as well as self-regulation of exploiters of the environment, strategic instruments of executive power, such as management plans, action plans, programmes, etc., are increasingly implemented in environmental law. The objective of this analysis is to explain, in the course of preparing the draft Environmental Code ¹ , the possibilities of using the environmental law plans in the Estonian legal order. There is a particular need to examine whether and under what conditions the rights of an individual can be restricted on the basis of such plans. More specifically, the working group of the Ministry of Justice raised the following question: 'Can the plans used in environmental law (including, but not restricted to the water management plan in the Water Act, waste management plan in the Waste Act, plans in the area of ambient air) according to the Constitution contain (inter alia) regulation that

1) impose immediately on people obligations (e.g., the duty of the owner of a dwelling to direct waste water into the public sewerage system or local container, the duty to use only central heating or gas heating, the prohibition to drive vehicles older than ten years in the city centre) and/or

2) serve as the basis for providing the conditions of an environmental permit or other administrative act or for refusal to issue a permit (e.g., the detailed plan is not adopted or the building permit is not issued if the heating solution is in conflict with the air protection plan or other plan)?'

Answering these questions firstly presumes that the nature of these plans be defined from the point of view of the general part of administrative law, more precisely the study of the administrative forms of action. Thereafter, it is possible to explain on that basis what general requirements of constitutional and administrative law must be taken into account when adopting these plans and what kind of legal effects they have. It must be emphasised that here it is possible to address only environmental law plans as a type of administrative action. Each plan relating to the special part of environmental law or even each particular provision of a plan may have a specific nature, which may justify a different approach than the one presented here².

2. Overview of situation

2.1. Notion of environmental plans and their delimitation

Applicable Estonian law recognises, for example, the following environmental law plans that can be adopted by administrative bodies:

- air pollution action plan (plan of action for reducing emission levels of pollutants released into the ambient air in the area-AAPA ³ § 50);

- plan of action for reduction of ambient noise (AAPA § 132 (1));

- water management plan (WA ⁴ § 38 (1)), including an action plan for keeping the water status as pure as possible (water status action plan - WA § 38 (8) 4));

- waste management plan (WasteA ⁵ § 39 (1));

- a management plan for organising the protection of limited-conservation areas or protected areas (NCA ⁶ § 25 (1));

- an action plan for conservation and management of species (NCA § 49).

Introduction of the term 'environmental exploitation plan' could be considered as a general term that would encompass all the administrative law plans coordinating the use of the environmental resources provided for in the special part of environmental law. Such plans should include, in broad terms, the description of the present status of the environment, development scenarios, objectives for maintaining or improving the status of the environment and a list of measures that agencies or individuals must take to achieve the objectives.

The plans examined here should, ideally, be more specific and binding than the strategic and political plans outlining the environmental policy activities of the state, including the development plans ⁷ set out in § 12 of the SDA⁸. The latter are not, in principle, directly applicable, but rather prescribe the adoption of legislation of general application in the future; however, because of special provisions, a document of this type can partially serve as the basis for limiting the rights of an individual (e.g., Land Improvement Act ⁹ § 34 (1) 17)). Similarly, this paper will not tackle the environmental policy plans and programmes adopted by the European Union bodies¹⁰. In addition to the plans adopted by agencies, environmental law also recognises action plans prepared either voluntarily or on an obligatory basis by the person exploiting an environmental resource (forest management plan-FA ¹¹ § 11 (4³), plan of action of possessor of source of pollution-AAPA § 51). These may require the approval of a competent body (AAPA § 51 (3)); yet do not qualify as an administrative act but (nationally governed) self-regulation of the operator or developer. The latter also plays an important part in the environmental management system of the European Union.

2.2. Objective

The objective of environmental exploitation plans is the systematisation and documentation of environmental information in a specific region and field of the environment, development of specific goals and, above all, harmonisation of activities that have an environmental impact. The environmental law of the European Union does not govern the limits of the activities of individual polluters, but rather requires that an appropriate status be achieved or maintained in environmental activities. To that end, numerical limit values have been established in several fields of the environment (e.g., ambient air protection). However, they have not entered into force just like that. In the second half of the 1980s, the European Union began to attribute importance to developing strategies in member states in order to achieve the environmental situation prescribed by directives. In order to do that, following the example of the Anglo-American and Scandinavian legal orders, directives impose on states the obligation to adopt various rather specific action plans and programmes¹². It is thus not surprising that many provisions regarding environmental exploitation action plans in Estonian law introduce the provisions set out in the environmental directives of the European Union¹³. Although water management plans were prescribed by § 38 of the initial version of the Water Act already back in 1994, i.e., long before Estonia's accession to the European Union, the regulation of planning the protection of water has changed considerably in the meantime because of European law. Yet, the present situation regarding the transposition of environmental directives concerning plans in Estonia cannot, by far, be considered satisfactory¹⁴. Let it be emphasised here that the fact that the plans originate from European Union law must be borne in mind when assessing the constitutionality of the plans. If the adoption of a plan that has certain content and legal features is required according to European Union law, the implementation of the plan cannot be questioned according to the Constitution of Estonia. The Constitution can be decisive only if the plan is not governed by European Union law or a plan prescribed by European Union law is implemented in areas or in the cases to which European Union law does not extend or, upon the adoption of the plan, the member state has been afforded playing room, within the limits of which the Constitution of Estonia can be taken into account¹⁵.

The preparation of plans has been imposed as mandatory in European Union law, not out of bureaucratic enthusiasm. Even though adherence to pollution thresholds is vital for the protection of the population's health, the actual situation in large cities, along major roads, and in industrial areas, frequently fails to comply¹⁶. This is also true for Estonia, in the area around Liivalaia Street in Tallinn, where compliance with the maximum permitted number of instances-35 days per year-of exceeding the emission limit value for fine particulate matter of less than 10 µm (PM₁₀) has not been achieved over the past few years¹⁷. It has been concluded that it is not possible to efficiently comply with the provisions by regulating individual sources of pollution in an isolated manner. For example, by limiting traffic along one street to reduce the dust and noise pollution, we would most likely increase pollution on other potential routes¹⁸. The administrative activities coordinated by plans may also be necessary to maintain, in the long run, the present good or satisfactory status of the environment and avoid environmental disturbances (prevention)¹⁹.

It is not expected in the implementing of environmental exploitation plans that the desirable level of protection of the environment shall be solely achieved by the adoption of the plan or voluntary adherence to it by all relevant parties. The core of the environmental exploitation plans is to outline further administrative measures (spatial planning, permits and their secondary conditions, precepts for operators, traffic limitations, etc.-Minister of the Environment regulation No. 123 of 22 September 2004 § 4 (1) 11), AAPA § 132 (2), WA § 38 (8) 4) and 5), WasteA § 39 (2) and (3) 5))²⁰. They generally do not have to contain directly applicable limits and precepts for individuals. The role of a plan in first mapping the status of the environment along...