Professional Documents
Culture Documents
Environmental
Enforcement
Networks
Concepts, lm plementation a nd Effectiveness
Hllirf'd by
Peter De Smcdt
Lmv. LDR. GMm. Fklglum
AIIOI'IItf iJI
An Sm.s
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Contents
List ojjigures
List of tables
List of contributors
List of abbreviations
IX
X
XI
XIV
Introduction
Mic/we/ Fawe. Peter De Smedt and An Stas
13
37
59
PART II
6
68
BENEFITS OF NETWORKS
131
VI
I0
PART Ill
11
12
15
223
THEMATIC NETWORKS
PART IV
187
239
263
276
289
HORIZONTAL NETWORKS
305
ConteJIIs
16
17
18
19
321
334
PART V
20
vii
350
377
VE RTICAL NETWORKS
393
419
430
23
24
470
vii i
25
26
482
490
51 0
h1dex
525
4.
447
ENVIRONMENTAL MISCOMPLIANCE BY
CORPORATIONS CAUSING ENVIRONMENTAL,
HEALTH AND ECONOMIC HARM: THE MISSING
'NETWORK' AND CONFLICTING POWERS
The te nsion between a forma l ' compl iance' con cept, such as the one exemplified in the previous section, and a substantial compliance concept, such
as the o ne seen in th e intense contro l and inves ti gative and enforceme nt
activ iti es agai nst en viro nmental crimes carried ou t by po lice forces, prosecutors and jud ges, might create serious 'networking' cha llenges. A more
detailed d iscussion of a case can illus trate the point.
4.1
T h e Ilva Case
The case in th is sense appears pa radigm a tic (still under judgmen t), concerning an Italian industria l compan y - llva S.p.a., exporting its products
througho ut Europe and beyond - and particularly its industria l plant in
T aranto.
Apparently the company didn ' t com ply (a mong other th ings) with
environmental regulations (mainly the IPPC provisions), causing serious
environmenta l pollution (mainly through the emissions of polluting
substa nces into the ai r) wh ich seems to h ave provok ed seri ous d amage
to hum an a n d an im al hea lth, as well a.s consequential damage to other
economic activities in the area. 29
z~
448
449
Law Decree 3 Decembc r 20 12, n. 207, as co nve rted into Law 24 December
20 12, No. 23 1, establishes in general that, when a situatio n of economic
crisis occurs within a company of national strategic relevance with more
than two h undred employees (and therefore there being a compelling
need to safeguard occupatio n a nd production), 32 the Ministe r for the
Environm ent, while revising the IPPC permi t, may authorise the industrial
plants to continue their economic activities for 36 months, despite the preca utio nary seizure o rder even tually imposed by a judge. The Law Decree
specificall y establishes that the ll va industrial plan t must be co nside red of
strategic national relevance, it puts Ilva back in possession of the seized
goods and it authorises the prosecu tion of its producti on activities.
T hese provisio ns seemed to substa nti a lly nullify the effects of the j udi cia l precautionary seizures.
As a consequence of the enactmen t and conversion into Law of the previo usly mentioned Law Decree, a conflict of powe rs challenge was ra ised
by the proceeding prosecutor agai nst the Government and Parl iament;
mo reover, the involved Court for the re-examination of precautionary
meas ures and the judge for tb e preliminary inqu iry challenged the constitutional legitimacy of the La w Decree, as converted into Law.
The Constitutio na l Co urt, call ed on to decide o n both iss ues, did no t
ad mit the challe nge of confli ct of powers 33 or th e constitutional legitimacy
one;J.l the latter was also declared partly ungrounded. The Constituti ona l
Co urt decisions considered, among other profiles, the eco no mic protection aims pursued by the Government and Parliament.
After th e Constitu tional Court decisio ns, the same judge fo r the
preliminary inquiry ordered the precautiona ry seizure (fin al ised to the
confisca ti on order of an equivalen t value) of 8 billion euros (the amo unt
corresponding to the estim a ted proceeds of the crimes attributed to
the managers a nd directo rs of llva) belonging to a holding co rpo ration
of the Ilva company; at the tim e of the seizure th e company was managed
by the same perso ns who had managed Ilva at th e time o f the commission
of the facts con tested in the ll va case.
This seizure order was issued pursuant to Legislative Decree 8 June 200 1,
31
See Ugo Salanitro, ' 11 dccrcto Ilva tra tutela della salute e salvaguardia
dcll'occ upazionc: riflcssio ni a marginc dclla scntcnza dclla Cortc costituzionalc'
(20 13) Corriere giu ridico t04 1.
~~ Corte Costituzionalc. ord. 13 February 2013, No. t6; Corte Costituzionale,
ord. 13 February 20 13, No. 17; the decisions are available at www.pcnaleeontcmporanco.it ( 14 February 2003) (acccssed 10 October 20 t3).
" Co rtc Costituzionalc, 9 May 2013, No. 85, available at www.pcnalccontcm
poranco.it (9 May 20 13) (accesscd I0 October 20 13).
450
" Corte di Cassazione, 20 December 2013, No. 3635, available at www .pena lecontemporaneo.it ( I I February 2014), accessed 7 March 20 14.
451
institutions, the judiciary, the company and its employees, the civil society
(including media) and other slakeholders.
The case involves the enforcement of many relevant lega l provisions, in
a framework where the enforcement of environmental legislation is strictly
linked to the e nforcement of other relevant specific provisions (such as those
on safety in workplaces) as well as of general substantia l and procedu ral
criminal provisions. The case a lso involved the constitutional rules on distributio n of powe r a nd, moreover, th e same fundamenta l concept of separation of powers and the role of the judiciary in the area of crim inal law. 36
Moreove r, the case shows the need to adequately take into consideration
the links between environmen tal protection and economic-occupational
inte rests when enacting and enforcing (a mong other th ings) envi ronmental provisions, as both activities imply a deep reflection o n the balance
between environmental protection, health protection and work safety
protec tion, as well as a st udy on the balance between the above-mentioned
facto rs and economic activities and competition.
Clearly, dealing with such a complex, multilevel and articu lated case
would require a high level of cooperation and informal networking among
all the interested parties.
Looking at the facts, some significant gaps in netwo rking have occurred,
reaching the level of a connict of powers challenge, probably as a consequence of (a mong other issues) the above-mentio ned different approaches
to the issue of environmental compliance.
These gaps in netwo rking contributed to generating relevant consequences: the increased time needed to solve the connict; the emergency
(and indeed not thought through enough) introductio n of provisions
which potentially apply to future similar critical situations; the adoption
of judicial decisions which, with the aims of overcoming the legislative
intervention and the Constitutional Court decisions, might be interpreted
as partially forcing if not the letter at least the rat io nale of some normative
provisions, as well as vio lating some fundamenta l principles of punitive
Jaw. All these elements do not seem to produce positive effects on the
ultimate goal of the protection of the environment and of the ot her related
interests, as well as. in a more genera l perspective, o n the fundamenta l
principles of crimina l Jaw and o n the same concept of separation of
powers.
"' On the latter proliles. sec for instance Domenieo Pulitano. 'Fra gi ustizia
penale e gestione amministrativa: rinession i a margine del caso ILVA ' (2013)
Oiritto pena le contemporaneo, No. I, 44; Fra ncesco Vigano, ' In questo numero'
(2013) Diritto pena le con temporaneo, No. I, I .
452
5. CONCLUDING REMARKS
The analysis conducted so far demonstrates tha t, despite a certain indi fference towards environmental criminal provisions enforcement networks
from a co nceptual a nd theoretical perspective, in Italy th ere do exist
relevant exa mples o f effectiveness in networking (formal and info rm al, at
the pu blic level, at the civil society level and at a mixed p ublic-civil society
level) for the enforcement o f enviro nm enta l criminal provisio ns.
Also, the co ncep tu al importance and practical benefits of netwo rks in
the specific fie ld o f the fight against organ ised environmental crime was
demonstrated .
The stru cture, tasks a nd achieve ment of th ese network s depose in the
sense that the latter are potent.ially effective models o f enviro nmenta l
enforcement networks.
Nevert heless, these positive exam ples still coexist with so me releva nt
gaps to be fi lled when it comes to substa nt ial co mplia nce, as well as to
cooperation between powers and authorities which are invo lved in environmenta.l enforcemen t. T hese pro files migh t con tribute to creating cha llenges to environ mental compliance and enforcement, th erefore negatively
affecting the envi ronmental protection goa ls ac hievement and rela ted
relevan t economic interests and resulting in a subs tantial breach of the
sa me funda menta l principle of sustainable development as well as of the
relevan t fundamen tal pri nciples of criminal law.
This co ncl usion calls for t he need to foster informal network ing between
pub lic autho rities as well as between public authorities and co rpora tions
a nd stake ho lde rs fo r enviro nmenta l compliance a nd enfo rcement.
Moreover, th e need to adequa tely ta ke into consideration the links
between envi ro nmental protection a nd econom ic-occupational in terests
should not be neglected in the future development of enviro nm ental legislation and the re lated fo rma l and informal co mplia nce and enforcement
networks.
This seems necessary to make further progress in ensuring a more
effecti ve applica tion of envi ronmenta l legisla tion, also through a network
culture whic h can contribute to reaching a greater consistency of approach
in the implementat io n, application and enforcement of environ menta l
legislatio n.