Harmonisation of Estonian and European Community Environmental Law: Present Situation and Expected Developments

• Author: Hannes Veinla
• Pages: 92-97

Hannes Veinla

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:

environmental legislation is often modified and updated;the integration of international environmental standards into national law is presently under way;environmental legislation frequently overlaps (i.e. the same activities or environmental problems may be regulated by more than one law or regulation);new and serious environmental problems may require creative and flexible legal solutions.

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:

the preservation, protection and improvement of the quality of the environment;the protection of human health;the prudent and rational utilisation of natural resources;the promotion of measures at the international level, to deal with regional or world-wide environmental problems.

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 Nature¹ and a Sustainable Development Act². 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...