the emergence of interest environmental protection

PRIMO PIANO

Emanuele Guarna Assanti

The emergence of interest

environmental protection

6 Rivista Marittima July-August 2021

Lecturer in Environmental Law and Public Company Law at Guglielmo Marconi University of Rome. He holds a PhD in PublicLaw from the University of Florence. Second level Master in Environmental Law at Roma Tre University. Law degree, with honours,from Roma Tre University. He was awarded the departmental scientific prize “Prof. Dante Cosi” (2021) for his writings on admin-istrative and environmental law. He works as a lawyer in the Courts of Rome and as a consultant for public administrations.

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“(…) in the last decades between the twentieth and twenty-first centuries, due to widespread environmental pollution andthe depletion of natural resources, a collective awarenessbegan to develop. Starting from the 1960s, this has broughtabout the creation of associations whose central theme is carefor the environment” (Image source: fao.org).

PremiseThe theme of environmental protection, that is of our“common house” (1), is extremely topical, as themain social and, consequently, scientific problem ofrecent times.Even from a legal point of view (2), environmentalprotection is a relatively recent concern. In fact, inthe last decades between the twentieth and twenty-first centuries, due to widespread environmental pol-lution and the depletion of natural resources, acollective awareness began to develop. Starting fromthe 1960s, this has brought about the creation of as-sociations whose central theme is care for the envi-ronment. Therefore, the science of law has alsobegun to deal with this topic that is now deemed ofutmost importance.Attention has been drawn to the fact that environ-mental law constitutes a challenge for jurists (3) asthe (recent) history of environmental law hasdemonstrated the difficulty of applying traditionallegal categories to this “new” concern.In the first place, it may be said that the matter ofthe emergence of interest in environmental protec-tion and its inclusion in the legal sphere has followedthe same path as all the other concerns that have en-tered the world of law. In fact, society’s evolutionhas determined the emergence of new needs and leg-islators gradually take them into consideration tovarying degrees: as protected legal situations (pro-tected to various degrees: we know the legitimateinterest or the subjective right), with organizationalsolutions (for example, the establishment of a publicbody as a centre of interests ascribable to thoseneeds) or with other legal instruments (procedures,agreements, connections).This demonstrates that a need, which can be of var-ious types, is one thing while a legally protectedneed, which occurs only when a provision takes aninterest into consideration and makes it legally rel-evant, is another: therefore, subject to legal protec-tion. In the latter case, the need becomes an interestin need of protection (4). And this was the case forenvironmental law.

The environment as a verbal synthesis of a plurality of interests

According to the prevalent thought, the environmentis an asset that, in and of itself, cannot be protected: inpractice, a mere “verbal synthesis” of multiple interestsand a mere descriptive term.

“Environment” was a generic term, not unitary butdecomposable into individual environmental matrices,and which was taken into consideration, in the numer-ous sectoral laws enacted since the 1920s, in relationto other aspects that were considered legally relevant.

The environment was thus a “territory” to be reg-ulated from an urban and land-scape point of view, as well as theprotection (particularly from pol-lution) of individual natural re-sources (water, land, air, etc.).

This is clearly shown from thesectoral legislation. A few exam-ples include: the establishment ofnature parks starting from 1922 (theGran Paradiso or the National Parkof Abruzzo), the Consolidation billof health care laws of 1934, the lawon the protection of natural beautiesof 1939, the law on the protectionof items of artistic or historical in-terest of 1939 and the urban plan-ning law of 1942.

The distinguished jurist MassimoSevero Giannini (1915-2000) (5) —in his well-known work Ambiente:saggio sui diversi suoi aspetti giuridici (6) — assertsthat the environment is not identifiable as a unitarylegal asset in its own right but, rather, that it can be bro-ken down into different interests:

— the environment which the legislation refers toand the movement of ideas relating to the landscape;

— the environment which the legislation refers toand the movement of ideas relating to the defence ofthe soil, air and water;

— finally, the environment referred to in the legis-lation and in urban planning studies.

According to Giannini, “if we consider the legisla-

tive data, the analysis shows that there is no correspon-dence between the meanings given to the “environ-ment” in each of the three cases”.

In short, there was no “environmental” subject thatwas autonomous and systematic in character, as is alsoevidenced by the first international conventions on thesubject, which were all sectorial and specific in nature.

The environment as a unitary notionThe role of international law and European Union law

Environmental law came about in the internationalarena. In fact, over time we have come to understand (7)

that global problems require solutionswith the self-same extension (8).

Doctrine has typically identifiedtwo phases in the evolution of inter-national environmental law (9). Thefirst is that of “environmental func-tionalism”, which began in 1972with the United Nations Conferencein Stockholm, and is characterizedby a sectoral approach to environ-mental problems. The second is in-stead defined as the phase of“environmental globalism”, whichbegan with the Rio de Janeiro Con-ference in 1992 and is characterizedby an (attempt at) a universal ap-proach to environmental problems.

With the first conference, con-vened by the United Nations GeneralAssembly in Stockholm and dedi-

cated to the “Human environment”, the internationalcommunity began to focus attention on environmentalissues from the point of view of the prevention principle.In fact, the approach adopted is sectoral in nature, thatis aimed at preventing the greatest risks, ensuring envi-ronmental protection through the adoption of interna-tional conventions aimed at regulating specific sectors(for example, the Barcelona Convention on the protec-tion of the Mediterranean Sea, 1976; the Geneva Con-vention on Transboundary Air Pollution, 1979).

With the second Conference, held in Rio de Janeiroand dedicated to the theme “Environment and devel-

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The emergence of interest environmental protection

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Massimo Severo Giannini (1915-2000) was an Italian jurist and politician, minister for the Organ-ization of public administration and for the regionsin the Cossiga I and II government from August 4,1979 to September 28, 1980 (dati.camera.it).

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opment”, an attempt was made at implementing whatemerged from the work of the Brundtland Commission(named after the Swedish Prime Minister who chairedit), the report Our common future. And this is wherethe objective of sustainable development (10) and theprecautionary principle are outlined (11).

An extremely important outcome of the Rio Confer-ence is that of having kick started global environmentalconventions, aimed at involving the international com-munity to solve problems that know no borders (for ex-ample, the 1992 Convention on Climate Change, whichwould later lead to the Kyoto Protocol of 1997; and theConvention on Biological Diversity, 1993) (12).

From the standpoint of multilevel environmentalprotection, immediately after international comes Eu-ropean Union standardization, which is fundamentalfor the member states.

For the Member States, it may well be said that en-vironmental law is a creation of the European legal sys-tem, whose origins can be traced back to the 1970s,although, within the founding treaties of the EuropeanEconomic Community (EEC) there was no mention ofenvironmental protection (13) (moreover, just as is stillthe case for the Italian Constitution) (14).

Based on the initiatives taken from the 1970s on-wards in the international arena, community institu-tions, supported by the Court of Justice (now) of theEuropean Union, began to create the regulatory basesneeded in order to issue regulatory measures on envi-ronmental protection.

Given that the Treaty of Rome did not contemplatethe subject of the “environment” (neither as an exclu-sive subject of the Union, nor as a concurrent subjectbetween the Union and the States) and given the needto respect the principle of attribution (today conse-crated to art. 5 TUE), the necessary legal basis, whichwould be the foundation of the first legislative initia-tives, needed to be identified.

Two tools in particular were used: implicit powersand the principle of subsidiarity.

The former are a veritable legal invention, on thebasis of which it is stated that although the treaty doesnot mention the subject “environment”, however, if itwere deemed necessary to act in order to pursue the ob-

jectives established by the treaty (clearly different fromenvironmental protection and, specifically, concerningthe common market), the Union can also adopt meas-ures concerning environmental protection, if suchmeasures are deemed functional to the achievement ofthe aforementioned objectives. In practice, this is a mit-igation of the principle of attribution, as the EU cantypically act only in matters of exclusive competence.

The principle of subsidiarity, which was subsequentlyincorporated into the internal constitutional system as ageneral principle and not strictly linked to the subject ofthe environment (15), constitutes a criterion for the dis-tribution of competences between territorial entities, ac-cording to which the function must be attributed to the

territorial body that is best suited to managing thatparticular problem. In practice, when adopting a Com-munity act, one must demonstrate that the objective ofprotecting the environment cannot be sufficiently pur-sued at the level of the individual Member States but,on the contrary, can be better pursued at the Europeanlevel (thus art.5 TEU) (16).

Subsequently, the interest in environmental protec-tion was incorporated by primary European law as anindependent interest compared to that of promoting asingle market. This first happened, at the level of thefounding treaties, with the Single European Act of1986, which incorporated the objectives and principlesthat derived from the previous environmental actionprograms promoted by the community (17).

Today, the Treaty of Lisbon (of 2007 and which en-tered into force in 2009) provides, in art. 3, par. 3 that “theUnion shall establish an internal market. It shall work forthe sustainable development of Europe based on balancedeconomic growth and price stability, a highly competitivesocial market economy, aiming at full employment andsocial progress, and a high level of protection and im-provement of the quality of the environment. It shall pro-mote scientific and technological advance”.

The role of European and national jurisprudenceAnother, perhaps the most important, source of con-

solidation of the new environmental vision was the ju-risprudence of the Court of Justice of the EuropeanUnion and, on the heels of this, the national one (18).

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Alongside the formal rules issued by the legislator,which is simply the body authorized to produce generaland abstract rules having a binding nature for all the sub-jects of the legal system, there are rules (rectius: princi-ples) pertaining to judicial law-making, which help toresolve cases not expressly provided for by formal norms.Of particular note is the propulsive role played by ju-risprudence, in the case of environmental law, carried outthanks to the evolutionary interpretation of the rules, oftenof an indeterminate nature, contained in internationaltreaties or in the constitutions of the Member States, andof pre-existing principles (for example the case of theprinciple of proportionality developed by the Court ofJustice on the basis of German judicial experience).

Specifically in this jurisprudential work, general prin-ciples have played (and still play) a fundamental role.These are both the traditional principles of the legal sys-tem (such as good faith), as well as principles extrapo-lated from the provisions and their relationships (forexample, subsidiarity which, as we have seen, arose pre-cisely in environmental matters) or newly-coined princi-ples derived from the specific case (for example the“polluter pays” principle, of European origin,) (19).

For the sake of completeness, the principles inforce on environmental matters, some of whichwould ultimately shape the entire sector of nationaladministrative law (by no means an exhaustive list)are: the principle of subsidiarity, the principle of in-tegration, the precautionary principle, the preventionprinciple, the principle that environmental damageshould as a priority be rectified at source, the pol-luter-pays principle (20).

Some case lawsIt is worth noting how, in the face of the emergence

of environmental awareness, the European Court of Jus-tice and the national courts and the Court of Justice havebegun to deduce the protection of the environment fromalready protected subjective legal positions, related to dif-ferent interests, although contiguous to the environmentalone: for instance property rights or the right to health.

Before moving on to some European and national caselaws, it is interesting to note how all the discussions con-cerning environmental law refer, in principle, to a famous

case resolved by a joint United States-Canada arbitrationcommission: Trail Smelter Arbitration (United StatesUnited vs. Canada), Award of 11 March 1941, in whichCanada’s responsibility for the damage caused by pollut-ing emissions produced by a Canadian foundry to neigh-bouring American farmers was recognized (21).

Two fundamental points, for the purposes of under-standing environmental law, emerge from this jurispru-dential case: firstly, that a polluting fact can lead tolimitations on the activity of a State, which can nolonger use its territory fully and exclusively withoutunderstanding the consequences; secondly, that envi-ronmental phenomena are necessarily transnational andtend to go beyond the borders of individual states (andthis is why the first political moves took place, as wehave seen, at an international level).

In Europe, the first ruling on environmental law isconsidered the Cassis De Dijon judgment of the Courtof Justice, February 20, 1979, C-120/78,.

On that occasion, the European judge identified a se-ries of imperative requirements that justified restrictionson the free movement of goods (in the present case itwas a French liqueur whose circulation had been pro-hibited by Germany) including, in particular, “the pro-tection of public health”, then interpreted extensively asprotection of the environment and the ecosystem.

Another important ruling of the European judge isthe so-called “waste oils” judgement (February 7,


The Trail Smelter dispute was a trans-boundary pollution case involvingthe federal governments of both Canada and the United States, whicheventually contributed to establishing the harm principle in the environ-mental law of transboundary pollution (en.wikipedia.org). Opposite page:the Cassis de Dijon judgement, pronounced by the Court of Justice of theEuropean Union, states that items produced in accordance with the legalregulations of a member state of the European Union can generally besold in other member states (a rule therefore known as the Cassis de Dijonprinciple) - (rts.ch).

1985, case 240/83), where the Court of Justice speci-fied that the directive on waste oils: “Whilst concedingthat a system of approvals is bound to

have a restrictive effect on freedom of trade (...)there is no reason to conclude that the directive hasexceeded those limits. The directive must be seen inthe perspective of environmental protection, which isone of the Community’s essential objectives. It is ev-ident, particularly from the third and seventh recitalsin the preamble to the directive, that any legislationdealing with the disposal of waste oils must be de-signed to protect the environment from the harmfuleffects caused by the discharge, deposit or treatmentof such products. It is also evident from the provisionsof the directive as a whole that care has been takento ensure that the principles of proportionality andnon discrimination will be observed if certain restric-tions should prove necessary” (22).

As for national jurisprudence, it is remarkable that en-vironmental interest was affirmed for the first time bythe Court of Auditors, in terms of compensation for dam-age caused to the environment and natural resources,with judgements no. 39/1973 (later confirmed by theJoint divisions of the same Court, no. 108/1975) relatingto the National Park of Abruzzo and no. 61/1979, regard-ing the so-called Scarlino “red mud” affair.

On these occasions, the judicial auditors were ableto affirm their jurisdiction, as the State holds a directinterest in protecting the environment and its prejudiceconstitutes tax damage pursuant to art. 52 of the Con-solidation bill on the Court of Auditors. This is because“the notion of tax damage did not exclusively includefinancial hypotheses, such as the alteration and dis-ruption of financial statements, or assets, such as the

destruction, theft and damage of state property, or therecovery of sums paid for damaging actions committedby public employees, but also the prejudice to moregeneral interests, of eminently public nature (affectingthe entire category of citizens), provided they are sub-ject to economic evaluation”.

The Court of Cassation continues on this path, withjudgement no. 5172/1979, with which it identified theright to a healthy environment, deducing it from art. 32of the Italian Constitution (23). In particular, the link be-tween art. 32 and art. 2 of the Italian Constitution attrib-utes an additional content to the right to health, whichthe Court specifies in terms of “sociality and safety”. Theright to health, in fact, is presented not only as a mereright to life and physical safety, but as a veritable rightto a healthy environment that not even the public admin-istration can sacrifice or compress (24).

For our purposes, the clarification that “the protectionof health assists man not (only) as he is considered in anabstract and improbable separateness, but as a partici-pant in the various communities - family, housing, work,study and others - wherein his personality unfolds” isparticularly important (25). Therefore, “protection ex-tends to the social life of man in the places of the variousaggregations in which it is articulated and, by reason ofits effectiveness, to the preservation, in those places, ofthe indispensable, or even only propitious, conditions forhis health: in this way it assumes a content of socialityand safety, so that the right to health, rather (or beyond)than a mere right to life and physical safety, is configuredas a right to a healthy environment”.

This first important jurisprudential verdict takes on animportant problematic profile relating to environmentallaw and the techniques for protecting this interest.

The objection to a broad protection of the environ-mental good is that, in this way, protectable subjectivepositions would arise in reference to an asset thatwould appear to be protected only objectively (as aconstitutional value), that is to say an asset for which aspecific, differentiated and exclusive position of a sub-ject would not be configurable, but a mere widespreadinterest (26), that is, referable in the same way and in-differently to an indefinite number of subjects.

With regard to this problematic profile, the civil





judge objected that protection cannot be denied to any-one who is (diversely) interested in relation to an assetfor the sole reason that this does not appear to be at-tributed or attributable to this subject in an exclusivemanner. The perspective according to which there islegal protection only in the case of an exclusive con-nection between an asset and a single individual or apersonified group (27) is conditioned by a patrimonialtype of legality and risks mortifying the constitutionalright to the effectiveness of the judicial protection (Ar-ticle 24 of the Italian Constitution).

Recently, the Constitutional Court of Italy, withjudgement no. 126/2016, adequately summarizedwhat has been stated thus far. In point 5.1. of theConclusions in Point of Law, it states that, althoughthe original text of the Italian Constitution did notcontain the term environment, nor provisions aimedat protecting the ecosystem, the Court with numer-ous judgments had already recognized the “pre-em-inent importance accorded in the ItalianConstitution to the protection of health of the indi-vidual (art. 32) and the protection of the environ-ment in which he lives (art. 9, secondsubparagraph)”, as primary constitutional values.

This is on the heels of what is affirmed by a consol-idated jurisprudence, such as that proposed by the Con-stitutional Court judgement no. 641/1987, which firmlyasserted that the environment constitutes “a unitary in-tangible asset, albeit with various components, each ofwhich can also constitute, in isolation and separately,the object of care and protection; but all, as a whole,can be traced back to units. The fact that the environ-ment can be used in various forms and different ways,as well as being the subject of various regulations thatensure the protection of the various profiles in whichit is expressed, does not diminish and does not affectits nature and substance as a unitary asset that thelegal system takes into consideration”.

The Court specifies that the recognition of the exis-tence of a “unitary intangible asset” is not an end in it-self but a perspective functional to the affirmation ofan increasingly felt need to ensure the uniformity ofprotection that only the State can guarantee, withouthowever excluding the fact that other institutions may

also take charge of the environmental interests of thespecific communities.

Ultimately, the environment is qualified as a “ma-terial and complex asset of life, the object of public in-terest of primary and absolute constitutional value”(thus Constitutional Court 378/2007) (28).

The role of the national legislator: the establishment ofthe ministerial organization in charge of environmentalprotection and the so-called “Environmental Code”

As we have seen, as there was a gradual awakeningof social conscience and an evolution of legal debate,the notion of the environment as a legal asset and anautonomous matter, in need of an overall view and sys-temic protection, gained ground.

Understanding the fundamental point, namely thatthe “environmental problem” is administrative (29),rather than legislative in nature, the first organizationsaimed at its care and the preparation of the first admin-istrative tools designed to protect it were established.

With law of July 8 1986 no. 349, the Ministry of theEnvironment was established for the first time in Italy(since 2006 referred to as: The Ministry for Environ-ment, Land and Sea Protection) (30), without entrust-ing it with new tasks, but transferring to the neworganization competences previously assigned to theMinister for Cultural and Environmental Heritage andto the Ministry of Public Works (concerning, in partic-ular, the fight against pollution of water bodies, wasteand the regulation of national parks) (31).

The general purposes of the new ministerial organ-ization are established in art. 1, paragraphs 2 and 3 ofthe aforementioned law. The first establishes that “it isthe ministry’s task to ensure, within an organic frame-work, the promotion, conservation and recovery of en-vironmental conditions in accordance with thefundamental interests of the community and the qualityof life, as well as the conservation and enhancement ofthe national natural heritage and the defence of naturalresources from pollution”; while paragraph 3 specifiesthat “the ministry carries out and promotes studies,surveys and appraisals regarding the environment; itadopts, with the aid of the media, suitable initiatives toraise public awareness of the needs and problems of

the environment, including through schools, in agree-ment with the Ministry of Education”.

In this way, a unitary centre of interest was estab-lished that made interaction between the individual en-vironmental matrices possible, in order to achieve acommon purpose. And it is precisely this aspect,namely that relating to the possibility of interrelation,which has enabled a change of vision: the environmentfrom synthesis to system: organization, functions andsubjective legal situations interact with each other,forming unitary notions (32).

However, only in 2006 the Italian Legislative De-cree 3 April 2006 no. 152, entitled “Environmental reg-ulations”, was issued with the aim of transposingvarious European directives into internal law and at-tempting to systematize them (33). Unsurprisingly,Italian Legislative Decree 152 is called by sector oper-ators “Environmental Code” or “Consolidated Envi-ronmental Act”: however, it should be noted that thelegislative intent has failed and this body of legislationconstitutes neither one nor the other.

In fact, Italian Legislative Decree no. 152 does notconstitute a Code (such as the civil or criminal code)as it does not deal with the matter in a systematic andorganic way, with a general part and a special part, de-scending from the principles to the disciplines of thesector, in a coherent manner (34).

Secondly, it does not even constitute a consolidationbill, whose function is to rationalize and replace therules envisaged for an entire sector of law, since it doesnot contain the complete regulation of all environmen-tal sectors (for example, noise pollution or single en-vironmental permits are not included).

Furthermore, it should be noted that continuous reg-ulatory changes (35) intervene on the most sensitivesectors of environmental regulations, such as that ofenvironmental authorizations and, in particular, on theEnvironmental Impact Assessment (EIA) and on the

Strategic Environmental Assessment (SEA), attempt-ing to shorten the time for their release and providingfor a procedural simplification in view of the impera-tive that has characterized the administrative legislationfor some decades: bureaucracy reduction. However,these operations, aimed at decentralizing environmen-tal governance, are in contrast with the relevance thatthe objective of ecological transition is gaining.

Characteristics of environmental interest anddifferences as compared with similar notions

In order to legally frame the notion of “environ-ment”, a summa divisio between environment in thestrict sense and environment in the broad sense hasbeen proposed: the latter constitutes the entire terres-trial sphere (and therefore the entire human habitat),while the second concerns all those profiles selected bythe legal system (therefore considered worthy of pro-tection) and which are subject to specific administra-tive competences and subjective legal situations (36).

Secondly, the doctrine has identified the specificitiesof the environmental interest.

First of all, it is an interest that intersects with otheralready protected interests (as we will see, for example,the governance of the territory) and is part of the careof the same, giving rise to transversal skills comparedto those provided for the individual sectors.

Thus the interest is misaligned with respect to thespecific territorial organization that should provide forit: think of the effects of an air or water polluting ac-tivity that extends beyond national borders (37).

An important aspect is the difficulty in identifyingwith certainty the holders of the interest in need of pro-tection. The mechanism based on traditional subjectivelegal situations (right, obligation, authority, duty) doesnot appear adequate or, at the very least, the only one:the problem relating to widespread interests.

This particular character is linked to the considerationthat the dynamism of environmental phenomena under-mines the traditional static nature of legal systems, mak-ing it clear that law is constantly evolving, cannot ignoresocial phenomena and must constitute a point of balancein the tension between static and dynamic.

Finally, it highlights the importance of the time fac-



.“With law July 8 1986 no. 349, the Ministry of the Environment was estab-lished for the first time in Italy (…) without entrusting it with new tasks,but transferring to the new organization competences previously assignedto the Minister for Cultural and Environmental Heritage and to the Ministryof Public Works (concerning, in particular, the fight against pollution ofwater bodies, waste and the regulation of national parks)” (Image source:guardiacostiera.gov.it). Opposite: the logo of the Ministry for Environment,Land and Sea Protection (minambiente.it).

tor, which is a determining element (think of the pol-lution of the territory, reclamation and environmentaldamage) for the protection of environmental interests.

The transversal vocation of the notion of environ-ment emerges, in particular, if one thinks of the struc-tural and functional similarities between the concept ofenvironment and some contiguous notions, such asthose of landscape or urban planning, (the latter, todaytraced back to the “governance of the territory”).

The relationship between environment and land-scape, as one may surmise, involves some difficultiesof delimitation and overlapping of the matters, as in aterritory there can be several types of interventions,provided for by different regulatory instruments, withpurposes that are sometimes conflicting (38). Thesedifficulties are primarily due to constitutional reasons,since the very notion of environment arises, by way ofjudicial lawmaking, as may be seen, precisely from art.9, which expressly protects only the landscape and thehistorical and artistic heritage of the nation.

At this stage, landscape is everything related to ter-ritorial identity (39), as resulting from the synergisticaction of natural and human factors (40): the notion,therefore, in part overlaps and in part is broader thanthe ecosystemic and natural aspects.

As for the relationship with town planning, it experi-ences the same difficulty in identifying a clear distinctionbetween the environment, town planning and the new no-tion of governance of the territory , implemented, startingfrom the constitutional reform of 2001, as a matter ofconcurrent legislative competence between State and re-gions. The issue, in this case, is more complex than thatrelating to the landscape since it is believed that thechoice of the reform legislator was precisely to combineurban planning aspects with environmental ones, accord-ing to a less fragmented vision.

From this point of view, then, the distinction be-tween the two subjects is identified in the fact that thegovernance of the territory is constituted by a set ofprocedural rules, in the sense that the protection of nat-ural resources is provided according to the rules ofurban planning, while the environment is, more thananything else, an end, counting as a priority the resultof preserving the environment (41).

Environmental lawTherefore, environmental law today is a veritable sub-

ject, the elaboration of which is due to jurisprudence, tothe normative data (European and therefore internal) thatfollowed its indications, to the subsequent establishmentof administrative organizations with specific (notablytechnical) skills, the identification of subjective legal sit-uations and, finally, the existence of administrative, civiland criminal instruments aimed at protecting it. Based onwhat has been analyzed thus far, the doctrine has high-lighted the characteristics of the legal framework for theenvironment (42). Environmental law is defined, first ofall, “the law of modernity”, because it governs mattersjust recently included among social phenomena, that gohand in hand with economic development (the best knownexample is epitomized by the Ilva affair, in the need toreconcile industrial development and environmental pro-tection) and, in relation to which, the use of technology isfundamental. For this reason, environmental law is alsoan “innovative law”, aimed at creating new legal institu-tions which then extend to the general administrative sys-tem, such as the right of access to environmentalinformation (which has, since 1995, provided for free anduniversal access without the need to demonstrate a con-crete and current interest on the part of the applicant). Butsimply consider, more generally, the importance of fun-damental principles as canons of legitimacy of public au-



“Environmental law is defined, first of all, “the law of modernity”, becauseit governs matters just recently included among social phenomena, thatgo hand in hand with economic development (the best known example isepitomized by the Ilva matter (shown here in the images), in the need toreconcile industrial development and environmental protection) and, inrelation to which, the use of technology is fundamental. (Image source: ilsole24ore.com).

thorities, such as the principle of subsidiarity and, evenmore, the principle/objective of sustainable developmentnow extended (at least theoretically) to every type of plan-ning and scheduling of administrative activities. Environ-mental law is certainly the “law of complexity” becauseenvironmental interests constitute a transversal matter,which involves every other matter and every other publicinterest at stake and therefore requires suitable adminis-trative devices for its reconciliation with the other interestsat stake. It came about as a “reactive” emergency-basedlaw, , to counter the harmful effects of human activity,and has now become a “planning or proactive law”, aimedat preventing and directing human activity towards sus-tainable development goals. Finally, it is a “heteronomouslaw”, influenced directly and indirectly, as we have seen,by European Union law and international law.

Evolutionary perspectives: ecological transition,circular economy and climate

“Italy is characterized by a unique natural, agricul-tural and organic ecosystem. An area of inestimable valuethat represents a central element of national identity, cul-ture and history, the driving force behind present and fu-ture economic development”. This is the wording of thenew National Recovery and Resilience Plan (NRRP) (43)which envisages, within the second mission, dedicated tothe green revolution and ecological transition, the protec-tion of the territory and water resources (M2-C4). Withinthis second mission, the stated objectives are: 1) strength-ening the ability to forecast the effects of climate changethrough advanced and integrated monitoring and analysissystems; 2) the prevention and contrast of the conse-quences of climate change on the phenomena of hydro-geological instability and on the vulnerability of theterritory; 3) safeguarding the air quality and biodiversityof the area through the protection of green areas, land andmarine areas; 4) the guarantee of supply security and thesustainable and efficient management of water resourcesthroughout the entire cycle. As can be seen, environmen-tal protection has forcefully entered the current politicaldiscourse and, in this context, the ecological transition,which is also the subject of important European measures,such as the so-called Green New Deal and the 2030 Cli-mate and energy framework, become of paramount im-

portance. Two in particular seem to be the most interest-ing evolutionary perspectives of the legal regulation ofthe environment. The first is the promotion of the circulareconomy (44), a concept developed and accepted by someEuropean Union provisions (45), and mainly (but notonly) referable to the waste sector (46), which proposes anew model of economic development that - no longerbased on the so-called linear economy, aimed at the useand abandonment of products - focuses on the constantreuse and transformation of assets (therefore, regenera-tion), through various techniques, favoured by technolog-ical innovation (47). This is all linked to a new paradigmof understanding the relationship between environmentand development: no longer sustainable development butan “environment for development”. The second concernsthe necessary reduction of climate-altering emissions,until the goal of climate “neutrality” is reached, as re-quired by 2030 Climate and energy framework. The issueof climate change is fulfilling the intuition of an illustriousscholar of administrative law, according to which study-ing environmental law “is simply fascinating if you wantto study law not in its static nature but in the dynamismthat actually constitutes is, essence and value” (48). Infact, the climate litigation, promoted by non-governmen-tal organizations and young activists, which has been re-cently proliferating also in Europe (49), underminestraditional legal categories such as the separation of statepowers (as the judge condemns the legislator) and the tra-ditional criteria for promoting judicial actions by organi-zations with widespread interests (which are always, veryoften, limiting). These two aspects, without excludingothers, are the main features of environmental law: thatof constituting an important testing ground for public lawand anticipating, as has often occurred, solutions that arelater adopted by the legal system as a whole. 8


“The new National Recovery and Resilience Plan (NRRP) envisages, withinthe second mission, dedicated to the green revolution and ecological transition, the achievement of the following objectives (...): 1) circulareconomy and sustainable agriculture; 2) renewable energy, hydrogen, gridand sustainable mobility; 3) energy efficiency and building renovation; 4)protection of land and water resources” (Image source: twitter.com/wwf).

NOTES(1) Thus wrote Pope Francis, in the Enciclica Laudato sì of 2015, the first encyclical of a pontiff on the problem of safeguarding the environment.(2) A few notes on methodology. In my opinion, law is not a science but a discipline, characterized by a consolidated set of instruments (provisions, dispositions, sub-jective situations, etc.) which is applied according to the rules of logic (therefore the general rules of discourse) which are inevitably affected by the thinking adoptedin the introduction by each author. With particular reference to administrative law, see G. Rossi, Metodo giuridico e diritto amministrativo. Alla ricerca dei concettigiuridici elementari, in Dir. Pubbl., 2004, p.1-18.(3) G. Rossi (edited by), Diritto dell’ambiente, Turin 2017, pinpoints that “The task of unravelling the tangle, of identifying some linearity, is a source of even greaterinterest, because it offers food for thought to those who want to study the evolution of legal systems and that is, of the legal structures of societies”. The same authorquotes F. Benvenuti who, in Studi dedicati ai problemi dell’ambiente. Presentazione, in Arch. Giur., 1982, p.255 states that “the topic is simply fascinating if onewishes to study the law not in its static nature but in that dynamism which in fact constitutes its essence and value”.(4) On this point, G. Rossi, Potere amministrativo e interessi a protezione necessaria. Crisi e nuove prospettive del diritto amministrativo, Turin 2011.(5) See S. Cassese, s.v. Giannini, Massimo Severo, in Dizionario Biografico dei Giuristi Italiani (XII-XX secolo), vol. I, Bologna 2013, pp.984-987.(6) In Riv. Trim. Dir. Pubbl., 1973, p.15 et seq. And much of the doctrine of the time, including European, went along the same lines as Giannini: simply consider R.Drago, Rapport de synthèse, in La protection du voisinage et de l’environnement. Travaux de l’association H. Capitant, Paris 1979, p.457, who deemed it “absurd”to consider environmental law as a new legal discipline.(7) But this often was not followed up by concrete and effective measures, as is demonstrated by the matter of climate change, which will be briefly examined later.(8) S. Cassese, Il diritto globale, Turin 2008, p.5.(9) S. Marchisio, Il diritto internazionale dell’ambiente, in G. Cordini, P. Fois, S. Marchisio, Diritto ambientale. Profili internazionali, europei e comparati, Turin 2017, pp.6 and 12.(10) In fact, point 1 of the Declaration on the human environment already provided that “man has the fundamental right to freedom, equality and adequate conditionsof life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment forpresent and future generations”. Subsequently, the Brundtland Report established that sustainable development consists of “development that meets the needs ofthe present without compromising the ability of future generations to meet their own needs”. As highlighted by L. Krämer, Environmental Law, p.9 et seq., it is alargely indeterminate notion, whose content derives from the application of the notion itself.(11) Which implies that, in view of a lack of knowledge of the possible effects of an action with environmental effects or a mere suspicion of potentially harmful effects,appropriate measures must be put in place and, ultimately, in the opinion of the writer, simply refrain from taking any action. Principle 15 of the Rio Declaration states: “Inorder to protect the environment, the Precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irre-versible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.(12) On this point, S. Marchisio, Il diritto internazionale dell’ambiente, cit., p.24 et seq. (13) M. Renna, I principi in materia di tutela dell’ambiente, in Riv. Quad. Dir. Amb., 2015, p.62 et seq., notes that, precisely with regard to the fact that the Europeanconstruction was economic in nature, and therefore tending to the creation of a common market (these were the post-war reconstruction years), there was only onearticle 36 TCE, which read: “The provisions of Articles 30 to 34 [that is those relating to the abolition of quantitative restrictions between Member States] shall notpreclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection ofhealth and life of humans, animals or plants; the protection of national treasurespossessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however,constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.(14) Despite a succession of various bills, which propose the introduction of art. 9 and see, for example, the one proposed in the legislature XVIII of the ItalianRepublic: “At the end of Article 9 of the Constitution, the following subparagraph has been added: The Republic protects the environment and the ecosystem, protectsbiodiversity and animals, promotes sustainable development, also in the interest of future generations”.(15) P. Dell’Anno, Diritto dell’ambiente, cit., p.2, notes how the principle of subsidiarity may be effectively implemented in the distribution of regulatory functions,arising precisely in the context of European environmental protection and then being promoted by the Maastricht Treaty to the rank of general criterion for regulatingrelations between the Union and member states in the scope of any kind of public policy. In Italy, as is well-known, it was introduced in Article 118 of the Italian Con-stitution by Constitutional Law 3/2001.(16) For additional information see L. Krämer, Environmental Law, p.17.(17) See P. Fois, Il diritto ambientale dell’Unione Europea, in G. Cordini, P. Fois, S. Marchisio, Diritto ambientale, cit., p.65 et seq. See art. 130R, par. 1 of the SingleEuropean Act, according to which “Actionby the Community relating to the environment shall have the following objectives: to preserve , protect and improve the quality of the environment; to contributetowards protecting human health; to ensure a prudent and rational utilization of natural resources”, as well as par. 2 which lists the relevant principles: “Action by theCommunity relating to the environment shall be based on the principles that preventive action should be taken, that environmental damage should as a priority berectified at source, and that the polluter should pay. Environmental protection requirements shall be a component of the Community’s other policies”.(18) As pinpointed by F. de Leonardis, Le trasformazioni della legalità nel diritto ambientale, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.131: “environmental lawbasically poses (...) as a law of jurisprudential nature: in it the written law generally tends to come later, almost as a crystallization of what the jurisprudence has elaborated”.(19) G. Rossi (edited by), Diritto dell’ambiente, p.32 critically clarifies that this principle contains a margin of misunderstanding since, by providing for the paymentof a penalty to be paid by the polluter, it may be seen as the right to pollute provided one pays.(20) For in-depth study of these principles see L. Krämer, Environmental Law, cit., p.20 et seq.(21) For additional information see F. de Leonardis, Le trasformazioni della legalità nel diritto ambientale, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.131 et seq.(22) The subsequent Imballaggi di birra e bibite judgement, September 20, 1988, C-302/86, recalls that “in that regard, it must be pointed out that in its aforementionedjudgment of February 7 1985 the Court stated that measures adopted to protect the environment must not ‘go beyond the inevitable restrictions which are justifiedby the pursuit of the objective of environmental protection’”. With the PreussenElektra judgment, March 13, 2001, C-379/98, the Court of Justice specified that theinternal legislation of a Member State that obliges companies that supply electricity to purchase the energy produced in the respective supply area from renewablesources at prices above their real economic value does not constitute State aid. This is because “it is for reasons of environmental protection that the latter authorisesMember States in Articles 8 no. 3, and 11 no. 3, to give priority to the production of electricity from renewable sources”.(23) Which “configures the relative right [to health] as a fundamental right of the individual and protects it primarily, unconditionally and absolutely as the way ofbeing of the human person”.(24) The judgement then specifies that the right to health, understood in this dual aspect, is legally protectable even before an ordinary judge and also against thepublic administration whose injurious activity must necessarily be considered devoid of any legal basis and therefore in default of any discretionary power. This, infact, is linked to the aspect, explicitly addressed by the sentence, relating to the type of protection given to the individual interest, specifying that “clearly this is alegal technique that is protective in nature, which is then that of “fundamental” or “inviolable rights” of the human person. In other words, it is a question of fullprotection which translates into the attribution of powers of free use of utilities and the free development of activities, of the exclusion of obstacles that come betweenone or the other from anyone or anything. And it is in this all-out defence against any hostile initiative, whoever it may come from - other individuals or even the publicauthority - not in an atomistic, asocial consideration, separate from man that the meaning of the reference to the “fundamental right of ‘individual’” is found. In a word:the juridical instrumentation is that of subjective law, indeed of absolute law”.(25) By emphasizing, in this way, the inherent nature of the person and the social nature of the protected property, “it becomes clear that protection is not limited tothe safety of the individual, presumed to be immobile in the isolation of his home or solitary in his occasional movements [...] but is aimed at ensuring the individual’seffective participation through physical presence and attendance, in said communities, without this constituting a danger to his health”.(26) On the subject of widespread interests, connected to the emergence of the issue of common assets, which intersects with contributions from doctrine pertainingto civil and public law see, B. Caravita di Toritto, Interessi diffusi e collettivi, in Dir. soc., 1982, 187; R. Ferrara, Interessi collettivi e diffusi, in Dig. Disc. Pubbl., VIII,Turin 1993; G. Alpa, Interessi diffusi, in Dig. Disc. Civ., IX, Turin 1993. As we have seen, the problem is linked to the profile of judicial protection, which has been the



object of an extensive and authoritative doctrinal discussion, see S. Cassese, Gli interessi diffusi e la loro tutela, in AA.VV., La tutela giurisdizionale degli interessicollettivi e diffusi, Turin 2003, p.569 et seq.; F.G. Scoca, Tutela dell’ambiente: la difforme utilizzazione della categoria dell’interesse diffuso da parte dei giudici am-ministrativo, civile e contabile, in Dir. soc., 1985, p. 645 et seq.; G. Berti, Il giudizio amministrativo e l’interesse diffuso, in Jus, 1982, p.68 et seq.; R. Villata, Riflessioniin tema di partecipazione al procedimento e legittimazione processuale, in Dir. proc. amm., 1992, p.171 et seq. (27) Which is the condition for the protection of widespread interests, including environmental interests, traditionally protected with the technique of legitimate interest.The judgment continues: “Which is all the more serious since the denial of such enforceability results in the lack of protection of real subjects [that is, of the truerecipients of constitutional protection even if they are considered community participants] in relation to assets that are of particular relevance because they pertain tothe human person. This would be the consequence which would be reached if it were held that a need is not protected in reference to a single individual because itis or it cannot be protected at the same time and in the same way in reference to a plurality of other individuals (even indefinite in number or indeterminate incomposition) with homogeneity of content and reciprocal implication, as is the case for the ways in which the human person finds fulfilment in the social formationswherein he participates. What can, on the other hand, be requested is only that the protection is postulated on the basis of this participation and the effective config-urability of the social formation which they belong to”, also specifying that the protection of widespread interests can also take place with other connecting criteria.(28) From this derives the qualification of a unitary interest, capable of referring to one or more specific subjects and, therefore, integrating the qualification of averitable subjective right, as such protected by the legal system, today also explicitly, with its inclusion in art. 117 of the Italian Constitution, following the reform ofTitle V: lett. s) of this article, it gives the State exclusive competence with regard to the protection of the environment, ecosystem and cultural heritage.(29) The functional link between the administrative organization and the satisfaction of the interests entrusted to the public sphere is highlighted by M. Nigro, Studisulla funzione organizzatrice della pubblica amministrazione, Milan 1966, p.114 et seq. and G. Guarino, L’organizzazione pubblica, Milan 1977, p.18 et seq.(30) Today, in accordance with the National Recovery and Resilience Plan proposed by Italy (PNRR), the nomenclature is that of the Ministry of Ecological Transition(MiTE). The changes in the names of the administrative organizations almost never involve a substantial change in the activities carried out and the interests subjectto their care (in our case, some competences in energy matters previously entrusted to the Ministry of Economic Development have been entrusted to MiTE). Theseare often changes due to momentary and contingent political pressures, as also took place in the case of the Ministry of Transport, now called the Minister ofsustainable infrastructures and mobility (MiMS).(31) “In this phase, a non-sectoral yet autonomous discipline of environmental protection is being developed, both internationally and in the EU and in Italy, with reg-ulatory interventions inspired by a unitary concept of the problem”, notes S. Grassi, entry Tutela dell’ambiente (dir. amm.), in Enc. dir., Milan 2007, no.2, who alsohighlights how the instituting law of the Ministry of the Environment “while constituting an essential step towards defining the environment as the object of an au-tonomous discipline, indicates the ministerial competences in multiform terms which are too articulated to reach a defining result, leaving open the discussion onwhether the ministry and the central technical bodies were entrusted with mere coordination activities of the related competences of other apparatuses (health,urban planning, agriculture and forests, hunting and fishing, local police, etc.), or if they were able to perform functions in a sector with full autonomy and with its ownunitary characteristics”. This is because art. 2 of law 349 referred to competences already exercised, in fact, by other administrative organizations.(32) In this way, a first legal notion of the environment was formed, more specific than that used in common language and identifiable from a defensive point of view in thefight against pollution and in the conservation of certain areas, see G. Rossi, La materializzazione dell’interesse all’ambiente, in Id. (edited by), Diritto dell’ambiente, cit., p.14.(33) Art. 1 of the Code envisages for its scope: “This legislative decree governs, in the implementation of law of December 15 2004, no. 308, the following matters:a) in the second part, the procedures for the Strategic Environmental Assessment (SEA), for the Environmental Impact Assessment (EIA) and for the Integrated En-vironmental Authorization (IPPC); b) in the third part, the defence of the soil and the fight against desertification, the protection of water from pollution and the man-agement of water resources; c) in the fourth part, waste management and remediation of contaminated sites; d) in the fifth part, the protection of the air and thereduction of emissions into the atmosphere; e) in the sixth part, reparation protection against damage to the environment”.(34) It is paradoxical, in fact, that only the subsequent amending decrees 4/2008 and 128/2010 introduced the general principles of the environment in the “Code”,in Articles 3 and et seq. In fact, P. Dell’Anno, Diritto dell’ambiente, cit., P.3 notes that if, on the one hand, the principles expressed in the first part of the Code wouldlike to constitute the reference point for all environmental sectors, on the other, this objective has not been fully achieved, thus giving the impression that legislatorshad exhausted their reconstructive capacity precisely in the drafting of these principles and without ensuring homogeneity and consistency with sectoral regulations. (35) For example, recently, Italian Legislative Decree July 6, 2020, no. 76, containing “urgent measures for digital simplification and innovation” (the so-called Sim-plification Decree), converted by Law of September 11, 2020, no. 120, that brings legislative modifications which, inspired by a logic of simplification (it is no wonderthat Article 50 is entitled “rationalization of environmental impact assessment procedures”) mainly affect the quando (when) of the procedures (reduction of deadlines)and on the quomodo (how) (document simplification, transparency and greater public involvement), intervening on the provisions contained in Titles I and III of theSecond Part of Italian Legislative Decree no. 152/2006.(36) G. Rossi (edited by), Diritto dell’ambiente, cit., p.26 et seq. and 5 et seq.(37) G. Rossi (edited by), Diritto dell’ambiente, cit., p.6, notes that the territorial levels in which the causes are generated either do not have the strength to controlthe phenomena or have an interest in having others bear the negative effects of the harmful activities and the related charges: this is an effect of the so-called Nimbysyndrome (Not in my back yard), according to which the choices regarding the location of activities with environmental repercussions are decidedly opposed by thelocal communities wherein these activities should be activated, without such communities actually opposing to their installation elsewhere.(38) Unsurprisingly, A. Predieri, entry Paesaggio, in Enc. Dir., Milan 1983, no. 3 identifies that: “The accepted notion of landscape has structural points of coincidence, at differentdepths, with that of the environment, or at least with some notions of it, and the activity of landscape protection is functionally connected to that of environmental protection”.(39) The renowned definition provided by A. Predieri, entry Paesaggio, cit. is that of “shape of the territory”.(40) See art. 131, Italian Legislative Decree January 22, 2004, no. 42 (Code of cultural heritage and landscape).(41) S. Civitarese Matteucci, Governo del territorio e ambiente, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.225.(42) See with regard to the characteristics of environmental law, for everyone, P. Dell’Anno, Ambiente (Diritto amministrativo), in P. Dell’Anno, E. Picozza (edited by),Trattato di diritto dell’ambiente, vol. I, Padua, 2012, p.285 et seq.(43) National Recovery and Resilience Plan (NRRP), so-called Next Generation Italia, p.145.(44) F. de Leonardis explains in Economia circolare: saggio sui suoi tre diversi aspetti giuridici. Verso uno Stato circolare?, in Dir. Amm., 2017, p.168-169, that fromthe so-called Red Economy, that is the economy of the exploitation of nature “which borrows without worrying about how to repay the debt”, we have moved on tothe Green Economy, which is concerned with how to “repay” the damage caused to the environment (see for example, the “polluter pays” principle), all the way tothe Blue Economy which, according to the definition by, Blue Economy 2.0., Milan 2015, p.30, “addresses the issues of sustainability beyond simple conservationand whose purpose (...) is to push towards regeneration” (for the record, the Blue Economy has also become relevant with regard to maritime issues).(45) In particular, the two communications of 2014 and 2015 on the circular economy, the second “package” on the circular economy consisting of directives no. 851and no. 852 of 2018, that amended the general directive on waste and that on packaging waste, and other directives, that amended six additional directives onwaste (directive 98/2008), packaging (94/1962), landfills (31/1999), electrical and electronic waste (19/2012), end-of-life vehicles (53/2000) and batteries (66/2006),numbers 849, 850, 851 and 852 of 2018. (46) As is clearly highlighted by F. de Leonardis, Economia circolare: saggio sui suoi tre diversi aspetti giuridici, cit., p.167.(47) On this point, see, F. de Leonardis, Il diritto dell’economia circolare e l’art. 41 Costituzione, in Riv. Quad. Dir. Amb., 2020, p.50 et seq. and G. Rossi, Dallosviluppo sostenibile all’ambiente per lo sviluppo, in Riv. Quad. Dir. Amb., 2020, p.4 et seq. The first notes that, in this perspective, “the environment is no longersimply considered a cost but, rather, an opportunity for real profit for companies: we can therefore significantly speak of an ‘environment for development’” and thesecond that “the phases of opposition and that of (desired) compatibility are now joined by that of conceivable synergy”.(48) F. Benvenuti, Studi dedicati ai problemi dell’ambiente. Presentazione, in Arch. giur., CCII (1982), p.255, ora in Scritti giuridici, Milano, p.3736.(49) On the basis of the right to life and the right to respect for private and family life (articles 2 and 8 of the European Convention on Human Rights, ECHR), in linewith the constitutional principle of the State’s duty of care to its citizens, and the obligations under the Paris Agreement (2015), in 2015, the Dutch Urgenda Foundationsued the Dutch government on behalf of 900 Dutch citizens for not adopting adequate measures to counter the danger of climate change. Likewise, in February2021, in the so called Affaire du Siècle, following a complaint lodged by some French NGOs (Oxam France, Greenpeace, Notre Affaire à Tous, FNH), the administrativecourt of Paris acknowledged the State’s liability for inaction in tackling climate crisis, recognizing a breach of the objectives established in the Paris Agreement.



the emergence of interest environmental protection

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