ENVIRONMENTAL ENFORCEMENT IN CENTRAL AND EASTERN EUROPE IN TRANSITION

WOJCIECH S. BEBLO

Director Ecological Department, Voivodship Katowice, 25 Jagiellonska Street, PL-40-032 Katowice, Poland

SUMMARY

This paper presents an assessment of the current status of environmental enforcement in Central and Eastern Europe and the challenges facing those trying to improve upon current strategies and approaches. The discussion is based upon analysis of environmental law in Czecho-Slovakia, Hungary and Poland. Different approaches undertaken by those countries are discussed regarding institution building and law making. The environmental law and related institutional system is built upon a framework of environmental laws (CSRF and Hungary) or from detailed regulations (Poland).

1 INTRODUCTION

Environmental enforcement has become of great importance in Poland during the Solidarity's Round Table Debate with Communist Government in spring 1989. This issue was one of the most discussed at that time and it was repeated in other countries of Central and Eastern Europe during their transformations. Central and East European countries, that for many years were ruled by communists, now are struggling for a new future based on human rights, a market economy and a modern legal system [1,2].

Heavy industry, the hearth of the working class, was declared under old regime to be the key sector of communist economy and was to be protected at any price [2]. The lawmakers therefore put more wishful statements into environmental laws than real rules that might disturb the realization of socialist five-year plans. Environmental law was then to show, that communist governments like others, after the series of UN conferences in early seventies, care for the environment. They did, by setting permissible levels impossible to comply with.

Information about the state of the environment was to be a secret though no real use of it was possible to enforce obeying the law. The public knew about the state of the environment and its influence on human health only from unofficial sources - the environmental groups. After the democracy revival in all Central and East European countries environmental issues became one of the most important political issues. People wanted to know officially as much as possible about the state of the environment, public health and risk caused by environmental pollution. The information caused great political pressure within communities end forced policy makers to set new environmental laws. In all countries it opened wide debate about the set of rules and principles to be adopted within the system of laws:

- environmental liability,

- polluter and user pay principle,

- prevent before cure principle,

- public participation in decision making and public right to know,

- decentralized integrated environmental management based upon self-governing principles.

The ways to achieve the goal are different in every country of Central and Eastern Europe. It is done either by setting general system of principles and rules, from which detailed laws are to be derived (Czecho-Slovakia) or by synthesizing the general system from detailed described laws (Poland and Hungary) [1,3].

2   ENVIRONMENTAL ENFORCEMENT IN CZECH AND SLOCAK FEDERAL REPUBLIC

State of the environmental law in Czech and Slovak Republic (CSFR) is imposed by recent events and separative tendencies. It may happen, that there will be two separate countries in this part of Europe, having separate legal systems.

In April 1991 the Federal Government published a State Program of Environmental Protection which defined polices to be adopted at republic and federal levels. Among others there were listed issues concerning environmental laws and regulations, monitoring and information systems and economical instruments to be applied to achieve reduction of environmental pollution. Later on, in December 1991 there was issued a Federal Environment Act that since the beginning of 1992 is the framework for environmental legislation. The Act adopts principle of sustainable development and puts responsibility on every citizen regarding care for the environment. In the Act there were also adopted other principles like "polluter and user pays".

Enforcement of environmental law in CSFR is based on a fine and penalty policy. Penalties and fines till 1991 were too low to make any real reaction of violators. According to a new law fines were raised several times especially regarding air pollution. The Act from 1991 introduced fee instruments to enforce and to encourage actions toward reduction of environmental pollution. Czech and Slovak republics have established funds for environmental protection, created by fee and fine collection.

The responsibility of environmental policy is put on three organizations: the Federal Committee for the Environment, the Czech Ministry of the Environment and Slovak Commission for the Environment. The Federal Committee is responsible for the preparation of law on the federal level and international harmonization of the environmental policy. The Czech Environment Ministry acts through the Czech Inspectorate and its district, municipal and community offices. The Slovak Commission acts according to the same system. The republics have the right to adopt stricter standards. The responsibility for the environment in Czecho-Slovakia is put on many other agencies and ministries depending upon the protected component of the natural environment. Environmental law in Czecho-Slovakia is made according to a systematic approach regarding institution building which tends toward concentration of efforts and derives the system from general framework of law. The legal system is being built based upon general principles. The development of the system is made by creating of detailed regulations on water protection, environmental impact assessment, forest protection, waste regulation (management) and air protection.

3 ENVIRONMENTAL ENFORCEMENT IN HUNGARY

Environmental legislation in Hungary has on one hand a long tradition connected with act from 1729 issued by Karl III or act on water protection from 1840 and on the other hand - a relatively short tradition due to exclusion of environmental issues from national policy by communist rulers. After the replacement of communist government, environmental issues began to play an important role in Hungarian policy. In September 1990 the Ministry for Environment and Regional Development issued a program for environmental protection in which there were outlines of required changes in the legislation. The system of laws regulating environmental protection in Hungary now consist of many detailed acts on air, water, solid and hazardous waste and land use. Environmental Protection Code is under discussion and it is intended to include articles on environmental liability, economic instruments, emission tradings, principles and rights.

Before 1990 enforcement of environmental laws in Hungary was ineffective because all responsibilities were put on industrial management. Nowadays this responsibility is put on National Environment Protection Directorate, created in 1990, which acts through its 12 regional directorates and local governments. The Directorate is an agency of Environment Ministry. Regional directorates are responsible for issuing permits, imposition of penalties and fines and the enforcement of environmental regulations. Money that is collected by regional directorates creates a Central Environmental Fund. In Hungary there is a separate administrative structure that have responsibilities in water management in 12 regional offices. Environmental enforcement in Hungary is in its beginning.

4 ENVIRONMENTAL ENFORCEMENT IN POLAND

The first complex environmental law was set in Poland in January 1980. The enforcement issues were included in that Act by defining the role for National Inspectorate of Environmental Protection (PIOS). The power of then PIOS was weak and therefore in 1991 a new law was adopted providing POIS with a real enforcement power. The PIOS acts on behalf of the Minister of Environmental Protection, Natural Resources and Forestry through the Deputy Minister - Chief Inspector of Environmental Protection. The PIOS acts through Inspectors at voivodship level. The Inspectorates have the right to stop activities and operations endangering the environment, ban the sale and import of goods that do not meet national standards, act in case of extraordinary environmental threats and is responsible to keep the public informed on the state of the environment. To reinforce the action the Inspector co-operates with prosecuting authorities, state administrations, municipal self-government and public organizations. PIOS is separated from viovodship administration. In cases of violation of a given emission permit the Inspector imposes a fine on the polluter or causes criminal prosecution. Environmental Inspectorate is also responsible for environmental monitoring related to countrywide system.

Environmental law in Poland is enforced by fee and fine policy. Every facility must possess emission permits according to which the voivodship administration imposes a fee for use of natural resources. The permits are issued by the Voivodship administration that collects fees for use of natural resources and fines for violating a given permit. The Voivodship administration is also responsible for coordination of all efforts relating planning of investments in environmental protection, research, regional environmental monitoring and co-operation with environmental authorities and organizations.

The emission permit is defined during the negotiations at the voivodship administration in presence of facility's management, PIOS, representatives of municipal authority, NGOs and potentially endangered public. Each permit is given with respect of national environmental policy and respective limits. The permit is issued after closure of an administration proceeding. If during the proceeding a consensus hasn't been obtained, every party in the negotiation, not satisfied with the result, has a right to appeal to the Ministry of Environmental Protection and finally to the Supreme Administration Court. During appeals, the administration proceeding is suspended. It happens, that management of given facility utilizes all rights to appeal and this way reaches prolongation of the proceeding. After validation of the permit it is possible to impose a fee or, in case of proved violation of this permit, a fine can be imposed.

At the local self-government level the involvement in environmental issues is at present low although the municipalities are responsible for ensuring proper water and waste management, heat supply and greens keeping. Present debate on regionalization incorporates environmental issues as a right to develop regional environmental policy. This is also the decentralization issue being discussed in every country of the Central and Eastern Europe as the reaction to a central ruling.

System of environmental laws in Poland is created from the opposite side in comparison to the way it is done in Czecho-Slovakia - from very detailed laws efforts are made to derive a synthesis incorporating all assumptions and principles.

5    ENVIRONMENTAL PROGRAM REQUIREMENTS AND THEIR IMPLEMENTATION UNDER THE OLD SYSTEMS

In all countries of Central and Eastern Europe the official policy regarding environmental protection was more aiming to desired economic growth and image creating of the communist government than a real action plan for environmental protection. In such circumstances there was no place for real enforcement and compliance issues.

The priorities of environmental policy were set by the central planing authority that was taking into account the communist assumptions of social development rather than any modern environmental policy. This led to the environmental policy resembling. This sort of policy making resulted in environmental liability and built up industry.

As it has been described above, the regulated universe was intentionally made to be weak. In Hungary after World War II it was officially declared, that there was no place for environmental protection because the country had to build economical power by growth. A similar approach was obligatory in other countries due to forced symmetry in policy making under Soviet Union control [2]. The system began to change after first UN declaration on environment (U'Thant). Those issues were then raised later on during strikes in Poland in 1980 - the year of issuing first complex environmental law. In Poland enforcement and compliance issues were introduced into the law - there were proposed enforcement institutions, legal and financial instruments. In Czecho-Slovakia enforcement was limited by unclear competence division between Federal and Republic's Governments and respective ministries [1,3]. It was difficult to determine who had been responsible for what. In Hungary the only actions undertaken were related to national budget planning in which there was money reserved for environmental protection as a grant for a particular facility. This money was usually used for general investments with less respect to environmental protection [1].

Environmental requirements and related payments (fees, fines and penalties) were set artificially low. Low permissible levels were impossible to comply with and at the same time the payments were set low and created no enforcement feedback. The management of industry was then mainly interested in growth of production. Promoting compliance under previous regulation was difficult, although in some cases effective. The most effective instrument to promote compliance behavior was related to issuance of permits and setting up allowable emissions (Poland) and announced growth of related fees. At the beginning there was no reaction. From 1990, when fees and fines were raised several times, the users energetically began creating action plans. Nowadays from fee and fine policy there is derived financial incentive instrument based on tax principle: the user declaring action toward cleaning the technology, has right to utilize their own fee for investment. It is done by separate agreement included to the administration permit [4].

The system of compliance monitoring has been based upon routine audits done by the governmental administration in Poland and by respective ministers in Czecho-Slovakia. In Poland the compliance monitoring under previous regulation was the responsibility of governmental administration (voivodships) and PIOS - the National Inspectorate for Environmental Protection. Examples of environmental requirements and their implementation in reference to each element of the general framework identified under Speaker #1 and the ability to take action to ensure compliance, both regulatory and financial. There was no such service in Hungary under old regime [3].

6   NEW CHALLENGES UNDER TRANSITION TO A MARKET ECONOMY

The system of environmental laws still require improvement regarding permissible levels of emission and allowable emission and related fees for use of the environment and fines to be paid after proven violations of given permits. All those values shall be set at levels possible to enforce as relates to allowable pollution and possible to bear by users as relates to fees. It is agreed by all, that fines and penalties shall remain at its high levels. Wrong values require later adjustments that spoil the proceedings.

Environmental policy in East and Central European Countries require modern laws derived from their national constitutions. The governments of the countries discussed in this paper issued their environmental policy documents and declared following the sustainable development, decentralization of decision making, set up the priorities and accepted general principles. Rebuilding of legal systems related to environmental protection shall be done in parallel to the improvement of the state organization and require simultaneous action in:

- Adjustment of the area of activity of different environmental administration to the territorial division of the country. This will lead to the concentration of means and efforts according to harmonized policy, facilitate the coordination and shorten the proceedings,

- Clarification of environmental administration system at all levels and decentralization of decision making, environmental found creating and development of environmental policy,

- Adjustment of standards relating emissions and effluents to those which are applied in Western Europe and WHO,

- The state policy shall consequently apply pricing policy promoting clean technologies, clean fuels (unleaded gasoline)

- Emission trading shall be taken into consideration and applied primarily in areas of dense concentration of industry,

- Environmental health monitoring and risk assessment, - environmental impact assessment.

International cooperation and common environmental policy in Central and East Europe require:

- Unification of metrology as applied in environmental monitoring,

- Creation of information system on the state of environment,

- Joint environmental studies and programs like Black Triangle or Silesia.

The countries of Central and Eastern Europe will not be able to solve their environmental problems without external contributions to their action plans. It is therefore required to introduce incentive instruments that will facilitate privatization, attract foreign capital and accelerate the renovation and restructuring processes:

- Environmental liability must be clearly defined in law,

- Taxation policy shall allow tax reduction for those investing in environmental protection. The same shall be applied to the custom policy,

- Fee collection shall permit internal use of part of the amount due paid be the user, according to separate agreement reached during administration proceeding.

The general concern for environment is due to open market competition, privatization and related problems with environmental liability. The trend related to support and environmental concern is growing. Market economy forces the managers to evaluate costs when taking into account a fee and eventual fine, with no financial intervention of central government, the managers became more interested in diminishing the cost and avoiding an eventual penalty. On the other hand some incentives are provided based upon environmental funds, that are the source of soft loan for environmental investments.

7   SPECIFIC EXAMPLES OF CHANGING CIRCUMSTANCES.

After the Round Table Debate (RTD) in Poland in 1989 began a decentralization of governmental system. The municipalities became independent from the state government according to Self-governing Act. In the field of environmental protection appeared new partners developing their own environmental policy based on the own financial means. The issue of public participation, raised during RTD, resulted in permanent attendance of the representatives of NGO's, municipal self-goverment and endangered public in the administration proceedings.

During this transition period there is an observed process leading to separation of different regulatory and enforcement bodies in Poland and concentration of efforts within one institution in Czecho-Slovakia and Hungary. The process is strongly influenced by the political environment which in Czecho-Slovakia leads to a division of the state, in Poland leads to a new regional division and in Hungary - to problems related to Danube dam.

REFERENCES:

1 Environmental Law, International Corporate Law, White and Case, April 1992

2 Andrzej Delorme, Stalin's development paradigm and environmental crisis, AURA 1990.

3 E.N. Lisicyn, Environmental Protection in Foreign Countries, Agroizdat 1987, Moscow.