European Community and Domestic Law - Essay Example

European community and domestic law have sought to reconcile the objective of environmental protection Introduction Environmental law is new, swiftly evolving and increasingly significance area of jurisprudence. Several industries countries have already commenced the environmental controls in nineteenth century and environmental law only commenced to appear as a distinct subject in the late nineteen-sixties. This is apparent in Europe and North America where the early environmental law has inclined to follow the traditional command and control advance. Though the kind of regulation is sometime considered as top-down, it is though based on state-centered vision basically for environmental protection. The government in Europe typically establishes the performance regulations for polluters which allow them purchase licenses. The polluters who lack to comply with the set law and conditions put in their licenses can be prosecuted or face the civil punishment. Although the control and command approach is usually important, the limitations are apparently increasing. It depends its effectiveness on standard bodies which can be under-financed or inefficient. The environmental goals are normally set with no proper contemplation of economic costs1. Command and control strategies are poorly equipped to cater for the highly compound issues. They lack to respond nicely with public concerns. Thus, it calls for growing interest in more flexible approaches which are reflexive for environmental protection. These include laws and policies which enhance for self-regulation. Environmental impact assessment (EIA) is the most crucial example for this new approach. The main idea concerning the environmental impact assessment relates to when a project has the probability of having serious environmental consequences which can be scrutinized before establishment of development. That is fundamentally a two stage process. The first stage deals with gathering and analysis of crucial information. The developer then prepares or commissions from the environmental consultant an environmental statement which describes the possible environment effects of development. Theoretically, this should be objective and accurate. Depending on Donald Mc Gillivray and Stuart Bell, the two British environmental lawyers, the ideas of EIA would include a completely biased free information kind of collation produced in a manner which would be sound, coherent and complete. Realistically, the environmental statements given on behalf of developers are usually biased and of low quality. This indicates why countries like Czech Republic and Croatic have come up with accreditation systems used by consultants responsible for such preparations. If the development is contradictory, more reports can be produced by pressure groups, private individuals and government agencies. The report can be commissioned via planning authorities. The second stage involves the assessment of that information by appropriate planning authority. The authority should take the probable environmental impacts into responsibility before coming with a decision whether or not to allow the development. The environmental impact assessment is principally a procedural mechanism. The authority may involve economic benefits of a project which could overshadow the environmental harm which is likely to result. But it cannot allow development without giving proper consideration to the concerned environmental implications. The history of Environmental Impact Assessment In Europe, Germany and France in 1975 and 1976 respectively, were the primary countries to introduce the EIA requirements. The suggestion aroused strong challenge though the EIA directive was expected in the European Community's Second Action Programmed on Environment in 1977. After eight years of strong debate, this came into action in July 1988 and has been edified. The EIA necessities were then introduced by many of the European EC and non-EC countries. Almost all the developed counties now currently the mandatory environmental effect procedures. Also the number of transitional and developing countries with that kind of procedures is as well going up rapidly. The major factor is the utilization of EIA by aid agencies and international development banks. The significant of environmental impact assessment was rapidly accepted by the worldwide lawyers2. In 1987, World Commission on Environment and Development published a dominant report normally called the Brundtland Report which emphasized on the role of EIA to facilitate the sustainable development. The report also describes about the public scrutiny of case which should be compulsory, when the impact of environment for proposed project is specifically high, and when practically the decision ought to be subjected to former approval probably via referendum. Principle 17 of 1992 Rio Declaration concerning environment and also development is dedicated EIA. It states that the environmental effects assessment, as national instrument, ought to be undertaken for projected activities that probable to have an important adverse impact towards environment and gets subjected to decision of a knowledgeable national authority. More so in 1998, the European Community together with its Member States became a participant to United Nations and Economic Commission for the Europe Convention on Access of Information, Access to Justice; Larhus Convention and Public Participation in making decisions. The Convention was termed by Kofi Annan as the most ambitious venture as far as environmental democracy is commenced under auspices of United Nations. The Basics of European Community Law The European Community law takes the preference over the entire national domestic law. The European Court of Justice initially that the community formed a novel legal formality in international law for those who benefited the states have got limited sovereign rights within the fields. Furthermore, the national court applied to Community law as a whole. It should also consequently set apart any provision of national law which could challenge it, whether subsequent or prior to community law. The article 10 of European Treaty stated that the Member States will take all correct measures to make sure the fulfillment of obligations coming from that Treaty or from the action taken by Community institutions. They ought to facilitate the accomplishment of Community tasks and more so gain from any pressure which could endanger the gain of objectives of that Treaty. Although the Member State could have some good judgment when incorporating E.C. directions into its national law, it is supposed to ensure there is not conflict in between them. The states which aim to join the community ought to be prepared to complement their entire domestic legislation in that community. Most of those legal alterations will be in the field of environmental law. It is approximated that 35 per cent of Serbian legislation that should be harmonized with the Community law is the ground of environmental protection. The requirements perceptibly impose the significant burdens on all the countries with candidature. They are thus permitted to ask for transition periods of at least ten years in the areas where it is crucial. The community as well offers the pre-accession financial help in the process facilitation. It becomes a hard task to overestimate the significance of environmental impact assessment. According to McGillivray and Bell, the Directive 85/377/EEC is most likely the probability of European Community is the most important environmental command. It is more because it heralded for utilization of procedural law for environmental fortification at EC level. It is more because the decree indicated of its impact. The Approach of European towards Environmental Impact Assessment The directive 85/377/EEC was amended Directive 97/11/EC which demanded the Member States to make sure the projects which were likely to have importance effects on environment, ought not to be offered with development approval until their expected environmental effects got fully assessed. The projects could be private or public. A distinction is made between projects subject to mandatory estimation process and those subject to evaluation if the Member States consider to have serious environmental impacts. These are scheduled in Annex I and II projects respectively. The Annex I projects involve the nuclear power stations, oil refineries, airports, quarries over 25 hectares and motorways. The list of Annex II is more wider and involves quarries under 25 hectares, reclaiming land from sea, car factories, wind farms, motorway service areas, shopping centers, caravan sites, golf courses and theme parks. Annex II usually specifies the smallest sizes like the caravan sites, golf courses below one hectare which are normally exempted. Member States have some prudence concerning the Annex II projects. The discretion ought to be exercised by states identifying projects for EIA on the case by case principality or through establishment of thresholds like the caravan sites above two hectare in Article 4(2). Annex III offers some official guidance in which there is a wide selection criteria such as characteristics of projects, location of projects and characteristics for prospective impact. Projects characteristics include use of natural resources, use and waste production. Locations of projects involve the environmentally sensitive areas which require special protection while characteristic of potential impact include complexity, size and likely duration. If the project demands for EIA, the developer should prepare environmental statement to be considered by planning authority. The crucial elements in environmental statements are clearly put in Annex IV. They involve description of project, description of aspects for environments which are likely to be crucially affected by proposed project, outline of options taken into consideration by a developer, outline of measures envisaged to reduce, prevent and when possible to resist any bad effect on environment and the non-technical summary. The right of public to contribute in subsequent assessment is empowered by the Directive 2003/35/EC. In essence, this supports the community law with Larhus Convention. The Member States should comply with that Directive by 25th June 2005. The Advantages and disadvantages of the Environmental Impact Assessment The essential aim of environmental impact estimation is to make easy the environmentally sensitive decision making. It provides the developers, public with information and planning authorities and this has guaranteed benefits. In theory, EIA should avoid the manifestly awful projects from getting the serious consideration. It makes sure the process of development is free to scrutinize. The alternative technologies, approaches and sites can well be involved. The means of mitigating the environmental damages is explored. Giving room for public participation in decision making progress means minimizing the opposing projects. Misunderstanding can be evaded as people are most likely to admit the development once in case of an opportunity to articulate their views. It should be acknowledged that the environmental impact evolution progress is subjective to political forces of many kinds. The chance of government could led into the EIA becoming more or less concerned by official and ministers. It is clear the mandatory Annex I projects are more rare. In most cases the government ministers and also planning authorities have considerable prudence. In United States, some considerable weight is given to genuine public participation for environmental impact assessments. Also some of the European states seem to go more with the technocratic approach. Official in Greek administration have usually regarded the involvement of decision making as more harmful than being beneficial, though it is provided within the EIA procedure. They have been utilized to control and command for regulatory policy style where no importance has been related with co-operation and public debate. Normally the authorities have despised their role of offering for required information. In this kind of condition, the public has practically no chance to for the real chance of having the capability to articulate their objectives towards that project. According to Mercedes Pardo, the condition in Spain is similar as the social-political situation has never been favorable to better development of EIA in Spain. Environmental review progress was brought due To EC requirements for the sake of all Member States with Spain not to have any of environmental policy. Realistically, the Spanish administration has offered complete priority towards development over any consideration. Most of public infrastructures which have been established never completed the environmental evaluation needed by law. The environmental impact assessment be likely to put projects into delay and can be costly. A detailed study of eighteen case evaluation in United Kingdom, Netherlands, Spain and Greece proposed that a EIA project ought to typically take less than two years. In 60% of projects, the EIA constituted under 0.5 % of the whole capital costs. The proof indicated showed some economies of scale. Though the direct and indirect costs may not be costly, they can be sad against its actual economic advantages for successful EIA. The developers have few grounds of complaint. Depending on Paul Stookes Director in United Kingdom of Environmental law Foundation, the financial cost which incurred in carrying the EIA is basically introduced into development projects a cost which for sometime has been absent and ought to be correctly proposed of development projects and its associated impacts on society and become of more objective determination. The Future for Environmental Impact Assessment The Annex I of Directive 85/337/EEC initially identified nine kinds of projects which are needed compulsory for environmental impact assessment. Directive 97/11/EC enhanced the number of its categories into twenty one. Projects like pipelines, paper factories, waste treatment plants and overhead electrical power lines are now in Annex I. it is more probable that the process will go on in future and discretion ready to plan for authorities will decline. The environmental impact assessment has customarily been bothered with individual projects. It has been possible see these occurrences in isolation. The recent development is the appearance of strategic environmental assessment (SEA). The term started to be utilized in the late nineteen-eighties and its accurate meaning was not clear. However, the assemement subjects to SEA changed between countries. The Directive 2001/42. EC on assessment of particular plans and schedules on environmental requires the Member States to make sure the environmental procedures at the planning stage. it applies to local and national regional plans which are organized for forestry, agriculture, industry, energy, transport, water management, tourism, telecommunications, town, tourism and country planning or even land use according Article 3(2). It is thus crucial to consult the public concerning the draft plans; Article 6. When plans are adopted, they ought to be made ready to public; Article 9 (1). Conclusion The EU had the obligation to ensure any environmental actions taken were not harmful to environment. Secondly, the environmental measures ought not to stifle creation of jobs initiatives within EU. The pressure for EU-level action on unemployment caused the addition of employment chapter for EU-level action towards unemployment. The primary focus of European Union environmental policy was to protect the distorted trade upon the developed policy to become public. The nature of EU's policy got broadened to involve more issues focusing the environmental interest rather than being shallowly economically. This focused to EU to get more support and a beneficial popular face. The policy remained to share the responsibility between the supranational and national tiers of government within the EU. The chance exists for the public participation to monitor the progress and policy making which got enhanced via several initiatives suggested by European Commission3. In 1992, the Maastricht Treaty involved a commitment to promotion of sustainable growth respective to environment. This was double with the purpose of achieving a policy based on high levels of environmental protection alongside the environmental considerations taken into account to draw and implement other the EU policies. Other expectations of action in the protection of environment were also raised though there was more little chance of evaluating the probable outcome of changes before another round of treaty revision. The action which would bring good results to citizens concern about environment protection was given more priority for mandate of International Conference (IGC) which was given to Turin European Council in 1996. The EU has to solve the rhetoric of environmental policy which does not overwhelm the action and ensure the environmental damage is not left in drain on economic resources and growth of EU. There are two major reasons which provided the additional measures and enable EU perform the role of monitoring its policy more efficiently. First it ought to ensure the entire interests were in a position to participate more greatly in policy making process. Secondly it ought to ensure there was a chance of information to be greatly disseminated into national electorates to enhance the support of adoption of tougher environmental measures. The crucial part to monitor and manage the process was to try the attempts of states with more rigorous environment protection. Reference Heinelt, T. Malek, N. Staeck, A. E. Toller: Environmental Policy: The European Union and a Paradigm Shift', in H.Heinelt, T.Malek, R.Smith, and A.E.Toller, editors, European Union Environment Policy and New Forms of Governance (Ashgate, Aldershot, UK; 2001), 1-32. E.W.Orts: Reflexive Environmental Law (1995), 89(4), Northwestern Law Review, 1227-1328: http://www.danube-cooperation.com/library/2003watson2.htm#10 Read More