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When will the Environmental Inspectorate be held accountable for abuse of power?

20/ 10/ 2021
  Today, the VRU Law Enforcement Committee will consider a range of legislative initiatives on strengthening the responsibility for environmental offenses. These include draft laws №4459 and №5204, as well as the inclusion of draft laws №6148 and №6175 in the agenda of the current parliamentary session. Thus, draft law №4459 proposes to amend the Criminal Code of Ukraine and establish responsibility for resisting and obstructing the activities of representatives of the State Environmental Inspectorate. However, the document does not clearly define what actions can be classified as resistance or obstruction in relation to inspectors. Thus, any lawful actions on the part of the business can be regarded as obstruction against the activities of environmental inspectors. These may include the situation when the company representatives accompany inspectors to monitor the legality of inspectors actions, their correct installation of measuring instruments, the realization of measurements, sampling, as well as to assure that the inspection is in compliance to the subject for which it is intended, etc. Draft law №5204 also proposes to criminalize liability for non-compliance with legal requirements of representatives of the State Environmental Inspectorate. Such requirements include the obstruction of inspections, non-compliance with instructions and orders voiced by inspectors, as well as the creation of obstacles to the work of inspectors. Similar to draft law №4459, the document does not provide an understanding of what actions can be equated to obstructing the activities of the State Environmental Inspectorate. Besides, draft law №5204 duplicates the existing administrative liability for non-compliance with lawful orders or instructions of officials from controlling authorities and contradicts the rights of the company to refuse to admit inspectors, which is guaranteed by current legislation. Besides, government draft laws №6148 on strengthening liability for criminal offenses against the environment and №6175 on strengthening administrative liability in the field of nature protection need a separate discussion. First, none of them was submitted for preliminary public discussion, as required by current legislation. Secondly, both draft laws contain a lot of ambiguous proposals. Thus, draft law №6148 proposes to expand the list of criminal offenses. For example, introduce penalties for companies that have to carry out an environmental impact assessment (EIA) procedure but have not done so. Although the Law on EIA came into force only at the end of 2017, and so far, no EIA conclusions have been received on the planned activities, then the absence of EIA before 2017 cannot be considered a violation – because the law has no retrospective effect. In its turn, draft law №6175 proposes to introduce administrative sanctions for non-compliance with legal requirements and orders of officials of the State Protection Service of the Nature Reserve Fund of Ukraine. Whereas the Law on the Basic Principles of State Supervision of Economic Activities envisages that there is a possibility to appeal against orders, including in court. Olga Boiko. EBA Industrial Ecology and Sustainable Development Committee Coordinator. Over the last year, at least 7 draft laws have been registered in the Verkhovna Rada, which in various ways strengthen the responsibility in the field of environmental protection. Moreover, almost every environmental draft law has a similar norm. However, if you look closely, they all have something in common - increasing pressure on business and creating room for authorities to abuse the power. After all, from what we hear from our companies - this, unfortunately, happens quite often. At the same time, the draft laws do not provide for liability for illegal actions of environmental inspectors in the performance of official duties or for damage caused to the company by the unprofessionalism of a controlling body representative or the order appealed in court. And such issues should be addressed at the level of relevant draft laws, in particular, №3091 on the reform of state environmental control. After all, now in theory it is assumed that the environmental inspector is always right, but in practice, unfortunately, this turns into an abuse of power. After all, there is no effective mechanism for business to defend itself from environmental unprofessionalism. The European Business Association emphasizes the premature consideration of draft laws №4459, №5204, №6148, and №6175 and calls on the peoples deputies to engage in a constructive dialogue to revise those initiatives.   Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.

Today, the VRU Law Enforcement Committee will consider a range of legislative initiatives on strengthening the responsibility for environmental offenses. These include draft laws №4459 and №5204, as well as the inclusion of draft laws №6148 and №6175 in the agenda of the current parliamentary session.

Thus, draft law №4459 proposes to amend the Criminal Code of Ukraine and establish responsibility for resisting and obstructing the activities of representatives of the State Environmental Inspectorate. However, the document does not clearly define what actions can be classified as resistance or obstruction in relation to inspectors.

Thus, any lawful actions on the part of the business can be regarded as obstruction against the activities of environmental inspectors. These may include the situation when the company representatives accompany inspectors to monitor the legality of inspectors’ actions, their correct installation of measuring instruments, the realization of measurements, sampling, as well as to assure that the inspection is in compliance to the subject for which it is intended, etc.

Draft law №5204 also proposes to criminalize liability for non-compliance with legal requirements of representatives of the State Environmental Inspectorate. Such requirements include the obstruction of inspections, non-compliance with instructions and orders voiced by inspectors, as well as the creation of obstacles to the work of inspectors. Similar to draft law №4459, the document does not provide an understanding of what actions can be equated to obstructing the activities of the State Environmental Inspectorate. Besides, draft law №5204 duplicates the existing administrative liability for non-compliance with lawful orders or instructions of officials from controlling authorities and contradicts the rights of the company to refuse to admit inspectors, which is guaranteed by current legislation.

Besides, government draft laws №6148 on strengthening liability for criminal offenses against the environment and №6175 on strengthening administrative liability in the field of nature protection need a separate discussion. First, none of them was submitted for preliminary public discussion, as required by current legislation. Secondly, both draft laws contain a lot of ambiguous proposals. Thus, draft law №6148 proposes to expand the list of criminal offenses. For example, introduce penalties for companies that have to carry out an environmental impact assessment (EIA) procedure but have not done so. Although the Law on EIA came into force only at the end of 2017, and so far, no EIA conclusions have been received on the planned activities, then the absence of EIA before 2017 cannot be considered a violation – because the law has no retrospective effect. In its turn, draft law №6175 proposes to introduce administrative sanctions for non-compliance with legal requirements and orders of officials of the State Protection Service of the Nature Reserve Fund of Ukraine. Whereas the Law on the Basic Principles of State Supervision of Economic Activities envisages that there is a possibility to appeal against orders, including in court.

Olga Boiko EBA Industrial Ecology and Sustainable Development Committee Coordinator
Over the last year, at least 7 draft laws have been registered in the Verkhovna Rada, which in various ways strengthen the responsibility in the field of environmental protection. Moreover, almost every environmental draft law has a similar norm. However, if you look closely, they all have something in common - increasing pressure on business and creating room for authorities to abuse the power. After all, from what we hear from our companies - this, unfortunately, happens quite often. At the same time, the draft laws do not provide for liability for illegal actions of environmental inspectors in the performance of official duties or for damage caused to the company by the unprofessionalism of a controlling body representative or the order appealed in court. And such issues should be addressed at the level of relevant draft laws, in particular, №3091 on the reform of state environmental control. After all, now in theory it is assumed that the environmental inspector is always right, but in practice, unfortunately, this turns into an abuse of power. After all, there is no effective mechanism for business to defend itself from environmental unprofessionalism.

The European Business Association emphasizes the premature consideration of draft laws №4459, №5204, №6148, and №6175 and calls on the people’s deputies to engage in a constructive dialogue to revise those initiatives.

 

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