SECTORAL BRIEF “ENVIRONMENTAL PROTECTION” Reform Conference / Vilnius, 2020

SECTORAL BRIEF “ENVIRONMENTAL PROTECTION”

Authors: Olena Kravchenko, Executive Director, Member of the Board of ICO “Environment-People-Law”; Nataliia Kuts, Legal Counsel, ICO “Environment-People-Law”

Reviewer: Vira Nanivska, Head of the Board, Collegium of Anna Yaroslavna The sphere of environmental protection needs of Ukraine (hereinafter — the MEEP), instead of both horizontal (change of the old corrupt and with the creation of the agenda. Oleksiy Honcha- inefficient system of ecological control to trans- ruk’s government presented that unification as a parent, effective and operative; reform of legal li- way to ensure sustainable development2. ability for environmental violations in terms of the extension of administrative and economic sanc- After the ministerial reorganization, on 29 Sep- tions and measures of a criminal nature to legal tember 2019, the Government approved the Pro- gram of Activities of the Cabinet of Ministers of entities, revision of the composition of violations 3 and penalties; creation of a high-quality moni- Ukraine (hereafter – the Programme), where it toring system to obtain initial data and display a listed the objectives of the MEEP, which includ- complete picture of the state of the environment; ed: conservation of natural ecosystems; efficient raising environmental awareness of the popula- and economical use of natural resources; ad- tion; introduction of an integrated permit), and dressing issues of waste accumulation, climate sectoral reforms (solving problems in the areas change and energy efficiency. Though the new governmental goals are in line with the follow- of waste management, water and air quality, in- 4 dustrial pollution, conservation of natural ecosys- ing Toronto Principles and include environmen- tems, climate change, etc.)1. This brief presents tal damage prevention, eco-control reform, legal an analysis of the policy of the Government and responsibility and environmental monitoring, Parliament on the implementation of these re- natural resource management, and waste man- forms during September 2019 — July 2020. agement; yet still, certain actions of the Govern- ment of Honcharuk and the of 1. Evaluation of reform policies of the Parlia- Ukraine (hereinafter — the Parliament) contra- ment and Government during the period of dicted them. September 2019 – July 2020 and its compli- ance with the Toronto Principles The Honcharuk government did not end the policy cycle due to its resignation on March 4, The change of government led to the formation 2020. On May 27, 2020, the new Government of of a new policy of reforms in the field of envi- Denys Shmygal formed an independent Ministry ronmental protection, which began with the uni- of Environmental Protection and Natural Re- fication of the Ministry of Environment and the sources of Ukraine (hereinafter — the Ministry Ministry of Energy into a single ministry - the of Environment) and on June 12 approved the Ministry of Energy and Environmental Protection agenda of the new policy of eco-reforms, which

1 The list of reforms is formed on the basis of existing social problems in the field of environment and opinion polls conducted in 2017- 2019 on the existing public demand of the population. 2 Statements of the Prime Minister on the establishment of MEEP: : https://bit.ly/2Jp8myk 3 The program was approved by Resolution No. 88-IX of the Verkhovna Rada of Ukraine on October 4, 2019. Access mode: https://bit. ly/39pSxlM 4 2019 Toronto Environmental Principles: preventing environmental damage, reforming environmental control, environmental monitoring, legal liability for environmental offenses, natural resources management, waste management. Access mode: https://bit. ly/2upFx12 1 corresponds to the Toronto Principles. As of July Environment has published a bill introducing an 2020, the implementation of measures for the integrated permit to collect comments and sug- full launch of the new Ministry of Environment is gestions from stakeholders. During the analyz- still underway, which slows down the implemen- ed period, practically no measures were taken tation of the tasks of the new reform policy, con- to increase the environmental awareness of the sideration of appeals, issuance of permits, etc. population and reform the environmental moni- toring system.

Evaluation of the implementation of horizontal Evaluation of the implementation of sectoral reforms reforms In the area of environmental control reform, the Honcharuk’s government has chosen to main- During September 2019 – July 2020, the Parlia- tain the inspection, whose main task is to exer- ment adopted laws regulating the functioning of cise control, instead of creating a service that the system of monitoring, reporting and verifi- is designed to provide administrative services, cation of greenhouse gas emissions; business which positively influences the environmental activities with ozone-depleting substances and protection5. Thus, the Cabinet of Ministers of fluorinated greenhouse gases; unimpeded ac- Ukraine (hereinafter — CMU) revoked the deci- cess of citizens to the coasts; prohibition of con- sion of the previous government to liquidate the tinuous felling in objects of the nature reserve State Ecological Inspectorate (hereafter – SEI) fund; improvement of legislation on extraction of and the creation of the State Environmental Pro- amber and other minerals (law on amber), in- tection Service of Ukraine. It also liquidated the ventory control of state forest fund. State Azov Marine Environmental Inspectorate Aforementioned laws resolve sectoral environ- and the SEI of the Crimean Black Sea District, mental issues. At the same time, a law banning created in 2018. In order to eliminate inefficiency, continuous felling in the nature reserve fund re- corruption and other shortcomings of the proce- moves the moratorium on continuous felling in dure of environmental control of the MEEP, SEI, certain categories of forests, and allows for the the Parliamentary Committee on Environmental gradual felling and reforestation, which nega- Policy and Environmental Management cooper- tively affects the preservation of forests and con- ated with experts and drafted the bill No.3091 on tradicts the goals approved by the Government the state ecological control. This bill introduces of Honcharuk. The Amber Act postpones the administrative and economic sanctions for legal environmental impact assessment (hereafter — entities for committing environmental offenses. EIA) to the post-production sharing agreement Such changes in the area of control and account- (hereafter — PSA) stage, which constitutes the ability correspond to the Toronto Principles. decision on the implementation of the planned Under the Shmyhal’s government, an alterna- activities. Such a change negates the purpose of tive bill on environmental control № 3091-1 was the EIA, which must be carried out before issu- registered, which did not meet the challenges of ing a permit document, and the decision itself environmental control and legal liability. Also, should be based on the conclusions of the EIA. Yegor Firsov, the acting head of the SEI, who In addition, on January 30, 2020, a government started the fight against major environmental bill was registered, which abolishes the require- pollutants and corruption schemes in the SEI, ment to conduct EIA when granting (extending, was fired. Such a personnel decision negatively re-registering, amending) a special use permit affected the process of reforming the SEI. of the resources. Shmygal’s government has made it a priority to simplify access to the re- According to the Shmyhal Government’s report, sources. Such actions demonstrate the state the MEEP did not fulfil the task of introducing policy directed to finding the fastest way to sign the system of integrated permits for pollutant the PSA and extract the mineral resources at emissions in the period of September 2019 – the price of neglecting the environment, which is January 20206. As of July 2020, the Ministry of contrary to international obligations and the To-

5 Article 17 of the Law of Ukraine “On Central Executive Bodies”: https://bit.ly/3dKqtwI 6 https://bit.ly/31Hi9rI. Note: The progress report will be made public on February 14, 2020. 2 ronto Principles, in particular, makes it impos- the environment, reforming state environmental sible to prevent harm to the environment, which control and responsibility, implementation of an also does not meet the approved objectives of integrated permit, and solving a number of sec- the Government in the field of environment. toral problems still remain as the relevant chal- lenges. On 21 July 2020, the Parliament adopted in the first reading the long-awaited bill on waste man- In the context of the COVID-19 pandemic and agement, which was an important shift in this changes in the composition of the Government field. Also, the bill on the protection of animals and the ministry, maintaining environmental pri- was adopted in the first reading, which prohibits orities and continuing their implementation by killing as a way to regulate the number of ani- the authorities substitutes the main challenge. mals, introduces restrictions on the use of wild animals, etc. The draft law on the preservation 3. Recommendations for priority actions in of the Emerald Network remains under consid- 2020-2021, in particular, for the agenda of Par- eration by the Parliamentary Committee on En- liament’s fourth session vironmental Policy and Nature Management. Considering the changes in the composition The policy in the sphere of environmental reforms of the Government and the existing economic was unstable: in September 2019 — July 2020, its problems and challenges created by the pan- agenda and goals changed twice. Although the ap- demic, it is necessary to strike a balance be- proved goals of the new policy were in line with the tween economic, social and environmental deci- Toronto Principles, the CMU and the Parliament sions to ensure sustainable development of the set the course to mineral resources as quickly as state. The actions of the authorities must corre- possible at the cost of levelling the EIA and caus- spond to the approved goals and priorities of the ing damage to the environment that contradicted eco-reform policy. The environment should not those goals. Unstable political situation, liquida- be relegated to the background, and the goals of tion of the Ministry of Environment, creation of the environmental protection should remain a pri- MEEP, return of the independent Ministry of Envi- ority, despite the change in the composition and ronment, the distribution of leverage, the organiza- political leadership of the central authorities. tional and working processes of new teams ham- pered the implementation of reforms and adhering The priority for the Government and Parliament to the international environmental commitments. in the field of environmental protection for 2020- The authorities managed to make decisions on 2021 to address the environmental issues and specific sectoral problems in the field of environ- implement the Toronto Principles, should be the ment, while the issues of priority implementation introduction of horizontal reforms, which are of horizontal reforms, which were a prerequisite the basis for preventing environmental damage, for solving sectoral problems and establishing a while also providing the solutions to the most quality environmental management system, re- acute sectoral environmental problems and mained open. approximating the European Union legislation, namely:

2. Current challenges and issues in the envi- Recommendations for horizontal reforms: ronmental protection area • accelerating the launch of full-fledged work Pollution of air, soils, water resources; irrational of the Ministry of Environment; use of natural resources; neglect and violations • development and approval of a nationwide of environmental standards remain urgent prob- program to raise ecological consciousness of lems in the field of environmental protection for the population; Ukraine. Thus, out of 35 372 inspections carried • adoption of the law on the procedure of en- out by the SEI during January-September 2019, vironmental control and secondary laws on its violations were detected in 34 443 cases, and the implementation; damage caused to the environment amounted to • development and adoption of the law on en- more than UAH 1 695 000. Transposition of Eu- vironmental monitoring; ropean Union directives, raising environmental • introduction of an integrated permit; awareness, setting up a monitoring system for • extension of responsibility for environmental 3 offenses to legal entities and ensuring the pro- • adoption of laws on identification and regis- portionality of the punishment for the violation; tration of animals, protection of wild and do- • adoption of the Law “On Amendments to mestic animals from cruel treatment, prohibi- Certain Legislative Acts of Ukraine on Access tion of exploitation of wild animals in circuses to Environmental Information and Public Par- and other entertainment events; ticipation in Decision-Making on Environmen- • development and approval of the strategy on tal Issues”. the forestry development, which will ensure Recommendations for horizontal reforms: support and preservation of environmental, so- cial and economic values of forests of Ukraine • adoption of a package of laws in the field of in the short and long terms; waste management (“On waste management”, “On batteries, batteries and accumulators”, • adoption of the secondary laws for the intro- “On waste electrical and electronic equip- duction of accounting and inventory of forests ment”, “On packaging and packaging waste”, and plantations of all forms of ownership, tak- etc.); ing into account the ecosystem services of for- ests while making any management decisions; • preservation of the requirement to conduct EIA before concluding production sharing • adoption of the law on the territories of the agreements and before issuing (continuing, Emerald Network to follow the obligations for re-issuing, amending) a special permit on the the implementation of environmental protec- use of resources; tion of the Habitat and Poultry Directives.

These analytical briefings have been developed by civic experts and reflect the position of civil society. All briefings have gone through a process of public consultation and discussion and adequately reflect the views of citizens. 4