The proposed Environment and Development Planning Bill now being discussed by Parliament raises more questions than it attempts to answer. Part II of the Bill, lifted in toto from the present Environment Protection Act, is entitled Duty To Protect The Environment and the concluding article, notably article 5, states:
"The provisions of articles 3 and 4 shall not be directly enforceable in any court but the principles therein contained are, this notwithstanding, fundamental to the Government of Malta and those principles shall be employed in the interpretation of the other provisions of this Act or of any other law relating to matters governed by this Act."
Articles 3 and 4 are meant to broadly define the parameters under Maltese law of what protecting the environment should entail. Never mind the details. Suffice to say that convoluted legalese persuades nobody about our efforts to protect the environment. The genuine environmentalist may even find it pathetic to read the proposed Bill discussed by the House.
As we have it and after all these years of public disgruntlement about Mepa's modus operandi, we persist in denying the public the right to a fair hearing in "any court" in cases where an individual or any entity, including the government, may have not complied with the relevant requirements of the law and, hence, failed to fulfill a duty to protect the environment. Beyond this point it would be wiser to leave such matters to the legal experts.
The analysis has been done over and over again, with public discussions and seminars all over the place. With all due respect to its able workforce and professionals working against all odds, few would comment favourably about the outcome of the Mepa experiment and it remains my conviction that, perhaps, the time has come to try something new as far as an environmental regulatory authority is concerned. The merging of the Environment Protection Act and the Development Planning Act seems to be heading in the opposite direction and the call for the setting up of an autonomous Malta Environment Authority (MEA) falls on deaf ears. Is it that we lack the necessary physical resource base and expertise or is it blatant manifestation of the Maltese collective psyche reflecting our fear of change? Both, perhaps!
The setting up of MEA, no easy enterprise at all, I must admit, does not imply a total detachment from the on-goings within the development planning domain. The two are meant to work in tandem after all, in synergy with the country's sustainable development needs. But unless implementing Malta's sustainable development strategy truly endorses the evolution of a strong, a really strong, environmental arm we cannot expect to go much far in fulfilling our "duty to protect the environment". The legal framework for the constitution of MEA should be designed around two main pillars:
(a ) defining a clear relationship between MEA and the development planning realm in terms of establishing how the respective operative bodies should work in synergy but at par with each other;
(b) strengthening the resource base of MEA through local and foreign expertise in conjunction with the provision of robust technical support systems, including geographical information systems, state-of-the-art pollution control technologies, tackling head-on Malta's escalating water crisis and acting as driving force towards an effective implementation of EU environmental directives.
MEA must be highly sensitive to climate change issues and how this phenomenon is expected to affect our islands. It needs to offer expert advice on managing Malta's waste crisis which, despite all the positive efforts done through WasteServ, has not been contained satisfactorily enough. It is rather questionable that, in 2010, after all these years in the knowledge of the stringent EU legal frameworks on waste, particularly the targets under the Landfill Directive, we end up seriously considering mass incineration, the implications of which can be quite serious unless properly managed. Quite frankly, we may have no choice after all; it's the price to pay for a collective slackening in the waste sector over many years.
In a small island state as ours, MEA will face what many shall consider its biggest test: land issues. The dark greens would argue that MEA should be empowered to veto outright any development project it considers unsustainable after all the necessary rigorous environmental analysis has been made. That would be taking it a bit too far, not least in view of how the whole project would configure within the perspective of EU law and, above all, the individual's right of appeal.
On the other hand, there should be no question with regard to MEA's legal entitlement to contribute in the drafting of planning policies, revamping structure and local plans. The legal architecture should be such that MEA should be in a position strong enough to prevent Malta from transforming itself further into one massive building site. One has to think harder on how this can materialise but Bill No. 43 still represents a far cry from meeting this scenario.
Only political will and perseverance can transmutate what may sound utopian into concrete productive action. The environment is a political issue but it need not be a matter of cross-party deadlock or bipartisan divide. As politicians strive in their pursuit to green their respective parties, and so luring middle-class voters, they have to realise that there is an ever-increasing silent green majority out there that deserves better than a hotchpotch pro-development legal framework we may ultimately end up with.
The author specialises in environmental management.
sapulis@gmail.com