A. Background

Till 1 January 1992 Russia, Ukraine and Byelorussia belonged to the Soviet Union and had unified legislation. The Soviet Union was a planned economy governed by the administrative principle of the so called democratic centralism. The general principles of legislation were issued on the union level and the laws on the republican level had to follow the given model and therefore laws of different republics were actually copies of each other and co-ordinated under the union framework principles. During the last ten years each of the three countries have taken their own path in their transition to a market economy and unified legislation has spread into separate regimes. The separate regimes are, however, not going to drift apart in a significant manner because of strong international harmonisation tendencies. Especially Ukraine and Russia have declared that they aim at harmonizing their legislation with the EU countries. For Ukraine choosing to harmonize with the EU is connected with the plans for joining the union.  Byelorussia and Russia have a “union treaty” which apparently means that Byelorussia is going to follow the Russian example.

There are a lot of similarities as well as same kind of  institutional hindrances on the way to a market economy and modern European environmental legislation. Especially working methods and ways of thinking naturally still reflect principles and values of the socialist past. Since the state owned both all the natural resources and the means of production, environmental law was regarded as administrative law regulating how the state property is used and protected. As a civil law country the Soviet Union had the German based division to the law of obligations and the law of things (property), but the division lost its relevance in a socialist economic system where economic contracts were made between state entities and all economically significant property belonged to the state. Property law concerning land property started to be called land law regulating the use of state owned land. Since the emphasis was on natural resources and their use not on the protection of the environment, law regulating them was classified according to the types of resources: forest law, water law and law for below ground resources. Legal regulation focused on the rules for using natural resources and their management was highly administrative by nature (Ikonitskaya 1999).

Protection of the environment was not regarded as important when the general attitude was in favour for making effective use of the abundant natural resources. On the other hand there were large areas of protected nature excluded from economic use. Administration under specific ministries and state committees produced e.g. relatively strict regulations for resources management and control, which, however, were mostly aimed at facilitating to fulfil the production requirements of the state  plan, which was the measure for effectiveness. In case of accidents, the state founded a special organ to define the damage and compensate to the citizens the loss of health or the death of a family member.

In each of the studied country natural resources are still mostly owned by the state, but enterprises using them have often been privatised. Russia privatised state owned enterprises extremely rapidly, while Byelorussia has not advanced fast in this respect. Privatisation is, however, not necessarily a quick answer to the need for restructuring enterprises. In Russia in most cases the management privatised the companies for themselves with the help of the workers whom they “promised” to keep the company going. The management is now in a difficult situation: restructuring would lead to unemployment but without investing in more advanced and best available technology pollution increases and in the long run productivity will decline (Nystén-Haarala 2001). European principles such as the polluter pays, put the companies in a different situation than earlier. They –  not the state - are now the ones benefiting from economic activity and also responsible for the harm which this activity might cause to human health and biodiversity.

Not only enterprises but also municipalities are transforming. A lot of municipal services and technology such as water and sewage pipes were often taken care by state enterprises especially in settling areas dominated by one or two industrial enterprises. Now the municipality should have taken over, but it is difficult with inadequate revenues from taxes. Environmental problems and the lack of money to invest in best available technology is therefore a difficult structural problem.

B. Main Principles of European Environmental Law

There is no one solid model in the European Union for the countries in transition to follow. Environmental law of European countries differs from country to country. There are differences in their attitudes towards environmental protection and their approaches to environmental liability. Another fundamental distinction relates to the degree of legislative and administrative centralization in the constitutional framework. The EU itself started to pay attention to environmental issues as late as in the 1970’s. The EU environmental policy started with action programmes on the environment. The first one was launched in 1973 and after that there have been five more Action programmes. The Fifth Action Programme of 1993-2000  (Towards Sustainability) was rather successful and contributed to structural changes in the member countries’ legislation and environmental administration. The Action Programmes, which take the form of non-binding guidelines issued by the European Commission define the objectives and principles of the Community’s environmental policy, providing a list of the measures that should be taken, together with a detailed description and a timetable for adoption.

Under these programmes, the Community has not only developed a distinct environmental policy, but has also adopted excess of 200 Directives, Regulations and Decision in the environment field. Harmonization of divergent national standards has mainly advanced with the help of directives, which require the member countries to change their legislation to correspond to the regulations of the directive. Directives which set limits for pollution and standards for e.g. drinking water, are in some countries lower than the national ones but difficult to fulfil in others.

Typical for European environmental law is that compared to other EC policy fields it is exceptionally much based on commonly accepted principles, which have been given greater legitimacy by including them in the EC Treaty with the Single European Act (1986). The Treaty listed four principles. It provided that preventive action should be taken, that environmental damage should as a priority be rectified at source  (proximity principle), and that the polluter should pay. Article 130r (2) of the Treaty also states that environmental protection requirements shall be a component of the Community’s other policies. The single European Act also introduced Article 100a according to which the Commission must take as a basis for its proposals a high level of protection. The Maastricht Treaty refined the list of principles and also introduced a further principle , the so-called precautionary principle.

Many of these principles are controversial. The polluter pays principle for instance was first introduced as an economic principle and is according to legal specialists not clear enough to be used directly as a legal principle (Ekroos 1998). Strictly applied this principle should not permit either EU environmental funds or any state investments on polluted environment. Enterprises also claim that if they were forced to take all the environmental effects into consideration, their competition ability compared to other countries would decline. In practice implementing the principles is balancing between different interests.

With the present action programme the environmental law of the European Union is now going through a period of reform. Old directives are replaced with new ones, joint together and so on. The EU is now working on coordinating environmental policy with other EU policies (competition, transports etc.)  In water policy this development has advanced with a new Water Framework Directive which takes a combined approach. On the source side, it required that as part of the basic measures to be taken in the river basin, all existing technology-driven source-based controls must be implemented as a first step. But it also sets out a framework for developing further such controls. The framework comprises the development of a list of priority substances for action at EU level, prioritised on the basis of risk; and then the design of the most cost-effective set of measures to achieve load reduction of those substances, taking into account both product and process sources (Introduction … 10/04/2002).

On the effects side, the framework directive co-ordinates all the environmental objectives in existing legislation, and provides a new overall objective of good status for all waters and requires that where the measures taken on the source side are not sufficient to achieve these objectives, additional ones are required. The framework directive replaced seven of the so called first wave directives (surface water, on measurement methods and sampling frequencies, exchange of information on fresh water quality, the fish directive, shellfish water and groundwater directives as well as the directive on dangerous substances discharges).

Except for requiring a river basin management plan, the framework directive focuses on the need for public participation and balancing the interests of different groups (citizens, interested parties, NGOs). The most important innovation of the directive is the introduction of pricing. Member states will be required to ensure that the price charged to water consumers - such as for the abstraction and distribution of fresh water and the collection and treatment of waste water - reflects the true costs. Whereas this principle has a long tradition in some countries, this is currently not the case in others. However, deviations will be possible, e.g. in less favoured areas  or to provide basic services at an affordable price (Introduction … 20/04/2002).

In trying to limit air pollution on the global level, the EU has started to apply the limits of the Kyoto Protocol and is experimenting also emissions trading, joint implementation (Article 6) and Clean Development Mechanism (Article 12) with pilot projects. These mechanisms of the Kyoto Protocol might open up new possibilities for the transition countries to close down production units with environmentally harmful technology and invest in more advanced technology.

C. The General Structure of Environmental Legislation

Russia:

The most important environmental legislation is regulated with following laws (Acts of Parliament):

- The Constitution of the Russian Federation 12 Dec. 1993

- Law on the Protection of the Environment 12 January 2002

- Water Code  (changed 18 October1995)

- The Law on Below Ground Resources (changed 2 January 2000)

- Land Code 25 October 2001

- Law on Air Protection 14 July 1982

- Forest Code 29 October 1997

- Law on Fauna 24 April1995

- (Law on Payment for Using Water Objects (changed 2001)) + corresponding laws on payment for using land and forest

Liability is regulated in the Civil Code (part I from 1995) and with the Code on Administrative Offences from 16 June 1997 No 716. Decrees under the laws are also important, if not even more important, because framework laws require specifications by decrees. For example standards for water quality and the regulations for applying licences for use of natural resources are set by decrees.

Since Russia is a federation all these laws are federal. The subjects of the federation as the different regions of the federation are called have their own constitutions and legislation. From the birth of the new Russian federation (1992) there has been a battle going on between decentralisation and centralisation tendencies. According to the constitution, natural resources belong to the joint jurisdiction of the federation and the subject (Art. 72). The constitution, however, does not specify what joint jurisdiction means. When there were no laws on the federal level, the subjects passed their own laws. After new federal laws have been passed, contradiction with the earlier legislation of the subjects appeared. One good example is the Forest Code, which the Republic of Karelia and the Territory of Habarovsk took before the Constitutional Court claiming that the federal law contradicted with the federal constitution. The constitution allows private, state and municipal ownership of forests (Art. 9.2), while the Federal Forest Code declared the whole forest fund under state ownership and to be federal. Some republics had allowed private ownership and even more of them declared that natural resources were property of the subject of the federation. The constitutional court, however, ruled that the Federal Forest Code did not contradict the constitution, since both the federation and the subjects decide on the use of forests and most of the income (60%) goes to the budget of the subject. The court also reasoned its decision with stating that there is a long tradition in Russia of state ownership of forests (Decision of the RF Constitutional Court 09/01/1998).

According to the new Land Code of 2001 land is divided to agricultural land, inhabited areas for housing, land for industrial and similar purposes, protected areas, the forest fund, the water fund and reserve land. 

One additional problem in the federal structure are treaties which the federation has made with individual subjects. The first of these treaties was the Tatarstan Treaty which according to the regional interpretation was an association treaty with the federation. According to the constitution of Tatarstan, the natural resources of the republic belong to it.

Under President Putin centralization tendencies have grown stronger and the power which had been decentralized to the subjects is gradually taken away from them. The subjects of the federation have to change their regional laws to correspond to the principles given in federal legislation. There is now a hectic period of legislation going on in Russia on the federal level. Especially environmental law is now being reformed. One reason for the reforms is that the federation is now strengthening its positions. The other reason for hectic legislative work is that after the last parliamentary elections  the parliament is now able to find political compromises or form majorities and has good relations with the president. A lot of such laws which have earlier been blocked because of the lack of political consensus are now drafted again. This means that the structure of environmental legislation is still taking its form. The principle that natural resources are state property has now, however, generally been cemented in the current legislation.

In this report I concentrate only on federal legislation even if it does not give a complete overall picture, because it ignores  the differences in the circumstances in different regions.

The Federal Constitution declares that natural resources are protected and used as the basis for living of the peoples of the region (Art. 9.1). It requires that the owner who can freely possess his land or other natural resources has to ensure that it does not damage the environment or rights of other people or benefits guaranteed by law (Art. 36.1). The constitution also guarantees the right for every citizen for favourable environment, the right to obtain information on the environmental situation as well as the right to get compensation for damage caused by an environmental crime for his health or property (Art. 42).

The Constitution of the Russian Federation also includes a stipulation that international treaties ratified by the federation are above national legislation and will supersede  national legislation in case of contradictions (Art. 11.4). This regulation which is repeated in several general laws such as the Water Code, clearly deviates from the traditional soviet doctrine of the state having exclusive jurisdiction in its area. The soviet version of legal positivism saw that there was nothing above the state limiting its legislative rights. The new principle allowing international monitoring and advice constitutes a radical change in the doctrine of Russian international law.

The Law on the Protection of the Environment is a typical framework law and regulates on the powers on the sphere of the protection of the environment. It regulates the division of power between the federation, its subjects and municipal authorities. It also gives citizens rights to receive information and demand for protection of the environment within the legal framework, without specifying how these rights can be used. It lists the methods for protection of the environment, regulates on what level limits and quality standards are set (usually governmental level) and lists the forms of penalties for negative influence on the environment. It also sets highly general rules for giving licences for building.  The law also gives the framework rules for monitoring as well as state and municipal inspection. More detailed rules are given either by other laws or mostly by decrees. For instance the procedure of state control on the protection of water objects is regulated in a Federal government Decree No 716 from 16 June 1997.

There are also certain principles set for the protection of the environment. The polluter pays principle is mentioned in the law. Liability for charges is set by payments which the one driving polluting activity should pay. The payment principle was introduced already by the previous law on environmental protection from the soviet period (1991). Several special laws introduce the payments on special branches such as The Law on Payment for Using Water Objects from 2001.

The Water Code as well as the Forest Code and the corresponding general laws are also framework laws regulating on quite a general level. A lot of attention is paid to defining and classifying the objects of regulation into different groups. In the water code different water objects (e.g. rivers and lakes) as they are called are divided between the federation, the subjects of the federation and to a lesser degree municipalities in quite a complicated way. Water objects which extend to areas of two or more subjects, are under federal jurisdiction. The Forest Code as mentioned earlier regulates that the whole forest fund is the property of the federation. All economically significant forests belong to the fund. Also natural conservation areas are federal. Some woods or parks for recreation purposes around and inside towns or villages belong to municipalities and are not included in the forest fund. Both codes have, however, adopted the same principle that 60 % of the payments for the use of water or forest go to the budget of the subject of the federation and 40 % to the federal budget. Taxes are also paid for the use of state property. Also the below ground resources (oil, gas, minerals, groundwater resources) are divided between the federation, the subject and the local municipal level. The payment for use, which often is rent, is divided between them. For hydrocarbon raw material the division is:

- local level 30 %,

- subject of the federation 30 %

- and federation 40% and

for other than hydro carbon it is:

- local level 50 %,

- subject 25 % of the federation

- and the federation 25%.

Very important means for developing environmental law and regulations as well as implementing them are the federal environmental programmes which are coordinated between the federal, subject level and local level. These programs can be compared with European union action programmes or national action programmes of the EU member countries. Environmental programmes can be used to co-ordinate all the levels and interest groups of society and activate citizens to influence on their environment. 

Ukraine:

The Ukrainian legal structure is less complicated because Ukraine is not a federation. Natural resources are state property and there are framework laws such as The Law on the Protection of the Environment from 25 June 1991 and the Water Code from 6 June 1995, which regulate principles that have to be clarified with other norms. In practice these norms have been regulated on the level of decrees, which actually means that a lot of legislative power is delegated to government level. Among such  rules are included for instance the ones regulating protection of surface water, sea water and territorial sea, ground water – its quality for drinking or fishing purposes, the procedure for giving licences for the use of water resources, the rules regulating discharges to water, the procedure on how to define and confirm the standards for discharges, and the monitoring procedure.

In Ukraine natural resources are divided between the state and the regional level. The division into regions is administrative-territorial by nature. The regional level consists of the Crimean Autonomous Region, the regions and the cities of Kiev and Sevastopol. Waters are divided in such a way that such waters which do not extend to the territory of another region or groundwater which cannot be used as a source for community drinking water belong to the regional level. In practice 90 % of the water resources extend to the territory of more than one region.

Since laws are of framework character and there are differences on the regional and local level, national programmes are important in developing environmental protection. For protecting rivers there is a river basin method. In 1997 the Parliament launched a programme for ecological revival of the River Dnieper and improving the quality of drinking water. In 2001 there was a law passed on a national programme for protection and revival of the environment of the Asovan Sea and Black Sea. It is possible to reach both experts and different interests groups with the help of these environmental programs.

Byelorussia:

The most important legal norms are:

- The Constitution

- The Water Code 15 July 1998

- Land Code 4 January 1999

- The Code on Below Ground Resources 12 December 1997

- The Law on Property in the Republic of Byelorussia 11 December 1990

- The Law on Objects Remaining only in State Ownership 5 May 1988

- The Law on Local Self-governance in the Republic of Byelorussia

The constitution regulates that land and natural resources can only be owned by the state. Even the municipalities cannot own land, water or any natural resources. The Constitution expressly denies transferring land or water to private ownership. The law on objects remaining only in state ownership regulates that these objects can only be used by governmental authorities or state enterprises. The municipalities, however, have a lot of powers in controlling the use of natural resources. They for example are responsible for taking care of drinking water and setting limits for the use of water and can give tax reductions for enterprises with the acceptance of the government and the President.

D. Permitting Licenses for the use of Natural Resources and the Control and Monitoring

Russia:

The purpose of licences or permits to use natural resources is to ensure the rational use of them. It has to be regulated by law what activities need a permission. This is regulated either by the Law on the Protection of Nature or by framework laws. No license is needed for general use of water, but enterprises always need a licence for using water in enterprise activity. According to the Law on the Protection of Nature the requirements of the contents of the licence are regulated by law. However, there still are not such regulations on the level of laws, but the licence requirements are regulated by a Decree of the Government  (On Licensing Activity of 24 December 1994, On the Procedure for Permitting Licences on the Use of Below Ground Resources from 15 June 1992, On the Procedure for Permitting Licences for Industrial Fishery 26 September 1995, for Sporting and Non-professional Fishing of Valuable Fishes, Hunting Water Animals and Collecting Plants 26 September 1995, On Collecting and Using the Ingredients of Rare Medical Plants 8 December 1996, On the Exchange of Rare Wild Animals included in the Red Book of the Russian Federation 19 February1996, On Different Areas of the Environment 26 February 1996, on Activity Connected with Transmitting Human Infection Diseases 3 April 1996).

A licence for use is given by a federal ministry and its regional organs. The procedure starts with an application. The terms of the licenses for using natural resources are decided on  federal ministerial level (the Ministry of Natural Resources and the Protection of the Environment). Along with the licence the user also concludes a contract with the subject of the federation on the use of the resource. The terms of the use and payment rules are included in the contract.  For water and forest use 40 % of the income goes to the federation and 60 % to the subject.

Usually the application has to be decided within 30 days, but the period for considering can be prolonged till 90 days. Often the decision requires an inspection on the spot. A refusal to award a permission needs to be reasoned. A refusal can be submitted to a court of arbitration for appeal. Municipalities, citizens and organizations can appeal to a court for permitting a licence for an enterprise, but only if legal rules have been broken in the procedure.

All the licences are registered in the ministry or other authority which has permitted it. The permission is valid only after the registration. For using below ground resources the permission is given for 20 – 25 years, for using water objects 3 – 25 years. It is also possible to found a private servitude on a water object (bridge, quay). General use of water (not enterprise use) can be registered in the water cadastre according to a decision of local authorities.

Water use for municipal purposes (drinking water, waste water) is handled with a petition of the municipal authorities according to the water legislation. Local authorities also specify the sites for recreation, tourism and sports as well as for sports fishery with the consent of the territorial organs of the federal organs. The municipal level also has important functions in water policy:

- They administer the small areas belonging to municipal property,

- they prepare the local programs which have to be co-ordinated with the regional and the federal programs,

- they also set rational terms for rational water use and protection from pollution,

- they are responsible for information to the local citizens,

- they also keep the records of water management monitoring and evaluation.

For using forests there are several forms of use: rent, use without payment, permission to use, logging ticket, order or wood ticket. In the new Land Code buying land for housing, industrial, agricultural and recreation purposes is permitted. Leasing land is, however, the ordinary form for using land in practice. For using land for industrial or agricultural purposes there is rent which can be 99 years or a shorter period.

For industrial activity permissions for polluting discharges to the air are given for three years or a shorter period. Getting a permission requires an inspection on the chemicals emitted to the air and ecological auditing of the company.

Strict quality standards, ecological standards and regulation of damaging activity are typical in Russia. Both ISO standards as well as Comecon- and Gost-standards are used. The latter are own standards which sometimes can be even stricter than European quality standards. There is one law level regulation on this branch - The Federal Law on Standardization from 10 July 1993. The rules on limiting the use of water in connection with giving permissions is regulated by a government decree from 3 April 1997. High standards are strengthened with strict control and high penalty fees for breaking the standards or terms of licences.  Inspection and control is taken care on municipal level, regional level and federal level. All these levels can order fines for deviations from their standards. In practice the requirements of different authorities can be contradicting (Kotova 2001).

There has, however, been a tendency to coordinate and simplify environmental administration. Joining several ministries and state committees under one ministry of natural resources and environment is one attempt to rationalize the complicated environmental administration (by a presidential decree from 2001). In the Ministry of Natural Resources there are different departments for different natural resources and a department for the protection of nature. The regional organs of the ministry are divided in an identical manner. The inspections of the federal ministry can be regular (planned) or irregular. Regular inspections (twice a year) are done also in cooperation with the Sanitary-Epidemological Control (a federal organ), with the State Committee of Fishery or the State Land Control. Regional and municipal authorities participate in the control for implementing the terms of licences.

Irregular inspection is started on the initiative of either the Ministry or other federal organ, the Procuracy, a complaint of a citizen or NGO, regional organs or municipal organs.

Inspection of enterprises and other entities was earlier regulated only by internal orders. Now there is a Federal Law on Ecological Inspection from 23 November 1995 which sets the general principles for inspection: the legality requirement, independence requirement etc. More detailed instructions are regulated in several instructions of the ministry and the procedure itself with a decree of the government (from 11 June 1996). A protocol is written on the inspection describing the offence, the damage and its reparations. The inspection authority also sets the fines, which the ministry confirmed already in the terms of the licence. The inspection and the fine can be appealed to a court. There is a new draft on the Code for Administrative Offences which would set framework sums for fines on the legislative level.

Ukraine:

In Ukraine the Water Code defines general use and special use of water. General use does not need a permit and is mostly for recreation: swimming, boating, fishing, watering animals, drawing water without technical equipment and without blocking water from others. Local authorities can define sites where general use of water for some reason is prohibited and has to inform people clearly about it.

Special use of water (with the help of technical equipment) is allowed with a permit. The Cabinet of Ministers has given a Decision on the Procedure on Giving Permits for Special Water Use (13 of March 2002). For waters which are of general state importance (90%) the licence is given by republican committees on ecological and natural resources on the regions. For waters of local importance regional authorities (the Parliament of Crimea, the Council of Kiev, or the corresponding elected decision-making organ of the region) give the permission. Application for a licence has to be submitted to state water management organs on questions of surface water use, to the state organs of geology on ground water issues, to the state organs of health on waste water issues.

There are special instructions on agreeing and permitting special water use. The permits are given either for short term (3 years) or longer terms (3-25 years). The limits of use have to be set. For waste water there are special instructions. The discharge limits are defined by the Ministry of Ecological Security.

There are special water protection areas which have been defined with special projects. Local authorities are responsible for informing on the boundaries of such areas. Unfortunately this process has not been completed in Ukraine and  the projects for protected areas are not implemented.

Like in Russia the limits for using drinking water for industrial purposes are set by municipal authorities.

Giving a permit requires a complex search from the point of view of nature protection, health protection, water management and complex expertise. Building permits are taken care by state authorities. Permits for mining are given either for a short term (5 years) or a long term (up to 20 years) by the state organs of geology and using below ground resources. The permits have to be agreed by the Ministry of Ecological Resources and there has to be a preliminary agreement with the corresponding local council for using land for such purposes.

The Cabinet of Ministers has issued a list of polluting ingredients (11 September 1996 No 1160). The waste is examined and the controlling authority makes the decision.

The permissions are registered in the (regional) authorities which have given them. Sanitary and health  authorities are given copies. The procedure for giving permits and their registration is regulated by a decree of the Cabinet of Ministers from 2002.

The user of water has a responsibility to control the amounts of use and discharge of waste water. Water quality is examined regularly on special controlling sites which have been defined in  the instructions on controlling and permitting waste. Deviations from the limits and standards of licences can have administrative, civil and criminal effects. The fines which inspecting authorities can set, are regulated in the Code of Administrative Offences.

Byelorussia:

Like in Russia and Ukraine general use of water (without special technical equipment) is free and municipal authorities can define sites where general use is forbidden or restricted and are liable to inform about it. The Ministry of Natural Resources and Nature Protection has issued on Order on the Rules for Fishery for Recreation (29 May1998, No 158).

Permits have to be applied for special use of water. The application is sent to the Ministry of Natural resources. A rent agreement is also connected with the water use issue.

Usually there is only one permit for all water use. The procedure for giving the permit is regulated by the Council of Ministers (7 May 1999 No 669). Before giving the permission, several state organs have to agree with the issuing of it. In every case the state sanitary inspection has to give its evaluation and statement. When fishery is concerned the fish protection authorities are involved. Veterinary authorities may have to be consulted when the permission concerns animal husbandry. When hydroelectric power is concerned the state inspection for dangerous activities in industry and atomic energy have to be involved. There is also a special state administration unit for the problems caused by the Chernobyl Accident. It has to be consulted when the permission concerns water use in areas which were radioactively polluted and evacuated because of the accident. For ground water use there is a special organ called Belgeologia which has to be consulted.

For waste water discharge there are special norms: The Rules for Protecting Surface Water stemming from the Soviet period 1991, as well as Sanitary Rules for Protecting Surface Water from Pollution from 1988. The Ministry of Natural Resources and Nature Protection is planning to replace these rules with one new set of rules for protecting surface water.

According to the Water Code water use can only be temporary either for a short term (up till 5 years) or a longer term (5- 25 years).

The control for protection of nature is divided into state control, administrative sector control, productional control and general control. The state control ranges from controlling natural resources owned by the state to ecological protection of the environment. State control is taken care by the President, the Parliament, the Deputies of the Parliament and the organs of the Ministry. Controlling of environmental legislation is due to the Procuracy. Administrative sector control means that each ministry or other authority is responsible also for environmental control within its own branch. Productional control refers to the own control of the enterprises and other units of economic activity. The general control refers to control of societal organizations and working collectives.

The division of sectors of control reflects the control of the previous soviet type society. Enterprises are still mostly not privatised yet and function as parts of state administration. Procuracy is a legality control organ stemming from the Russian imperial period before the October Revolution. Procurator's office can intervene when legislation or other legal norms are not implemented. Except legality control, the procurator's office also includes the system of prosecution. This control system is familiar to the citizens. During socialism the members of parliament were chosen to represent certain interest groups of the  population (e.g. miners, factory workers, teachers etc..). They used to keep contact with their interest group and take their petitions and try to solve problems in the state bureaucracy based on  initiatives of the citizens. It seems that these forms of control still exist and function. On the other hand the control forms of a market economy, especially non-governmental civil society organizations have had difficulties to get accepted as  democratic channels for criticism towards state policy and state authorities. Especially Byelorussia seems to be still mostly relying on governmental and governmentally controlled systems of control and monitoring. In spite of official recognition and support, the idea of civil society control still causes confusion among politicians and state authorities.

Systematic control for following the implementation of the terms of licences is arranged under the Ministry of Natural Resources and Nature Protection and according to a decree of the Soviet of Ministers of Byelorussia from 1. April 1998 No 522. Copies of the licence are submitted to regional committees of local inspection authorities for control purposes. Issuing or cancellation of a permit can be submitted to a court. All the permits have to be registered (Order of the Ministry from 3 May 1999 No 114) to the National Register of Juridical Acts in Byelorussia (1999, No 42). The payment for registration is 15 minimum wages from a legal person and 2 minimum wages from a physical person.

E. Involvement of Citizens in Environmental Issues

Each of the three countries have guaranteed in their constitutions that their citizens have a right for clean environment and to get information from the state on the environment. In principle citizens get their possibility to influence on state policy in the elections and on municipal policy in municipal elections. In municipalities the local people can affect on the use of land when local plans are discussed in the municipalities' organs. The state which is the owner of almost all natural resources (in Byelorussia the state owns all natural resources, in Russia some land for agricultural, industrial, housing or recreation purposes can be sold to citizens or enterprises) prepares the general plan for using these resources and makes the classification for using natural resources (e.g. three types of forests, land for agricultural or industrial purposes). Enterprises negotiate with the terms of using land or water for their purposes with state authorities. Ordinary citizens can question issuing permissions in court only if legal procedural rules have been broken. Terms of permissions are set by governmental authorities. Ordinary citizens and NGOs can initiate an irregular inspection of state or municipal authorities when it can be suspected that the terms of licences are not followed. Citizens can also turn to the procuracy for legality inspection. In addition to these legality control systems, also the ombudsman system has been introduced.  People who have suffered damage usually have to turn to the court.

Ecological programs on the state and local level can activate also citizens and NGOs. Such programs are a traditional way for developing state administration and the legislative basis. Earlier those programs focused more on effective use of natural resources and involved experts of technology. Now at least in Russia it is required that citizens and NGOs are consulted in connection with these programs. These programs are coordinated on all the levels of state and local administration, and it might be possible to make local special circumstances known to the highest level with the help of these programs.

Getting information from state authorities may still be difficult, because of the lack of traditions to inform citizens on negative aspects of the environment, but there are no legal obstacles for getting information. Informing the people has traditionally been given for the responsibility of local authorities who may themselves not be quite well aware of all state activities. When ecological programmes and programmes for rational use of natural resources are organised well, they both show commitment of the government and authorities and give different interest groups real possibilities to influence on environmental policy.

In emphasising the citizens' rights for information and participation the riparian countries have followed the EU example. The EU has discovered in practice that participation of citizens is vitally important for environmental policy and its successful implementation and is constantly working on how to increase the involvement of citizens. Since the state owns natural resources in Russia, Ukraine and Byelorussia, ecological programs do not cause serious property rights problems for citizens and may actually give more influence to environmentally active civil society organisations than in European market economies.

F. Does the Polluter Pay? Costs for Using the Environment and Liability for Environmental Damage.

During socialism when the state took care of all economic activity, there was no need to pay for using natural resources. Now each of the three states has introduced the principle that the one driving economic activity is liable for paying a charge for using natural resources as well as polluting the environment. In Russia the principle for paying for polluting (waste water, air pollution) was introduced with the earlier law on the protection of the environment stemming from the last months of the Soviet Union. The state has introduced also payments for using various natural resources (land, forest, water, below ground resources) with special laws on the issues.

It is, however, not possible to move directly from free use to payments which reflect actual costs. Not even the EU has reached such a level of implementing the polluter pays principle. Especially in the southern parts of the EU, water is understood as a necessity which should be affordable and available for everyone (The application … 2000). Taking into consideration all the social and economic impacts that the payment principle may have in transition economies, it may take a long time before real costs can be charged for using such necessities as water which used to be free of charge for everyone.

When polluting does not stay within the regulated limits, there is a special payment which can be ordered administratively. In Russia the payment is determined calculating the excess pollution and using a five-time co-efficient. The Ministry of Natural Resources and Environmental Protection and its territorial organs have a right to calculate the damage to the environment and require damages from the polluter. The polluter can question the damages and submit the decision to the court.

Payments do not free the enterprises for their responsibilities to take care of the environment. Enterprises are required to submit a plan for protecting the environment when they apply for a licence.

Damage for the health of citizens or to their property has to be taken before the court of arbitration or the ordinary general court. Starting a court procedure is everywhere a right in principle, but difficult to manage and time consuming in practice. Often people do not believe in their chances against the state or an influential enterprise.

There is no such group action which in the United States and some other common law countries makes it possible to get damages for a big amount of individual victims when the individual amount of damages is not significant but the total amount is.

It is the plaintiff who has to prove that there has been a damage and that it has been caused by the fault of the polluter. Proving both the damage and the fault in practice needs to be done in cooperation with state environmental authorities. Fault based liability can be divided among several polluters according to their share of the pollution. Probably partly because of traditions stemming from socialism when huge damages where not needed since the state took the responsibility, the courts are reluctant to order damages. They require quite certain proof both for the fault and the damage as well as for the causal connection between them (Kotova 2001). It is also understandable that the judges may feel responsibility for not causing closing down of an enterprise offering jobs for local people.

Criminal liability is also possible, if the prosecutor starts to prosecute for an environmental crime. Courts can also handle cases where an enterprise has questioned the penalty fee ordered by environmental authorities. In such cases the evidence from the authorities is probably highly valued.

Environmental liability and proving the damage has been an important issue in the EU countries and has lead to changes in environmental legislation. In many countries so called abnormally dangerous activities have had strict liability and gradually the area of strict liability has increased. Germany was the first European country establishing strict liability for environmental damages with its Environmental Liability Act in 1990. Strict liability has then been introduced in many other countries’ legislation, too. Strict liability means that even if there is no fault from the part of the polluter, he still pays. Sometimes there are some grounds which can set the polluter free such as an Act of God (force majeure) - usually only an unforeseen natural catastrophy. In the White Paper on Environmental Liability concerning significant damage on the environment (biodiversity, water) the EU Commission suggests using both strict and fault based liability.

All the Nordic countries have adopted strict liability as well as lowered the requirements for showing the amount of damage in environmental crimes or accidents. The reasons for such changes are that often the fault could not be proved in court and especially the causal connection between the damage and the fault was almost impossible to prove in environmental accidents. Also the damages ordered were not only difficult to get but also quite small amounts to be able to repair the actual damage. Even nowadays, Nordic countries which have accepted the principle of adjustment of unfair damages, dilute strict liability with adjustment when the damages are so high that the polluter has difficulties to pay them. The polluter pays principle is assessed with other legal principles and there have been opinions which do not allow full legal value for the polluter pays principle, which is then understood more as an economic principle not completely suitable for direct legal assessment (Ekroos 1998, Rubenson 2001).

Unfortunately there is not enough court practice for this new kind of strict liability. There are, however, studies showing that strict liability does not necessarily either frighten enterprises away or raise costs to a considerable extent (Bartch 1998).

Russia, Ukraine and Byelorussia have all established environmental funds which can be used for paying the costs of environmental pollution. In Ukraine national, Crimean and local funds were introduced in 1997. Byelorussia established republican and local funds for the protection of the environment by the Decree of the Council of Ministers from 31 May 2000 No 728.  In Russia federal and territorial funds were established in 2000, but were abolished by the new Budgetary Code in 2001 together with all the other external funds outside the state budget and established again as reserve funds of the government. In Russia 50 % of the payments for use of natural resources go to the reserve funds and 10 % of the sum is used regularly for environmental protection such as cleansing activities and supporting environmental programs. The idea is that damages for persons could also be paid from these funds. All the fines ordered by the inspection authorities go to these funds. However, they have to be increased for quite a long time, before any bigger accident can be repaired not to mention financing cleansing of polluted areas. Especially in Byelorussia with heavy consequences of the Chernobyl accident, it has been observed that a catastrophe reserve fund would be needed. 

The problem is even bigger in counties with completely new and weak insurance companies. Environmental damages are, however, not easily insurable in developed countries either. In countries with a strong insurance branch insurance companies have had an important indirect role in preventing environmental accidents by applying their compliance programs for preventing damage to their customers. Finding weak spots of the enterprises' security systems have contributed to investments in better technology.

It should be borne in mind that the polluter pays principle is controversial. If the principle were applied strictly, it should always be the polluter who pays cleansing. The EU for example has financed cleansing programs from its cohesion funds (The application 2000).

In the case of transition countries, the polluter actually has been the state, and therefore it is not fair to ignore the responsibility of the states to invest in cleansing operations for earlier polluted areas. On the contrary the state should allocate resources for cleansing operations and credits for investments in environmental friendly technology.

Economic incentives are often recommended to be included in environmental policy. EU countries use tax reductions when enterprises invest in environmental friendly technology. Also consumers in many countries prefer environmentally friendly produced products, which makes environmental protection profitable for enterprises. In Russia, Ukraine and Byelorussia the social problems of transition always compete with environmental investments, and when people have to choose between their jobs and better environment, they tend to choose their jobs even when they are worried about the pollution of the environment and the health problems it causes in the long run.

In Ukraine there are no tax incentives for ecological activity at the moment. In Byelorussia local authorities can allow tax reductions or other incentives with the acceptance of the Ministry of the Environment and the President. In Russia the payments for use are smaller when the environment is under a minor burden. For instance circulation systems of thermal energy and atomic energy are charged 7 –10 times lower payments of water use than other industry. Byelorussian payments, on the other hand are always the same without any reductions on the basis of resource saving technology.

Tax reductions are a difficult means for encouraging environmental friendly activity since the great amount of tax reductions is one of the major problems in post-soviet tax legislation. Tax reductions should in principle heavily be reduced to increase tax revenues, which are not adequate at all at the moment. Taxing environmentally dangerous activity should be considered along with incentives, even if it is a heavy burden for both households and enterprises. In spite of the problems of state economy which post-soviet countries struggle with, cleansing and investment in environmental friendly technology should not be left to be solved with international aid or long-term credits from international organizations, but should be included in domestic policies.

G. Conclusions and Findings

Since the starting point of the three countries is the same, it is no wonder that the structure of environmental legislation and administration is quite similar. The tradition to issue framework laws and regulate even quite important rules with decrees is typical in each of the countries. There is, however, a conscious tendency to raise more issues from the decree level to the law level. This development is probably going to take time because rapid changes in legislation especially when values of the society are changing, can lead to a situation when law loses its coherence and its significance in society with it.

Understanding environmental law from the point of view of managing and controlling natural resources of the state is still typical for each of the countries. Even the division between land law, forest law, water law and law of below ground resources and the corresponding administrative control is similar in every country. It is possible that such a tradition still has a strong effect on the preferences of management of natural resources as state property. On the other hand when natural resources are state owned, it may be easier to coordinate environmental policy and protection of nature.

The starting point of the socialist internal control of the administration can still be observed. It has been developed by adding payments for the use of natural resources and for polluting the environment. Openness and transparency is also tried to be increased. It is difficult to know how well it functions in practice, but on the legislative level, there has been a rapid change. Byelorussia seems to be closer to the starting point. Therefore it can be said that her system is the most coherent one. The traditional channels for influencing on environmental protection (through parliamentary deputies and procuracy) are still the ones that might lead to more effective results than using the freedom of speech through the NGOs. Russia has worked hard to establish civil society organizations (NGOs) legal channels to influence on environmental policy. Environmental programs which were used also during the socialist period, can and are changed into a more non-governmental process of changing information and finding out interests of different groups of citizens.

The increased worry for the environment among the population has lead to increased control as well as  stricter limits and standards. In many countries such a development has also lead to more bureaucracy and increase of controlling organs. In the European Union it has been discovered that everywhere spreading environmental policy needs coordination both within environmental administration and with other national policies. Russia has also experienced increase of bureaucracy because of the increased need to control pollution of the environment. When heavy bureaucracy already is typical for this huge federal country with several administrative and legislative levels, the situation may turn out to be quite complicated for the objects of control - the enterprises. Russia has answered the needs for coordination with drawing separate authorities under one Ministry of the Environment and Natural Resources. Russia has also coordinated administration by increasing the control of the federal organs, especially the presidential administration. Ukraine has on the other hand given more tasks to the regions concerning environmental permits, and it has been discovered that at least information should be exchanged and gathered on the central level.

Increasing control and limits may have a precautionary effect, but unfortunately the problems of the enterprises are huge. According to European experience punitive tendency and forcing enterprises to follow stricter limits and standards is inevitable in order to improve the quality of the environment. However, it should be done firmly and impartially.  Enterprises in Russia, Ukraine and Byelorussia are afraid of inspections and seem to think that they are often arbitrary. On the other hand strict punitive policy may lead to necessary deviations and exceptions accepted by governmental authorities in practice. Creating uniform rules for inspections is a wise policy showing that the state aims at strict control of enterprises with firm and impartial rules.

Precautionary principle works better, if punitive activities are complemented with incentives. The enterprises need funds for investing in better technology. Privatised former state enterprises have inherited economically dangerous technology, and therefore it is not fair to push all the problems on them.  Often the actual polluter is the former soviet state not the new private enterprise. The state should not only punish but also support and encourage enterprises for environmental investments. Collecting funds for cleansing and protection of the environment mainly with payments and fines imposed on enterprises may also have negative side-effects on the enterprises.

Municipalities are extremely weak in transition countries. They were earlier treated as remote stations of state administration. Now people should be offered a local channel to influence on their own environment. This is not easy with the old culture not acknowledging local self-governance and with the lack of financial resources. Often tax incomes of the local budget have to be negotiated with the state and taxes are not even paid. In environmental issues municipalities still seem to be remote stations of the state environmental policy.

Liability in environmental crimes, accidents and faults is evaluated according to the general rules of civil and criminal liability. In practice it means that for personal injury and damage to heath it is difficult to prove the polluter who is in fault and the causal connection between the fault and the damage. Because earlier the state has taken the responsibility and has paid for victims of accidents, this problem has probably not yet been realised. Courts have not dealt with cases of environmental accidents. There are neither special regulations for environmental liability nor special legislation for certain types of environmental accidents such as paying and limiting damages for nuclear accidents.

It is quite clear that the development is in each of the three countries heading towards harmonisation with the European Union regulations. For Ukraine which has even applied for membership of the Union this is quite natural, but also Russia seems to have a determined aim to develop its environmental legislation towards European standards.