How Green Is The Law?
THE LAW IS BECOMING EVER MORE GREEN: FROM THE ANCIENT ROMAN EMPIRE TO CURRENT CLIMATE CHANGE, FROM ENVIRONMENTAL LAW TO THE PROTECTION OF FUTURE GENERATIONS AND SUSTAINABLE DEVELOPMENT. THESE CONCEPTS ARE EXPLAINED FURTHER IN THIS ARTICLE BY MIRIAM ALLENA, LAWYER AT BOCCONI UNIVERSITY AND MEMBER OF THE RECENTLY ESTABLISHED MINISTERIAL COMMISSION CALLED UPON TO WRITE THE NEW ENVIRONMENTAL CONSOLIDATED LAWThe first to deal with environmental protection were most likely the ancient Romans, for example, in their limiting the over-exploitation of forests for construction and shipbuilding activities, which resulted in hydrogeological disruptions that caused frequent flooding. It continued to be an issue in the following centuries, with impromptu edicts in defense of waterways, forests and animal species. However, it was only in the 1960s that environmental law – specifically Italian law – began to be regulated in a methodical way to the point of becoming a branch of law proper. It is continually updated and integrated at the local, national and supranational level. We talk about it in this interview with Miriam Allena, Associate Professor within the Department of Legal Studies at Bocconi University and member of a commission established by the Ministry of the Environment and Energy Security, in agreement with the Ministry of Institutional Reforms and Regulatory Simplification. This commission will have the task of drafting the new Environmental Consolidated Law as a replacement of the previous one from 2006.
When will your work be ready?
We have not talked about timeframes, even though the commission is already operational. We have split up into various sub-committees to work on specific topics also with the help of experts who will support us. We will have to create a document by the end of the parliamentary term.
Let's start from the beginning. What is meant by "environmental law"?
Environmental law can be understood as the set of all the regulations that dictate rules for the protection of the environment at various levels – international, European, national and regional. These regulations are obviously interpreted by the various supranational, European and national Courts. Although, the current tendency is actually to talk about the rights of future generations and sustainable development rather than environmental law.
We must protect the environment for future generations and for humankind. At the same time, though, human-caused activities are what we must safeguard it from...
The subject of environmental protection is not like other areas of law; it has to do with the very survival of human beings. That is why it is a very complex issue. For example, if we look at criminal law, its purpose is to prevent crimes. However, in environmental law, you cannot say "we will avoid manufacturing activities that pollute the environment" since it is more complex than that. A balance must be struck between the requirements of production and economic development, on the one hand, and those of environmental protection on the other.
The previous Consolidated Law is from 2006. How much have things changed in recent years?
A lot, and there is a pressing need to update it. Although, over the years, the 2006 text has been amended several times to modernize it and incorporate new European directives and guidelines. However, it resulted in making the overall text disorganized and, at least in some parts, unclear. That is why there was a need for a rewrite. As far as content is concerned, it has significantly evolved given the increased protections driven by issues such as energy transition, ESG regulation and the fight against climate change.
The turning point came in 2022 when, within the Constitution, the environment was recognized as an object of specific protection. What did this mean in practice?
Two articles, Article 9 and Article 41, have been amended. In particular, Article 41 is the rule that regulates the relationship between environmental protection and economic initiative – expressly stating that private economic activity cannot be carried out in contrast with a series of interests, one of which includes today, the protection of the environment. The change of outlook, which has evolved over the last 20 years, is precisely the new role of companies and private entities, which are seen as front-line actors. In other words, they are no longer those who just have to comply with environmental legislation. The role of companies is changing, and they must aim not only to make profits, but also to protect the environment and take care of the community in which they operate. It is a real shift in perspective.
The new Consolidated Law will be valid at the Italian level, but the environmental issue is in itself very international. What references will you look to?
Environmental law is first and foremost a law derived from Europe, so our commission will have to look at European law first, which means directives, regulations and also rulings handed down by the Court of Justice. European law, though, is in turn influenced by international law. Think of climate change, which cannot be regulated only at the European level. The issue is that we either manage to have global treaties or basically make no progress whatsoever, because – even if Europe may be very effective at fighting climate change – it cannot make a difference on its own.
That is not the only complexity. Environmental law is global law, but it is also multi-level.
Sure. Sometimes European and local regulations can conflict. Take, for example, the issue of air quality and the call for the use of biomass in the fight against climate change. If biomass is used for heating, as is done for pellet stoves, you will have worsened air quality in certain areas where this practice is widespread. This is because gas stoves, although more impactful on the climate, paradoxically affect air quality less. Environmental law has a particular complexity; it is a global law par excellence, but it is multi-level and each level – supranational, European, state, regional and local – must try to come to terms with the others.
The major environmental issues risk creating an even deeper rift between the global North and South.
There is evidence, according to international documents, that the poorest countries are suffering the heaviest consequences of pollution. Much of this pollution, by the way, is created by Western countries. In any case, poor countries – if they cannot have sustainable development, since it is more expensive – risk implementing technologies that are 40 years behind those we are using in Europe. Western countries must implement green technologies in the global South, in developing or underdeveloped countries. This is to ensure that they do not make the same mistakes that we did, like in 1950s London where people had to wear masks because the coal greatly polluted the air. Now we have the knowledge and, for once, we can make sure that we learn something from history.
What is the European Green Deal?
It is a major funding and reform plan, aimed at directing development in the sense of environmental protection. Next Generation EU has also been inserted into the Green Deal, which is the plan immediately approved post-Covid by the European Union to restart the European economy, in which one of the pillars is precisely going green. It envisages the involvement of the private sector and an energy transition with the conversion of many activities from non-sustainable to sustainable. However, this transition will not be without its costs. Think of the possible loss of jobs, for which the European Union has precisely allocated a specific fund (Just Transition Fund) to take on these social costs.
How is Italy doing from the perspective of environmental protection?
Italy is part of the EU and therefore implements its directives. In the field of energy transition, we are working well and, in this, the PNNR funds are of great help. It is certainly a favorable time in history to make many investments in environmental matters; we certainly are not lacking in good laws and adept lawyers. However, we also need a shared will because good laws – as we know – must be implemented by public administrations, interpreted by the Courts and respected by private individuals...
by Davide Ripamonti
Translated by Rosa Palmieri
