Environmental Assessments and Authorizations: SEA - EIA - IPPC Permit

With the judgement no. 267 of 15th December 2016 the Constitutional Court declared unconstitutionality of Article 2, paragraph 1, letter h, number 3) of Puglia regional law no. 17 of 14^th June 2007 “Provisions on environment, including in relation to the decentralization of administrative functions relating to the environment" in so far as it provides that "The decision of exclusion from the EIA procedure is effective for up to three years, after which whether the works have not been started the procedures referred to in this article must be renewed”.

This judgement has been given in the constitutionality proceeding initiated by the Regional Administrative Tribunal (TAR) for Puglia, Lecce Division, that, in ongoing proceeding between Energia Rinnovabile Italia Srl, Puglia Region and others, raised the exceptions of unconstitutionality of Articles 2 and 10 of the aforementioned Puglia regional law, with reference to Articles 41, 97 and 117, second paragraph, letter s), of the Constitution.    

Article 2, paragraph 1, letter h, number 3), of Puglia regional law no. 17 of 14^th June 2007, provides that the pronunciation of exclusion from environmental impact assessment (EIA) procedure is effective for a maximum period of three years, after which whether the works have not been started the procedures referred to in this article must be renewed.

Article 10 of the same regional law provides in paragraph 5 that EIA screening procedures submitted to the Region at the date of entry into force of the law, including their integration and project change, although subsequent to that date, are examined and defined by the Region.

The Court declared inadmissible the questions of constitutionality raised in reference to Article 97 of the Constitution, “….since the referring court has merely indicated the constitutional parameter without even stating the reasons for the alleged contrast between the contested legislation and the invoked parameter”.

Moreover, the Court declared inadmissible the complaint centers on article 10 of the regional law, as “the provision is mentioned in the operative part of the order without any argument within the justifications stated in it in order to its relevance for the decision which the referring court is called upon to assume”.

The constitutional legitimacy issues of Article 2, paragraph 1, letter h, number 3), of Puglia regional law no. 17/2007, with respect to Articles 41, 97 and 117, second paragraph, letter s), of the Constitution were instead considered to be well-founded by the Court which stated, inter alia, that “it must be considered unconstitutional the imposition of conditions and constraints, including those having temporary nature,  not functionally related to environmental interests” and therefore  “the contested regional law fails to comply with article 41 of the Constitution – because, imposing time-frames and expirations, poses an  obstacle to free private initiative as "functionalized" to environmental interests by specific state legislation - both with the article 117, second paragraph, letter s), of the Constitution as invasive of the state jurisdiction in environmental matters ".

The Court further stated that "Given that the state legislation on the protection of the environment « operate as a limit to the legislation of the Regions and Autonomous Provinces in other matters within their jurisdiction» (judgment no. 67 of 2010)” and that «the Regions themselves, provided that they remain in the exercise of their competences, can achieve higher levels of protection (judgments no. 104 of 2008, no. 12, no. 30 and no. 61 of 2009), thus affecting, indirectly on environmental protection» (judgment no. 225 of 2009), in this case it is impossible to envisage an improvement of the state protection by the regional contested provision for the objective absence of an appropriate scale of values enabling a comparison,  in qualitative and quantitative terms, between environmental protection provided by the State and that added by Region”.

Link to the Judgement