Just before the big Ukraine Recovery Conference 2023, which will take place in London on June 21-22, we continue emphasizing that such recovery must be “green” and explaining what this means in the context of reforms in the area of environmental protection.
Ukrainian environmental community resolutely insists that in the long term perspective, the process of post-war economic development should become Ukraine’s fundamental transition to a green and clean economy. If before the full-scale war it was considered, that the rapid transfer of the governance system (primarily the sphere of environmental protection) and the national economy (heavy industry and energy from the last century) to European standards is impossible, the level of destruction in the infrastructural and industrial spheres, as well as received last summer “candidate for the EU membership” status mean a chance to make this qualitative leap. In order to ensure green reconstruction of post-war Ukraine, which will improve the environmental situation and at the same time will enable the state to integrate into European markets and political space, in addition to investments, Ukraine needs effective public administration institutions and a clear legal framework capable of guaranteeing the transition to European industrial standards, other use of natural resources and environmental protection.
Implementation of environmental and climate acts of the EU will be a difficult task for Ukraine. In addition to 30+ acts in the EU-Ukraine Association Agreement, which have been implemented in Ukraine since 2014, painfully and with little success, today several hundred more EU’s regulatory and technical acts have been added to the list of acts into compliance with which Ukraine will have to bring its legislation and practice. In April and May, the Ministry of Environment carried out an item-by-item analysis of these acts in terms of the progress in their implementation. The result of this analysis is quite disappointing. However, we hope that the good thing is that officials have finally understood the comprehensiveness of the EU’s environmental policy and the scale of the work to be done within a very short time-span.
Obviously, implementation of any sectoral reforms will be ineffective without parallel implementation in Ukraine of good environmental governance— a qualitatively new horizontal way of governing based on the principles of transparency, public participation and accountability, effictiveness and policy coherence compared to the traditional, hierarchical, state-centralized way of public administration. Even in conditions of war. That is why there should be abolished the poor changes that excluded comprehensive recovery programs and reconstruction works in the post-war period from the scope of European instruments that enable effective account to be taken of environmental considerations and public opinion in state planning process (strategic environmental assessment) and the procedure for approval of planned activities that may have a significant impact on the environment (environmental impact assessments). It is also unacceptable to restrict the rights of the public in the environmental impact assessment procedure including both the rights that have already been implemented in practice by the Ministry of Environment, as well as those that are proposed through the amendments to the relevant law .
Speaking about the key most urgent reforms in the area of the environment and climate change, which, on the one hand, will become the basis for a green recovery, and on the other hand, will demonstrate to the EU our true intentions and will become the foundation for the opening of the negotiation process under Chapter 27 (Environment and climate change), at least several sectoral reforms should be mentioned:
Environmental control (enforcement) and responsibility
Ukraine should completely reboot the system of state environmental control (enforcement) to ensure compliance with the requirements of environmental legislation and improve the state of the environment. For this, it is necessary to give the environmental control body the appropriate amount of powers, while eliminating existing obstacles and legal conflicts. It is also necessary to legislate the forms of state environmental enforcement measures (scheduled and unscheduled inspections, raids, patrols, prompt responses to calls) and the grounds for their implementation.The draft law 3091 is the key legal instrument of implementing this reform but after being adopted in the first reading last summer, it has not been put to discussion and voting in the Parliamentary session any more.
It is extremely important to update the system of legal responsibility for offenses in the area of environmental protection. Previously, it was proposed to do this by updating and supplementing the composition of environmental offenses, significantly increasing sanctions for such offenses, as well as introducing administrative and economic sanctions and criminal-legal measures for economic entities in the area of environmental protection. All these proposed measures remain relevant, although in the light of accession to the EU, it is already necessary to work on a road map for implementation of Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage and Directive 2008/99/EC on the protection of the environment through criminal law.
Emission monitoring and reporting
On September 20, 2022, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On the National Pollutant Release and Transfer Register”, which will enter into force in the fall of 2023. Recently, the Cabinet of Ministers of Ukraine approved the corresponding procedure. According to the provisions of the law, the national PRTR, which is an open electronic register of emissions, should become operational as early as 2024. The functioning of such a register will obviously enable public authorities to better understand the quantitative and qualitative indicators of industrial emissions of the largest pollutants and make appropriate management decisions to reduce them. Moreover, the national PRTR will create better possibilities for the public to get access to information about the state of the environment in which they live and, if necessary, influence the authorities. An important task ahead of us is to ensure the launch and full operation of the PRTR within the terms stipulated by law.
The situation is worse with emission monitoring (industrial control or so-called “pipe monitoring“). Recently adopted procedure for introducing mandatory automated pollutant emission control systems was severely criticized by experts for actually postponing its implementation for new sources of emissions for five years from the date of cancellation of martial law, and not extending it to existing facilities at all. Monitoring of emissions is an integral part of the regulation of industrial emissions in the EU and is provided for by a number of EU acts. In particular, according to the Association Agreement, automated emission control systems should already have been installed in Ukraine at large incineration plants, waste incineration plants and waste co-incineration plants, plants that use organic solvents and plants that produce titanium dioxide .
Environmental impact assessment (EIA), strategic environmental assessment (SEA), water resources management, pollution monitoring and access to environmental information
Major reforms in the areas listed above occurred before or during a full-scale invasion. At the same time, particularly in the procedures of EIA and SEA in connection with the introduction of martial law, some changes were introduced at the legislative level and caused serious concern among experts in terms of their compliance with the EU acts. We consider it inadmissible to lower in Ukraine the minimum standards established by the EU acts and demand that any deviations from the established procedures in connection with the martial law should be acceptable only within the limits allowed by the relevant EU acts. Any programs and projects of post-war recovery, which will be developed and agreed without taking into account environmental considerations (without EIA and SEA procedures), and therefore without taking into account opinion of the public, should be declared inferior, not green and undemocratic.
Moreover, it should not be forgotten that EU legislation is constantly evaluated, revised and improved, and Ukraine should keep up with innovations also in those areas where it is considered that the relevant reforms have already been carried out in Ukraine.
Reduction of industrial pollution
At the end of May 2023, after more than five years of development and as a result of successful third attempt of voting, the parliament approved in the first reading the draft law, designed to introduce in Ukraine the best available techniques of management and a system of integrated regulation and control of industrial emissions. Its adoption as a whole and implementation in a reasonable time frame (without postponing for indefinite number of years after the end of the war) will enable restoration of industry in accordance with European standards. Establishing clear deadlines for modernization or decommissioning of old facilities, which currently remain the biggest polluters in Europe, will enable significant reduction of emissions, improvement of environmental situation and citizens’ health conditions.
In Ukraine, there is still no regulation of emissions of such a pollutant as PM 2.5. Some industrial processes, which are accompanied by emissions of volatile organic compounds, are also not regulated in Ukraine in the way they are regulated in the EU countries. Therefore, it is an urgent assignment for Ukraine to approximate the national legislation to the main EU directives on improving ambient air quality and synchronize regulations of emissions of most harmful to health and the environment pollutants.
Biodiversity conservation requires radical changes in the public policy of Ukraine, in particular, the transition from the concept of an agrarian country to a country with a good state of all natural resources, a creation of an appropriate system of protection, management and monitoring of natural territories, species and habitats, a transition from an exclusively consumer model of using forest, water and land resources to a balanced development model.
It is vitally important to achieve key European integration goals in the area of biodiversity conservation, in particular, ensuring preservation of natural habitats, wild flora and fauna through the creation and proper management of the Emerald Network territories. For this, it is necessary to develop and adopt a law on the territories of the Emerald Network on the basis of relevant EU acts. According to the EU Biodiversity Strategy within the framework of the EU Green Deal, it is necessary to ensure the following measures: granting nature protection status to 30% of the state territory, greening agriculture, banning the use of hazardous pesticides, creating biodiversity islands on 10% of agricultural land, increasing the percentage of organic farming to 25%, restoring rivers, increasing the area of forests, greening of fishing, restoration of polluted soils, preserving populations of insect pollinators and others.
It is also worth noting that as a result of Russian aggression, hundreds of thousands of hectares of Ukrainian forests have been damaged. Moreover, this is in conditions where the forest management system is undergoing significant administrative changes. In order to prevent further degradation of forests in the conditions of post-war reconstruction, it is important that forestry develops with due account taken of the goals specified in the State Forest Management Strategy of Ukraine until 2035. In particular, it is necessary to switch to non-continuous felling systems, including increasing maintenance felling in monoculture forests. At the same time, it is necessary to increase the area of forests of natural origin that are under protection. Another important task is the normalization of the timber market in order to reduce the amount of shadow circulation of funds in the forestry sector and opportunities for the sale of illegally harvested timber (provided by the draft law no.4197-d).
The adoption of the Law of Ukraine “On Waste Management” in June 2022 was the main step towards the implementation of European standards in this area. This law lays the foundations for the introduction in Ukraine of the system of extended producer responsibility, the functioning of the circular economy, waste hierarchy, etc. However, in order to launch the mechanisms and tools proposed by the law, a number of laws and by-laws should still be adopted. There are draft laws on waste packaging, waste electrical and electronic equipment, waste batteries and accumulators waiting for adoption in the Parliament. Also, it is necessary to regulate at the level of a separate law the conditions of safe landfilling of not only solid domestic waste, but also hazardous waste and mining industry waste. In order to improve the state management system in the area of waste management, a new central executive body should be created, which will improve the management process, permitting activities, accounting, regulatory and methodological support in the field of waste management.
In order to implement the requirements in the field of monitoring, reporting and verification of greenhouse gas emissions in Ukraine to fulfill international obligations, as well as to fulfill the requirements of the UN Framework Convention on Climate Change and the Paris Agreement, the Law of Ukraine “On Principles of Monitoring, Reporting and Verification of Emissions” was adopted which was put into effect on January 1, 2021. However, the text of this law mostly contains general provisions and as of June 2023 does not provide an effective mechanism for monitoring, reporting and verifying greenhouse gas emissions in Ukraine. There are similar problems related to the implementation of provisions of the Law of Ukraine “On Regulation of Economic Activities with Ozone Depleting Substances and Fluorinated Greenhouse Gases”. It seems that for the effective implementation of the principles and ideas enshrined in these laws, further work is needed with the adoption and implementation of bylaws. So far, Ukraine has not created a system for trading quotas for greenhouse gas emissions, and the timely implementation of the National Plan to reduce emissions from large combustion plants is under threat due to the consequences of military actions. Because of the military aggression, the work on the framework law on climate change also stopped.
The national legal framework and practices in the area of environmental governance in Ukraine have long been in need of reform. The Association Agreement with the EU and the European Green Deal provided a vector for the qualitative transformation of Ukraine’s environmental policy, although not much has been implemented since 2014. As strange as it may sound, the war became a catalyst for these processes. Ukraine received the status of a candidate for the EU membership, and the destroyed heavy industry from the last century no longer really resists the progress. Today, Ukraine has a chance to make a qualitative leap in development and rebuild its economy and infrastructure to make them much better and greener. Ukraine has every chance to become a successful pilot project for the implementation of the European Green Deal and become the driving force of green transformations. But for this it is necessary to finalize key horizontal and sectoral environmental reforms that harmonize the rules of the game in the area of environmental governance with the European ones and ensure that reconstruction is not only fast, but also high-quality and modern from the point of view of environmental considerations, as well as transparent and open.