To:
Chair of the Environmental Policy Committee of the VRU
Oleh BONDARENKO
Minister of Environmental Protection and Natural Resources
Ruslan STRILETS
The position of the public regarding the assessment of the impact of the military aggression of the russian federation, bringing the russian federation to account and restoration of the environment to its natural state
On November 10, 2022, the Verkhovna Rada of Ukraine’s Committee on Environmental Policy and Nature Management will hold a hearing on the topic: “The impact of military operations on the environment in Ukraine and its restoration to its natural state.” With this appeal, we, representatives of the public, express concern about the consequences of military aggression for the environment of Ukraine and call on the Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine to take the following measures in order to qualitatively assess the impact on the environment, hold the russian federation accountable and ensure restoration of the environment to its natural state:
Regarding the impact of hostilities on biodiversity
The hostilities pose a danger to life and health of citizens and the nature of Ukraine. There is a complex impact on all components of nature – air, soil, water, biodiversity, surface sediments, climate and relief of territories, which leads to chemical pollution of the environment, powerful physical impact and direct destruction of individual objects.
According to the Eastern European Fire Monitoring Center, as of September 2022, more than 320,000 hectares of forest in the areas of hostilities and occupied territories were destroyed by fires. Also, the inevitable consequences of war, such as permanent noise pollution and the problems of migration and reproduction of a number of fauna species caused by it, the construction of fortifications within the boundaries of forest areas and the harvesting of wood for these needs, as well as the pollution of forest soils and water bodies with fuel, lubricants and other toxic substances from millions of exploded munitions and thousands of pieces of destroyed equipment also have a significant negative impact on forest biodiversity. The full effects of the war on forest ecosystems can only be properly assessed in the years following the victory.
During the hostilities, nature conservation territories of international, national and regional importance are damaged – UNESCO biosphere reserves, territories of the Emerald network, wetlands of international importance, nature reserves, national parks and other territories of the nature reserve fund, as well as territories valuable for birds along the Dnipro and the coast of the Black and Azov seas, which are part of the Afro-Eurasian migration route. At least 44% of all territories of the nature reserve fund of Ukraine have come under the influence of hostilities or occupation. Also, according to the experts of the National Academy of Sciences of Ukraine, only in the zone where active hostilities are currently underway, there are 100% of the populations of 21 species of plants and 2 species of animals, which are super-endemic, that is, they are found in extremely limited areas.
Thus, the hostilities can cause full extinction of these species.
There is destruction and pollution of green areas of cities and towns of Ukraine, nature conservation facilities on the territory of settlements. Zoos, animal rehabilitation centers, animal shelters are damaged and destroyed and animals die there.
Recommendations:
The Ministry of Environmental Protection and Natural Resources of Ukraine, the Ministry of Health of Ukraine, the State Environmental Inspectorate of Ukraine, the State Emergency Service of Ukraine, the National Academy of Sciences of Ukraine and other scientific institutions, environmental protection public organizations should assess the effects of military actions on the environment, identify risks and threats to life and health of citizens of Ukraine and natural complexes. It is important to determine the territories and objects where the environment was polluted by toxic substances, carry out relevant studies and eliminate the consequences of such pollution.
The State Emergency Service of Ukraine should ensure the cleaning of territories from explosive objects, conduct research on the risks of contamination of soil, surface and groundwater, air with materials from which explosive objects are made, as well as substances that enter the environment as a result of explosions. Together with the Ministry of Health of Ukraine, it is important to investigate the risks of negative impact on health of military personnel and civilians.
The Government of Ukraine announced its support for the European Green Deal. Therefore, in view of these intentions and the clear obligations of Ukraine as a candidate for EU membership within the biodiversity conservation sector, the Cabinet of Ministers of Ukraine will ensure that the government’s Recovery Plan includes the goals that will ensure the implementation of the European Green Deal (EGD) and the 2030 EU Biodiversity Strategy, as part of the EGD.
The Ministry of Environment Protection and Natural Resources of Ukraine, regional departments of environment, the National Academy of Sciences of Ukraine, scientific institutions and environmental NGOs should ensure the creation of territories of the nature reserve fund with the aim of achieving European conservation indicators, preserving the territories of the Emerald Network and protecting the most valuable natural territories during restoration of the territory of Ukraine. It is important to ensure the monitoring of the state of flora and fauna and to conduct consultations with the governing bodies of international conventions on the protection of biodiversity, ratified by Ukraine, in particular, the Secretariat of the Bern Convention on the Conservation of the European Wildlife and Natural Habitats regarding the assessment of the impact of military actions on the territory of the Emerald Network. It is also important to join efforts with the State Environmental Inspectorate of Ukraine to conduct an assessment of the state of protected areas and all natural ecosystems that have been affected by military actions and develop the best ways to restore these areas;
- The Cabinet of Ministers of Ukraine and the Ministry of Environmental Protection and Natural Resources of Ukraine should create a separate Agency for protected areas, or a full-fledged Department for the implementation of state policy in the area of development and management of protected areas, the territories of the Emerald Network and the preservation of biodiversity.
Regarding the environmental consequences of industrial facilities destruction
Due to the actions of the russian federation, there were more than 350 attacks on industrial facilities in Ukraine. This led to the complete or partial destruction of infrastructural objects. Fires have been recorded at oil depots, gas stations, landfills, and there are facts of damage to heat and water supply facilities (sewage pumping stations, filter stations, water pumps). Kremenchuh Oil Refinery was completely destroyed, Azovstal in Mariupol, the Phenol Plant in New York, the Avdiivka Plant were under constant fire, the same was true about the Chemical Plant in Severodonetsk, Sumykhimprom near Sumy – this list is very long.
Since 2014, the occupation of the territory of Ukraine has brought Luhansk and Donetsk regions to the brink of environmental disaster. In April 2018, water drainage was completely stopped in the “Yunyi Komunar” mine near the city of Yenakievo, Donetsk region. In 1979, the Soviet authorities carried out an underground nuclear explosion at the “Yunyi Komunar” mine near the town of Yenakieve, Donetsk region. After the explosion, a radioactive cavity was formed in the mine. Water must be regularly pumped out of it to prevent radioactive contamination of the soil and groundwater. There are also mines in the region that are not operated, but serve as a storage place for hazardous and radioactive waste. These are such mines as “Oleksandr-Zahid”, “Vuhlehirska”, the mine named after Kalinin. Stopped water drainage from them can lead to the appearance of artificial radionuclides on the surface, which can be contained in the capsule – strontium-137, cesium-90 and plutonium-239. Penetration of radioactive liquid into the groundwater leads to pollution of the ecosystem of the Sea of Azov.
The Ukrainian side does not have access to objects located in the occupied territory, and, accordingly, does not have reliable and up-to-date data on the state of mines, mine water levels and their pollution. The only source of information was the reports of the OSCE mission, which recorded numerous cases of mine flooding since the start of hostilities in 2014 (on March 31, 2022, russia vetoed the work of the OSCE monitoring mission on the territory of Ukraine). According to rough estimates for 2020, at least 39 mines in the occupied territory were flooded. In the period from February to June 2022, another ten coal mines were flooded in Donetsk and Luhansk regions.
Recommendations
The russian federation has already caused large-scale environmental pollution by attacking industrial facilities in Ukraine. To reduce future pollution from the industrial sector after the withdrawal of russian troops from the territory of Ukraine, it is important:
- For the Ministry of Environmental Protection to start developing a plan for the restoration of the territory that has suffered industrial pollution. Each territory must be studied in advance and a program of restoration measures must be implemented for each territory. The option of transferring contaminated territories to a a protected area should be considered. The search for ways to restore these territories with the support of international and scientific experience in Ukraine should begin now.
- To transpose Directive 2010/75/EC on industrial pollution in accordance with the EU-Ukraine Association Agreement into national legislation.
- To identify gaps in monitoring, reporting, and access to information regarding pollution from small and medium polluters and consider the need to establish the most appropriate means of controlling emissions from such facilities. Such a review should take into account the specifics of the incinerators that are used in health care institutions, in particular with regard to their use only in case of emergency situations.
Regarding legal, institutional, and financial aspects of the russian federation’s responsibility for environmental damage
All measures related to conducting research on the damage caused, defining its scope and studying the possible consequences will be exclusively informative and scientific in nature, given the legal and institutional failure of Ukraine and the world community. Without proper financial guarantees, it is not possible to count on receiving fair compensation for damages in the monetary equivalent, even on the condition that national and international authorized bodies simultaneously adopt relevant decisions on recognizing the russian federation as guilty of the damage caused to the environment of Ukraine and collecting from it the specified compensation.
In the absence of an appropriate legal, institutional and financial basis for collecting compensation from the russian federation for the damage caused, the aggressor state will not suffer sufficient punishment, and Ukraine will be left with rather limited resources for post-war environmental restoration.
It is important to understand that effective solution of the issue of holding the russian federation accountable for the damage caused to the environment is absolutely impossible without carrying out a number of horizontal reforms that would ensure a transparent, open, democratic and pro-European direction of development of power execution in Ukraine, and, therefore, would contribute to the acceleration of European integration processes of our state. First of all, it is about the reform of environmental control (enforcement). Today, environmental control is not effective and practically does not achieve the goal of preserving the environment, which, accordingly, is polluted.
Implementation of changes will allow to effectively protect environmental rights, ensure the availability of data on the state of various elements of the environment for making management decisions, etc. In addition, those who use natural resources illegally will lose their source of income or incur additional costs to legally acquire timber or other resources. In the long-term perspective, the control reform will significantly reduce the negative impact on the environment and, accordingly, on the state of health and life of all categories of the population. As a result, we also get the de-corruption of a significant sector of public administration.
The Verkhovna Rada of Ukraine has already taken the first step on the way to implementing the mentioned reform – the draft law “On State Environmental Control” was adopted in the first reading on July 15, 2021. As of now, the process of adopting this law is suspended, which is a huge problem, including in terms of holding the russian federation accountable for the damage caused to the environment of Ukraine.
The next thing to mention is the reform of legal responsibility for environmental violations. Legal responsibility must be real, proportionate and adequate to the damage caused to the environment. The ultimate goal of legal responsibility is the preservation or restoration of the public good for the protection of which legal regulation is established, in this case, the environment. Today, this mechanism is not effective in Ukraine. In the long term, the implementation of the reform will allow us to live in a healthy environment and enjoy a variety of environmental services.
It is necessary to reform the monitoring of the state of the environment, the use of funds received as compensation for environmental pollution, and also to take measures to increase the environmental awareness of the population. In the course of reforming the state monitoring system, all indicators of environmental monitoring should become part of a unified national database. Such a database should contain information on the state of atmospheric air, water, land, soil, forests and biodiversity, waste management monitoring data, etc. The created system should allow prompt detection of and response to environmental threats.
Sectoral reforms should become the foundation for the proper restoration of the Ukrainian environment. In particular, forestry reform, water resources management, land reform, subsoil use reform, conservation reform. According to research, agricultural lands cover 6% of the planet’s protected areas. And although most of them are located within those zones of protected territories that are intended for joint use, 22% of agricultural lands in protected territories are located in zones of strict protection, which include nature reserves, national parks, sanctuaries, etc.
The economic crisis that arose as a result of the war will lead to increased exploitation of the environment for economic development, and the risk of irrational and extensive use of natural resources by the impoverished population will increase significantly. This will be a threat, first of all, to nature conservation areas. Currently, there are several main reasons behind the problems of preserving protected areas in Ukraine:
- the network of protected areas is insufficient to preserve biodiversity;
- the current state system of managing the territories and objects of the nature reserve fund does not allow to ensure their preservation and restoration;
- comprehensive data on the territories and objects of the nature reserve fund and the restrictions related to them are not publicly available;
- public awareness of ecosystem services provided by protected areas is low.
In order to eliminate these causes, it is necessary to ensure implementation of the tasks for making necessary chages and reaching set indicators. In particular, formation of the Emerald network in Ukraine will help preserve nature and provide economic benefits. Ukraine ratified the Bern Convention on the Protection of Wild Flora and Fauna in Europe back in 1996, but there is still no corresponding law. Draft law No. 4461 “On the territories of the Emerald Network” is awaiting adoption in the Verkhovna Rada. If the draft law is adopted, nature protection in Ukraine will be carried out at the European level.
As for the financial aspect of the russian federation’s responsibility for the damage caused to the environment, the following should be taken into account. First, in order to receive adequate compensation for damages, Ukraine must implement such measures as 1) recording the facts of the environmental crime; 2) assessment of environmental damages, 3) recording of environmental damages, 4) adoption by an authorized national or international body of a decision that would provide formal grounds for such compensation.
However, the source of funds for such financing remains the main issue. Experts agree that the financial resource that could be used in this part is blocked Russian assets. According to the Ministry of Economy, western governments have already seized 415 billion dollars’ worth of gold and currency assets of the Central Bank of Russia.
Despite this, neither international law nor the legislation of Ukraine contains sufficient legal grounds for these funds to be seized and collected for the benefit of Ukraine, including as compensation for damage caused to the environment. In addition, there are no legal guarantees that the frozen assets of russia and russian oligarchs will be transferred to Ukraine without additional conditions. They can be used, for example, to pay off russia’s debts, to support “Russian civil society”, and part of it can be given to the victims of the war in Syria, where the russian federation is also called the main culprit.
In Ukraine, there are two laws that can be applied in this case. First, the Law of Ukraine “On the Basic Principles of Forcible Expropriation of Property Rights of the Russian Federation and its Residents in Ukraine”. This regulatory document applies only to subsidiaries of russian state-owned companies. Further application of this law is unlikely due to the small number of objects that can be “nationalized”.
The second is the Law of Ukraine “On Sanctions”. This law has been in effect for a long time, but in terms of possible provision of further compensation and confiscation of state income, only those sanctions can be used that were imposed after May 24, 2022, i.e. after the relevant changes have been made to this law.
We see that the Ukrainian legislation excludes from the field of its regulation a significant layer of social relations regarding the nationalization of russian property and the transfer of its value in favor of compensation for the damage caused by the actions of the russian federation on the territory of Ukraine.
Recommendations
Regarding the legal, institutional and financial aspects of the russian federation’s responsibility for the damage caused to the Ukrainian environment, it is important to take the following measures:
- In Ukraine, a reform of state environmental control (enforcement) should be carried out, during which an independent environmental control body (the State Environmental Protection Inspectorate) should be created with a simultaneous change in the procedure for carrying out state environmental control. This body should be provided with the necessary material and technical base, and the purpose of control should be changed. Therefore, the procedure of adopting the Law “On State Environmental Control” No. 3091 must be completed. As of now, the process of adoption of this law is suspended, which is a huge problem, including in terms of holding the russian federation accountable for damage caused to the environment of Ukraine.
It is mandatory to carry out the reform of environmental responsibility. Amendments should be made to the relevant legal acts that would expand the liability of legal entities for environmental violations, significantly increase fines for such violations, direct all funds accumulated as a result of the application of mechanisms of legal responsibility in the field of environmental protection (fines, compensation for damage caused to environment and profits obtained illegally) to restoration of components and improvement of the state of the environment, which was damaged as a result of illegal actions.
- The Government and the Verkhovna Rada should carry out a reform of monitoring the state of the environment. In the course of reforming the system of state monitoring of the state of the environment, all environmental monitoring indicators should become part of a unified national database. Such a database should contain information on the state of ambient air, water, land, soil, forests and biodiversity, waste management monitoring data, etc. The created system should allow prompt detection of and response to environmental threats.
- In terms of preservation of the natural reserve fund, a system for monitoring the status of preservation of rare and endangered species of wild flora and fauna and valuable habitats should be established and adjusted. Therefore, the Verkhovna Rada, the Ministry of Environmental Protection and Natural Resources of Ukraine must ensure a regulatory and legal basis for the full existence of the Emerald Network, its expansion and protection. And for this, in the near future, the parliament should adopt the draft law No. 4461 “On the Territories of the Emerald Network”.
- The Verkhovna Rada should develop legal mechanisms for the possibility of receiving the blocked and seized financial resources of the russian federation and russian oligarchs by Ukraine for the purpose of using them for its post-war reconstruction.
- The Verkhovna Rada should initiate proposals for the development of an international legal mechanism for transfer of blocked and seized funds of the russian federation and russian oligarchs for the restoration of Ukraine, including compensation for damage caused to the environment.
- The CMU should develop provisions on a separate Environmental Restoration Fund and develop and adopt a system of norms at the regulatory and legal level that would ensure proper and targeted use of funds received as compensation for damage caused to the Ukrainian environment by actions of the russian federation.
Regarding the role of the parliament, government and international institutions in the post-war environmental restoration of Ukraine:
Despite the continuation of military operations, Ukraine is already working on the Post-War Recovery Plan. Reconstruction of cities, infrastructure, industry, schools, hospitals, water and energy infrastructure, restoration of the environment to its natural state will require not only large investments, but also grants, knowledge and technology transfer, capacity building, human resources, well-organized coordination of planning, transparent coordination both between state authorities and between donor countries.
The process of post-war reconstruction of Ukraine should not become a return to the pre-war state. Full-fledged development and integration into the European Community must take place on the basis of sustainable development principles and taking into account the European Green Deal, which is also a guarantee of the fulfillment of the Copenhagen criteria for joining the EU. Even before the start of the war, pollution of water resources, air, soil, deterioration of biodiversity was significant. Due to russian aggression, the situation has worsened, so compliance with the approved legislation, its update and, in some cases, more strict standards are mandatory.
Ukraine will face a double challenge – rebuilding and achieving the goals and standards of the European Union. The European Commission proposed to create the mechanism “RebuildUkraine” as the main legal instrument of support of the European Union for rapid reconstruction, but according to the principle of “building back better” than it was. At all official events (in EU communications, Lugano conference, etc.), donors emphasize the need for a green component in the reconstruction process. Significant emphasis should be placed on the rule of law and anti-corruption reforms, while investments will be made in line with EU climate, environmental and digital policies and standards, and help Ukraine emerge stronger and more resilient after the devastation of the russian invasion.
Compliance with green goals is not only about responsibility to international donors, it is primarily about responsibility to the Ukrainian people and the environment. The restoration of the environment to its natural state, the use of nature-based approaches in the reconstruction of cities will ensure the basic need of Ukrainians for a clean and safe environment, create new jobs, and also create new opportunities for economic diversification. It should be taken into account that large sectors of the economy, such as energy, agriculture and forestry, which suffered significant losses as a result of the military aggression, are also among the most vulnerable to the effects of climate change. The presence of large arrays of nature conservation areas connected in a network allows to increase the resilience of environment and economy to climate change. The restoration of the environment to its natural state should not only take place at the regulatory level, but also have sufficient financial support. The formation of a separate environmental restoration fund can be such a solution.
According to the announcement of the European Commission, an International Coordination Platform – “Platform for the Reconstruction of Ukraine” – headed by the Commission and the Ukrainian government, will be created. This platform will work as a general strategic management body responsible for approving the Recovery Plan developed and implemented by Ukraine, with the support of administrative capacity and technical assistance from the EU. The platform will bring together partners and organizations that will provide support, including EU member states, international financial institutions, as well as other initiatives created by partners, such as the World Bank’s trust fund or the International Monetary Fund’s managed account. The unified platform will ensure a smooth distribution of tasks between different partners, avoiding duplication and promoting synergies, including through joint co-funding of specific projects.
The EU’s “Rebuild Ukraine” mechanism plans to build on the experience of the EU Recovery and Relief Facility (RRF), understanding the unprecedented challenges of rebuilding Ukraine and accompanying it on the European path. Thus, similar to the Regulation of EU Recovery and Resilience Funds, the “Rebuild Ukraine” mechanism should contain clear goals to support Ukraine’s green transition – as, for example, currently in the RRF fund the target level of spending on projects to achieve climate goals is 37% and ensure mandatory compliance with the principle “do no significant harm” to biodiversity. Therefore, Ukraine’s reconstruction plans should also contain similar goals for reducing emissions, improving air quality, etc.
The process of developing the draft Postwar Reconstruction Plan was organized in a very tight timeframe, which unavoidably affected quality of the document. Within such a timeframe, it is impossible to ensure full participation of all stakeholders and the public. Also, in such conditions, it is difficult to establish intersectoral cooperation and ensure integration of climate and environmental policy into other sectors, since it takes time and consultations to find compromise solutions. Some of the working groups, especially those dealing with issues of environmental impact (energy, agrarian policy) work behind closed doors, almost without involvement of the public. As a result of this style of work, there appeared contradictory goals in the first draft of the Plan, which will harm the environment and do not comply with the principles of sustainable recovery. The draft Plan presented in Lugano does not comply with the main driving principles of the EU, in particular transparent budgeting, principles of the European Green Deal, climate goals, gender approach, anti-corruption approach, social supply principles etc.
Recommendations
- The Parliament should ensure rapid approximation of the Ukrainian legislation to EU legislation in accordance with the EU-Ukraine Association Agreement and EU accession criteria. It is necessary to ensure regular reporting of the responsible parties and an accessible mechanism for monitoring the process of achieving goals.
- The Verkhovna Rada Committee on Environmental Policy and Natural Resources, the Ministry of Environmental Protection and Natural Resources needs to ensure regular public work on issues that are on the borderline of environmental protection and energy, industry and agriculture development.
- The government should base Ukraine recovery on long-term strategic documents, such as the Post-War Recovery Plan with clear development priorities and a comprehensive assessment of damage and needs in accordance with the European Green Deal and the goals of the Paris Agreement.
- The recovery plan and assessment of damage and needs should guide and coordinate the efforts of the entire donor community to avoid duplication of effort and promote investments that meet the best standards of sustainability as specified in the EU Taxonomy Regulation.
- During the work on the Recovery Plan, the CMU should consult the EU and international partners, whose experience and expertise are important.
- The Ukrainian Parliament should actively participate in the formation of the “Platform for the Reconstruction of Ukraine”.
- The CMU should involve representatives of civil society in the development of the Recovery Plan in the spirit of the European Code of Conduct on Partnership.
Subscriber organizations:
ICO “Environment-People-Law”
Center for Environmental Initiatives Ecoaction
Ukrainian Nature Conservation Group
Talne District Environmental Organization “Green World”
“Zero Waste Society” NGO
“Ecopark Osokorky” NGO
Agency for Sustainable Development of the Carpathian Region “FORZA”
“Center for International Cooperation and Project Implementation” NGO
“Merry Dolphin” NGO
The City of the Sun Initiative
“Ekosphere” NGO
Free Svydovets movement