Organization for Security and Co-operation in Europe

OSCE Presence in

COMMENTS TO THE DRAFT LAW ON ENVIRONMENTAL PROTECTION

Tirana, 3 June 2010

For ease of reading the document is divided into three sections: 1. "General observations" relating to the consultation process and the draft law's general content; 2. "Detailed comments on individual Articles"; 3. "Points for broader consideration".

1. General observations

The Presence hereby submits its comments relating to a review of the English version of the above draft law. Although the Presence is pleased to comment on the draft law, it is suggested that a more structured public hearing process with a clear deadline for comments would be the most effective means of soliciting feedback from the broad range of partners. The Presence recommends that the Ministry considers further opportunities for stakeholder feedback in later stages of finalising the draft law.  A large part of the substantive provisions in the draft law only exist as references to other legislation. Proper references to this other legislation are not provided. The references refer to substantive provisions in the draft law, even though such substantive provisions do not exist[1]. As these substantive provisions are important to the draft law, we suggest that they be drafted simultaneously with the draft law and that they become subject to the same public hearing process as the draft law itself. Due to the short deadline for comments, we have unfortunately not been able to check whether the draft law and our comments conform to the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) and the 2003 Kiev Protocol on Pollutant Release and Transfer Registers. Our comments are therefore subject to compliance with these documents. We suggest that the Albanian alphabet is used in lists throughout the draft law. At present it seems that the English alphabet has been adopted.

2.  Detailed comments on individual articles

Article 4 (1): We suggest the definitions be rearranged in alphabetical order. Letter l limits the definition of “substances” to chemicals that occur in their natural state or as produced by “industry”. Such a definition may arguably exclude chemicals produced by human activity other than by means of mass production. We suggest that the definition be amended as follows: l. “Substances” means chemical elements and their compounds as they occur in their natural state or as produced by human activity;

Article 4: i. [Text states]“Pollution” means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment. However, no reference is made to the impact of artificial lighting. Light pollution is recognised as having a major negative impact on natural ecosystems since it affects the biological rhythm of birds, insects and small mammals and obscures the natural view of the sky. It is also linked to changes in marine ecosystems. Many EU countries are taking active measures to tackle this issue.  No mention is made of "aesthetics" under the definition either. The presence of industrial sites, quarries and similar facilities that permanently destroy the natural beauty or traditional architecture of a particular location, landscape or skyline should merit aesthetic aspects of environmental protection being included under the law.  The Presence thus recommends that both "light" and "aesthetics" be added to the definition of pollution.

Articles 5, 7, 8 and 9: The principles of sustainable development (Article five), preservation (Article 7) and substitution and/or compensation (Article 8) are to be applied by public authorities in the “preparation and implementation” of legal framework, plans, etc. It is doubtful whether this language includes all administrative decisions made by public authorities. These provisions should be amended as follows: 1. Public Authorities, each within the scope of their competence, in the process of making decisions, preparation and implementation of the legal framework, strategies, policies, plans and programmes shall promote (...).

Article 6 (2): The draft suggests that the precautionary principle only applies in cases of serious or irreversible threat to the environment. This qualification should be deleted as follows as the precautionary principle should apply to all threats: 2. In determining measures and activities of environmental protection, a precautionary approach shall be taken so that where there are threats to the environment the lack of scientific certainty shall not prevent or postpone cost-effective measures to be taken to prevent such damage.

Article 12: The public’s right to information pursuant to Article.45ff seems broader than the principle of access to information in Article 12. We suggest that Article 12 be expanded to cover all environmental information as follows: 1. Every person has the right to timely information on environmental information, including on environmental pollution, on the measures undertaken and on the related free access to the environmental data, in accordance with this Law, legislation referred herein and the Law No. 8503 On the Right of Information on Official Documents.

Article 15-19: No reference is made here to noise, light nor aesthetics under this section. It is urged that the protection measures relating to these aspects be included in specific additional Articles to ensure they receive appropriate attention.

Article 22: [Text states] 3. Environmental protection measures contained in development plans include measures for protecting, soil, water, sea, air, forests, climate, human health, ecosystems, landscape, cultural and physical values; waste management measures, noise, vibrations, unpleasant odours, and fire-protection measures, and other relevant measures, set in line with provisions of the present Law and in the specific legislation. The Presence urges the inclusion under this Article of light pollution and aspects of aesthetics.

Article 24: The environmental impact assessment should not be limited to significant impacts on the environment, the assessment should detail all impacts. Paragraph 1 should therefore be amended as follows: 1. Environmental impact assessment of a proposed development activity is the assessment of possible environmental impacts of that activity.

Article 29: We support the creation of a control system for dangerous substances and suggest it be expanded to include radioactive and biological items: 1. Any installation where specific dangerous chemical substances and/or dangerous radioactive and/or biological items and preparations may be present in such quantities as they may cause damage to the environment or harm to human health in the event of a major accident, shall be subject to a control system for prevention and limitation of the consequences of such accidents.

Article 30: The Presence suggests that emission ceilings for pollutants that cause climate change be introduced: 1. The Republic of Albania shall take the necessary measures to limit emissions causing climate change, of acidifying and eutrophying pollutants and ozone precursors

Article 34: The restrictions on ozone depleting substances should be broadened to include the prohibition of possession and ownership: The regulation of the production, importation, exportation, placing on the market, possession, ownership and use of ozone depleting substances as well as the importation, exportation, placing on the market, possession, ownership and use of products and equipment containing those substances shall be endorsed by the Government.

Article 35: The wording of paragraph 1 is unclear in both English and Albanian and we suggest it is rewritten. It is unclear whether the term “in accordance with the precautionary principle” refers to the prohibition or to the exception provided for by legislation.

Article 40: Specific reference to light pollution and aesthetics is recommended under this article.

Article 44: We suggest that to the extent natural or legal entities contribute information to the Environmental Information System, the contributors must specify and substantiate whether access to the information should be restricted. The Presence notes the mention of "environmental impacts and public responses" under point 4 but for greater emphasis urges that "forthcoming EIAs" that facilitate public consultation and "public responses to EIA" be assigned specific bullet points to provide equal status with other factors listed.

Articles 45 and 46: Specifying that all the information in the Environmental Information System be included in the definition of “environmental information” should be considered. Access to environmental information should be restricted in certain situations, e.g., information connected with matters of state security, privileged information given by clients to lawyers, clerics and health professionals, commercial secrets, information that may infringe on the privacy and other human rights of individuals. The determination of whether or not to give access to the information should be made on a case by case basis. The law should specify that the decision must be made after balancing the interest of the public in receiving the information against the need to restrict the access. We suggest that the details of such restrictions be included in the draft law, e.g., by reference to existing legislation if it is found to be adequate.

Article 46: This Article seems to regulate the same issues as Article 45 and we therefore suggest that the two provisions be merged as follows: Article 45: 1. Environmental information shall include the information in the Environmental Information System any information in written, visual, aural, electronic or any other material form on: a. the state of the elements…….(remaining text unchanged); 2. Anyone has the right of access to environmental information that exists from any public authority, natural or legal person without having to prove a specific interest, except as provided in paragraph 3 below.; 3. [We suggest including restrictions on access to environmental information, e.g., by reference to existing legislation.] Access to the following information may not be restricted: (a) emissions into the environment; (b) illegal pollution; (c) pollution that affects human health and safety or may cause substantial environmental damage; (ç) measures to prevent or reduce the consequences of pollution referred to in letter c above. This law does not restrict the right to information that is public under Law No. 8503 On the Right of Information on Official Documents. 4. Article 13 of Law No. 8503, dated 30.6.1999 “On the Right of Information on Official Documents” shall apply to environmental information that is provided according to this law. Article 46 points 1-3 are thus suggested to be removed.

The Presence suggests that copies of EIA and SEA studies be specifically listed under Article 45 as examples of Public Information. Information on fines (company name, reason, penalty, status of payment, etc) imposed on polluters and/or for violations of environmental permit conditions should also be considered as an incentive for compliance by businesses in particular.

Articles 48-52 Environmental Liability

The Presence notes that the draft law does not address the issue of existing, or inherited pollution particularly when a private company purchases an already contaminated site. Numerous examples exist that are now privatised. The Presence suggests that the draft law specifies the responsible party obliged in such circumstances to take the necessary remedial and other actions, or clarify under which Articles such circumstances are addressed.

Article 48: The provision is unclear and should be redrafted. The relationship between paragraphs 2, 4 and 5 is confusing. It is unclear whether paragraph 5 introduces additional criteria for liability in addition to paragraph 2.

Article 49: The relationship between Articles 48 and 49 is unclear. It looks like it is intended that Article 48 regulate only the liability to take preventive and remediation measures and notify the authorities while Article 49 regulates the financial liability for preventive and remedial measures. If this is the case, it should be clarified.

Article 50: The legal entities and persons that have suffered a loss should be able to claim compensation directly from the polluter. Their relationship is essentially a private law relationship like any other claim for damages and the involvement of the Environmental and Forestry Agency should not be required.

Article 52: The reimbursement claim in paragraph 3 seems to be a strict liability. It should be specified that reimbursement may only be claimed on the criteria of the draft law as follows: 3. If the operator referred to in paragraph 1 and 2 of this Article is identified, the Environment and Forestry Agency may request from him/her a refund of the expenses incurred by removal of harmful consequences of environmental damage within a period of five years from the identification of the operator, subject to the criteria laid out in this law.

Article 55: the possibility of deleting paragraph 2 should be considered. The voluntary agreements will be in the form of private contracts and a breach of the contract will be a private law issue, cf paragraph 3. The approval of such contracts should not be necessary.

Article 59: The term “this law” in letters (g) and (h) should be changed to “applicable law” in order to include any other law that gives access to environmental information. Letter (i) is a duplication of Article 63. (1) (f). We suggest that it be clarified whether the Environmental and Forestry Authority or the National Environmental Inspectorate is responsible for this task.

Article 62: The Assembly has had on its agenda the approval of the draft law on administrative courts since last year. This draft law needs a qualified majority of votes in order to become a law. Among its final provisions is included the provision on the dissolution of the Civil Service Commission. 

Upon the creation of the administrative courts, all disputes between civil servants and state institutions will be decided on by these courts. The work relations of state employees who do not enjoy the civil servant's status are regulated by the Labour Code. Any dispute that arises between an employee and his supervisor is addressed by the ordinary court system. Upon entrance into force of the law on administrative courts, these cases will be dealt with by the administrative courts. It is clear from the wording used under point 3 of the draft law on environmental protection that it has been drafted in such way to be in line with the provisions of the draft law on administrative courts. The draft law on environmental protection needs a simple majority of votes to become a law. The law on environmental protection is proposed to the Assembly in compliance with the Article 78 of the Constitution which requires a simple majority of votes to be passed in the Assembly. Thus, this draft law can be discussed and voted on in the plenary session after the draft law on administrative courts is approved with the current provision of the dissolution of the Civil Service Commission.

If the draft law on environmental protection is presented before the administrative courts law is approved another option would be the rewording of the Article 62, point 3 as follows: The administrative complaint against the direct superior, issued based on the points 1 and 2 above, is addressed by the Civil Service Commission until the administrative courts are established. When the administrative courts will be established such cases will be taken over by the administrative courts.

Article 63: A new letter (g) should be included: g. Inspect the strategic environmental assessments pursuant to Article 23 and the environmental impact assessments pursuant to Article 24. The term “this law” in letters (d) and (e) should be changed to “applicable law” in order to include any other law that gives access to environmental information.

Article 73: The Presence notes the reference to creating an Environmental Fund to assist in environmental protection. The Presence encourages further development of the concept in collaboration with relevant NGOs.

Article 74: It should be considered introducing administrative liability provisions for directors and the management of legal entities that infringe the provisions of the law. The law should refer to the specific provisions in the Criminal Code that provides for criminal liability for directors and management for breach of the law, e.g., Article 248 on abuse of duty.

3.  Points for broader consideration

Article 24: The Presence considers that Environmental Impact Assessment (EIA) is an effective instrument to ensure protection for human health and the environment when conducted in line with the EIA EU Directive. It encourages appropriate project design tailored to the local context. Compliance with the public participation and consultation aspects of EIA was an issue specifically highlighted in need of attention by the Aarhus Convention Compliance Committee in its report of March 2007.  The Presence is concerned that inadequate capacities, resources and systems are currently in place to ensure that EIA is an integral part of planning procedures:

·        Recent restructuring within the Ministry has seen a reduction in the number of staff to just three persons dealing with EIA administration. 

·        The onus for conducting EIA, as well as the costs, falls upon the potential investor, whilst responsibility for ensuring compliance regarding the process and standards is that of the Regional Environmental Agency (REA). The REAs however are largely dysfunctional: most REA staff do not always possess the necessary qualifications, experience to perform their tasks; no logistical support is provided to staff to visit sites of proposed investments or for monitoring for environmental permit compliance; administrative systems and data management are largely paper based making it both difficult to manage and unavailable to parties with a lawful right to access; and imposed fines on violators are largely ignored because institutionally the REAs have no effective powers of follow up.

·        Concerns exist regarding the criteria used as a basis for selecting experts to the pool of EIA experts authorised to conduct studies, and what measures are in place to ensure that the reports produced by these experts comply with relevant standards.

·        Due to these weaknesses, it would be logical to assume that the REAs, and associated processes connected with EIA, are susceptible to corruptive influence from unscrupulous parties wishing to short cut and/or manipulate EIA and permit application processes. 

Given these shortcomings, the Presence is concerned that the current quality of EIA is poor and generally does not comply with standards envisaged in the EU Directive.  The Presence is aware of the on-going restructuring process within the Ministry including the introduction of the National Environment Inspectorate (NEI) and the Agency for Environment and Forestry (AEF). It is recommended that staff numbers, financial resources and systems necessary to ensure full compliance with EIA are commensurate with the importance of the process and in the context of meeting the requirements of the EU acqui.

Article 10: [Text states] 1. When endorsing the Environmental Protection Strategy, programmes, intervention plans and regulations, when issuing permits or implementing financial policy, control or other environmental measures, co-operation between and joint actions of public authorities are essential. The Presence views the proposed measures to encourage greater co-operation between public authorities as a positive development. Given the small budget, human resources and political influence of the Ministry it is important for other public institutions to understand that environmental protection and compliance with relevant environmental legislation is not the sole responsibility of the Ministry. Other institutions need to recognise the importance of their respective and collective responsibilities in the projects and sectors over which they preside.  

Article 21: [Text states] 1. Local Government Units shall prepare local environmental action plans on a regular basis. The Presence endorses the concept of Local Environmental Action Plans (LEAPs) as an important means of strengthening the role of local authorities in environmental protection, especially in the context of Decentralisation. It considers the process of formulating LEAPs as a chance for greater public participation in wider planning and democratic processes. The Presence is aware that a number of LEAPs have already been prepared in recent years with the support of donors in co-operation with the Ministry. However, most of these plans remain to be implemented for reasons that include a lack of resources and because they were not produced as an integral component of a regional or national plan. In noting that "the detailed requirements for the implementation of this Article shall be endorsed by the Government" it is urged that the role of LEAPs, the linkages to broader strategies, available resources and expertise to support proposed activities, and institutional responsibilities are stated in the subsequent stages of developing the vision of Article 21.

Articles 48-52.: The Presence welcomes the inclusion of the "Polluter Pays" principle. Indeed in recent years a number of incidents – Shengjin, Gerdec and Vlora for instance – have highlighted the urgent need for clarity around responsibilities for the costs of clean up operations, compensation and environmental restoration. Whilst noting "Article 51 Obligation to Ensure Available Funds for Compensation of Damage" the potential costs of environmental disasters can easily run into billions of Euro. In this context, the Presence urges particular attention and caution to the details relating to The methods and procedures for ensuring such available funds such as appropriate guarantees or insurance shall be endorsed by the Government.

Articles 53, 54, 55, 56: The Presence considers such initiatives as long overdue and their introduction will hopefully complement other efforts to encourage greater Corporate Social Responsibility. However, for such a measure to succeed, they need to be viewed as credible schemes by the public. In this regard, the Presence notes the necessary focus of Article 57 aimed at Education and Training. Note should also be made that such schemes also operate internationally, including in neighbouring countries. has an added responsibility to ensure that the adoption of such schemes meet any necessary international standards in order not to undermine the value of similar initiatives elsewhere.

Such measures can encourage greater corporate social responsibility among businesses given the potential for marketing "green" goods to an increasingly environmentally conscious public. However, environmental awareness among consumers is minimal and thus the Presence welcomes Article 57 Education and Training on Environmental Protection. Without a comprehensive national effort to raise awareness levels these measures will have little, if any, sustainable impact.

The proposed initiatives are also considered an important opportunity for engagement by NGOs. In other countries the sector plays a vital role in conducting environmental audits, monitoring standards of compliance of voluntary schemes, consumer protection, etc. The Presence recommends that introduction of these measures be done in full collaboration with NGOs from the outset.

Article 57: The Presence suggests that the draft law is more specific on the measures proposed regarding education and training. Those targeting school children and students are vital given the importance of instilling within young people a respect for the environment and the potential they have for influencing behaviour within their families. A strategy in this regard should take particular note of, and build upon, the experience of the "Green Pack" initiative introduced by the Regional Environmental Centre. The importance of education to the adult population must be a priority if progress is to be made with solid waste management, deforestation, and unregulated development.

The Presence suggests that education and training measures are cognisant of proposed law enforcement efforts under Article 64. This will provide further focus for environmental awareness training targeting keys sectors and groups such as the construction industry, quarries and mines, restaurant sector, tourist operators, etc. It would also provide a co-ordinated balance of prevention via education, and sanctions via enforcement.   

Article 58: The Presence regards the instrument of Eco-taxes as a vital missing element of current government environmental policy. Given EU-related government targets it is imperative that such measures are introduced to provide incentives for individuals and companies to make environmentally sound decisions and take greater responsibility for their actions. The Presence notes current proposals to increase import tariffs on materials such as glass and cardboard which will presumably boost the profit margins for the country's fledgling recycling industry. Other schemes would include deposit systems on glass bottles and drink cans, a major tax on plastic bags, tax relief on imported recycling equipment and similar common sense measures.

Article 61, 64, 65: The Presence urges that the number of staff assigned to the Agency is commensurate to the importance of its mandated task. The creation of the Agency and NEI outlined in the draft are welcome initiatives to improve effectiveness, yet adequate human resources, training and operation support are also crucial factors determining success. The Presence commends the draft law for strengthening law enforcement around environmental protection. Indeed, the inability of the current REAs to monitor compliance matters and apply sanctions to polluters is a major factor behind the widespread pollution. Regarding the funding  of the NEI the Presence proposes that systems should be examined for partially covering operational costs from revenue raised from fines.

Articles 68-71: The Presence stresses the importance of adequate resources being provided to the NEI to enable it to fulfil its important duties outlined under Articles 68-71, and to avoid its authority being underlined by corruption. Other important support is an adequate and functional office base, appropriate IT equipment, information management systems, training and management. Enhanced institutional cooperation with the tax inspectorates, police, respective LGUs and other relevant state institutions would also enhance the NEI's effectiveness and status.