Abstract
Public participation is one of the most important trends in international environmental law in the last 30 years, since the adoption of Principle 10 of the 1992 Rio Declaration. The European Union’s acquis has been influenced by this trend so that today many of its directives and other instruments contain provisions on the need to conduct public participation. In the water sector, the key legislative sources of public participation (that includes information supply, consultation processes and active involvement) are Article 14 of the Water Framework Directive and Article 9(3) of the Floods Directive. The chapter explores the way Italy has implemented these provisions with a reference to practical cases and by considering the relevant levels of government (State, river basin districts and Regions). Special attention is also devoted to the study of the so-called “river contracts” negotiated between institutions and the general public – a practice that has now a solid history in Italy.
Elena Fasoli: Responsible for Sects. 19.1, 19.2 and 19.3.
Massimo Bastiani: Responsible for Sect. 19.4.
Francesco Puma: Responsible for Sect. 19.4.
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Notes
- 1.
Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), https://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm. In general, see Ebbesson (2015).
- 2.
- 3.
The Aarhus Convention establishes the minimum standards in environmental procedural rights that the contracting Parties must guarantee to the members of the public through regulatory, legislative and other necessary measures. The provisions detailing them are articulated on three so-called “pillars”, namely access to information (Arts. 4, 5), public participation in decision-making (Arts. 6–8), and access to justice in environmental matters (Art. 9). These pillars form the basis of the Convention and are strictly linked to each other. Only the application of all three of them can grant a successful implementation of the Convention and establish a firm regime of environmental democracy. For further details on the provisions of the Aarhus Convention see Fasoli (2017).
- 4.
It is worth noticing that no absolute dichotomy exists between procedural and substantive environmental rights. Rather, they exist on a continuum. Procedural rights are in fact entrenched in themselves with elements of substance, if not in letter, at least, in practice. The exercise of procedural environmental rights substantiates to a certain degree a theoretical right to a clean environment. On the relationship between procedural and substantive environmental rights see, for example, Boyle (2012), Marin-Duran and Morgera (2013).
- 5.
Upon signature and ratification of the Aarhus Convention, the UK, significantly concerned about “substantive interpretations” of the Preamble and of Art. 1 of the Convention, made a declaration to the effect that the reference to “a right to live in an environment adequate to his or her health and well-being” represents only an aspiration which motivated the negotiation of the Convention, whereas the legal rights are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters.
- 6.
The only two other (regional) instruments that have explicitly provided for a human right to a healthy environment are: the African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Convention on Human Rights (the so-called San Salvador Protocol). The right to live in a healthy environment contained in the latter instrument under Art. 11 does not have enforceable character, though. It cannot be subject to an individual petition to the Inter-American System on Human Rights (Art. 19(6)). However, a recent (November 2017) Advisory Opinion of the Inter-American Court of Human Rights could open the doors to a different interpretation (see http://www.corteidh.or.cr/docs/opiniones/seriea_23_esp.pdf). In essence, the Court stated that the right to a healthy environment protects the environment per se and that, therefore, it would not be necessary to prove its connection to other human rights. According to the Court, even though Article 11 is not enforceable through individual petitions, the right to a healthy environment would be justiciable under Art. 26 of the American Convention on human rights on “progressive development”.
- 7.
The Agreement has not entered into force yet. See the status of ratification at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-18&chapter=27&clang=_en
- 8.
Art. 4(1) provides that “Each Party shall guarantee the right of every person to live in a healthy environment and any other universally-recognized right related to the (present) Agreement”.
- 9.
It rests to be seen, once the instrument will be entered into force, to what extent the Parties to the Escazù Agreement will comply with this provision. On the progressive recognition of a right to a healthy environment see also Human Rights Council, Report of the Special Rapporteur, Issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/40/55 (8 January 2019), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/40/55
- 10.
According to Article 10(3) of the Treaty on the European Union (TEU) “decisions in the Union shall be taken as openly as possible and as closely as possible to the citizens” and “every citizen shall have the right to participate in the democratic life of the Union”.
- 11.
Directive 2000/60 establishing a framework for Community action in the field of water policy [2000] OJ L327, 22.12.2000, p. 1. The WFD is considered by legal doctrine as a “governance mode” directive that leaves Member States a great degree of discretion in its implementation. On the difference between this type of directive and the “classical” ones see particularly van Holten and van Rijswick (2014). For a recent assessment of the results brought by the WFD 15 years since its adoption, also in the field of participation, see Voulvoulis et al. (2017).
- 12.
Directive 2007/60 on the assessment and management of flood risks [2007] OJ L288, 6.11.2007, p. 27.
- 13.
Such as, for example, Directive 2003/4 on public access to environmental information, [2003] OJ L41, 14.12.2003, p. 26; and Regulation 1367/2006 on the application of the Aarhus Convention to its institutions and bodies, [2006] OJ L264, 25.9.2006, p. 13.
- 14.
This is the case, for example, of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156, 25.6.2003, p. 17; and of Directive 2010/75 on industrial emissions (integrated pollution prevention and control), [2010] OJ L333, 17.12.2010, p. 17.
- 15.
- 16.
As provided for under Art. 2(15) WFD, a “river basin district” is the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters.
- 17.
For a detailed analysis of the application of the IWRM principle to the public participation provisions of the WFD see, for example, Ker Rault and Jeffrey (2008).
- 18.
CISs are adopted through the cooperation of the EU Commission and the public and private actors, including stakeholders and experts. See Bogaart (2014, p. 61).
- 19.
Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document no. 8, http://ec.europa.eu/environment/water/water-framework/facts_figures/guidance_docs_en.htm
- 20.
More precisely, consultation is when “administrative bodies consult people and interested parties (stakeholders) to learn from their knowledge, perceptions, experiences and ideas. Consultation is used to gather information or opinions from those involved to develop solutions based on this knowledge. Reports, scenarios or plans are presented and people are asked to comment. The process does not concede any share in decision-making, and professionals are under no formal obligation to take on board people’s views”. Active involvement means “participation in the development and implementation of plans. Interested parties participate actively in the planning process by discussing issues and contributing to their solution”. By way of example, the 2003 CIS suggests that MSs could encourage that water use sectors could be represented in river basin organisations (ibidem, p. 13).
- 21.
Ibidem, p. 18. This is confirmed by the Court of Justice of the EU: Art. 14 WFD is intended to confer on interested parties and, more widely, on the public, a right to be actively involved in the implementation of the Directive and, in particular, in relation to the RBMPs (Judgment of the Court (Third Chamber), 30.11.2006, case C-32/05, para. 80).
- 22.
Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document no. 8, p. 13.
- 23.
Judgment of the Court (Second Chamber), 20.12.2017, case C-664/15.
- 24.
Ibidem, para. 74.
- 25.
Ibidem, para. 75.
- 26.
See supra Sect. 1.
- 27.
Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document no. 8, pp. 15–16.
- 28.
See supra Sect. 1.
- 29.
Legislative Decree no. 142/2006.
- 30.
- 31.
This is provided for by Art. 10 of Legislative Decree no. 49/2010 referring to the implementation of the FD.
- 32.
Article 5(u) of the Code on the Environment. This definition is in line with that contained in the Aarhus Convention and in the Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197, 21.7.2001, p. 30. See supra Sect. 2.
- 33.
Each RBMPs is then adopted in the context of a “permanent institutional conference” that brings together the representatives of the Regions involved in the respective RBD with representatives of national ministries, such as environment, agriculture and transport. To this conference can be also invited to participate two members of the most relevant agricultural organisations in the country and one representative from the national association for the management and protection of the water for irrigation (Associazione Nazionale Consorzi di gestione e tutela del territorio e acque irrigue or ANBI) (Art. 63(5) of the Code on the Environment). The RBMPs become legally binding once approved by the President of the Council of Ministers (Art. 57(1), of the Code on the Environment).
- 34.
See supra Sect 2.
- 35.
According to Alberton and Domorenok (2012, p. 403), this was due to the fact that the “former basin authorities were asked by the Ministry of Environment to prepare management plans a few months before the time period set by the WFD expired”.
- 36.
- 37.
Amongst the recommendations addressed to Italy the EU Commission included the need to: “improve coordination between regions and RBD authorities and improve reporting to make it more integrated at RBD level (it is essential to clarify the respective roles of the Regions and RBD authorities and give further detail on the integration and coordination of regions, RBD and the national level for reporting)” (Commission Staff Working Document, Report on the progress in implementation of the Water Framework Directive Programmes of Measures , Brussels, 9.3.2015 SWD(2015) 50 final, p. 118).
- 38.
By way of example, Alberton (2012, p. 389) was referring to a “general institutional resistance to change and to the strong influence of political actors whose interests have not been aligned with the strategy envisaged by the [WFD ], against a fragmented and conflictual legislative background”.
- 39.
Interview on 24 January 2019 with Daniele Rossi (RBD of Eastern Alps) and Rocco Scolozzi (LIFE FRANCA, a European project focusing on flood risk anticipation and communication in the Alps). According to the experts, the high fragmentation in the institutional water governance could create confusion about, for example, who the competent authority is, including for the public participation processes. There are too many different institutional entities that one could potentially refer to: next to RBD Authorities, Genio Civile, Consorzi di Bonifica, river contracts, ARPA (Regional Environmental Protection Agency), Municipalities, amongst others.
- 40.
Commission Staff Working Document, Member State: Italy, Accompanying the document Report from the Commission to the European Parliament and the Council , on the Implementation of the Water Framework Directive, Brussels, 14.11.2012, SWD(2012) 379 final, p. 53.
- 41.
Ibidem.
- 42.
Art. 3 of Ministerial Decree no. 294/2016 provided that, starting from February 2017, all the RBD Authorities had to take up all the functions of the national, inter-Regional and Regional river basin Authorities.
- 43.
The river basin of Fissero-Tartaro-Canal Bianco was previously under the Authority of the Eastern Alps.
- 44.
Whereas, with a specific focus on the quality and quantity of the water body, the preparation, for example, of the Water Protection Plans (Piani di tutela delle acque), and the public participation thereto, as part and parcel of the process to adopt the RBMPs, still falls under the competence of the Regions. To that effect Art. 122 of the Code on the Environment provides that the Regions “promote the active participation of all the interested parties in their elaboration, review and update”. In addition, upon request duly motivated, the Regions authorise the access to the background documents for the preparation of the plan, and they also make publicly available a) the schedule for the presentation of the plan, including a declaration of the consultative measures at least 3 years before the period that the plan is referring to; b) the preliminary overall assessment of the main issues related to water management that can be identified in the river basin district at least 2 years before the period that the plan is referring to; c) the copy of the project for the river basin plan, at least 1 year before the period that the plan is referring to”.
- 45.
Commission Staff Working Document, Second River Basin Management Plans – Member State: Italy, Accompanying the document Report from the Commission to the European Parliament and the Council, on the Implementation of the Water Framework Directive and the Floods Directive, Brussels, 26.2.2019 SWD(2019)51 final, pp. 11, 34.
- 46.
Ibidem, p. 11.
- 47.
A word of caution is in order here: the assessments made periodically by the EU Commission, including regarding the way public information and consultation for the RBMPs and FRMPs are undertaken in the different RBDs, are based on MSs’ own reporting, integrated by the information posted on the official websites of the RBDs. Therefore, the assessments do not necessarily reflect the way public participation is conducted in each case.
- 48.
Commission Staff Working Document, Accompanying the document Report from the Commission to the European Parliament and the Council, on the Implementation of the Water Framework Directive, Brussels, 14.11.2012 SWD(2012) 379 final, p. 8.
- 49.
This is also thanks to the practice of the river contracts as it will be explained in Sect. 4.
- 50.
The Commission, for example, reports that media (such as papers, television or radio) were used in three RBDs (Serchio, Central Apennines and South Apennines); printed material was used in two (Padan and Central Apennines); and social networks (for example, Twitter, Facebook) in one RBD (Northern Apennines) (Commission Staff Working Document, Second River Basin Management Plans – Member State: Italy, Accompanying the document Report from the Commission to the European Parliament and the Council, on the Implementation of the Water Framework Directive and the Floods Directive, Brussels, 26.2.2019 SWD(2019)51 final, p. 28).
- 51.
The Commission, for example, reports the involvement of NGOs/nature protection groups (in all RBDs but Sicily ); of consumer groups (in all RBDs but Padan, the Northern Apennines and Serchio); of universities and research centres (in the Eastern Alps, Padan, Central Apennines and Southern Apennines RBDs) (ibidem).
- 52.
The Commission, for example, mentions the establishment of advisory groups in three RBDs (Eastern Alps, Padan and Central Apennines), involvement in drafting in three RBDs (Eastern Alps, Padan and Sardinia); regular exhibitions in three RBDs (Eastern Alps, Central Apennines and Southern Apennines); and formation of alliances in three RBDs (Padan, Southern Apennines and Sicily) (ibidem, pp. 28–29).
- 53.
For example, only some of them (those for the Eastern Alps, Central Apennines and Puglia/Ofanto) identify stakeholders that were actively involved, including both private groups such as businesses and NGOs, as well as public bodies, such as Civil Protection authorities (Commission Staff Working Document First Flood Risk Management Plans – Member State: Italy, Accompanying the document Report from the Commission to the European Parliament and the Council on the Implementation of the Water Framework Directive and the Floods Directive, Brussels, 26.2.2019 SWD (2019) 81 final, p. 20).
- 54.
Ibidem, p. 22. The Commission in fact eventually recommended that the “FRMPs should consistently provide information on the process for public participation and active involvement of stakeholders or indicate where this information is available” (ibidem, p. 24).
- 55.
Above n. 39.
- 56.
See the website at www.alpiorientali.it.
- 57.
Art. 51(5) of Law no. 221/2015.
- 58.
Art. 14(3) of Directive 2007/60/EC. The previous FRMP (Piano di gestione del rischio alluvioni 2016) is available at http://www.alpiorientali.it/dati/direttive/alluvioni/fd_20160309/PGRA_Relazione%20di%20Piano_Allegati_I_II_III_V.pdf
- 59.
The updating process also includes other necessary documents such as the environmental objectives, the use of the territory, a cost and benefit analysis (Arts. 4–7 of Legislative Decree no. 49/2010), as well as the strategic environmental assessment (Arts. 12–18 of the Code on the Environment).
- 60.
Piano di gestione del rischio alluvioni, Primo aggiornamento, Calendario e programma di lavoro, Misure in materia di informazione e consultazione pubblica, dicembre 2018. The document is available at http://www.alpiorientali.it/images/Calendario_Misure_in_materia_di_informazione_e_consultazione_pubblica_PGRA_e_allegato.pdf
- 61.
Ibidem, p. 4.
- 62.
Ibidem, p. 4.
- 63.
Ibidem, p. 6.
- 64.
The first FRMP refers, for example, to a number of 50 meetings that have been held. These meetings both informed the public about the existence of a consultation process and also provided forums for active involvement (Commission Staff Working Document First Flood Risk Management Plans – member State: Italy, Accompanying the document Report from the Commission to the European Parliament and the Council on the Implementation of the Water Framework Directive and the Floods Directive, Brussels, 26.2.2019 SWD (2019) 81 final, p. 64).
- 65.
It is reported that “a series of public meetings were held in seven provincial capitals: topics included the types of measures under consideration and the plan itself, participants were invited to help define priorities among the measures. A final set of meetings (outside the consultation period) just before the publication of the final FRMP presented the observations that had been received and the changes made in response to these modifications” (ibidem, p. 65).
- 66.
The stakeholders who were identified and invited were the following: “fishermen, professional associations, environmentalists and electricity producers. The FRMP discusses, in addition, coordination with government bodies – national ministries and authorities, regional governments, basin authorities and irrigation bodies are identified as relevant stakeholders” (ibidem, p. 67).
- 67.
The presentation on the results of the consultation is available at http://www.alpiorientali.it/files/convegni_2015/2007_Bisaglia_Baruffi_Udine_02_12_15.pdf. Here the EU Commission reports, though, that the document is not detailing what has been changed as a result of the consultation (ibidem, pp. 69–70). This is also confirmed in Commission Staff Working Document European Overview – Flood Risk Management Plans, Accompanying the Document Report from the Commission to the European Parliament and the Council, Brussels, 26.2.2019 SWD (2019) 31 final, p. 42.
- 68.
Above n. 39.
- 69.
It is important to highlight that the perception of the public about the usefulness of the various measures is informed by factors such as a different level of technical knowledge; different perceptions about the state of the territory and about the socio-economic situation; and different levels of environmental consciousness, amongst others.
- 70.
See Guidance Document No. 29, Guidance for Reporting under the Floods Directive (2007/60/EC), 2013, pp. 66–68. This approach to the classification of the measures has been followed also by ISPRA, the Italian Institute for Environmental Protection and Research, for the preparation of the guidance document for reporting under Art. 15 FD. The document is available at http://www.isprambiente.gov.it/pre_meteo/file/NOTE_db_access_FRMP_gennaio2016.pdf
- 71.
Piano di gestione del rischio alluvioni 2016, above n. 60, p. 91.
- 72.
Lombardy Foundation for the Environment (2018), Case study reports on the mainstreaming of climate adaptation – Case Study Report: Italy – “Upper Adda” River Contract, https://www.alpine-space.eu/projects/goapply/results/results_revised/goapply_d.t2.1.1_wp2_case-study-report_italy_upperadda_fla_oct-2018.pdf, p. 6.
- 73.
The relation between river contracts and soft law instruments has been specifically addressed in a study commissioned by the Permanent Secretariat of the Alpine Convention within the scope of the activities of the project AlpGov for the implementation of the objectives of the Action Group 6 of EUSALP. See Bastiani et al. (2018).
- 74.
Art. 1 of the European Landscape Convention, adopted by the Council of Europe on 20 October 2000, defines “landscape” as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors. Therefore, landscape has diverse characteristics, ranging from areas of ecological importance to dryland, from urban areas to farmland.
- 75.
To get a more detailed picture of the Italian experience, see Bastiani et al. (2015).
- 76.
The description of the basin is based on the data provided in the report “Caratteristiche del bacino del fiume Po e primo esame dell’impatto ambientale delle attività umane sulle risorse idriche” (2010), authored by the RBD Authority of the Po river : www.adbpo.it/download/PdGPo_24febbraio2010/PDGPo_ELABORATO_01_CaratteristicheDistretto/PdG_Po_ELABORATO_1_10_03_11.pdf
- 77.
The history of river basin management in Italy is summed by Alberton and Domorenok (2012).
- 78.
On the participatory planning processes in the Po Basin see, on the website of the relevant Basin Authority, Piano di gestione del distretto idrografico del fiume Po, https://pianoacque.adbpo.it/il-piano-di-gestione-acque-2010/
- 79.
Above n. 42 and corresponding text.
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Fasoli, E., Bastiani, M., Puma, F. (2021). Public Participation in the Implementation in Italy of the Water-Related Directives. In: Turrini, P., Massarutto, A., Pertile, M., de Carli, A. (eds) Water Law, Policy and Economics in Italy . Global Issues in Water Policy, vol 28. Springer, Cham. https://doi.org/10.1007/978-3-030-69075-5_19
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