In order to understand the structure of the current legislation and how it could change in the coming years, it is necessary to consider how the conception of the environment has evolved over time, seeing as, along with the socio-economic context, it is closely linked to the chosen model of protection.
First, it is essential to specify how environmental protection does not find prima facie a constitutional basis and how the emergence of the theme, which can be traced back to an academic paper by Massimo Severo Giannini published in the 1970s,2 had the tendency to explore the environment from a pluralistic viewpoint, by separating the different protection profiles that could come into play. Legal protection was initially given on the basis of the proprietary rights linked with damaged environmental media, the protection of which therefore being limited to the interests of the individual owner. Subsequently, in jurisprudence (see Supreme Court, SS UU, 6 October 1979, No. 4172), this approach was overruled, resulting in a new interpretation based on an anthropocentric approach, from which the 'right to a healthy environment' was configured, consequent to a combined reading of Articles 2, 9 and 32 of the Constitution. In the past decade, however, an ecocentric approach has taken hold which, by also considering the right of future generations, treats the environment from an objective perspective, acknowledging its need to be protected in itself and not in relation to the utility that man can derive from it.
A further profile to take into consideration is the approach promoted by the Ministry for the Environment and Protection of Land and Sea (MATTM), as it is the driving body of environmental policies and defines the underlying principles that will be carried out. The objectives currently pursued by the MATTM have been defined with six key challenges to face: (1) fighting climate change; (2) preserving biodiversity through promoting water as a common good; (3) safeguarding soil, with particular attention to hydrogeological risk; (4) preventing and combating environmental damage, including that of criminal relevance; (5) circular economy, and (6) preventing infringement procedures activated by the European Union.
II LEGISLATIVE FRAMEWORK
The main source of national legislation is the Environmental Code (Legislative Decree No. 152, 3 April 2006). It is divided into six parts concerning: (1) general principles and common provisions; (2) strategic environmental assessment (VAS), environmental impact assessment (VIA), integrated environmental permit (IPPC) procedures; (3) soil protection, prevention of desertification, protection of water against pollution, management of water resources; (4) waste management, remediation of contaminated sites; (5) air protection, reduction of emissions into the atmosphere, and (6) compensation against damage to the environment.
Legislative Decree No. 152 of 2006 has been subject to various amendments that have also often incorporated what had been the elaboration of the case-law; in fact, the courts have an active role in the matter and it is, therefore, necessary for the operator to know the guidelines and possible confrontation of interpretation.
The guidelines also have a principal role, which, on the one hand, can have a supplementary function with respect to the principles set in law; while on the other, can represent alternative instruments with respect to the regulation at a normative level, in that they are better suited to protect the cases that come into effect here.
With regards to the conferral of legislative competence (to both the state and the regions), influenced by the principle of subsidiarity, with the 2001 reform of Title V of the Constitution, the subject 'protection of the environment, ecosystem and cultural heritage' has been included in the matters of exclusive state legislative power referred to in Article 117, paragraph 2s, while the 'enhancement of cultural and environmental heritage' is included in the areas of the concurring legislation referred to in Article 117, paragraph 3; in the last paragraph, there are also some matters whose regulation might interfere with the environmental one.
However, in relation to the exclusive competence of the state, the position of the Constitutional Court was not particularly innovative in the initial period after the reform; the interpretative orientation was in favour of admitting the intervention of the regions also in the field of environmental protection,3 framing the latter not so much as a matter in itself, but as a transversal value to be respected in legislation both at central and at peripheral level. Subsequently, however, the prevailing and established interpretation was to recognise the environment as a matter of exclusive state competence, which also sets itself as a limit for the discipline of regional competence that can only be incremental and not in opposition to the state-level discipline (see, most recently, Constitutional Court, 13 March 2019, No. 44. See also No 77/2017, No. 83/2016, No. 109/2011, No. 341/2010, No. 23/2009 and No. 300/2013).
Concerning the distribution of purely administrative functions, by virtue of their decentralisation towards the regions and local authorities, the state has only tended to retain the power to issue general measures.
At a central level, the governing body responsible for environmental issues is MATTM, which acts both as a regulator for the sector, through ministerial decrees and the release of guidelines, and as an enforcer, having for example an active procedural legitimacy in the field of environmental damage (Article 311 Environmental Code). Additionally, the Ministry avails itself, in the exercise of its powers, of the assistance of the High Institute for Environmental Protection and Research, a public research body.
On the other hand, at a peripheral level, each region has a Regional Environmental Protection Agency, a technical advisory body that carries out cognitive and preventive activities.
Enforcement is structured around three different types of liability; administrative, civil and criminal, which have an increasing degree of intensity and pervasiveness. Even if the choice of which regime and sanction to combine with the violation of a specific environmental regulation belongs to the Legislator, the latter encounters, as a limit, the principle of ne bis in idem, according to which a subject cannot be exposed to proceedings more than once for the same topic, with the simultaneous application of legal penal sanctions and administrative sanctions (which can be considered substantially penal).
The rules that underpin environmental protection and that come into play in this particular matter are the 'polluter pays' principle,4 whereby environmental damage can be borne using the subjective criterion, as well as the precautionary5 and preventive6 principles, which share the anticipatory nature to the occurrence of the event-damage.
However, it has to be highlighted that the regulation on environmental damage contained in Part VI of the Environmental Code establishes an objective liability for damage caused by operators carrying out any of the activities listed in Annex 5 and a liability based on the ascertainment of intentional wrongdoing or negligence in the case of all other activities (Article 298-bis, Environmental Code).
To compensate for environmental damage,7 the Environmental Code has envisaged two separate and alternative legal instruments (Article 315, Environmental Code), both of which can be activated by the MATTM, which has the choice of which one to use.
In particular, Article 311 of the Environmental Code regulates the claim for damages (which need to be compensated by a specific reparation)8 that may be brought by the MATTM9 in civil or criminal proceedings. Alternatively, the MATTM may decide to activate the procedure set out in Article 312 et seq.: if environmental damage has been ascertained and the person responsible has not activated the process of remediation and restoration or the procedures of prevention and restoration, following the preliminary investigation, the public authority may order polluters to restore the environment by means of an immediately enforceable order with a time limit within which to do so (Article 314, Environmental Code).
With regards to criminal liability, Law No. 68 of 2015 introduced the Title VI-bis 'Of Crimes Against The Environment' in the Criminal Code.10 These rules are complementary and supplementary to those providing for criminal sanctions within the Environmental Code.
V REPORTING AND DISCLOSURE
Legislative Decree No. 254 of 2016 introduced the legal obligation to draw up and publish a non-financial statement also including, among the issues to be covered, the environmental sphere.
Specifically, the companies that are subject to this requirement are the 'entities of public interest', defined in Article 16 of Legislative Decree No. 39 of 2010,11 which also must possess certain size characteristics.12 From a perspective of corporate social responsibility, it should be noted that persons other than those indicated in the decree can still decide to proceed with the drafting of the statement and that the scope of this decree coincides with the financial sector, which significantly reduces the positive effect on the environmental issue.
The non-financial statement is 'to an extent necessary to ensure the understanding of the company's activities, its performance and results and impact. In addition to this, it covers environmental, social, personnel-related, human rights and the fight against active and passive corruption issues, which are relevant in view of the company's activities and characteristics.'13 A description of the company's model of management and organisation of activity as well as the company's policies and the main generated risks incurred must at least be included. In context of these issues, the company must report on: (1) the use of energy resources, distinguishing between those produced from renewable and non-renewable sources, as well as the use of water resources; (2) greenhouse gas emissions and polluting emissions into the atmosphere; and (3) the impact, where possible on the basis of realistic assumptions or scenarios even in the medium term, on the environment and on health and safety associated with the risk factors indicated.14
The Environmental Code also contains some disclosure duties: for example, in the case of contamination of land, you must notify the territorially competent region, province and municipality.15
VI ENVIRONMENTAL PROTECTION
i Air quality
According to Article 269 of the Italian Environmental Code (Legislative Decree, No. 152 of 2006), plants that produce polluting emissions are subject to an authorisation system on the grounds of limit values set by the law. The law defines air pollution as every air modification caused by the emissions of pollutants, which create health and environmental damage. Therefore, the definition makes the authorisation systems mandatory only for plants that produce atmospheric emissions. The plants that could potentially generate emissions, but do not actually produce them, are exempt (see Supreme Court, Criminal Section III, 14 February 2011, No. 5347; Supreme Court, Criminal Section III, 11 October 2006 No. 40964).
The Environmental Code provides two alternative approaches to obtain an emission permit: the ordinary and the simplified procedure. The former generally applies to all plants, unless expressed otherwise. It consists of three stages: (1) application for the permit; (2) preliminary investigation; and (3) decision and verification. The competent authorities grant this permit with a validity of 15 years. The simplified procedure applies to particular types of plants (i.e. plants with reduced atmospheric pollution) as expressed in Article 272 of the Environmental Code. They must submit an application to the Competent Authority at least 45 days before the commencing of activity. After 45 days, this general authorisation becomes effective. The plants that are subject to integrated environmental authorisations are exempted from said procedures due to being the mentioned specific emissions permit included in the same AIA/IPPC.
The regulation of the limit value of emissions provides three different levels: at national level, Annex I of Part 5 of the Environmental Code indicates a maximum and minimum value; at a regional level, Article 271, paragraph 3 explains that the region can expect, on the basis of the best techniques available,16 emission limit values of between the maximum and minimum values established by the aforementioned annex. The third level depends on the national or regional emission plans. In any case, on the basis of these parameters, the competent authority is to issue the provision that establishes the emission limit values.
Article 272 paragraph 7 recognises the power of the administration in the establishment of the authoritative measure of limit values and prescriptions as being more severe. The exercising of such power, however, must be based on reasons connected to the protection of air quality, which emerged during the preliminary investigation (TAR Torino – Piemonte, Section I, 29 June 2012, No. 782; TAR Milano – Lombardia, Section IV, 2 May 2018, No. 1172; TAR Brescia – Lombardia, Section I, 14 September 2016, No. 1197).17
The code in Article 278 recognises the release of specific authorisation powers in the case of compliance with the prescriptions that come as part of the authorisation to the competent authority. In particular, the authorisation can adopt mere warning measures, with the assignment of a deadline to eliminate non-compliance and, in the case of reiteration of irregularity, it can also impose the closure of the plant. The application of criminal sanctions remains unaffected.
ii Water quality
The regulations on 'protection of water from pollution and management of water resources' are contained in Part III of the Environmental Code; they are similar to those on air protection, since they are also based on an authorisation system. The influencing criteria of the discipline are: (1) to prevent and reduce pollution and carry out the reclamation of polluted water bodies; (2) to achieve the improvement of the state of the waters and enforce adequate protection of those intended for particular uses; (3) to pursue sustainable and lasting uses of the water resources, with priority given to drinking water; (4) to maintain the natural self-purification capacity of water bodies and the capacity to support large and well diversified animal and plant communities; (5) to mitigate the effects of floods and droughts; and (6) to prevent further deterioration, protect and improve the status of aquatic ecosystems, terrestrial ecosystems and wetlands directly dependent - in terms of water needs - on aquatic ecosystems (Article 73, paragraph 1, Environmental Code).
The general principle is that every discharge must be authorised in advance (Article 124, paragraph 1, Environmental Code); in this way, a posthumous authorisation or the mechanism of the tacit consent is directly excluded by the normative data.
The authorisation, which must take into account the capacity of the receptor body not to undergo any deterioration, is issued to the holder of the activity from which the discharge originates (Article 124, paragraph 2, Environmental Code). The prevailing case-law finds in this requirement the need for the authorisation to be issued intuitu personae.18
For the same reason, some criminal judges identify the criminal offence of discharge without authorisation as a reato proprio, namely, an offence committed by the individual holder of the activities or by the manager or operator of the purification plant.
This personalistic approach is contrasted with the consideration that the legislative provision does not have the function of certifying the suitability of the subject requesting the authorisation, but rather of verifying that the discharge is in conformity with the provisions set forth for the protection of this particular environmental medium (see Supreme Court, Criminal Section III, 23 January 2019, No. 11518).
The procedures could differ in terms of both the characteristics of the substances (which may be both ordinary or dangerous) and the origin of the discharges (which may be both industrial19 or domestic).20 Generally, the authorisation must be issued by the competent authority within 90 days of receiving the application (Article 124 paragraph 7, Environmental Code) and is then valid for four years, with the possibility of renewal, which must be requested at least one year prior to the expiration date (Article 124 paragraph 5, Environmental Code), amendments to the authorisation may be adopted here (see TAR Perugia – Umbria, 13 July 2006, No. 354).
In the case of a substantial variation, the authorisation procedure must be renewed, whereas for other modifications, notifying the competent authority is sufficient (Council of State, Section IV, 5 November 2018, No. 6245). The changes that constitute a substantial variation are identified in Article 124 paragraph 12 as: (1) the different positioning of the discharge; (2) the change in its intended use; (3) the extension or improvement of the establishment; and (4) the qualitative and/or quantitative diversity of the discharge.
Article 101, paragraph 5 states that emission limit values may under no circumstances be achieved by dilution with water taken solely for this purpose.21 On this point, in light of the previous legislation, a jurisprudential debate had developed, but, in light of the new normative dictation, it seems clear that the Article no longer differentiates between dangerous and not dangerous substances.22 A consequence of this principle is the rule that sampling to check compliance with table limits must take place before the wastewater flows into that of other drains.23
The regulation regarding the usage of chemical substances is almost uniform throughout Europe as it is contained in the REACH (Registration, Evaluation and Authorisation of Chemicals: Regulation No. 1907 of 2006). The explicit aim of these rules is to protect human health from the risks arising from the use of hazardous substances, although there is still the necessity to ensure the free movement of goods and the competitiveness of industry.
This directly applicable legislation requires companies to register the produced and imported chemicals; in fact, the two principal stages of the process outlined in REACH are registration and authorisation.
At European level, the agency responsible for managing the database of chemicals and carrying out controls is the European Chemicals Agency while the Ministry of Health, which coordinates the control activities provided by the regulation carried out by Regions, is the competent public authority at national level.
Additional to the REACH regulation is the CLP regulation, which combines the rules for the classification, labelling and packaging of chemicals and of mixtures (Regulation No. 1272 of 2008).
iv Solid and hazardous waste
The initial section of part IV of the Environmental Code regulates the waste management which, according to Article 177, constitutes activity in public interest (see TAR Bari - Puglia, Section II, 4 March 2019, No. 342). In this regard, Article 178 expressly refers to the principles of sustainability, proportionality, and cooperation to be applied to the subjects involved – alongside the European principles of precaution, prevention and the 'polluter pays' – specifying that the criteria of effectiveness, efficiency, economy, transparency, technical and economic feasibility need to be respected, as well as compliance with current regulations regarding participation and access to environmental information. Article 179 also expressly prescribes the hierarchy in the waste cycle. In particular, having the best environmental option as reference, the order of priority is determined by the following terms: (1) prevention (Article 183, paragraph 1.m, Environmental Code); (2) preparation for reuse (Article 183, paragraph 1.q, Environmental Code); (3) recycling (Article 185, paragraph 1.u, Environmental Code); (4) some other kind of reuse (Article 183, paragraph 1.t), such as the reuse of energy (Article 182, paragraph 1); and (5) disposal (Article 182, paragraph 1). The legislation is primarily motivated by the need to ensure sustainability and seeks, above all, to prevent a product from becoming waste 'prematurely', establishing prevention as a priority for this purpose (see TAR Bari – Puglia, Section II, 4 March 2019, No. 342).
An extensive liability of the producer regime has been introduced by the European Legislator in Article 8 of the Directive No. 98 of 2008 (transposed in the national legislation in Article 178-bis of the Environmental Code) and then better specified in the context of the circular economy (Directive 2018/851). It is a coinciding liability with the one expressed in Article 188 of the Environmental Code and the ones provided for specific products. By allowing internalisation in the business activity of costs related to the end of the product's life, the producer who would want to remain competitive in the market must invest in a longer duration of use for its products. However, this structure carries both the risk that this will ultimately weigh on the consumer and the risk of the distortion of competition.
According to Article 188 of the Environmental Code, the initial producer of waste (Article 183 paragraph 1.f, Environmental Code) and any other holder24 shall remain responsible for the entire disposal or recovery cycle, meaning whoever gives their waste to others must make sure that operations are carried out correctly. The mentioned subjects are exempt from liability in the cases of:25 (1) following the transfer of waste to the public collection service by agreement and (2) following the transfer of waste to persons authorised to carry out recovery or disposal activities, provided that the producer is in possession of the form referred to in Article 193 signed and dated upon arrival by the consignee within three months of the date of transfer of the waste to the transporter, or upon the expiration of the aforementioned deadline, the province was notified of the failure to receive the form.
In addition, those involved in the transport, recycling and disposal of waste must provide financial guarantees.26
Waste ceases to be waste and obtains the classification of 'product' (or of 'secondary raw material') when it has undergone a recovery process. Article 184-ter provides some specific conditions that must be met: (1) the substance or object is commonly used for specific purposes; (2) there is a market or demand for that substance or object; (3) the substance or object meets the technical requirements for the specific purposes and complies with existing standards applicable to products; and (4) the use of the substance or object will not lead to overall adverse environmental or human health impacts.
In the previous regime, the MATTM had delegated to the regions the power, in the absence of Community or ministerial regulations, to define, on a case-by-case basis (with reference to the types of waste), the criteria for the end of the waste status, but the Council of State later recognised that only the central authority can govern on this matter.27 Recently, the 'Sblocca-cantieri' Decree (Decree-Law, 18 April 2019, No. 32, converted into Law No. 55, 14 June 2019) modified Article 184-ter paragraph 3: Regions will be able to issue authorisations only with reference to the criteria contained in the Ministerial Decree dated 5 February 1998 and also the Ministerial Decrees No. 269 of 2005 and No. 161 and no longer on a case-by-case basis; for the purposes of coherence, the MATTM must also issue guidelines on the subject.
v Contaminated land
As is the case with other environmental media, the discipline of land protection has as its main source the Environmental Code. The system is intended, on the one hand, to ensure land protection through preliminary investigation, planning, programming and implementation,28 on the other, however, it provides for a remediation procedure in the event of pollution (Article 242 of the Environmental Code).
Firstly, it is necessary to limit the subject area of the discipline, which is outlined by the Legislator with a series of definitions expressed in Article 240 of the Code. The state of the contamination of a site occurs when the threshold contamination risk value (CSRs)29 are surpassed, determining the obligation of securing the site and the obligation of remediation. Such CSRs, therefore, represent the acceptable limits of concentration values, and thus they also represent the objectives to be pursued through the remediation activity. The state of contamination is associated with the notion of damage-consequence, as there is contamination when there is a change in the environmental media, which is identified with concrete suitability to determine harmful effects on human health. Conversely, the surpassing of the threshold contamination values (CSCs),30 only gives rise to the necessity of characterising and analysing the specific potential risks of the site. The operations of characterisation and risk assessment allow for the site's state to be determined, having CSRs as point of reference.
As for the subjective profile, the regulation is inspired by the abovementioned 'polluter pays' principle, according to which the reparation measures can be imposed to those responsible: the public authority can allocate its measures to polluters, first certifying31 the causal link between the conduct and the damage made to the site.32 Despite this, the position of the innocent landowner, who is obliged to notify the public administration about the existence of pollution, presents some critical profiles. In fact, administrative praxis and judges (among which – in 2017 – the European Court of Justice) have borne some obligations also to innocent landowners, by virtue of just owning the site.33
VII CLIMATE CHANGE
Italy is also very politically committed from the point of view of foreign policy and is a signatory to several international agreements. For example, with Law No. 204 dated 4 November 2016, Italy ratified the Paris Agreement linked to the United Nations Framework Convention on Climate Change, adopted in Paris on 12 December 2015. The purpose of this agreement is: (1) to ensure the increase in the global average temperature remains well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognising that this would significantly reduce the risks and impacts of climate change; (2) to increase the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; (3) to make finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development (Article 2 of the Paris Agreement).
The Ministry of Economic Development, the Ministry of the Environment and Protection of Land and Sea and the Ministry of Infrastructure and Transport have prepared the 2030 National Integrated Plan for Energy and Climate, which is considered an intermediate step towards a deep decarbonisation of the nation that should take place by 2050. The plan, whose consultations with stakeholders in the sector were closed in May 2019, aims to rationalise the economic transformation in a perspective in which environmental objectives are pursued, to promote in particular decarbonisation, circular economy, efficiency as well as rational and fair use of natural resources. Said action provides for the adoption of horizontal (e.g., the integration of new technologies) and sectoral (e.g., policies for the promotion of renewable energy) measures.
On 10 October 2019, the Council of Ministers unanimously approved the 'Climate Decree', which adopts urgent measures to conform with the European Directive 50/2008 concerning air quality. The Decree establishes both an inter-ministerial commission for fighting climate change and promoting air quality as well as limited bonuses and incentives for those who behave consciously of environment and sustainability. New features include measures to increase sustainable mobility, funds for reforestation of metropolitan cities and for the creation of green corners in shops where products without plastic packaging are sold, and measures to improve the remediation of illegal landfills and water purification. However, the most relevant measures, for example, the reduction of environmentally harmful subsidies, initially contained in the decree, should instead be included in Budget Law 2020, which will be discussed and approved imminently.
VIII OUTLOOK AND CONCLUSIONS
The environment is currently very much under the spotlight and taken into account in Italian social context and has, therefore, been the focus of public debate in recent months. Consequently, several proposals are being worked on in Parliament and the MATTM has been extremely active in leading refinement of protection models and the path towards a more ecological society (with particular attention also to the implementation of the European plastic-free policy).
First and foremost, it is worth remembering that in the Senate, in the Committee on Constitutional Affairs, a constitutional draft legislation concerning the environmental matter has been introduced. The proposal is to insert a last paragraph in Article 9 of the Constitution, which would provide an explicit constitutional basis for environmental protection.34
On the subject of End-of-Waste status and circular economy, it has been proposed to add to the conversion law of the 'Business Crisis' decree law, which would again allow the Regions to authorise the cessation of the qualification of waste on a case-by-case basis, in compliance with Directive No. 98 of 2008. This amendment would bring the situation back to the level prior to the Council of State's decision on the matter.
The 'Green New Deal', which is deeply wanted and promoted by the MATTM, also includes both the 'Salvamare bill', which aims to protect the sea from plastic pollution, and the 'Cantierambiente bill', which aims to rationalise measures to combat hydrogeological instability by providing a list of infrastructure projects and interventions.
On the whole, the conclusion that can be drawn is that our legal system is gaining greater awareness of the Environment and thus both the Italian legislator and the relevant public authorities are turning their attention to many aspects connected with this matter worthy of protection and to more detailed regulation, including appropriate sanctions.
1 Andreina Degli Esposti is founding partner at Studio Legale Villata Degli Esposti e Associati – VILDE.
2 MS Giannini, Ambiente: Saggio sui diversi suoi aspetti giuridici, in Riv. trim. dir. pubbl., 1973, 1, 15 e ss..
3 Constitutional Court, 26 July 2002, No. 407: not all the material areas specified in the second paragraph of Article 117 can, as such, be categorised as 'matters' in the strict sense, since in some cases, they are more precisely the competences of the state legislator that can invest a plurality of matters (see Judgment No. 282 of 2002). In this sense, the legislative evolution and the constitutional jurisprudence lead to the conclusion that a 'matter' can be identified in the technical sense as 'environmental protection', since it does not seem to be configurable as a strictly circumscribed and delimited sphere of state competence, since, on the contrary, it invests and inextricably intertwines with other interests and competences. In particular, from the jurisprudence of the Court prior to the new formulation of Title V of the Constitution, it is easy to derive a configuration of the environment as a constitutionally protected value, which, as such, outlines a sort of 'transversal' subject matter, in relation to which different competences are manifested, which can be regional, and the State is responsible for the determinations that respond to needs worthy of uniform discipline throughout the national territory (see also judgments No. 507 and No. 54 of 2000, No. 382 of 1999, No. 273 of 1998).
4 TAR Roma, (Lazio), Section II, 19 June 2018, No. 6864: the administration cannot attribute the responsibility of the polluting phenomenon to a subject without prior proof of intentional wrongdoing or gross negligence on the part of the person allegedly responsible; being extraneous to the system, in line with the well-known Community principle of the 'polluter pays', any form of acceptance of polluting events as an objective liability.
5 TAR Roma, (Lazio), Section II, 26 November 2018, No. 11460: the precautionary principle presupposes the existence of a specific risk following as complete an assessment as possible, carried out in light of the most reliable data available, and which must result in a judgment that the measure is strictly necessary.
6 TAR Venezia, (Veneto), Section III, 7 May 2015, No. 493: the precautionary and preventive principles make it legitimate to take a forward-looking approach to environmental problems on the basis that many damages caused to the environment can be irreversible in nature. In order to prevent the risk of such damage occurring, the precautionary principle legitimises the adoption of measures to prevent, repair and counteract a stage in which not only has the damage not yet occurred, but there is also no full scientific certainty that it will occur. In other words, the search for increasingly higher levels of safety leads to a substantial retreat of the threshold of intervention by the authorities to defend human health and its environment: protection becomes 'anticipated protection' and the object of prevention and repair activities become not only the known risks, but also those of which the existence is simply suspected. The prevention principle has common features with the precautionary principle, as both share a nature that anticipates the occurrence of damage to the environment. The principle of prevention differs from that of precaution because it deals with the prevention of damage compared with risks already known and scientifically proven relating to behaviour or products for which there is full certainty about their danger to the environment.
7 Supreme Court, Civil Section III, 4 April 2017, No. 8662: the notion of environmental damage includes, in addition to damage, in the sense of the loss of a quality of the resource, deterioration, i.e. deterioration in the quality of the resource, destruction, i.e. the definitive loss of the entire environmental resource concerned, as well as alteration of the resource itself.
8 The compensation by payment of monetary value has been removed from the legal order with the Law 97/2013.
9 Constitutional Court, 1 June 2016, No. 126: the need for unity in the management of the 'environment' asset cannot be overridden by the compensation phase. Although it certainly cannot be qualified as administrative, it constitutes its natural completion, being aimed at guaranteeing the institution responsible for the restoration the availability of the necessary resources, resources that have precisely this specific and exclusive destination.
TAR Napoli, (Campania), Section VII, 3 May 2018, No. 2965:
under Article 311 of Legislative Decree 152/2006, the only party entitled to claim compensation for so-called environmental damage is the State, in the person of the Minister of the Environment. According to constant jurisprudence, the other subjects - among which the environmental associations - are entitled to take legal action only to obtain compensation for a further and concrete pecuniary and non-pecuniary damage, consequent to the injury of their particular rights, other than the public interest in the protection of the environment, even if deriving from the same harmful conduct.
10 Supreme Court, Criminal Section III, 18 June 2018, No. 29901: it seems that, even after a brief examination of all the provisions referred to in Part VI-bis of the Criminal Code, the legislator intended to refer to the broader meaning of environment, the unitary one, not limited by an exclusive reference to natural aspects, but also extended to the consequences of human intervention, highlighting the correlation between the purely environmental and cultural aspects, thus considering not only the environment in its original and natural form, but also the environment as a result of the transformations carried out by man and worthy of protection.
11 Article 16 Legislative Decree No. 39 of 2010: the following are public-interest entities: a) Italian companies issuing securities admitted to trading on regulated Italian and European Union markets; b) banks; c) insurance companies referred to in Article 1 paragraph 1.u of the Private Insurance Code; d) reinsurance undertakings referred to in Article 1 paragraph 1.cc of the Private Insurance Code, with head office in Italy, and branches in Italy of non-EU reinsurance undertakings referred to in Article 1 paragraph 1.cc-ter of the Private Insurance Code.
12 Article 2 Legislative Decree No. 254 of 2016: entities of public interest shall make a declaration in accordance with Article 3 for each financial year if, during the financial year, they had, on average, more than five hundred employees and, at the balance sheet date, they have exceeded at least one of the following two size limits: a) balance sheet total: €20 million; b) total net revenues from sales and services: €40 million. Entities of public-interest which are parent companies of a large group shall make a declaration for each financial year in accordance with Article 4.
13 Article 3 Legislative Decree No. 254 of 2016.
15 Article 304, paragraph 2, Environmental Code: the operator must notify the Municipality, Province, Region or Autonomous Province in whose territory the damaging event is expected to occur, as well as the Prefect of the province who will inform the Minister of the Environment and Territorial Protection within the next twenty-four hours, prior to the interventions referred to in paragraph 1. This communication must concern all the relevant aspects of the situation, and in particular the generality of the operator, the characteristics of the site concerned, the environmental matrices presumably involved and the description of the interventions to be carried out. The communication, as soon as it is received by the municipality, immediately empowers the operator to carry out the interventions referred to in paragraph 1. If the operator does not provide for the interventions referred to in paragraph 1 and for the communication referred to in this paragraph, the control authority or in any case the Ministry of the Environment and Protection of the Territory shall impose an administrative fine of no less than EUR 1,000 nor more than €3,000 per day of delay.
Supreme Court, Criminal Section III, 21 February 2017, No. 12388: Article 304 of Legislative Decree No. 152 of 2006 provides precise indications not only on the recipients of the communication, but also on the contents of the same, since, as already mentioned, it must concern, in general, 'all the relevant aspects of the situation' and, in particular, 'the details of the operator, the characteristics of the site concerned, the environmental matrices presumably involved and the description of the interventions to be carried out'. These last pieces of data were evidently considered essential and necessary by the legislator, with the consequence that their absence invalidates the validity of the communication, making it unsuitable for the purpose for which it is intended, making the criminal sanction applicable, while any other omissions, presenting the aforementioned information of primary importance, will be sanctioned if the incompleteness of the communication is such as to frustrate its function. The addressee of the obligation is, as has been explained, the person responsible for the potentially polluting event and not the person who, despite being the owner of the land affected by the event, did not cause it. The offence is also committed when the environmental protection supervisors intervene at the site of the pollution, as this circumstance does not exempt the operator concerned from the obligation to notify the relevant bodies of the prevention and safety measures that he intends to adopt, within 24 hours and at his own expense, to prevent the environmental damage from occurring.
16 BAT is the most efficient and advanced stage in the development of activities and so are their methods of operation indicating the practical suitability of certain techniques for avoiding or reducing emissions.
17 the power of the administrative authority to set emission limits for waste treatment plants that are stricter than those generally provided for by current legislation cannot be called into question (since this power derives directly from the law and respects the precautionary principle); however, the setting of such limits must be the result of an adequate investigation, which must be accompanied by a reasonable and rigorous motivation.
18 Supreme Court, Criminal Section III, 25 January 2007, No. 2877:
such a connection presupposes, in fact, the prior control of the subjective characteristics and qualities of reliability of the requesting company, as a guarantee, of the effective observance of the prescriptions imposed by the law and by the administrative authority in matters of discharges.
19 Supreme Court, Criminal Section III, 10 May 2016, No. 35850 'the concept of industrial waste water covers all waste water from activities that are not strictly related to the prevailing of human metabolism and domestic activities and are not constituted by runoff rainwater'.
20 TAR Roma, (Lazio), Section III, 22 September 2015, No. 11328, 'the regulations entrust the competent body to issue discharge authorisations with the aim of verifying the natural flow rate of the receiving body of water and ascertaining the destination of use of the water resource downstream from the discharge, so as to prevent the state of the receiving from being compromised or worsened by the discharge itself'.
21 TAR Brescia, (Lombardia), Section I, 19 July 2011, No. 1081, 'the prohibition of dilution therefore has the function of preventing any contaminants acquired from the water during the production process from being reduced to the tabular limits through dilution with cooling water'.
22 TAR Torino, (Piemonte), Section I, 13 December 2013, No. 1362, 'the Article contains an opening whose capacity does not seem to be limited to a specific type of discharge. Only in the following does the provision refer exclusively to discharges containing the dangerous substances referred to in Article 101 paragraph 4'.
23 TAR Aosta, (Valle d'Aosta), Section I, 18 September 2013, No. 59: the prohibition of dilution is a fundamental principle in the field of water protection and it is generally recognised that if this were not the case, the possibility of diluting wastewater with a high pollution potential with clean water would make it possible to circumvent the parameters established by the legislator. It follows directly from the prohibition of dilution the obligation to perform the sampling on the discharge of the specific production cycle before the confluence with other discharges in order to avoid the alteration of the values at the outlet of the discharge in the receptor body by dilution.
24 In this case, the notion of detention is therefore equated to that of production.
25 A further hypothesis was represented by joining the SISTRI system, which has no longer functioned since 1 January 2019.
26 Council of State, Section IV, 24 June 2019, No. 4295: the financial guarantees therefore also represent an administrative measure of unquestionable importance in order to make the protection of the environment more effective from the point of view of the availability of the resources necessary to comply with all the requirements imposed for the proper management of the landfill and, simultaneously, all the requirements imposed for the management after the closure of the plant, which requires remediation measures.
TAR Potenza, (Basilicata), Section I, 20 March 2017, No. 229, which asserts that the financial guarantees for the disposal and recovery of waste must be provided at the time of the opening of the facility; TAR Trieste, (Friuli-Venezia Giulia), Section I, 13 January 2016, No. 3, which states that no financial guarantees may be required for closed landfills.
27 Council of State, Section IV, 28 February 2018, No. 1229: the addressee of the power to determine the cessation of the status of waste is, for the Directive, the 'State', which also assumes the obligation to communicate with the Commission. The EU Directive itself, therefore, does not recognise the power of assessment 'case-by-case' to bodies and/or organizations within the State, but only to the State itself, given that the aforementioned assessment can only intervene, reasonably, with reference to the entire territory of a Member State.
28 The main tool for planning in this subject is the 'River Dock plan', which combines the protection of land and water and finds its legal basis in Article 62 of the Environmental Code. It is necessary to note that planning tools in the subject contain the general framework on the situation of territory, guidelines on the treatment to be reserved to the various zones and programme indications, with particular focus on the priority of interventions and uses.
29 CSRs are defined by the code in Article 240, paragraph 1.c) Environmental Code as:
the levels of contamination risk in the environmental media, to be determined case-by-case with the application of the procedure of the site-specific risk analysis according to the depicted principles in attachment 1 to the fourth part of the present decree and on the basis of the results of the characterisation plan.
30 CSCs are defined by the code in Article 240, paragraph 1.b) Environmental Code as:
the levels of contamination in the environmental media that form values above which characterisation of the site and site-specific risk analysis are necessary, as identified in attachment 5 to the fourth part of the present decree.
31 TAR Roma, (Lazio), Section III, 5 July 2019, No. 8970:
the preliminary investigation of a remediation procedure is rigidly scanned by the legislator and is to be above-all carried out in conditions of scientific autonomy leaving then to the decision-making body, the political body or the administrative body, only the responsibility for the choice of the best logistics methods for the concrete operational solutions and the tending of their correct and thorough implementation.
32 Council of State, Section IV, 18 December 2018, No. 7121:
administrative jurisprudence, on the basis of the indications deriving from the EU Court of Justice, excludes the applicability of a criminal approach (focused on the surpassing of 'reasonable doubt'), but rather finding the application for the ascertainment of the existence of a causal link between the industrial work carried out in the area and the contamination of the area itself, the civil criterion of the 'more likely than not'.
33 TAR Roma, (Lazio), Section I, 14 March 2011, No. 2263: the land-owner, although innocent, is not unsusceptible to any involvement in the procedure concerning contaminated sites, being the subject to which, even without responsibility, the obligations resulting from the pollution are charged (and this is only because he is the landowner). Therefore, the landowner themselves might be made the recipient of the duty to implement the necessary interventions, except for subsequent recourse against the liable person.
34 The new paragraph would be: the Republic protects the environment and the ecosystem, protects biodiversity and animals, promotes sustainable development, also in the interest of future generations.