At the beginning of 2023, on its official Facebook page, the Ministry of Environment published an infographic about the results of 2022 in terms of implementing the Association Agreement with the EU in the environmental sphere. Description of the infographic was saying about big steps towards the EU, about the approval of nine European integration laws and three draft laws (in the first reading), as well as about the tireless work of the Ministry of Environment for the future of Ukraine.
According to the data of the Ministry of Environment, the environmental component of the Association Agreement for 2022 received an additional 9% and is now 70% completed (!). We suggest that you take a closer look at the so-called “accomplishments” of the current leadership of the Ministry of Environment and draw your own conclusions. In our opinion, the picture is not as rosy as it is painted. And it seems that the minister will get the image of someone who is engaged in the construction of “Potemkin villages” instead of implementing a new European environmental policy for a long time.
European integration laws in the area of environmental protection are adopted for formal reporting to partners, and implementation of reforms is postponed for years or for an indefinite period
In June 2022, the Law of Ukraine “On Waste Management” was adopted. Without going into the analysis of the provisions of this law, we note only that its main provisions enter into force 12 months from the date of its publication (in July 2023), the provisions on extended producer responsibility – at least in 7 years, and operation of polygons and landfills, which do not meet European environmental standards, is allowed until 2030.
A very similar situation is with the Law of Ukraine “On the National Pollutant and Release Transfer Register”, which was adopted in September 2022. Despite the fact that such a register was supposed to be fully operational in Ukraine from 2019, the entry into force of the provisions of this law was also postponed for a whole year, and Ukrainians will not be able to see a fully operational register of emissions until the end of 2024.
The Law of Ukraine “On Ensuring Chemical Safety and Management of Chemical Products” enters into force in 18 months after its entry into force, i.e. in June 2024.
It is hard not to notice that from a whole series of normative legal acts needed for implementation of the Law “On Waste Management”, which should be approved by the Cabinet of Ministers by the time it enters into force, as of the end of January, only two have been developed. Draft by-laws aimed at implementing the laws on the emissions register and on chemical safety were not even released for public discussion, if at all their development has been started. Isn’t it too early to be concerned about fulfillment of European integration obligations, when even the legal framework has not been fully developed, not to mention assessment of the practice of their implementation for the purpose of proper implementation of EU acts?
However, the so-called “great reform” in the field of subsoil use was not postponed. The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Improvement of Legislation in the Area of Subsoil Use”, adopted on the same day as the Law of Ukraine “On Ensuring Chemical Safety and Management of Chemical Products”, is implemented almost immediately – with a transition period of only 3 months. Moreover, before the creation of online register of special permits for the use of subsoil, all information is made public on the official website of the agency. That is, the Ministry of Environment knows ways to speed up the reform if someone needs it, but it just does not always apply them.
The sign of European integration is actively used but not as intended
It is interesting to know how the Ministry of Environment determines the European integration of a legislative initiative? The Law “On Amendments to Certain Laws of Ukraine Regarding the Improvement of the Mechanism of Regulation of Emissions of Polluting Substances into the Atmospheric Air” became a miracle of European integration, which, in addition to enshrining the ineffective post-Soviet emission regulation system at the level of the law, also introduces an element of corruption in the form of regional environmental protection programs.
The draft law “On State Regulation of Genetic Engineering Activities and State Control over Circulation of Genetically Modified Organisms and Genetically Modified Products to Ensure Food Safety” approved in November 2022 in the first reading, and which raises a huge number of questions in professional circles of experts, is also under the banner of European integration.
Instead, the draft law on the Emerald Network, designed to transpose the requirements of the Habitat and Bird Directives (included in the Association Agreement), fell out of the agenda of the relevant central authorities and the Committee of the Ukrainian Parliament as a non-priority. The commitment to protect the Emerald Network is now planned to be fulfilled by inserting the phrase “Emerald Network” into the Law “On Objects of the Nature Reserve Fund”. The draft law “On State Environmental Control” adopted in the first reading and prepared for the second reading six months before the full-scale war, is also gathering dust in the government offices. The reform in the field of industrial pollution will not even pass the first reading in the parliament, and instead of fulfilling the mandate of the National Security and Defense Council of Ukraine to develop a framework law on climate, two deputy ministers of environment were dismissed.
Reporting on achievements, the Ministry of Environment does not inform citizens about the significant narrowing of their environmental rights, even those directly guaranteed by EU law
The Ministry of the Environment reports on the Law “On Amendments to Certain Laws of Ukraine Regarding the Procedure for Carrying Out Strategic Environmental Assessment”, which introduced the online register on SEA and responsibilities in this area was also presented as an European integration law. Undoubtedly, the introduced changes will increase the transparency of the procedure and the level of compliance with the relevant norms. At the same time, the Ministry of Environment for some reason is silent about the fact that, in the process of amending the Law “On Strategic Environmental Assessment”, officials unfortunately forgot to correct the definition of the term “the public” (in our law, it is interpreted much more narrowly than in EU acts). Moreover, in July 2022, plans for the recovery and development of regions and plans for the recovery and development of territorial communities that are special state planning documents on the basis of which all post-war reconstruction will take place were excluded from the scope of the law. It is interesting how the government plans to carry out green restoration and get involved into the European Green Deal, if the main European tool for taking into account environmental considerations and public opinion in such planning has been completely eliminated from the state reconstruction planning. This also openly goes against relevant EU Directive and the SEA Protocol.
It is impossible not to mention the changes to the Law “On Environmental Impact Assessment”, which were quickly adopted in the first month of the war, and which excluded from the scope of the law “restorative works to eliminate the consequences of armed aggression and hostilities during martial law and in the reconstruction period after the end of hostilities”. Again, greetings to the green recovery! This also goes against the corresponding EU Directive and the Aarhus Convention, which, although allow implementation of environmentally hazardous activities without EIA in exceptional cases of urgent need (of a defense or security nature), but require an individual approach to each such case and only in the case when conducting EIA will negatively affect the satisfaction of such needs. In our country, without taking into account environmental considerations and public opinion, all restoration works were allowed to be carried out during an indefinite period of reconstruction, which may last for decades. It is worth noting that the relevant deputy minister and the director of the environmental assessment department are working on solving this problem. The draft Law of Ukraine “On Amendments to the Law of Ukraine “On Environmental Impact Assessment” was approved by the CMU on the last day of January. We hope that the parliament will not delay its adoption for years.
In our subjective opinion, current actions of the authorities can be described by a military phrase – to shoot oneself in the foot. Transposition of European legislation is carried out formally, and key reforms are postponed for years. How can we talk about any percentage of implementation of the Association Agreement, when none of the European integration environmental reforms promoted for several years have not been completed and implemented. After all, adoption of framework laws is only the first step, followed by painstaking work with by-laws, building institutional capacity, training specialists of relevant agencies, launching new tools, developing necessary software products, purchasing equipment, analyzing the first months of work under the new rules, identifying and correcting shortcomings
At the same time, under the guise of European integration and in the conditions of opacity of the legislative process related to the war, some deputies are pushing through the laws that allow intensifying the use of natural resources (subsoil) or those that have very little in common with the relevant EU acts (GMOs). There is also a significant rollback in the previously adopted European integration laws. It is very unfortunate that the loudly declared green reconstruction is essentially profanation, because changes have already been made to the laws that completely eliminate SEO and EIA together with participation and control of the public, from state planning and approval of post-war reconstruction projects. As a result, it is not clear how the state plans to become a member of the EU, when in addition to the lack of progress in the environmental sphere, the previously achieved gains are canceled.
The question arises whether the Parliament of Ukraine did the right thing by voting for the appointment of R. Strilets as Minister of Environment, will the Parliament, the Vice-Prime Minister for European and Euro-Atlantic Integration of Ukraine see an imitation of the Ministry of Environment’s progress?