The Environment and Climate Change Law Review: Italy
Environmental law in the Italian legal system has, over time, undergone a deep transformation owing to, first, the very concept of 'environment' evolving in the socio-economic context, and, second, the development of regulatory, administrative and institutional environmental protection tools on a national, European and international scale.
According to the first profile, an anthropocentric perspective characterised the initial phase, with the environment intended primarily as a resource – to be protected, therefore, as an instrument – while a different approach has recently emerged of 'whole ecology' aimed at conceiving the environment as a legal asset in itself, not just in relation to the direct and immediate economic benefits that can be drawn from it.2
This transformed understanding of the environment has resulted in a progressive but deep changing of environmental legislation and of the related protection tools. In fact, Italian legislation was initially characterised by a sectorial discipline limited to some traditional areas of environmental law, whereas today we are increasingly faced with a normative body characterised by effective systematicity and pervasiveness.
Even on the administrative level, alongside the traditional means of command and control – including authorisations, planning and multi-level programming of multiple public bodies and institutions – there are now new market-based tools (such as tax incentives, special taxes, subsidies, agreements, systems of negotiable permits, environmental labelling regulations, licences and property rights) capable of moving the choices and behaviour of consumers, economic operators and, generally, the community in order to achieve the environmental protection objectives set at national, European and international level.
From these brief premises, it is clear how the understanding of environmental matters requires not only knowledge of the legislation and of the most recent national jurisprudence, but also a careful examination of the 'future perspectives' identified by the guidelines for environmental policies, all of which are constantly changing.
Currently, the Ministry of the Environment and the Protection of the Territory and the Sea (MATTM), responsible for the definition of environmental policies and related objectives, has identified – consistent with national and European legislation and the constraints accepted by Italy at the international level – six major key challenges to be addressed in the coming years:
- the fight against climate change;
- the preservation of biodiversity through the promotion of water as a communal need;
- soil protection, with particular attention to hydrogeological risks;
- the prevention and fight against environmental damage, including that of criminal relevance;
- the circular economy; and
- the prevention of infringement procedures activated by the European Union.
Italian environmental legislation, depending on the area and level of protection, is dictated both by state and by regional regulatory sources.
In particular, the Italian Constitution expressly recognises:
- the 'protection of the environment, ecosystem and cultural heritage' as a matter of exclusive competence of the state legislation (Article 117, Paragraph 2, letter s)3; and
- the 'enhancement of cultural and environmental assets', 'health protection' and 'territorial governance', as 'concurrent matters', i.e., governed by both the state legislation and that of the regions (Article 117, Paragraph 3).
However, it should be noted that in recent years, the Italian Constitutional Court, owing to the cross-cutting nature of environmental law, admitted the possibility for the regions to intervene also in the matter of exclusive competence of environmental protection, but only in terms of improvement and never in contrast with the discipline provided for at the state level (see, most recently, Constitutional Court, 8 July 2020, No. 134. See also No. 44/2019, No. 77/2017, No. 83/2016, No. 300/2013, No. 109/2011, No. 341/2010, No. 23/2009 and No. 407/2002).4
For their part, state and regional regulations are bound to respect the principles and European legislation regarding the environment (see Articles 191–193 Treaty on the Functioning of the European Union (TFEU)), which had and continue to have a significant impact on Italian legislation (see Article 117, Paragraph 1 of the Constitution) and this both negatively – in particular, with regard to the definition of minimum standards and mandatory common principles – and positively, in determining common objectives and stimulating the relaunch of environmental policies at the national level,5 whereas today, most of the national legislative production is just a transposition of the European one.
The main source of national legislation is the Environmental Code (Legislative Decree No. 152 of 3 April 2006). It is divided into six parts concerning:
- general principles and common provisions;
- Strategic Environmental Assessment (VAS), Environmental Impact Assessment (VIA) and Integrated Environmental Authorisation (IPPC) procedures;
- soil protection, desertification prevention, protection of water from pollution and management of water resources;
- waste management and remediation of contaminated sites;
- air protection and the reduction of atmospheric emissions; and
- compensation against environmental damage.
Legislative Decree No. 152 of 2006 underwent numerous and heterogeneous changes,6 which have greatly widened the regulatory framework, often to incorporate European regulatory acts or leanings from jurisprudence on environmental matters.
Courts decisions – and, specifically, the Regional Administrative Courts and the Higher Jurisdictions, the Council of State and the Court of Cassation – have a fundamental role in environmental law, so the operator must know the consolidated leanings and the possible interpretative comparison in compliance with the jurisprudence.
Even the Guidelines play a crucial role in the interpretation of the legislation and in the understanding of the leanings application by the administrations responsible for the exercise of public functions in environmental matters.
Other relevant regulatory sources are:
- Legislative Decree 19 August 2005, No. 195, on public access to environmental information;7
- Legislative Decree 13 August 2010, No. 155 related to air quality (implementing Directive 2008/50/EC);
- the DPR 13 March 2013, No. 59, regulating the Single Environmental Authorisation and the simplification of administrative fulfilments in environmental matters affecting small and medium-sized companies and power plants not subject to the integrated environmental authorisation;
- Legislative Decree 8 June 2001, No. 231, which regulates the liability of companies for crimes committed by their directors in the fulfilment of their business, including some specific sanctions related to the commission of environmental crimes (Article 25-undecies, Legislative Decree 231/2001);
- Legislative Decree 30 December 2016, No. 254, which regulates the disclosure of non-financial information such as the environmental and social performance of certain companies; and
- Legislative Decree 9 June 2020, No. 47, which recently modified and updated the regulations on emissions and contrast to climate change.
As far as the division of administrative functions is concerned, environmental matters have some specificities that can be summarised in three key features,8 which tend to impose a callback of the functions in the application of the principles of administrative subsidiarity and adequacy:
- the size of the phenomena, which often goes beyond single local communities and even transcends national borders;
- the risk of conflict between the public interests of local communities and the general public interest (the Nimby Syndrome, an acronym for 'not in my backyard'), especially regarding the location of plants or strategic works; and
- the technical-scientific complexity of the assessments to be made by the administration, which is hard to delegate to local administrations.
To these common elements is added, particularly in Italy, the complexity of the jurisdiction division, both regulatory and administrative, between the state and the regions owing to the cross-cutting nature of environmental matters, in particular because of its proximity to the matter of 'enhancement of environmental assets' but also 'health protection' and 'territorial governance' (see Article 117, Paragraph 3 of the Constitution).
The subdivision of administrative functions in environmental matters is, therefore, inevitably complex.
At the central level, the governing body responsible for environmental issues is the MATTM, which acts both as a sector regulator, through ministerial decrees and the issuing of guidelines, and as an enforcer; for example, having an active procedural legitimacy in the matter of environmental damage (Article 311 of the Environmental Code). Furthermore, the ministry avails itself, in the exercise of its powers, of the assistance of the Higher Institute for Environmental Protection and Research (ISPRA), a public research body that carries out technical and scientific functions, both for the MATTM and directly, through activities of monitoring, evaluation, control, inspection and management of environmental information.9
At the peripheral level, briefly, the regions in general are responsible for the planning function, the issuance of general acts, the issuance of authorisations for the construction and operation of waste management plants and emissions in the atmosphere, as well as some competences regarding VAS and VIA not reserved to the state. Regional legislation, in turn, delegates extensive administrative functions to the provinces, in particular in the field of environmental control and supervision as well as in the sectors of waste management, water pollution and air pollution.10 Minor and specific competences remain with the municipalities, such as the authorisation of sewage discharges, the issuance of landscape authorisation, the issuance of acoustic remediation plans and noise emission controls, as well as authorisations for the installation of electronic communications.
The current environmental protection system favours the prevention of environmental damage, based on the precaution11 and prevention12 principles (Article 301 of the Environmental Code), since the first objective of the legal system is to forestall the occurrence of the harm-event.
However, once the damage occurs, the legal system acts through sanctions as well as restorative and compensatory instruments.
Specifically, the enforcement is structured around three different kinds of liability – civil, administrative and criminal – which have an increasing degree of intensity and pervasiveness. Although it is the legislator who chooses which regime and sanction to combine with each violation of a specific environmental regulation, he or she encounters, as a limit, the ne bis in idem principle, according to which no legal action can be instituted twice for the same cause of action, with the consequent simultaneous application of criminal and administrative sanctions (which can be considered substantially comparable to criminal ones).
The main rule that underlies environmental protection and that comes into play in this particular matter is the 'polluter pays' principle, 13 whereby environmental damage can be borne according to the subjective criterion.
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,14 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)15 that may be brought by the MATTM16 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.17 These rules are complementary and supplementary to those providing for criminal sanctions within the Environmental Code.
Reporting and disclosure
Today, environmental performance represents for economic operators a qualifying and competitive element of their business, in the context of consumers being increasingly attentive and sensitive to environmental protection and to the purchase of low environmental impact products.
Legislative Decree No. 254 of 2016 provides for the legal obligation to draw up and publish a non-financial statement also including, among the issues to be covered, the environmental field.
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 2010,18 which also must possess certain size characteristics.19 From a perspective of corporate social responsibility, subjects other than those indicated in the decree can still decide to proceed with the drafting of the statement, and 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.'20 A description of the company's management model 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:
- the use of energy resources, distinguishing between those produced from renewable and non-renewable sources, as well as the use of water resources;
- greenhouse gas emissions and polluting emissions into the atmosphere; and
- 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.21
The Environmental Code also contains some duties of disclosure: for example, in the case of contamination of land, the territorially competent region, province and municipality must be notified.22
i Air quality
The fundamental reference legislation on atmospheric pollution at national level consists of:
- Part V of the Environmental Code (Articles 267–298);
- Legislative Decree 13 August 2010, No. 155 (implementing Directive 2008/50/EC), which regulates the assessment and management of the quality of ambient air, defined as 'the external area present in the troposphere, excluding that present in the workplace' (Article 1);
- Legislative Decree 30 April 1992, No. 285 (the Traffic Laws), which governs the pollution produced by vehicular traffic, which is outside of the scope of the Environmental Code; and
- Legislative Decree 9 June 2020, No. 47 on emissions and greenhouse gases, particularly with regard to infrastructures and air transport.
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 based on thresholds set by the law. The law defines air pollution as every air modification caused by the emission of pollutants, which create health and environmental damage. Therefore, the definition makes the authorisation systems mandatory only for plants that produce atmospheric emissions. 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 otherwise provided. It consists of three stages: application for the permit; preliminary investigation; and decision and verification. The competent authorities grant this permit with a validity of 15 years. The simplified procedure applies to specific 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. Plants subject to integrated environmental authorisations (AIA) are exempted from these procedures; in fact, the authorisation relating to emissions is already included in the AIA/IPPC itself.
The regulation of the emission thresholds is divided into three different levels:
- at the national level, Annex I of Part 5 of the Environmental Code indicates a maximum and minimum value;
- at the regional level, Article 271, Paragraph 3 explains that the region can expect, on the basis of the best techniques available (BAT),23 emission limit values between the maximum and minimum values established by the aforementioned annex; and
- the third level depends on the national or regional emission plans.
In any case, based on 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 employment of such power, however, must be based on reasons, connected to the protection of air quality, which emerged during the preliminary investigation (TAR Torino – Piedmont, Section I, 29 June 2012, No. 782; TAR Milano – Lombardy, Section IV, 2 May 2018, No. 1,172; TAR Brescia – Lombardy, Section I, 14 September 2016, No. 1,197).24
Article 278 of the Environmental Code grants the competent authority specific authoritative powers in the event of non-compliance with the prescriptions that come as part of the authorisation. In particular, the authority can adopt mere warning measures, with a deadline within which to eliminate the non-compliance source and, in the case of reiteration of irregularity, it can also impose the closure of the plant, without prejudice to the application of criminal sanctions.
ii Water quality
The protection of water from pollution and the management of water resources is governed by Part III of the Environmental Code (Articles 53–176), which provides for a complex allocation of competences between state, regions, local bodies and sector authorities.
In particular, the rationale for the distribution of regulatory and administrative powers on different levels of government in this sector can be found in the intent to keep at a central level those functions that ensure uniform supervision – thus the determination of methods and common criteria for the cognitive activity, planning, programming and implementation activities, as well as the activity of high supervision and direction – leaving to the regions the regulatory responsibilities and, together with the local authorities, almost all of the administrative activity relating to the protection and use of water (also through the instrumental activity of other public and private bodies operating in the sector, such as basin authorities, reclamation consortia, irrigation consortia, etc.)25.
The guiding criteria of the discipline are:
- to prevent and reduce pollution and carry out the reclamation of polluted water bodies;
- to achieve the improvement of the state of the waters and enforce adequate protection of those intended for particular uses;
- to pursue sustainable and lasting uses of the water resources, with priority given to drinking water;
- to maintain the natural self-purification capacity of water bodies and the capacity to support large and well-diversified animal and plant communities;
- to mitigate the effects of floods and droughts; and
- 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 intu itu personae.26
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 personalised approach hinders the consideration on the basis of which 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 ordinary or dangerous) and the origin of the discharges (which may be industrial27 or domestic).28 Generally, the authorisation must be issued by the competent authority within 90 days of receiving the application (Article 124, Paragraph 7, Environmental Code), is then valid for four years and renewal 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:
- the different positioning of the discharge;
- the change in its intended use;
- the extension or improvement of the establishment; and
- the qualitative 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.29 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.30 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.31
The REACH regulation (the registration, evaluation, authorisation and restriction of chemicals – EC Regulation No. 1907/2006) provides for the common European regulation on the use of chemical substances. The regulation applies in principle to all chemical substances – manufactured, imported, sold, used as such or in mixtures and products – not only to those used in industrial processes, but also those in common use (including cleaning products, paints, substances contained in clothing, furniture, appliances, etc.).32 The identification of a substance as 'of very high concern' precedes the choice of the best risk management option, which may consist of restrictions or mandatory authorisation.
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 produced and imported chemicals; in fact, the two principal stages of the process outlined in REACH are registration and authorisation.
At the European level, the agency responsible for managing the database of chemicals and carrying out controls is the European Chemicals Agency (ECHA), while the Ministry of Health, which coordinates the control activities provided by the regulation carried out by regions, is the competent public authority at the national level.
Economic operators must register in the ECHA central database (CL Inventory) all chemicals they manufacture or import in quantities of one tonne or more per year and are required to identify and manage any risks associated with the substances they manufacture, demonstrating how to use their products safely and informing users of any risk management measures to be taken to ensure safe use throughout the supply chain.
In addition to the REACH regulation, the CLP regulation can be found, 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
At the national level, the basic rules on waste are found in Part IV of the Environmental Code (Articles 177–238), which the corresponding regional regulations are also required to comply with.
In particular, it is possible to distinguish between:
- a general regulation (Articles 177–216) referring to the scope, general principles, waste prevention, definitions, producer responsibility, by-products, the end of waste, waste classification, expertise, service and authorisations; and
- a special discipline (Articles 217–238) regarding some specific kinds of waste and the related consortia (packaging, electrical and electronic equipment, waste deriving from building maintenance activities, tyres, end-of-life vehicles, residues produced by smoke, exhausted oils and fats, etc.) as well as the incineration and co-incineration of waste.
As for the general discipline, the initial section of Part IV of the Environmental Code regulates waste management, which, according to Article 177, constitutes activity in the 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 that are 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, and 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:
- prevention (Article 183, Paragraph 1.m, Environmental Code);
- preparation for reuse (Article 183, Paragraph 1.q, Environmental Code);
- recycling (Article 185, Paragraph 1.u, Environmental Code);
- some other kind of reuse (Article 183, Paragraph 1.t), such as the reuse of energy (Article 182, Paragraph 1); and
- 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 'prematurely' waste, establishing prevention as a priority for this purpose (see TAR Bari – Puglia, Section II, 4 March 2019, No. 342).
An extensive producer liability regime has been introduced by the European legislator in Article 8 of 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 liability that coincides with the one expressed in Article 188 of the Environmental Code and those provided for specific products. By allowing internalisation in the business activity of costs related to the end of the product's life, the manufacturer who would like to remain competitive in the market must invest in a longer service life for its products. However, such a structure carries both the risk that the consumer will ultimately bear the full weight 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 holder33 shall remain responsible for the entire disposal or recovery cycle, meaning whoever gives their waste to others must make sure that operations will be carried out correctly. The mentioned subjects are exempt from liability in the cases of34 following the transfer of waste to the public collection service by agreement, and following the transfer of waste to subjects 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.35
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:
- the substance or object is commonly used for specific purposes;
- there is a market or demand for that substance or object;
- the substance or object meets the technical requirements for the specific purposes and complies with existing standards applicable to products; and
- the use of the substance or object will not lead to overall adverse environmental or human health impacts.
Previously, the MATTM 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-waste status, but the Council of State later recognised that only the central authority can regulate this matter.36 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, according to which 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
In the Environmental Code, it is possible to find, as for other environmental media, the discipline of contaminated land and its protection. The purpose of the system is to guarantee the protection of the territory through investigation, design, programming and implementation;37 furthermore, it also provides (Article 242 of the Environmental Code) for a procedure for the remediation of polluted sites.
First, the scope of the discipline must be correctly framed, as outlined by the legislator with a series of definitions expressed in Article 240 of the Code. A site is considered contaminated when the contamination risk threshold values (CSRs)38 are surpassed, determining the duty to secure the site and to proceed with 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 contamination status 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, exceeding the threshold contamination values (CSCs),39 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 status to be determined, having CSRs as point of reference.40
As for the subjective profile, the regulation is inspired by the above-mentioned 'polluter pays' principle, according to which the reparation measures can be imposed on those responsible: the public authority can allocate its measures to polluters, first certifying41 the causal link between the conduct and the damage made to the site.42 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 charged some obligations also towards innocent landowners, by virtue of the sole possession of the site.43
The fight against climate change is a phenomenon related to air quality and the reduction of anthropogenic emissions into the atmosphere, which, according to the current stage of scientific studies on the subject, affect the progressive increase in the planet's temperature.
The supranational dimension of the phenomenon has made it necessary that, over time, the main regulatory interventions on the subject have been the result of wider international agreements negotiated by states.44
Italy is very politically committed from the foreign policy point of view and is a signatory to several international agreements. 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:
- to ensure the increase in the global average temperature remains well below 2°C above pre-industrial levels and to pursue 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;
- 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; and
- 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 aims to rationalise the economic transformation in a perspective in which environmental objectives are pursued, to promote specifically decarbonisation, circular economy and efficiency, as well as the rational and fair use of natural resources. This 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 to 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 the environment and sustainability. New features include measures to increase sustainable mobility, funds for the 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, such as the reduction of environmentally harmful subsidies, initially contained in the decree, were included in Budget Law 2020, which was approved by the Italian parliament on 27 December 2019.
Lastly, Legislative Decree 9 June 2020, No. 47 – the ETS (Emissions Trading Scheme) Decree – on emissions and fighting climate change45 rewrote the regulation of greenhouse gas emission share trading. In particular, the Decree partially repeals the previous Legislative Decree 13 March 2013, No. 30, and incorporates the changes envisaged for phase IV of the EU ETS system; it radically renews the organisational structure of the ETS Committee, i.e. the competent national authority for the implementation of the provisions of Directive 2003/87/EC and the related implementing acts and delegated acts to support the management of the project activities of the Kyoto Protocol; and it assigns to the MATTM, Directorate General for Climate, Energy and Air, the task of carrying out over 1,200 annual investigative procedures, through the support of the telematic system called ETS Portal, aimed at fixed plant managers and returning operators in the ETS regime.
Outlook and conclusions
In recent years, much attention has been given, in the Italian social context, to the environment and to the problems connected to it.
As a result, in parliament, it is possible to find a large number of different proposals that are being worked on; moreover, the MATTM itself has been extremely active in guiding the refinement of protection models (with particular attention to plastic-free European policies and the circular economy), in an attempt to achieve a greener society.
In environmental matters, it is worth mentioning, first, a draft law for constitutional reform presented in the senate, in the Constitutional Affairs Commission. This draft law aims to insert a final paragraph in Article 9 of the Constitution, which would provide an explicit constitutional basis for environmental protection.46
This proposal, although it has been in the pipeline for some years, has not been translated in a concrete reform yet, but in the 4 November 2020 session, it was re-proposed in the Commission's Select Committee and may eventually see the light.47
As part of the European Green New Deal – the key EU strategy for the next decades in the fields of energy and the environment – the Italian government, with the Economic and Financial Planning Document DEF, approved at the Chamber of Deputies on 29 April 2020, the establishment the Green Fund New Deal, which will have a total budget of approximately €4.2 billion for the period 2020–2023. As required by the 2020 Budget Law, the fund will be fed with the proceeds from the sales of C02 emission allowances and will be used to carry out economically sustainable projects for the decarbonisation of the economy, renewables, circular economy, urban regeneration, sustainable tourism and also investments and innovative projects with high environmental sustainability.
Alongside this, the establishment of a Just Transition Fund (COM (2020) 22) has also been envisaged, amounting to €7.5 billion, which aims to mobilise investment of at least €100 billion between 2021 and 2027 for the regions that are most exposed to the negative repercussions of the transition, if they are still heavily dependent on fossil fuels or industrial processes with a high intensity of greenhouse gases.
To summarise, it appears that, with increasing evidence, our legal system is becoming more aware of the problems related to the environment. This is as a result of the introduction of new measures, such as sanctions and detailed regulations, by the Italian legislator and the competent public authorities, which are now giving great importance to this topic and are directing their attention to all the related issues.
1 Andreina Degli Esposti is founding partner at Studio Legale Villata Degli Esposti e Associati – VILDE.
2 In this new understanding are the reflections on the 'right to the environment of future generations' and the fundamental principle – which today informs the entire environmental matter – of sustainable development, defined for the first time in the 1987 Report of the World Commission on Environment and Development (WCED) of the United Nations as 'development [that] meets the needs of the present generation without compromising the ability of the future generation to meet theirs'. Moreover, references of this kind were already identifiable in the convention relating to the world, cultural and natural heritage adopted by the General Conference of UNESCO on 16 November 1972; the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity, adopted in Rio de Janeiro on 5 June 1992; the Rio Declaration on Environment and Development adopted by the United Nations Conference on Environment and Development on 14 June 1992; the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on 25 June 1993; and the resolutions of the United Nations General Assembly on the protection of the world climate for present and future generations adopted since 1990.
3 In particular, the preparation of the basic rules on environmental protection, the binding regime, the system for the protection of environmental and landscape assets as well as the related sanctioning system fall within this matter of exclusive state legislation.
4 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 can be defined as 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).'
'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 can be defined as 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).'
5 In particular, the TFEU attributes to the European Union concurrent competence in environmental matters (Article 4, Paragraph 2, letter e, TFEU), while allowing Member States, in certain situations, to be able to derogate from harmonisation measures to protect the environment (see Article 114, Paragraph 5 TFEU). Furthermore, it should be considered that Article 193 TFEU clarifies that the protective measures adopted by the European Union 'do not prevent individual Member States from maintaining and taking measures for even greater protection', subject to notification to the Commission and without prejudice to the Treaties.
6 The main ones with 'corrective decrees', Legislative Decree 8 November 2006, No. 284 and Legislative Decree 16 January 2008, No. 4, which greatly innovated the second part of the Code and added some fundamental principles to the first part, such as the 'polluter pays' principle, and, subsequently, with Legislative Decree 29 June 2010, No. 128, which amended the VIA, VAS and IPPC procedures, and Legislative Decree 3 December 2010, No. 205, which transposed Directive 2008/98/EC on waste. Following, among others, Legislative Decree 4 March 2014, No. 46, which amended the regulations on industrial emissions, integrated pollution prevention and reduction, Law 28 December 2015, No. 221 – Environmental provisions to promote green economy measures and to limit the excessive use of natural resources – and Legislative Decree 16 June 2017, No. 104, which modified the VIA regulations in relation to certain public and private projects. Lastly, further changes were made by the DL 16 July 2020, No. 76, Decreto Semplificazioni, which amended the VIA regulations (Articles 19–20) and remediation (Article 242-ter), by Legislative Decree No. 102, regarding the limitation of emissions into the atmosphere of certain pollutants and the reorganisation of the regulatory framework of establishments that produce emissions into the atmosphere, and by Legislative Decree 3 September 2020, No. 116, on waste and packaging.
7 The effectiveness of access to relevant environmental information plays a fundamental role in environmental matters. This certainly applies to public entities in charge of controlling and surveilling activities, but also to private entities (including environmental protection associations, local committees and individual citizens) who intend to acquire such information from public administrations. The environmental interest, in fact, has as its recipients 'indeterminate subjects' – potentially each citizen and the entire community – so the traditional information tools of the work of public authorities must necessarily adapt to this characteristic, allowing the 'social control function' of the environment. The result is, on the one hand, the role of 'active informant' of the public administration, even apart from specific requests relating to concrete phenomenas; and on the other hand, the right to access public administration documents in proceedings aimed at affecting environmental assets, a right recognised 'to anyone who requests it, without having to declare their interest' (Article 2, Legislative Decree No. 195/2005).
8 See. G Rossi, Diritto dell'ambiente, Torino, 2016, 135 ss.
9 ISPRA is also the leading and coordinating body of the Regional Agencies for the Protection of the Environment (ARPA). It cooperates with the European Environment Agency, with national and international institutions and organisations operating in the field of environmental protection.
10 The management of the integrated water service and the urban waste management service are left to the su pra-municipal authorities.
11 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'.
TAR Perugia, (Umbria), Section I, 20 February 2019, No. 79.
12 Council of State, Section IV, 27 March 2017, No. 1392:
'The precautionary principle, of Community derivation, requires (see again recently the EU Court of Justice, section I, 9 June 2016, No. 78) that “when there are uncertainties regarding the existence or extent of risks to the health of the population, protective measures can be adopted without having to wait for the actual existence and seriousness of such risks to be fully demonstrated: the precautionary principle, in fact, far from prohibiting the adoption of any measure in the absence of scientific certainty as to the existence or within the scope of a health risk, may, on the contrary, justify the adoption by the EU legislator of protective measures even if scientific uncertainties remain in this regard.'
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.'
13 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.'
14 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.'
Supreme Court, Civil Section III, 23 March 2019, No. 8468:
'the notion of environmental damage provides any intentional or negligent act in violation of the provisions of the law or provisions adopted under the law that compromises the environment, causing damage to it, altering it, deteriorating it or destroying it in whole or in part, obliges the author of the fact to compensation to the state.'
15 The compensation by payment of monetary value has been removed from the legal order with the Law 97/2013.
16 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 violation of their particular rights, other than the public interest in the protection of the environment, even if deriving from the same harmful conduct.'
TAR Bolzano, (Trentino-Alto Adige), Section I, 20 October 2020, No. 248:
'art. 311 Legislative Decree no. 152/2006, in fact, only gives the Ministry of the Environment the legitimacy to take action for compensation for environmental damage, in a specific form or for equivalent assets. Compensation for environmental damage, understood as an infringement of a public interest in the integrity and health of the environment, is therefore, as now constantly confirmed by the jurisprudence, reserved exclusively to the State through the Ministry of the Environment. The other subjects – including environmental associations – are entitled to take legal action only to obtain compensation for further and concrete pecuniary and non-pecuniary damage, resulting from the infringement of their other particular rights, other than the public interest in the protection of environment, even if deriving from the same harmful conduct.'
17 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'.
18 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'.
19 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.'
20 Article 3 Legislative Decree No. 254 of 2016.
22 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 concerned site, 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 €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 concerned site, 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.'
Supreme Court, Criminal Section III, 20 November 2019, No. 2686:
'art. 304 provides, in paragraph 2, that the prevention and safety measures, to be carried out, pursuant to paragraph 1, when an environmental damage has not yet occurred, but there is an imminent threat to occur, must be preceded “by specific communication to the municipality, the province, the region, or the autonomous province in whose territory the damaging event is expected, as well as to the Prefect of the province, who in the following 24 hours informs the Minister for the environment and territorial protection. communication must concern all the pertinent aspects of the situation, and in particular the general information of the operator, the characteristics of the site concerned, the environmental matrices presumably involved and the description of the interventions to be performed”.'
23 BAT is the most efficient and advanced stage in the development of activities and so are the methods of operation indicating the practical suitability of certain techniques for avoiding or reducing emissions.
24 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.
25 See Constitutional Court, 6 November 2020, No. 231 on the subject of the jurisdiction at the territorial level of the Integrated Water Service.
26 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.'
27 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'.
Supreme Court, Criminal Section III, 3 October 2019, No. 3450:
'industrial waste water is defined as that coming from buildings or installations in which commercial activities or production of goods are carried out, different, qualitatively, from domestic waste water and from rainwater runoff; the notion of domestic wastewater, ultimately, includes all wastewater deriving from activities that do not strictly concern the prevalent human metabolism and domestic activities.'
28 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.'
29 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.'
30 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.'
31 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.'
32 The Reach regulation does not apply to certain groups of substances (for example, radioactive ones, those subject to customs control or waste) as they are subject to specific regulatory regimes.
33 In this case, the notion of detention is therefore equated to that of production.
34 A further hypothesis was represented by joining the SISTRI system, which has no longer functioned since 1 January 2019.
35 Council of State, Section IV, 31 January 2020, No. 843:
'Financial guarantees, pursuant to art. 14 of Legislative Decree no. 163 of 2006 must be provided for the entire life cycle of the landfill (activation, operational management, closure procedures and management after closure). The same must then be commensurate, “to the authorised capacity of the landfill and its classification [ . . . ]” and specifically, as regards management after closure, to the “total cost of post-operational management” (Article 14, paragraph 2 of the Legislative Decree No. 36 of 2003). The provision of financial guarantees (including those relating to the post-closure phase) is a prerequisite for the issue of the authorisation and the operation of the landfill (Article 9, paragraph 2, letter d) of Legislative Decree No. 36 of 2003) as well as the approval of the adjustment plan envisaged by the transitional provisions referred to in the following art. 17.'
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.
36 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 organisations 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.'
37 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.
38 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.'
39 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.'
40 It should be noted that, the DL 16 July 2020, No. 76 – the 'Simplification Decree' – amended Article 252, introducing some simplifications in the remediation procedures in sites of national interest. In particular, an approval procedure is introduced for a preliminary investigation plan agreed with the competent ARPA. Following these preliminary investigations, if it is ascertained that the CSCs have been exceeded, the ordinary remediation procedures are initiated (Articles 242 and 245); if it is ascertained that the level of the CSCs have not been exceeded, the area is restored by notifying the competent Ministry of the Environment, region, province, municipality and ARPA, through a self-certification that concludes the procedure.
41 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.'
42 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”.'
43 Council of State, Plenary Assembly, 22 October 2019, No. 10:
'the remediation of the polluted site can also be ordered against a company not responsible for the pollution, but which took over from it as a result of a merger by incorporation, in the regime prior to the reform of company law, and for conduct prior to when the remediation was introduced into the legal system, the harmful effects of which persist at the time of the adoption of the provision.'
TAR Roma, (Lazio), Section I, 14 March 2011, No. 2263:
'the landowner, 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.'
44 Starting from the United Nations Framework Convention on Climate Change (UNFCCC) of 1992 and the subsequent Kyoto Protocol of 1997.
45 In particular, the new Legislative Decree 47/2020 implements Directive (EU) 2018/410 and is meant for the adaptation of national legislation to the provisions of Regulation (EU) 2017/2392 relating to air transport activities, as well as Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 on the establishment and functioning of a market stability reserve.
46 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.'
47 As of 24 November 2020, the bill appears to be 'under examination in the commission (examination in a select committee)'; www.senato.it/leg/18/BGT/Schede/FascicoloSchedeDDL/ebook/49283.pdf