ITALY
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JURIST's Italy Correspondents are: Elisabetta Silvestri, Assistant Professor of Civil Procedure, Faculty of Law, University of Pavia; Nicola Lugaresi, Associate Professor of Administrative Law, Faculty of Law, University of Trento; Enrico Baccetti, Adonnino Ascoli & Cavasola Scamoni, Milan; Alberto Cantu, De Berti Jacchia Perno & Associti, Milan; and avv. Stefano Nespor, Milan.
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Italian Environmental Law

[Bologna; Special to JURIST] It could reasonably be said that Italian environmental law is composed of a general part and a sectional part. The general part deals with general legal principles (as drawn from new interpretations of the Italian Constitution, from case law, from European Community law, and from general underlying principles common to specific legislation), organizational issues (at different levels: Department, regional, and local) and procedural aspects. The sectional part deals with different environmental problems and with the different sectors into which environmental law has been traditionally divided.

The general part is not easily located, given that Italian environmental law was born as sum of scattered pieces of emergency legislation enacted in reply to serious environmental problems, and given that there were and are no environmental provisions in the Italian Constitution. Even if jurists and case law have been trying to build up a branch of environmental law in different ways, the Italian civil law system cannot do without laws aimed at providing a general framework. This proposed general framework is a suggested "reading key" of the recent legislation enacted in the environmental field (or affecting it).

In any case, recent (1999-2000) developments in Italian environmental law may be divided into two categories, depending on their relevance either to the general or sectional law. Probably the most important enacted changes are not effective yet. The first relevant change affects the highest level of the Government, while the second concerns the general procedures affecting environmental issues.

Due to the re-organization of the government Departments, whose number has been dramatically cut down from almost thirty to twelve, the Department of Environment and Territory Protection will take the place of the Department of Environment. On the one hand, the new Department's jurisdiction covers the former jurisdictions of both the Department of Environment and the Department of Public Works; on the other hand, its jurisdiction takes into account the administrative reforms going on in the Italian legal system, and the more relevant role Regions and municipalities are taking on.

The reform of the Department will take effect starting from the next legislature (theoretically in 2001, but this does not mean much in the Italian political context), and it represents, from a general point of view, an attempt to reduce the oversized Government structure. From a more limited point of view, it also shows a definite trend toward the expansion of the scope of environmental law - in particular, it is no longer limited to pollution issues. Indeed, environmental law in Italy is undergoing a change from a public health related subject to a more complete branch of law, which deals not only with the protection of both nature and people's health from different types of pollution, but also with the management of territory and natural resources.

The main problem environmental law has suffered from so far is an identity problem, as its boundaries have not been clearly established and, overall, no legal definition of "environment" has been unanimously accepted. Environmental law was born relatively recently and it had to struggle against traditional branches of law (town planning, public health) to define its own jurisdiction. Now, it looks like environmental law has grown-up, acquiring a higher level of independence within the legal system.

From a procedural point of view, and complying with a EC Directive, the Integrated Environmental Permit has been established in order to prevent or, where not practicable, to reduce emissions in the air, water and land from a number of human activities. An Integrated Environmental Permit must be obtained by the operators of the most important industrial plants. The purpose of this new comprehensive authorization is to obtain a more satisfactory environmental protection through the joint assessment of different factors. Waste disposal, energy saving, protection from different pollution sources, and industrial accident prevention must be considered together, as the Integrated Environmental Permit is going to replace every licence, permit, consent, authorization currently required by environmental legislation. Emission limits, technical standards, data disclosure and circulation, and precautionary measures form the framework of the provisions to be respected, but further conditions, based on the best available techniques, may be imposed in order to obtain a more effective protection.

Still on general topics, environmental associations have been included among the organizations involved in the participatory process directed at the simplification and regulation of the public administration. This is a further legislative recognition of the role environmental advocacy groups may have in the process of enacting, implementing and even challenging the law.

As for sectional environmental law, the main changes concern water pollution and air pollution. A 25 year old law has been recently replaced, complying with some EC Directives, providing a general regime for freshwaters, groundwater, and coastal waters, aiming at protecting them from different kinds of pollutants, improving their natural conditions, promoting biodiversity and pursuing sustainable uses of the resources. Another recent law, again complying with an EC Directive, has been enacted on "ambient air" quality. It defines strategies to maintain ambient air quality where it is good and improve it in other cases, through some of the common environmental legal means (standards, action plans, monitoring). Unlike many previous laws on air pollution, it contains some provisions about clear, comprehensible and accessible information to the public on air quality in connection with specific pollutants.

Other recent legal changes concern:

  • the new "code" on cultural and environmental heritage, which deals also with environmental "goods", such as natural beauties, landscapes, villas, parks and gardens
  • the new discipline about major-accident hazards from industrial activities involving dangerous substances
  • the new regulations about environmental aspects of electricity production
  • the new provisions about urban mobility, which is likely to become the main environmental problem in our country (if it is not already).

In summary, Italian environmental law is on its way not only to amending sectional disciplines, often implementing EC regulations, but also to developing into an independent branch of law. The organizational part is broadening to cover a greater area. The procedural part is becoming more coherent, aiming at the simplification of the framework. The sectional part involves considering more aspects which environmental law has guiltily neglected so far. Legal instruments are improving in efficiency and effectiveness.

In the near future, Italian environmental law needs to define its boundaries, to further integrate national and EU legal systems, to build up a rational branch of law (hopefully based on a code, or a few codes, to get over the emotional approach), and to reduce, at last, the emergency element.

Nicola Lugaresi
JURIST Italy Correspondent
July 3, 2000

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