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Scanned by Scan2net »^¿i-u litiu ij ^ is riU Jii <i ii4i tiiiii df iUiiii iiiiii; ?au iitiaii A' - /?. 3 A Comparison of Environmental Impact Assessment in the United States and the European Union: The Case Study of Italy Edward J. Balsamo B.A., B.S., J.D., Candidate for LL.M Degree (Legum Magistur) •!i: ::•> October 1,2003 European University Institute Florence, Italy Thesis submitted for assessment with a view to obtaining the Diploma in Comparative, European and International Legal Studies (Ll.M.) M.KM.).jTJniinjuumnnüK»n;wf iüaMüati iuMMimnniiiMnnMini— mi— ^ rtW<É^ M|MMtn)|||f1rr i fcMj' European University Institute 3 0001 0041 4725 4 A Comparison of Environmental Impact Assessment in the United States and the European Union: The Case Study of Italy Edward J. Balsamo B.A., B.S., JJ>., Candidate for LLJVÍ Degree (Legum Magistur) October 1,2003 European University Institute Florence, Italy Thesis submitted for assessment with a view to obtaining the Diploma in Comparative, European and international Legal Studies (LI.M.) LAW ECwJ9 BAL X i ' / -f: /-M I. Introduction.....................................................................................................................4 II. An Overview of Environmental Impact Assessment ................................................... 5 A. What is Environmental Impact Assessment?.............................................................5 B. Growth of Environmental Impact Assessment Internationally................................7 III. NEPA and the EU Directive - A Brief Comparison.................................................11 A. NEPA........................................................................................................................ 11 1. Background and Overview ................................................................................... 11 2. NEPA and the Role of the Courts ............................................................ 13 3. Assessing the Success of NEPA.........................................................................17 B. European Union EIA Directives and Deviations from NEPA...............................18 1. Introduction: Development of Environmental Law and EIA Law in the EU ... 18 2. The 1985 EIA Directive....................................................................................... 27 3. The 1997 EIA Amendments.................................................................................29 4. The 2001 SEA Directive...................................................................................... 32 5. The 2003 Amendments to the EIA Directive ..................................................... 35 C. The EIA Directive before the ECJ .........................................................................38 1. Temporal Issues.................................................................................................... 41 2. Application of Directives to Annex II Projects ................................................... 46 3. Direct Effect of the EIA Directives.....................................................................55 4. Article 1 Exceptions from EIA............................................................................57 5. Regional Issues.....................................................................................................61 6. Conclusions from the ECJ Jurisprudence ........................................................... 63 D. Summary of Differences between NEPA and the EU Directive .......................... 64 1. Who Prepares the EIA?.........................................................................................65 2. Role of the National Courts.................................................................................66 3. Conclusions ........................................... 69 IV. The Problems Implementing EU Environmental Laws at the Member State Level 71 A. Introduction: Is there really a problem?...................................................................71 B. Problem of Legislative Misfit.................................................................................76 C. Problems of Enforcement via the Commission .................................... ................ 78 D. Possibility for Direct Application of EU Directives .............................................. 83 E. Lack of Overarching EU Environmental Body ..................................................... 85 F. Conclusion................................................................................................................87 V. Overview of the Italian Environmental Law System ................................................. 88 A. Introduction to the “Italian Syndrome”....................................................................88 B. Environmental Law In Italy....................................................................................93 1. History...................................................................................................................93 2. Roles and Institutions ................................. 94 C. Environmental Litigation in Italy............................................................................98 1. Overview .............................................. 98 2. Overview of the Court System.............................................................................99 3. Administrative Courts......................................................................................... 101 4. Standing in General........................................................................................... 103 5. Application of EC Law in Italian Courts..........................................................107 2 D. Identifying and Explaining the Problems with Italian Environmental Law .......110 1. Italy’s Late Start...................................................................................................111 a. Belated Acceptance of EU Law .................................................................... 111 b. Political Apathy/Emphasis on Economic Development .............................. 114 c. Belated Emergence of Environmental Movement ........................................ 116 2. Political and Legislative Difficulties ............................................... 121 a. Political Volatility and the Predominance of Party Politics ......................... 121 b. Politics of Emergency......................................................................................125 c. Complexity of the Legislative Arrangement................................................ 127 3. Convoluted Administrative Structure .................................................................. 129 a. Lack of Strong Central Environmental Authority and Ministry Infighting 129 b. State/Regional Struggle................................................................................... 135 c. Variation Among Regions...............................................................................141 d. Institutional Fragmentation and Administrative Bureaucracy......................144 4. Corruption............................................................................................................ 149 a. The Role of the Mafia.................................................................................... 150 b. Corruption in the Political Ranks....................................................................151 c. Corruption in Administration and Enforcement of the Laws ...................... 153 5. Conclusions on the Impediments to Implementation o f EU Environmental Law in Italy........................................................................................................................... 155 E. The Legislative History of EIA in Italy.................................................................156 1. Introduction...........................................................................................................156 2. Legislative History - National EIA ....................................... ........................... 156 3. Legislative History - Regional EIA..................................................................... 160 VI. Recent Developments for EIA in Italy .................................................................... 166 A. The Status of Implementation.................................................................................. 166 1. Legislative Implementation.................................................................................. 166 2. Enforcement on the Ground....................................................................... , .......168 B. Legge Obiettivo: Moving Backwards.....................................................................173 1. What is the Legge Obiettivo'?................................................................................173 2. Responses to the law.............................................................................................177 VII. Conclusion................................................................................................................ 181 VIII. Annex: Italian EIA Legislation................................................................................183 I WlfW j. a w»»|< I. Introduction Environmental Impact Assessment (“EIA”) is a widely used tool for identifying the impacts associated with an action and forcing a decision-maker to consider those impacts prior to taking that action. EIA had its formal beginnings in the United States in the early 1970s. Since then it has
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