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C. The General Structure of Environmental Legislation
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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.
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