Giving a fitting and appropriate definition of the concept of environment turns out to be rather complex, since this notion, before the reform intervention of 2022, did not find acceptance in the Italian Constitutional Charter, although the doctrine has always questioned its meaning. So much so that an authoritative doctrinal voice, in this regard, has asserted that «there is no escaping the alternative between definitions that are correct in terms of completeness, but too broad to be of any use, and definitions that try to be more closed' and delimited, but which for this reason inevitably prove to be partial or, more often, merely descriptive of a plurality of objects of protection". In other words, the legal asset 'environment' comes to terms with "the limits of legal science and normative language, which are powerless in the face of an ontologically indeterminate concept in the abstract and in itself not reducible to prescriptive statements". Nonetheless, if legal science and regulatory language are ill-suited to providing a complete and 'omniscient' definition of the environment, this does not happen in the Euro-community context: so much so that directive 337/85 already stated that in the concept of environment resides "the set of elements which, in the complexity of their relationships, constitute the framework, the habitat and the living conditions of man", thus revealing a clear anthropocentric perspective. This approach is also found in the art. 3 of the Treaty on the European Union which states the principle according to which «the Union establishes an internal market. It works for the sustainable development of Europe, based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and on a high level of protection and improvement of the quality of the environment". Similarly, also in the Treaty on the Functioning of the European Union, art. 11 that "environmental protection requirements must be integrated into the definition and implementation of the Union's policies and actions, in particular with a view to promoting sustainable development". The environment assumes different meanings depending on the context in which it operates: it is a public good for the landscape; legal fact, in the specific case of the attacked environment (and aggressor); administrative activity based on territorial planning for the environment in an urban sense. Contrary to what is maintained by the aforementioned school of thought, another doctrinal current starts from the assumption that there is, first of all, a methodological problem in the non-unitary approach, because «a legal discipline cannot acquire the scientific dignity of a autonomous consideration if its “object” is devoid of a unitary meaning». Indeed, «if one continues to maintain that the “legal” notion of the environment is split (into several notions), the environment as such no longer represents, for the law, an object of protection, remaining a meta-legal notion». Therefore, this thesis comes to include the right to the environment among the rights of the personality, as a subjective right to environmental health at an individual level. This school of thought exposes its side to two notable criticisms: the first is grafted onto the finding that a violation of environmental legislation does not necessarily constitute a direct violation of the right to health; the second takes root on the fact that the acceptance of this thesis would lead to the legitimacy of any individual against this violation, without the need to demonstrate a specific interest. Just like the doctrine, in the same way the jurisprudence does not show itself univocal in the attempt to univocally define the concept of environment; the oldest jurisprudential pronouncement asserts that the environment is a public good in an objective sense, with the consequence that the damage it suffers must be compensated to the public body in a subjective sense, constituting tax damage: in other words, the environment was still a unitary asset, albeit immaterial. In the light of the foregoing, if you prefer, the unitary legal notion of environment is of uncertain existence and, in any case, of uncertain content. This can be affirmed, since those who have backed the unitary theories of the environment, to be honest, have done nothing but identify the environment itself in subjective positions: duties, rights, faculties, fundamental rights or values of constitutional rank. Therefore, the writer is not wrong that «raising the environment to a constitutional value or to an intangible asset, to a substratum of rights, duties, collective interests, private or procedural, of primary public functions, means proposing summary formulas of the importance and degree of protection that the legal system recognizes: however, they do not distinguish the unitary object they assume, nor do they explain why the law unites rather different things, such as the built-up area, marine parks, air or atmospheric pollution, leaving out other".
THE ENVIRONMENTAL REGULATION IN THE CONSTITUTION
Bosna C
2023-01-01
Abstract
Giving a fitting and appropriate definition of the concept of environment turns out to be rather complex, since this notion, before the reform intervention of 2022, did not find acceptance in the Italian Constitutional Charter, although the doctrine has always questioned its meaning. So much so that an authoritative doctrinal voice, in this regard, has asserted that «there is no escaping the alternative between definitions that are correct in terms of completeness, but too broad to be of any use, and definitions that try to be more closed' and delimited, but which for this reason inevitably prove to be partial or, more often, merely descriptive of a plurality of objects of protection". In other words, the legal asset 'environment' comes to terms with "the limits of legal science and normative language, which are powerless in the face of an ontologically indeterminate concept in the abstract and in itself not reducible to prescriptive statements". Nonetheless, if legal science and regulatory language are ill-suited to providing a complete and 'omniscient' definition of the environment, this does not happen in the Euro-community context: so much so that directive 337/85 already stated that in the concept of environment resides "the set of elements which, in the complexity of their relationships, constitute the framework, the habitat and the living conditions of man", thus revealing a clear anthropocentric perspective. This approach is also found in the art. 3 of the Treaty on the European Union which states the principle according to which «the Union establishes an internal market. It works for the sustainable development of Europe, based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and on a high level of protection and improvement of the quality of the environment". Similarly, also in the Treaty on the Functioning of the European Union, art. 11 that "environmental protection requirements must be integrated into the definition and implementation of the Union's policies and actions, in particular with a view to promoting sustainable development". The environment assumes different meanings depending on the context in which it operates: it is a public good for the landscape; legal fact, in the specific case of the attacked environment (and aggressor); administrative activity based on territorial planning for the environment in an urban sense. Contrary to what is maintained by the aforementioned school of thought, another doctrinal current starts from the assumption that there is, first of all, a methodological problem in the non-unitary approach, because «a legal discipline cannot acquire the scientific dignity of a autonomous consideration if its “object” is devoid of a unitary meaning». Indeed, «if one continues to maintain that the “legal” notion of the environment is split (into several notions), the environment as such no longer represents, for the law, an object of protection, remaining a meta-legal notion». Therefore, this thesis comes to include the right to the environment among the rights of the personality, as a subjective right to environmental health at an individual level. This school of thought exposes its side to two notable criticisms: the first is grafted onto the finding that a violation of environmental legislation does not necessarily constitute a direct violation of the right to health; the second takes root on the fact that the acceptance of this thesis would lead to the legitimacy of any individual against this violation, without the need to demonstrate a specific interest. Just like the doctrine, in the same way the jurisprudence does not show itself univocal in the attempt to univocally define the concept of environment; the oldest jurisprudential pronouncement asserts that the environment is a public good in an objective sense, with the consequence that the damage it suffers must be compensated to the public body in a subjective sense, constituting tax damage: in other words, the environment was still a unitary asset, albeit immaterial. In the light of the foregoing, if you prefer, the unitary legal notion of environment is of uncertain existence and, in any case, of uncertain content. This can be affirmed, since those who have backed the unitary theories of the environment, to be honest, have done nothing but identify the environment itself in subjective positions: duties, rights, faculties, fundamental rights or values of constitutional rank. Therefore, the writer is not wrong that «raising the environment to a constitutional value or to an intangible asset, to a substratum of rights, duties, collective interests, private or procedural, of primary public functions, means proposing summary formulas of the importance and degree of protection that the legal system recognizes: however, they do not distinguish the unitary object they assume, nor do they explain why the law unites rather different things, such as the built-up area, marine parks, air or atmospheric pollution, leaving out other".I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
