Human rights in Ukraine – 2006. XVIII. Environmental rights

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1.  Environmental rights in the evolving understanding of human rights

1.1.   The concept of environmental rights.

The concept of environmental rights formed during the second half of the twentieth century, prompted by the escalating environmental crisis in countries of Europe and America, rising competition between countries for natural resources, the activity of the Green movement and finally the Chernobyl Disaster.

Some principles of environmental rights were defined in strategic studies and documents of “soft international law”, such as the report The Limits to Growth prepared by D.L. Meadows et al. for the Rome Club (1972); the Stockholm Declaration of the United Conference on the Human Environment (1972); the World Charter for Nature (1982); The Report made by the World Commission on Environment and Development in 1987.”Our Common Future” (the Bruntland Report); the Rio Declaration from the United Nations Conference on Environment and Development (the Earth Summit) in 1992; the European Charter on Environment and Health (1989); the UN General Assembly Declaration of 14 December 1990 on the need to ensure a healthy environment for the well-being of individuals; the United Nations Millennium Declaration (2000); and the Johannesburg Declaration on Sustainable Development (2002).

For example, the Bruntland Report “Our common future” emphasises the need to move to sustainable development defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The authors of the report conclude that the survival and well-being of humankind will depend on how successful they are at raising the principles of balanced development to the level of global ethics, with human beings at the centre as part of a single natural whole.

The first principle of the Rio Declaration proclaims: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” Principle 3 states: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”  In the tenth principle, we find: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.  At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes.”

The United Nations Millennium Declaration passed by the UN General Assembly in September 2000 affirmed the states’ responsibility for global partnership in reducing poverty, improving healthcare, ensuring peace, defending human rights and safeguarding the stability of the environment. As fundamental values for the twenty first century the Declaration named respect for nature and the resolve “ to adopt in all our environmental actions a new ethic of conservation and stewardship”  This should encourage humanity to change present unsustainable models of production and consumption, in particular, “to stop the unsustainable exploitation of water resources by developing water management strategies at the regional, national and local levels, which promote both equitable access and adequate supplies”

There remains at present no universally recognized definition and list of environmental rights. They are defined only as the sum of non-property human rights, enshrined in international and domestic legislation which define relations with the environment and provide for physical existence. 

In 1996 Professor Steven Rockefeller formulated 47 fundamental principles from international legal acts, reports and strategies passed over the last 25 years pertaining to the protection of the environment and sustainable development. Among these principles with respect to environmental rights we find the following:

• the right of each person, including future generations, to a clean and healthy environment;
• interdependence of universal human rights and the right to peace, development and a clean environment;
• the right to receive and circulate environmental information;
• public participation in decision-making on environmental matters;
• the right of each person to real access to legal and administrative procedures;
• the responsibility of the government to compensate victims of environmental disasters and to restore the damaged ecosystems;
• general responsibility of humanity for the state of the environment;
• the principle of equal responsibility of states for the degradation of global ecosystems;
• protection, preservation and renewal of natural ecosystems;
• the need for development of international environmental law;
• the principle of uniting the development of society with the preservation of the environment.

As we see, environmental rights define various aspects pertaining to protection of the environment since without the latter humanity’s very existence is precluded. Environmental rights include: the right to a safe environment; protection of health and life from the unfavourable influence of environmental factors; compensation for damage to health or property due to breaches of environmental safety; the right to use natural resources, to information about the state of the environment and others. Environmental rights are an integral category, linked with the natural human right to life and personal security.

The concept of environmental rights has yet to become a classic self-contained system. Such rights are traditionally placed in the group of socio-cultural and economic rights together with the right to education, healthcare and employment which is not quite correct. Environmental rights cannot be squeezed into any established categories of human rights. They have their own specific features, and pertain to both negative and positive rights, civil and collective human rights. One specific aspect of these rights is that the foundation for their implementation in the interests of the individual and society is the preservation of another part of the existing system – the natural environment with its countless factors, parts and organisms. It is for this reason that the issue of providing an objective assessment of the state of the environment is vital for exercising environmental rights.

Environmental law in general, as a system of legal norms and principles, regulating public relations on environmental issues, is in a state of dynamic development. It embodies the most varied and sometimes contradictory features of public and private law. There are thus grounds for separating environmental rights into an independent section which occupies a particular place in the structure of human rights.

 

1.2.   The concept of the rights of future generations

Global environmental problems require that we think about the consequences of human activities. The possibility that humanity could destroy all life on Earth led to the concept of the rights of future generations.

In the preamble to the 1996 Ukrainian Constitution there was for the first time mention of the responsibility of the Verkhovna Rada and of the entire Ukrainian people to future generations (“aware of our responsibility before God, our own conscience, past, present and future generations”). One of the rights of future generations can in a certain sense be understood to be the preservation of the gene pool of the Ukrainian people, and this duty is imposed upon the government in Article 16 of the Constitution. .

The Preamble to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters affirms that: “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”. 

  An affirmation of the environmental rights and interests of present and future generations, according to which the natural environment is protected, is also contained in the preamble to the base Ukrainian Law “On the protection of the natural environment”.

  It is difficult to speak of the rights of future generations since we know too little about this future. At the same time, the assertion cannot be questioned that our descendents must also have the fundamental right to life and safety, with it being intrinsically impossible to enjoy this right in a polluted and exhausted environment.

 It would perhaps be better to speak of the rights of those people who are not here now, and about the duties before future generations of those people who are living on Earth today. One of such duties is to hand down to future generations the whole entirety of the planetary ecosystem which we have inherited. Our duty will be to not destroy future life whether through nuclear disaster, or climatic change, excessive waste, genetic catastrophe or some other effects that we do not even know anything about.  We need now to get rid of manifest dangers and leave future generations natural resources which have not been exhausted and can meet their basic needs.

When the interests of people in the future are taken into account, the generally accepted limits of our moral duties are extended both in time and in space. In order to ensure the right of future generations to a clean and healthy environment, it is imperative that people learn now to live only on the interest from natural resources, not dipping in to their capital and that they ensure at least that it is simply reproduced.

 

1.3.   Restrictions of environmental rights: the balance of rights and responsibilities

Clearly there are virtually no rights which can be absolute since their unlimited use conflicts with the rights of other people or society as a whole.  An important and complex aspect of human rights is determining their boundaries. In the Ukrainian Constitution the interests of protecting the environment, as a prerequisite for environmental safety, is the basis for a certain limitation of other human rights, for example, economic and property. The duty arises and is exercised in society on the basis of ethical norms and in parallel with the law, serving as means for safeguarding the rights of other people. Environmental rights are also very closely linked with responsibility and duties.

  In looking over the Constitution and Ukrainian laws, one can identify a whole list of duties, including environmental placed on individuals. . Article 66 of the Constitution states that “Everyone is obliged not to harm nature, cultural heritage and to compensate for any damage he or she inflicted”. The duties of citizens with regard to protecting the natural environment are stipulated in Article 12 of the Law “On the protection of the natural environment”. Ukrainian citizens have the duty to guard and care for nature, make rational use of its riches, observe the requirements of environmental safety, respect the environmental rights and legitimate interests of others, pay for special use of natural resources, as well as fines for environmental offences, and compensate damages caused through pollution or other negative impact on the environment.

The theory of human rights stresses people’s equal rights and therefore implicitly speaks of equal responsibility. However there is a crucial difference between the ethics of rights and that of responsibility. The ethics of responsibility stresses that responsibility is not the same for all. Those who have more possibilities bear more responsibility. This can be applied to individuals, legal entities and to countries. In international legal acts the principle is established of different responsibility for economically developed and poor countries.  Responsibility demands that a person be capable of taking into consideration public interests and natural restrictions and of finding optimum ways of acting.

 

1.4.   Public ethics and legal awareness

As one of the deep-lying reasons for the ineffectiveness of practical application of the humanistic legal principles proclaimed in the Constitution and laws of Ukraine, as well as in international legal acts, one can mention the fact that these principles have not become intrinsic elements in public ethics and legal awareness.

At present in Ukraine we are going through a time when society to a large extent has lost its moral and ethical bearings.  At first the ethical values entrenched in the agricultural culture traditional for Ukraine was destroyed. Later there was a devaluing of the “ethics of builders of socialism”. One is forced to acknowledge that thus far there has been no natural emergence of an integrated humanistic ethic, one of the elements of which would be respect for nature as the unequivocal foundation of the harmonious life of contemporary and future generations.

In present-day Ukraine all too few people are ready to defend their constitutional right to a safe and healthy environment. Even fewer are ready to consciously restrict their own activities so as not to infringe the environmental rights of others, and not to destroy the diversity, integrity and balance of the natural world.

Only when the principles of environmental ethics and law become a part of people’s perception of the world and determine people’s behaviour will they be firmly installed in working, and really mandatory, as opposed to declarative, legal norms. The development of a new, environmentally oriented, legal awareness, based on an intrinsic acceptance of the values of environmental lifes must not only replace people’s attitude to the issue of application of the law, but also direct public activity towards the changes in the legal sphere that will respond to the real risks of the twenty first century. Furthermore the expansion of the sphere of ethical and moral relations beyond the limits of the individual and the social – towards an integrated and many-faceted world of nature should help to create a stable, safe and truly caring society, built on relations of respect, care and cooperation.

  As we see, human rights are not some fixed ideological structure, but a sphere of humanitarian thinking which is constantly developing. Each new understanding of human rights is another step in legal understanding. The history of the dev elopement of ideas about human rights is mainly the history of new concepts about rights and of those new legal theories formed on their basis. The emergence of new views in the theory of human rights is dictated by that experience which humanity gains and those risks on the path of its own development which it comes to understand.

  We would hope that the development of concepts of environmental human rights and their inculcation in legal systems at the national and international level will not only make the theory of human rights and international legislation more effective and viable in the conditions of the twenty first century, but will be another step on the path to a humane and judge world order, built on an understanding of a new unity of human beings with their neighbour, country, humanity and the Earth.

 

2.   Environmental rights in Ukraine in 2006.

2.1.   Procedural rights of individuals and civic organizations

A particular feature in the exercising of environmental rights is the public’s participation in this process. The fundamental principle that the public should participate in the making of decisions on the environment is a vital element of domestic and international environmental law and defines its general democratic focus.

  Among international legal acts the Aarhus Convention holds a special place. It is generally acknowledged that its provisions represent the highest standards in the sphere of freedom of information, democracy and participation. The Convention, like no other international document at the highest level of environmental policy is based on the principles of human rights and the rights of civic society. It is also unique in having a procedural character and in the fact that it applies to any sphere which can have impact on the environment.

  Unfortunately, from year to year we are forced to acknowledge that the process of implementing the Aarhus Convention in Ukraine is taking place in the traditions of bureaucratic departmental administration. A separate subdivision has been created in the Ministry for Environmental Protection. Under the State Departments of the Environment and Natural Resources in the regions so-called Aarhus Centres have been launched, and strictly departmental documents and procedures have been drawn up, etc. It soon became clear, however, that full application of the Convention was impossible merely through the efforts of the Ministry for Environmental Protection and was also prevented by the lack of basic normative legal mechanisms, firstly, with respect to the activities of the public authorities and bodies of local self-government.

The public had to wait three and a half years for even minimal amendments to domestic legislation as a result of Ukraine’s ratification of the Aarhus Convention. They were nonetheless introduced through Law No. 254-IV of 28.11.2002 on amendments to four laws, namely: “On protection of the natural environment”; “On environmental impact assessments”; “On local self-government in Ukraine”, and to the Code of Administrative Offences. According to some assessments, in fact, in order to fully comply with the requirements of the Aarhus Convention amendments would need to be made to dozens of laws and hundreds of pieces of subordinate legislation. Moreover, even after the amendments actually introduced to the four laws, the state of implementation of the Aarhus Convention’s provisions remains unsatisfactory. Despite the changes made, some of the provisions of, for example, the Law “On protection of the natural environment” fail to comply with the Convention’s standards. In the case of other normative legal acts which clearly needed to be brought into line with the Convention, for example, the Law “On information”, no changes have been made.

The last new items of legislation adopted in implementation of the Aarhus Convention’s provisions were the Resolution of the Verkhovna Rada “On informing the public about issues which pertain to the environment” №2169-IV[2]  from 4.11.2004 and the Cabinet of Ministers Instruction № 51333/1/1-04 from 17.11.2004.  The Resolution recommends that the Cabinet of Ministers and regional administrations ensure:

• that information is provided on an annual basis about 100 sites which are the most environmentally polluted;’
• that information is provided on a quarterly basis about the ten most polluted sites in the natural environment at nationwide level during that quarter;
• that by 1 January 2005 provisions are drawn up and approved on a network of a nationwide environmental automated information and analytical system ensuring access to environmental information and local environmental automated information and analytical systems;
• that from 1 January 2005 the network of a nationwide environmental automated information and analytical system ensuring access to environmental information should be functional.

In the course of monitoring observance of environmental rights we were unable to ascertain what stage the creation of this nationwide environmental automated information and analytical system ensuring access to environmental information and local environmental automated information and analytical systems was in fact at and what this network would actually entail. Government structures from various levels and region were united in avoiding these questions.

  Two years have passed since the date set for the implementation of the Resolution and it can be stated with certainty that it has not in any way been carried out. In this case we again observe the practice of consciously reducing provision of environmental information to the exclusive jurisdiction of the Ministry for Environmental Protection and its regional departments. In this situation other authorities come out seeming to not have any part to play in ensuring access to environmental information. This is despite the fact that in the Ministry for Environmental Protection [MEP] Order № 397 from 01.11.2005:  “On approving the Regulations on quarterly provision of information via the mass media about the most polluted sites in the natural environment”[3]  what is envisaged is that the State Committee on Television and Radio Broadcasting, regional, as well as Kyiv and Sevastopol City State administrations, will help in making environmental information public. This wish is ignored everywhere by State administrations.

At the beginning of 2005 the Ministry for Environmental Protection posted on its website a draft National Report on implementation in Ukraine of the provisions of the Aarhus Convention. Demonstrations of formalism, the document’s declarative nature, the deliberate efforts to complicate the national report and in places downright disinformation aroused criticism from many civic organizations: the National Ecological Centre of Ukraine [NECU], Ecopravo – Lviv”, the Bureau for Environmental Investigations, and others.

 For example, the NECU Council, having reviewed and discussed at its meeting on 24 January 2005 the NECU response to the National Report on implementation of the provisions of the Aarhus Convention bearing in mind its own experience, categorically rejected provisions of the MEP Report and considered it to be unsuitable for being publicized and presented to the Convention’s Committee.

As of the beginning of 2007 the text of the National Report on implementation in Ukraine of the provisions of the Aarhus Convention was unavailable for review on the MEP official website. Instead, “progress in implementing the Aarhus Convention in Ukraine” was illustrated by such “comprehensive” communications as the following: “Progress of the implementation of the Aarhus Convention in Ukraine. May 2002. The first steps to create a public information centre and library in the office of the Ministry of the Environment and Natural Resources have been taken. A homepage about the Aarhus Convention has been established.”

Undoubtedly the unsatisfactory level at which Ukraine is adhering to the norms of the Aarhus Convention is well understood by officials of the Ministry for Environmental Protection. However instead of making best efforts to create an atmosphere in which all without exception authorities in Ukraine take a responsible attitude to the commitments which Ukraine has taken on, MEP is trying first and foremost to avert sanctions from the United Nations Economic Commission for Europe (UNECE).

For example, on 5 June 2006 the Ministry for Environmental Protection sent a letter (№ 4940/04-7) to the UNECE Compliance Committee informing that the Ministry had finally, eight years after the signing of the Aarhus Convention “created a working group for developing a National Strategy for the implementation of the provisions of the Aarhus Convention in current Ukrainian environmental legislation. The Ministry therefore asks that strict measures, even including suspension of rights and privileges pursuant to the provisions of the Convention not be imposed during the twelfth meeting of the Compliance Committee in June 2006.”

As we see, the Ministry for Environmental Protection traditionally perceives international institutions in the first instance as punitive bodies. Lastly, no information about the results of the meeting of the Compliance Committee was posted on the MEP website or in generally available media outlets. Presumably they were less than cheering for Ukraine.

 

2.1.1.   The right of access to environmental information

The most common means of receiving environmental information is via information requests from citizens to the relevant authorities. Monitoring of such requests from individuals and civic organizations during 2006 showed that the authorities are not complying with legislation. The authorities whom these information requests are addressed to often try to justify their refusal to provide information by claiming it is confidential, referring to intellectual property rights, State or commercial secrecy or the lack of special units within their structure responsible for providing members of the public with information. One very often encounters cases when the information requested is provided but not in full, without copies of official documents which it contains, this being an infringement of the requirements for complying with information requests.

Example 1: During monitoring carried out by the National Ecological Centre of Ukraine [NECU] over 2006 more than 170 information requests were sent to the authorities. 21 letters received no response at all, or a formal response not containing information pertaining to the questions asked. Among government officials in 2006 who did not react in proper fashion to information requests and letters were President Yushchenko, Prime Ministers Yury Yekhanurov and Viktor Yanukovych, the Minister of Fuel and Energy Y. Boiko, the Minister of Justice S. Holovaty, Ministers for Environmental Protection P. Ihnatenko and V. Dzharti, the Head of the Board of Ukrhidroenergo S. Potashnyk, and other high-ranking officials.

Example 2: During 2006, “Zeleny Svit” [“Green World”) sent around 70 information requests and letters with questions pertaining to the environment. In 15 cases either no answers were forthcoming, or formal responses without information relating to the question were received, or the responses came with infringements of the time frames stipulated by Article 30 of the Law “On information”.

Example 3: the organization “Environment – People – Law” (EPL) during 2006 sent around 150 requests for information in the main relating to the cases being run by EPL lawyers. Approximately 80% of the requests were met, this depending on the addressee and the nature of the information requested. There was no response to around 20% of the cases. EPL stresses that this success rate gives cause for concern about access to environmental information and that the problem must be resolved in the nearest future.  Bearing in mind the fact that EPL is a reasonably influential organization capable of standing up for its right to information both with the Prosecutor and in the court, and that EPL information requests always contain references to legislation and reminders of liability for not providing information, this percentage of successful information requests leads the organization to believe that the success rate for individuals or civic organizations will be even worse. Members of the public and nongovernmental organizations often approach EPL asking to be able to send an information request in their name and on their forms out of pessimism as to their chances of receiving an answer themselves.

Example 4: Zeleny Svit volunteer A.A. Olenyuk sent an information request to the Lviv Sanitary and Epidemiological Service asking for figures for the level of pollution of the human environment caused by those regional enterprises on the list of 100 sites in Ukraine identified as the worst polluters. The letter also sought information about the effect of this pollution on public health.  The Lviv Sanitary and Epidemiological Service refused to provide the information, asserting that “In order to satisfy the information requirements of members of the public, legal entities and the State Article 12 of the Law “On information” envisages the creation by public authorities and bodies of local and regional self-government information services, systems, networks and databases for carrying out information work. For sanitary-epidemiological services which are sanitary-prophylactic establishments of the State Sanitary and Epidemiological Service of the Ministry of Health, the creation of the above-mentioned subdivisions is not envisaged.”

Interestingly, answers to analogous information requests sent by Zeleny Svit’s regional partners within the framework of the project “Monitoring of environmental rights” in the Donetsk, Transcarpathian, Rivne, Kharkiv and Chernivtsi regions were received. The most comprehensive answer to the questions posed arrived from the Transcarpathian Regional SES.

Example 5: The youth civic organization “Ecoclub” approached the State Department for the Environment and Natural Resources in the Rivne region requesting information about the environmental effect of two enterprises from the Ministry for Environmental Protection’s list of 100 worst polluters: the closed joint stock companies “Rivneazot” [Rivne nitrogen] and “Volyn Cement”. Despite the norms of the Verkhovna Rada Resolution “On informing the public about issues which pertain to the environment” and the Ministry’s response to this in “On approving the Regulations on quarterly provision of information via the mass media about the most polluted sites in the natural environment”, the Department in its response from 9 February 2007 effectively refused to provide the information which is supposed to be published quarterly. The Head of the Department A. Bobrovsky suggests: “In accordance with Item 3.2 of the “Provisions for rules of procedure on providing environmental information”, approved by Order of the Minister for Environmental Protection on 18.12.2003, you are required to send your request for environmental information in a form according to Appendix No. 1 to the Provisions with no more than three questions on one environmental subject. Furthermore, in accordance with Article 36 of the Law “On information”, the “requesters shall fully or partially compensate expenses incurred with meeting their requests for access to official documents and providing written information”. In view of the above, we suggest that you come to the State Department (Rivne, 20 Tolstoy St), from 9-00 to 18.00 in order to agree all organizational and technical questions. In the event that we reach mutual understanding and agreement, the Department does not object to providing you with the information on environmental subjects available in the Department.”

Analyzing the responses to information requests, one can see that the least forthcoming with information are the offices of the Prosecutor, land resources, the Ministry of Health and local State administrations. Very often businesses, institutions and organizations of all forms of property, including State-owned or municipal, refuse to provide information.

The most common way of restricting access to environmental information continues to be classifying it as confidential. For example, the Head of the Mykolaiv Regional State Administration issued Instruction No. 221-I from 24.07.2006 “On approving the list of confidential information held by the State which is given the stamp restricting access “For official use only” in local authorities of the Mykolaiv region”. A fairly wide range of types of information are deemed confidential, including the sources of water supply; the location of places with an accumulation of combustible objects, radioactive substances, potent poisons; guarding these and specific measures carried out to make their utilization safe; information about adverse effects caused by some event to a large number of people; destruction of storage containers for oil or gas products, transport and other communications.

Artificial obstructions to access to information can also be created by deliberately manipulating the concept of authors’ rights. Since scientific studies are the basis for taking decisions as to whether this or that economic activity is acceptable, and the planning material for them is prepared by research institutes and assessed by experts, the information in such cases may also prove unavailable to members of the public. Restrictions in access to this information are then excused on the grounds of authors’ rights. This applies to information requests addressed to authors of scientific result and to the government bodies which hold the information.

Example 6: EPL approached the Ministry for Environmental Protection asking for a copy of the Opinion of the State Environmental Commission regarding the plans for the construction of the Danube – Black Sea Canal. The response contained the Opinion from the Ministry itself, but not the appendices which form an integral part of it. The omissions included the scientific environmental impact assessment of the project material which the specialists of one scientific institute had carried out on commission. The grounds given for not providing the Opinion was that it belonged to those who had ordered the assessment to be carried out.

In accordance with the ““Regulations on quarterly provision of information via the mass media about the most polluted sites in the natural environment”, the provision of environmental information regarding such pollutants of the environment is carried out by means of information to the media on a quarterly basis. Unfortunately, the authorities whom legislation obliges to ensure that the public are informed on environmental matters, relatively frequently avoid providing answers either via the media or in response to information requests. It is typical for regional administrations, offices of the sanitary-epidemiological services or bodies of local self-government to redirect such requests to State Departments for the Environment and Natural Resources.

  Example 7: On 12 January 2007 Zeleny Svit volunteer A.O. Stepanenko approached the Ivano-Frankivsk Regional State Administration requesting information about the impact on the state of the environment in the region of enterprises which, according to the Ministry for Environmental Protection are the worst polluters of the environment, specifically Bursztynska “Zakhidenergo”, the State enterprise “Kaliyny zavod” [potassium factory), the open joint stock company “Oriana” and the municipal enterprise Ivano-Frankivsk Electricity.

A reply was received from the Central Economic Department of the Regional State Administration from 24.02.2007 № 05/10-141 signed by the Head of the Department V. Popovych, stating that the information was confidential and could not therefore be provided.

The response states that: “In accordance with Article 21 of the Law “On State statistics”, original data received from respondents is confidential information which is protected by Law and used exclusively for statistical purposes in a summarized and depersonalized form. At the same time, pursuant to Article 22 of this Law, statistic information  which makes it possible directly or indirectly to establish the specific respondent or determine the original data about the latter may be provided with the consent of this respondent and complying with the respondent’s conditions, or if the information is received from generally accessible sources.  You may therefore be provided with information about the scale of pollution in the Ivano-Frankivsk region”.

Instead, the Regional Administration asks to be informed about the “legal grounds” for civic organizations carrying out monitoring into observance of environmental rights, preparing a report and publishing its conclusions.

On 9 March 2007 A.O. Stepanenko therefore sent a repeat information request to the Regional Administration, justifying its right to receive the information on the following grounds:

• pursuant to Article 50 of the Constitution Everyone is guaranteed the right of free access to information about the environmental situation and also the right to disseminate such information. No one shall make such information secret, that is, classify it as on restricted access (secret or confidential);
• according to Article 30 of the Law “On information”, information on the environment, or information whose concealment could present a danger to human life and health may not be classified as confidential;
• according to Article 25-1 of the Law “On the protection of the natural environment”, offices of the Ministry for Environmental Protection at local level, bodies of local self-government, enterprises, institutions and organizations whose activities could have an adverse impact on the state of the environment, human life and health, must ensure free access of the public to information about the state of the environment. This same article imposes upon regional State administrations the duties of providing annual reports for the public about the state of the environment;
• in accordance with the ““Regulations on quarterly provision of information via the mass media about the most polluted sites in the natural environment”, regional State departments shall facilitate wide coverage by State-owned audio-visual and printed media outlets of material on these site.

It was pointed out that the previous information request had specifically pertained to sites in the region which are the worst pollutants. It had been dictated by the fact that in generally available official State-owned media outlets in the region there was no information about the impact of these sites on the environment.

  It was only on 8 May 2007 that a response № С-15/822 from the Regional State Department was received with no indication of the date when it was sent which recommended approaching the State Department for the protection of the natural environment in order to receive the information.

  One promising means of ensuring public access to information is the work of the websites of the public authorities and bodies of local self-government. The Presidential Decree “On additional measures to ensure openness in the activities of the authorities” states that all public authorities and bodies of local self-government must maintain websites and update them (with a delay of no more than five working days) with official information about the activities of the relevant bodies, implementation of programmes, plans, current and revoked normative legal acts, the forms and samples for documents, archival and other information.  The Decree also points to the need to place on such websites draft normative legal acts and inform the mass media of this. At the present time, however, one could not describe as satisfactory the content, quality or up-to-date nature of the information place on the websites of most of these authorities. At least in the majority of cases, regional State Departments for the Environment and Natural Resources either do not have or do not properly maintain their own websites.

  Example 8: In response to a request for information from Zeleny Svit volunteer A.A. Olenyuk to the Lviv Regional State Department [RSA] asking to see the annual regional report “On the state of the natural environment in the Lviv region”, RSA letter № 09-392 from 30.01.2007 advised him to use the official website of the State Department for the Protection of the Natural Environment in the Lviv region www.ecology.lviv.ua. However, it transpired that this website is not functional.

In accordance with the provisions of Article 251 of the Law “On the protection of the natural environment”, “provision of environmental information is carried out by public authorities and bodies of local self-government within the limits of their powers via the following means:

a)  annual reporting by the Council of Ministers of the Autonomous Republic of the Crimea, regional State administrations, the Kyiv and Sevastopol City State Administrations of the relevant councils and the public about the state of the natural environment on the relevant territory;

b)  systematic informing of the public via the mass media as to the state of the natural environment, the rate of change, the sources of pollution, the locating of waste products or other changes in the environment and the nature of the impact of environmental factors on human health”

Unfortunately, on the majority of official websites of regional State administrations and regional councils during 2006 virtually no information was posted regarding the state of the environment. There are also usually no special sections on particular topics.

Example 9: In implementation of Item 9 of a separate Instruction from the Ministry for Environmental Protection №93 from 13 June 2006, the Department for State Environmental Monitoring and Expert Assessments of Information Technology and the Protection of Information Resources shall periodically make information available to the public regarding the work of moderators and administrators of the Ministry’s website. During the first half of 2006 the website had 1,522 visitors who viewed a total of 7,915 entries on the website, i.e. on average each visitor to the site looked at 6 entries. During that period, users of the site used the search facility 192 times, and in 64 cases received an answer. 128 such requests for information were not met. The ratio of information requests not met is rather high – 66.6%.

  Members of the team monitoring observance of environmental rights carried out their own analysis of the work of Ukraine’s executive bodies.

They found that on the MEP website there was a list of normative legal acts pertaining to environmental protection which mentioned 775 normative legal acts of the central authorities. It turned out that this list had not been updated since 14 March 2005. The situation with preparing and publishing annual National Reports on implementation of the UN Framework Convention on Climate Change was even less satisfactory, with this not having been published since 1998.  The website contained only a draft “National Report on the State of the Natural Environment in Ukraine for 2004”. As of the end of February 2007 there was no sign of reports for 2005 or 2006. It should be noted that annual approval by the Verkhovna Rada and publication of a National Report on the State of the Natural Environment in Ukraine is a requirement of Article 251 of the Law “On protection of the natural environment”.

Example 10: In response to a request for information from Zeleny Svit dated 5.01.2007. № 06-01 regarding the lack of reporting, the Ministry for Environmental Protection, informed that: “the last report submitted for review by the Verkhovna Rada was the National Report on the State of the Natural Environment in Ukraine for 2003. This National Report was only published at the end of 2006.  This is due to only partial financing for the work in 2004 and the possibility for its completion coming only at the end of 2006. Due to the lack of financing in 2004 the website of the Ministry contains a draft National Report for 2004. In view of this situation, the Ministry in its work plan for 2006 envisaged financing for scientific research work “Preparation and publication of a National Report on the State of the Natural Environment in Ukraine for 2004 and 2005”. However, in accordance with Article 27 and paragraph 3 of part 1 of Article 28 of the Law “On procurement of goods and services with State funding” all tender bids for this work were rejected. As a result, the work has been planned for financing in 2007. In addition, in 2007 financing is planned for a National Report on the state of the natural environment in Ukraine for 2006”.

There is an analogous situation with preparation and publication of regional and special reports. On the relevant section of the MEP website: “Special and regional reports on the state of the natural environment”, as of the end of February 2007 there was no sign of reports for the period from 2004 to 2006. The majority of reports from regional State departments for the environment and natural resources are only for 2004. Unfortunately, not all of these are particularly rich in information or convenient from a functional point of view. The last regional report on the state of the natural environment published on the Ministry’s website is the report for Kyiv in 2004.

  In 2006 the Ministry of Construction, Architecture, Housing and Municipal Economy (Minbud) published on their official website a “National Report on the Quality of Drinking Water and the State of Drinking Water Supplies in 2005”.  The State Committee for Nuclear Regulation’s website posted a “National Report on Nuclear and Radiation Safety in Ukraine for 2005”, while the Ministry for Emergencies and the Protection of the Population from the Consequences of the Chernobyl Disaster published its “National Report on Manmade and Nature Safety in Ukraine for 2005”.

The Ministry of Health also attempts to provide information to the public on issues concerning health care and good sanitary conditions. Legislative regulation for this was introduced through Ministry of Health Order № 320 from 29 June 2005 “On ensuring openness in the work of the Ministry and informing members of the public about its work”. At one stage the Ministry of Health declared its plans for placing draft laws and action plans on its website for public discussion. However as of the end of 2006 – being of 2007 the section “Public discussion” contained only a list of normative legal acts in the area of healthcare which had been prepared for approval by the central authorities over recent years. There is no information at all about the procedure for submissions from the public of proposals or how these are to be taken into consideration. Overall this Ministry’s website is out of date and functionally inadequate. The section “Law creating work” has not been updated since 2003.  The sections “Target programmes in the area of healthcare”, “Danger factors”, “Sanitary norms” and “Sanitary-hygienic expert assessments” are not active at all.

  Example 11: At the beginning of May 2007 the Ukrainian Independent Centre for Political Research published the results of their monitoring of how forthcoming with information the websites of 58 central authorities and 27 regional and city administrations are, and of implementation of the Cabinet of Ministers Resolution No. 3 from 4 January 2002 “On procedure for publishing information about the activities of the public authorities on the Internet”.

Results of monitoring Ukrainian ministries

Out of 20 ministries, 19 have official websites. There is as yet no site for the Ministry of Housing and Communal Services.  The average level of openness in providing information is 68%.  The most informative sites are those of the Ministry of Transport and Communications (86.67%), the Ministry of Agrarian Policy (85%), and the Ministry of the Economy (81.67%). The least forthcoming with information were found to be the websites of the Ministry for Environmental Protection (48.33%), the Ministry of the Coal Industry (52.67%), and the Ministry of Defence (55.67%).

One important and promising form of providing the public with information about the environment is the publishing by investors and others commission environmental expert assessments of Environmental Impact Statements with regard to work planned. According to Article 35 of the Law “On environmental impact assessments”, an  Environmental Impact Statement must contain information about the planned activities, their purpose and ways of carrying them out; factors which have impact on the state of the environment, taking into consideration the possibility of emergency environmental situations arising; indicators for an assessment of the level of environmental hazards of the planned activities; measures guaranteeing the introduction of the activities in compliance with environmental standards, as well as informing the public about the planned work.

  Unfortunately, the rules of procedure and terms for submitting an Environmental Impact Statement have yet to be properly regulated via normative acts. Only the Aarhus Convention which is a part of domestic legislation in this sense stipulates the duty of the public authorities to inform the public about the following:

a)  the nature of the possible decisions, a draft decision;

b)  the government body responsible for taking the decision;

c)  the envisaged procedure, including how and when such information may be provided;

d)  the beginning of the procedure;

e)  opportunities for public participation;

f)  the time and place of any planned public hearings;

g)  any government body from which one can receive the relevant information, as well as who the relevant information will be submitted to for public consideration;

h)  whether there is a relevant government body or any other official structure to which comments or questions may be sent, and about the timeframe for submitting comments and questions;

i)  what environmental information is available.

  Unfortunately, it has to be said that the process for publicizing Environmental Impact Statements in the majority of cases is more of a formality.

  In this situation, the Cabinet of Ministers, Ministry for Environmental Protection and its regional departments are unjustifiably stalling on creating a single information source for providing environmental information. For many years now there has been talk of creating separate information bulletins and official web pages of the Ministry for Environmental Protection and its regional departments which would contain Environmental Impact Statements. It is worth recalling the failure to implement the above-mentioned Verkhovna Rada Resolution “On informing the public about issues which pertain to the environment” №2169-IV[4]  from 4.11.2004.  The public authorities clearly have no interest in creating an official information and analytical system which could, among other things, ensure that Environmental Impact Statements were made public.

As a result, Environmental Impact Statements are often published in media outlets which are hardly accessible to the concerned public. Obviously the content of such Statements, as a rule, is not of interest to mass-circulation commercial media outlets, and they often get lost somewhere amid publications of an advertising nature. The time limits for making such Environmental Impact Statements public are in many cases breached. Sometimes the Statements are published a day or several days before the passing of the environmental impact assessment which makes any public participation impossible. The content of the Statement often fails to comply with legislative requirements, and the accuracy, comprehensiveness and objectivity of the information in it at times arouses doubts.

This is an infringement of the fundamental principles of studying environmental impact as defined in the Law “On environmental impact assessment” (Article 6): prevention, openness and consideration of public opinion. It manifestly fails to comply with the provisions of Article 8 of the Aarhus Convention, according to which the public should be efficiently provided with sufficient information with plenty of time to spare at the initially stages of decision-making on issues with impact upon the environment.

Information about planned construction work must be comprehensive, objective, understandable and accessible at the pre-planning stage. In the new State building norms “The makeup and content of environmental impact material in planning and building enterprises, buildings and structures” DBNA [State building norms] 2.2-1-2003, approved by Derzhbud Order No. 214 from 15.12.2003 and in force since 01.04.2004 the duty is stipulated of an investor or person commissioning the work of a Statement of Intent. However, in this case also, practice reflects a general problem lying in the lack of willingness to mobilize the appropriate resources, organizational and communication options for the sake of achieving European standards of transparency in the system of State governance.

  During monitoring of the printed and electronic media in order to ascertain how much priority is given to environmental protection and the right to environmental safety, overviews have been periodically carried out of publications at nationwide, regional or local level which are popular among difficult groups in society. Several national publications were included (“Dzerkalo tyzhnya” [“The Weekly Mirror”], “Holos Ukrainy” [“Voice of Ukraine”], “Silski visti” [“Rural news”], “Den” [“Day”], “Vlast deneg” [“Power of money”], “Svoboda” [“Freedom”] and others. Although Internet searches of printed publications point to a large number of publications mentioning “the environment” and “environmental rights”, in fact this is explained by the excessive and unjustified use of such terms.

The monitoring in fact demonstrated a relatively low level of prioritization of environmental issues in both the printed and electronic mass media. Most such outlets do not regularly have information about the state of the environment or environmental rights. Only some of the national publications (for example, “Dzerkalo tyzhnya”) regularly maintain special sections with environmental information and have material of a reasonable high, professional, standard.  In the printed and electronic media there is virtually no environmental or social advertising adapted for the wider public, aimed at developing a sparing attitude to resources and energy consumption; at  rational treatment of domestic waste products; rational choice of items of consumption, as well as at instilling respect for nature and a healthy lifestyle. Instead, the columns or screens of media outlets teem with cigarette and alcohol advertisements, uncontrolled use of chemical domestic substances and materials, toxic methods for protecting plants, medicines, forming stereotypes of environmentally irresponsible behaviour, an unhealthy life style and consumerism.

Under such conditions people fail to develop an awareness of their own constitutional rights with regard to a safe natural environment, or a willingness to protect it.

 

2.1.2.   Public participation in decision-making on environmental matters

  The Law “On protection of the natural environment” affirms the rights of citizens in the environmental sphere, in particular: 1)) the right to take part in discussions and put forward proposals for draft normative legal acts, material on location, construction or reconstruction of sites which could have an adverse effect on the state of the environment; submitting proposals to the public authorities and bodies of local self-government, as well as legal entities taking part in the decision-making process; 2) taking part in drawing up and implementing measures for protecting the natural environment and ensuring rational use of natural resources; 3) participation in public hearings or open meetings on the environmental impact of planned activities at the stage of deployment, design, construction, reconstruction of sites, as well as public environmental impact assessments.

Article 11 of the Law “On environmental impact assessments” sets out forms of public participation in the process of governmental environmental impact assessments, with these including putting forward ones views in the mass media; submitting written comments, propositions or recommendations; including representatives of the public on expert groups and commissions. Individuals and civic environmental organizations can themselves initiate public environmental impact assessments.  Their conclusions are passed onto the bodies which actually take the decisions and are of a recommendatory nature. Furthermore, it would be difficult to consider the right to submit proposals to the public authorities and bodies of local self-government, and legal entities taking part in the decision-making process on these issues to be an independent right since it is one of the forms of public participation in the discussion and inclusion of proposals to material on the locating of certain environmentally dangerous sites.

Example 1: One of the initiatives for public participation in carrying out environmental impact assessments belongs to the Nikopol branch of the International Dnipro Fund and the Lower Dnipro Basin Council of the environmental movement “Khortytsa Forum”.  As the subject of their public environmental impact assessment, they chose a number of decisions by the Nikopol City Council and Executive Committee pertaining to environmental projection and rational use of natural resources, preservation of sites of natural heritage, the existing system of management of natural resources and mechanisms for taking decisions, implementing them and exerting control over them.

For example, plans for 2006-2007 involve carrying out an analysis of the results and impact of the enforcement of decisions of the Nikopol City Council from 15 June 1990 No. 321 “On a city long-term programme for the protection of the environment and rational use of natural resources for the period up till 2005”, the city environmental protection programme “The environment 2003-2012”, adopted on 29 August 2003 and the “Strategic plan for the development of the city of Nikopol up till 2010”.  The aim of the public environmental impact assessment is to analyze how these decisions, results and the scope of the implementation, passed at local level, comply with current legislation in order to prepare proposals in carrying out an environmental audit, participate in the process of preparing and implementing this, and to draw up proposals for improvements to the city’s environmental programmes bearing in mind proposals and demands from the public.

The Aarhus Convention envisages the right to participate in decision-taking on specific types of activities, plans and programmes linked with the environmental, and participation in preparing normative acts. In implementation of the Convention’s provisions, the Ministry for Environmental Protection prepared its own regulations which detail the procedure for participation and a list of decisions which the public shall be called in to take part in.

Unfortunately, as noted on many occasions, the procedure for public participation formulated in these Regulations is not in line with the provisions of the Aarhus Convention. Among forms of public discussion not envisaged is the important possibilities offered by public hearings. In the Cabinet of Ministers Resolution № 1378 from15.10.2004 “Some issues on ensuring public participation in the formation and implementation of government policy” which approved “Rules of Procedure for holding consultations with the public on the formation and implementation of government policy”, public hearings are mentioned as one of the forms of public discussion. However in Resolution № 1378, there are no regulations for holding such hearings. This shortcoming takes on particular importance since it is precisely an imitation of public hearings that the authorities have recently made active use of in order to create the illusion of public approval for plans to build environmentally hazardous projects. As a result, “public hearings” on construction work at the Dniester and Kaniv Hydro-Accumulating Power Stations, or the plan “Construction of a deep water Danube – Black Sea Canal” were held without appropriately informing and involving the environmental protection community.  Clearly the result of the reviews of each of these was the single option of approving the proposed plans which, in the opinion of many civic organizations in Ukraine, are not only environmentally hazardous, but also economically unwise. There is thus the problem of distinguishing the concepts of public hearings as a process which can include various forms of public participation and public hearings as a measure (public hearings, roundtables or conferences, etc).

Example 2: In 2006 a supplementary State environmental impact assessment was carried out by the Working Group for creating a Danube – Black Sea shipping canal on the Ukrainian part of the Delta. In order to involve the public, the Ministry for Environmental Protection passed the documentation for this construction to the Aarhus Centre to inform the public and receive their comments. EPL [“Environment – People – Law”] took part in an environmental impact assessment and sent its critical comments on the planning material for the second phase of the canal. However, despite the criticism from the public, the Ministry gave a positive opinion of the supplementary State environmental impact assessment, nor in the Opinion was any mention made of comments from the public or an explanation given as to why public opinion had not been taken into consideration. This demonstrates that for the Ministry for Environmental Protection, public participation is a mere formality.

Since this is unlawful and an infringement of one of the principles of environmental impact assessments – taking public opinion into consideration – EPL lodged an appeal with the court against the 2006 Environmental Impact Opinion. At present proceedings on this administrative case are underway in the Lviv Regional Economic Court, and no judgment has yet been passed. However the purpose of the court case is to teach the Ministry for Environmental Protection that more than simply formal rituals as regards ensuring public participation and receiving comments and criticism from members of the public are needed, and that they are obliged to properly take these opinions into consideration.

Recently civic organizations, as well as private individuals, have been actively endeavouring to assert their right to take part in discussion, and proposals have been submitted for draft normative legal acts, strategies and programmes. This right is not adequately achieved in Ukraine since draft normative acts and strategic development documents are not made widely available and in good time. Only isolated draft normative acts are to be found on the websites of the relevant ministries or the Verkhovna Rada.

Example 3: On 11 October 2006 National Deputies O. Holub and B. Bespaly tabled in the Verkhovna Rada draft law № 2313 “On amendments to the Law “On environmental impact assessments” (on increasing the powers of the public and extending the list of items subject to environmental impact assessment). The authors believe that the present law on environmental impact assessments does not adequately provide for effective State assessments and leaves out too many types of activity and sites which are of heightened environmental danger. It also restricts public participation and the impact of the latter on the process of decision-making on environmentally important issues (this violating people’s constitutional right to live in a favourable natural environment), and there are places where it runs counter to international legal documents. Due to shortcomings in legislation and the fact that the public do not have the opportunity to exert control and impact on State environmental impact assessments, such assessments have over recent times been turning into an empty formality, with it being possible to order the eventual Opinion.

Overall the new features of this draft law can be considered positive. However it is to be regretted that neither the Verkhovna Rada, nor the Ministry for Environmental Protection have put it forward for public discussion, and for amendments and proposals to be submitted, and the draft law has not been published on official websites. Over more than half a year the Verkhovna Rada demonstrated no interest in considering it. As of the end of April 2007 it had not been reviewed in plenary session.

The Ministry for Environmental Protection only publishes on its website information about some draft normative legal acts which it has itself drawn up. The website, however, does not contain any additional information pertaining to the opportunity and procedure for commenting on these draft laws. The process of giving feedback on such drafts is therefore rather languid and ineffective.

Example 4: A number of public lobbying actions aimed at changing government policy towards greater consideration of environmental issues took place in 2005 - 2006 initiated by the environmental organization “MAMA – 86”. A good example of such public lobbying was participation in the Presidential Hearings “Challenges posed by freedom” on 26 November 2005. The address from environmental civic organizations contained as its main thesis the demand that the President make environmental policy in Ukraine a priority, as befits the present state of crisis in the environment and health. On the suggestion of the President, it was proposed that civic organizations prepare the relevant suggestions.  To achieve this, a working group was formed with representatives from the All-Ukrainian Environmental League, Zeleny Svit [Green World], the National Ecological Centre of Ukraine and “MAMA – 86”.  At the beginning of 2006 the working group prepared a draft Presidential Decree “On urgent measures to increase prioritization of environmental policy”.

In order to create the appropriate conditions for exercising the public’s constitutional right to an environment which is safe for life and health, the draft Presidential Decree proposes recognizing environmental policy to be one of the main priorities in Ukraine’s governmental policy. The Cabinet of Ministers is called upon to draw up and submit for consideration in the Verkhovna Rada by 20 June 2006 a draft National Action Plan on Environmental Protection for 2006 – 2015. which will envisage measures on mandatory integration of environmental policy in all areas, including: the use of strategic assessment of the impact on the environment; development of environmental education and awareness-building; implementation of procedures and mechanisms for informing the public and for public participation in decision making on environmental matters; drafting amendments to the Administrative and Criminal Codes through increasing liability for breaches of environmental protection legislation; drawing up a draft Programme for institutional strengthening of State governance in the area of environmental protection and others.

The draft Decree was submitted to the President’s Secretariat in January 2006 however there has still not been an official response.

Example 5.  Another civic initiative we should mention comes from the historic town of Kamyanets-Podilsk and involved response to the planned construction of a plant for cold-rolling and hot galvanizing processing lines at the “Module” enterprise, a former light metal industry plant.

Throughout 2005 and 2006 the process continued of drawing up and agreeing the plan with various controlling bodies, including the Khmelnytsky Regional Sanitary and Epidemiological Service and the Khmelnytsky Regional Department for the Environment and Natural Resources.  On 6 July 2006 the City Council Executive Committee issued a permit for the plans.

However, given the strong concern felt by local residents over the possible consequences for the environment and health, the Society for Podilsk Environmental Researchers and Nature Lovers organized an independent environmental impact assessment of the plans, taking into consideration the planned location (within the town) and chemical substances involved.

On 18 January 2007, the results of the assessment were announced at a meeting with the Town Mayor. The assessment points to numerous violations of environmental legislation and decision-making procedure. On 12 February the results were made known to a public meeting in the town cultural centre.

As of May 2007 an initiative group had been created to hold a town referendum on whether an environmentally dangerous construction should be built within Kamyanets-Podilsk.

Example 6: At the end of 2005 a civic movement “Zeleny Maidan” [“Green Maidan” – literally green square] was founded. This is a voluntary non-political movement with the general aim of raising the priority of environmental policy so that Ukraine can move in the direction of balanced environmental policy.

On 18 July 2006 the flag “Zeleny Maidan” was raised over a campaigning tent on Maidan Nezalezhnosti [Independence Square]. The action which lasted 12 days had the support of 22 environmental organizations. In that time more than 5 thousand people visited the tent. On 27 July 2006 participants in the Zeleny Maidan action held a picket outside Ukraine House in Kyiv where the Cabinet of Ministers was giving a public presentation of its work over the first half of 2006. Ukrainian environmental civic organizations expressed their indignation over cases where the Government had violated environmental legislation or had not implemented international commitments, as well as over plans to accelerate development of nuclear energy. That same day near the President’s Secretariat members of the Zeleny Maidan action reminded the President of the draft Presidential Decree “On urgent measures to increase prioritization of environmental policy” and submitted it to the Secretariat. No response has yet been received.

Example 7: A public campaign aimed at changing government policy priorities in the area of energy was initiated by MAMA-86 and the National Ecological Centre of Ukraine [NECU]. In the process of preparation and organization of the action an open union of Ukrainian civic organizations was formed “For sustainable energy”.

When shortly before the twentieth anniversary of the Chernobyl Disaster the conclusions of the UN Chernobyl Forum, the International Atomic Energy Agency (IAEA) and the World Health Organization (WHO) were released and the Government of Ukraine took the decision to prioritize development of nuclear energy and adopted Ukraine’s Energy Strategy up to 2030, Ukrainians were faced with the real risk that the Chernobyl programmes would be folded, and 22 new nuclear power plants built without their consent and at their expense.

At the initiative of MAMA-86, on 20 September 2005 41 environmental organizations addressed an appeal to the President in which they protested against the conclusions of the IAEA / WHO experts, and also called on the Ukrainian authorities to present an official position on this.

The first joint action by the Union “For sustainable energy” was the large-scale protest action: “NO to new nuclear power plants, YES to energy conservation!”.  This was held on 5 October 2005 outside the Cabinet of Ministers. Its co-organizers and participants were the National Ecological Centre of Ukraine, the Dniprodzherzhynsk Environmental Organization “Holos Pryrody” [“Nature’s Voice”], MAMA-86, the city youth environmental organization “Ecoclub” (Rivne), Zeleny svit,  the environmental and cultural centre “Bakhmat” (Artemivsk) and others. The key messages of the protest are categorical rejection of a nuclear energy future for Ukraine and protest at flagrant violations by the government of the Aarhus Convention. The demands were set out in an appeal passed to the then Prime Minister Yury Yekhanurov and sent to Ukraine’s National Deputies.  The immediate result of the October picket was a meeting on 24 November 2005 in the Ministry of Fuel and Energy between representatives of the NGOs who had organized the picket and the leadership of the Ministry at the level of the Deputy Ministry to discuss the draft strategy programme.  The meeting did not, however, bring any direct results.

The next public protest carried out by the Union was directed against the statements of the then Prime Minister that there was no alternative for Ukraine but a nuclear future. In a widely publicized statement, leading environmental organizations pointed out that the public must take part in making decisions on such issues as the construction of new nuclear power plants.

In March 2006 MAMA-86 initiated design of a “Concept for a non-nuclear path of development of the energy industry in Ukraine”.  With its financial support, experts on alternative and renewable sources of energy were drawn in  (the civic organization “Renewable Energy Agency” and the Scientific and technical centre “Biomasa”, with the participation of member of the Verkhovna Rada Commission on Radiation Protection V.I. Usatenko). The co-authors of the alternative concept also included NECU, “Ecoclub”, “Holos Pryrody” and “Bakhmat”.  The document presents a critical analysis of the Energy Development Strategy for Ukraine’s energy industry and provides calculations proving that there is an option of rejecting nuclear sources of energy on condition that there is investment in energy conservation, energy efficiency and renewable sources of energy. The Concept was released on 20 March 2006 at a press conference attended by members of the Union, and was sent to the top government authorities.

  Environmental organizations demanded that the Cabinet of Ministers review the Energy Strategy, having first held full consultations and considered several alternative variants for the development of the energy sector in Ukraine. They also called on the public to support a petition against the strategy being proposed for the development of a fuel and energy complex and to collect signatures. Approximately 22 thousand people signed the petition, with 13 thousand of these being collected by MAMA-86 and another 9 thousand by the All-Ukrainian Environmental League and other Ukrainian environmental organizations.

On 23 March 2006 during the presentation of Ukraine’s Energy Strategy, attended by the President, the anti-nuclear Union of civic organizations distributed their information material among the participants.

  From 23-25 April 2006 to mark the twentieth anniversary of the Chernobyl tragedy, an international conference was held in Kyiv “Chernobyl + 20: Remembrance for the Future”. It was attended by independent scientists, environmental specialists, civic organizations and experts on balanced forms of energy from all over the world. On 24 April 2006 representatives of the anti-nuclear Union and members of the conference took part in a picket (organized by “Holos Pryrody”) outside the National Opera House where a government conference to mark the anniversary was taking place in the presence of high-ranking officials.

  On 27 April 2006, at the initiative of the office of the Cabinet of Ministers an Internet conference was held entitled “Government officials and environmentalists discuss Ukraine’s Energy Strategy for the period up to 2030”. Representatives of the government were forced to hold this by the longstanding struggle by Ukrainian environmental organizations against the adoption of this strategy without proper public discussion.

  Experts from independent organizations prepared and in September 2006 circulated the analytical documents “Criticism of the Energy Strategy provisions” and the “Concept for a non-nuclear path of development of the energy industry in Ukraine”.  These elicited public dialogue on the advisability of the scenario proposed in the Energy Strategy involving scientific experts, civic organizations and bodies of local self-government.

  For example, a meeting of the Ternopil Regional Council on 9 October 2006 sent an official appeal № 35791/4/1-06 to the Cabinet of Ministers. In it they state that the adoption of the Energy Strategy had not been preceded by wide-scale public discussion as demanded by the Aarhus Convention, ratified by Ukraine and by the Law “On the use of nuclear energy and radiation safety”. The Ternopil Regional Council considers that the Energy Strategy needs to be worked on and requires wide public debate, and suggests that the Cabinet of Ministers initiates and runs public hearings in Ternopil on Ukraine’s Energy Strategy up to 2030”, later taking their conclusions into consideration when working on and implementing the Energy Strategy.

Unfortunately, the Energy Strategy was approved without alternatives being presented. The key public officials who were responsible for preparing and holding public discussions have accused environmental civic organizations of having become involved in the process too late. They have produced an incredible list of measures for consulting the public, with seminars, roundtables, hearings etc.  A glance at the list of participants in such events makes it possible to conclude that energy industry specialists and the relevant representatives of government bodies talked among themselves, without involving those with alternative views or the public. As a result of the lack of wide information, as well as insufficient clarity in legislation stipulating the format of holding consultations with the public, especially as regards public hearings, it is fairly difficult to prove professional negligence as far as involving the public in decision-making on the Energy strategy is concerned.

Observance of the public’s right to participate in decision-making on issues of environmental impact during 2006 did not show any notable improvement. The exercising of these rights does, however, to some extent depend on the level of activeness of members of the public themselves, and this level needs to be improved through environmental and legal awareness-raising and demonstrating positive experience where people have succeeded in making impact on environmental awareness.  To properly safeguard the right to public participation improvements are needed to the normative legal base with respect to the mechanisms, procedures, format for holding such events and for presenting the results of consultation with the public. This in particular concerns access to the public of information at the early stages, the presentation in summary documentation of alternative points of view and the definition of the format of public hearings.

 

2.1.3.   Access to justice on environmental matters and environmental rights

Legal relations arising in the area of environmental protection and environmental rights fall within the jurisdiction of Ukrainian courts. Ukrainian citizens are entitled to approach the courts where their rights, freedoms and interests have been infringed. This is set down in the Civil Procedure Code (Article 3) and the Code of Administrative Justice (Article 6).

A separate category of cases involve defending ones right to information. This right is enshrined both in the Constitution and in various laws, and its is defended in administrative courts according to the claimant’s location in cases of unlawful refusal to provide information by public authorities, bodies of local self-government or their officials according to the rules of the Code of Administrative Justice. One may thus lodge a claim against an unlawful refusal to give information, failure to provide information in the legally stipulated time-frame, or other unlawful behaviour or failure to act, linked with access to information.

The most objective means of evaluating access to justice is to study actual civil suits. This makes it possible to find out who approaches the courts and why, to ascertain impediments, improve the procedure for lodging claims, ensure fair hearings, establish the basic level to use when comparing and defining judicial effectiveness and public confidence in judicial and legal institutions, as well as developing the relevant strategies for increasing the level of access.

Example 1: EPL [Environment – People – Law”] achieved an important judgment in the Lviv Regional Economic Court of Appeal on an individual suit brought against the Ministry for Environmental Protection. The judgment declared unlawful the practice of the Ministry in refusing to provide copies of scientific environmental expert assessments which are an integral part of the opinions of State environmental impact studies.  EPL had sent an information request to the Ministry asking for a copy of the environmental impact study on the construction plan for the Danube – Black Sea Canal and the scientific environmental expert evaluation of the Environmental Impact Assessment [EIA] material for this plan. The organization’s request was turned down on the grounds that the given scientific assessment was the intellectual property of those who had commissioned it. The Court of Appeal accepted the position presented by EPL, that the refusal to provide the copy had been unlawful since such an assessment is a decision of a State body (a component part of the opinion of the State environmental impact study) and is therefore to be provided on request.  With this court ruling coming into force, the Ministry finally provided EPL as requested with a copy of the environmental impact study on the construction plan for the Danube – Black Sea Canal. This ruling is extremely important given the Ministry’s persistent refusals to provide scientific environmental expert evaluations.

One of the judicial mechanisms for defending the public’s right to participate in decision-making of environmental importance is by appealing against decisions taken without taking public opinion into consideration. For example, the public is often deprived of the possibility of taking any part in the process of carrying out a State environmental expert study because of the lack of clear procedures, the unwillingness of the public authorities to encourage and facilitate such participation, as well as for other reasons. This results in the public being presented with an already approved Opinion from the environmental impact study. In such cases it is a good idea to lodge an appeal against decisions made with infringements of the public right to participate in such decision-making to either have the action or lack of such declared unlawful and prompt the relevant government body to rectify the situation (if it is not too late) or to ask the court to ensure that the unlawful behaviour by public officials is changed in the future.

Court proceedings in such cases take place, as mentioned, in administrative courts according to where the claimant is located which is quite convenient and enables saving on the transport and board costs where courts are elsewhere.

Example 2: In 2006 EPL lodged an appeal with the court asking that the Opinion of the State environmental impact study on phase two of the Danube – Black Sea Canal invalid on the grounds that a fundamental principle of such assessments had been breached, this being the need to take public opinion into consideration.  As a result of their analysis of the EIA material on the construction of phase 2 of the Canal, submitted for State environmental impact study, EPL had prepared critical comments and provided irrefutable proof of breaches of both domestic legislation and a number of international conventions in the process of building the Danube – Black Sea Canal. The EPL evidence and arguments were neither reviewed nor reflected in the expert conclusion. The material of this environmental impact study makes no mention of the EPL comments nor does it provide any explanation as to why these have not been taken into consideration. The court proceedings into this case are still continuing.

As a rule there are no great difficulties in turning to the courts where there have been violations of people’s environmental rights through the actions or omissions of public authorities.  Yet how does one convince the court in cases where there have been no such violations by those authorities? The Aarhus Convention affirms the public’s right to turn to the courts in order to appeal against the unlawful decision of one of the parties with official authority, which runs counter to environmental protection legislation. Yet practice shows that Ukrainian courts at present are reluctant to apply the provisions of the Aarhus Convention.

Example 3: In 2006 EPL appealed against the Opinion of the State Environmental Impact Study on the construction plan for the Tashlyk Hydro Accumulating Power Station on the grounds that the implementation of the project would lead to the flooding a part of the territory of the regional landscape park “Granite-Steppe Pobuzhya”, the destruction of precious species of flora and fauna protected by Ukrainian law. In the absence of a representative of EPL, the court took the decision to reject the appeal on the grounds that the period for lodging it had been breached, and also questioned the possibility of civic organizations lodging such claims with the court in cases where their rights had not been violated by the decision in question. The court ruling demonstrated the unwillingness of judges to look deeply into the details of a case, especially where this is linked with analysis of scientific research, documents and the existence of the presumption of legality of decisions by the public authorities.

However there has also been positive experience of court appeals against the decisions of the authorities which infringe land or environmental legislation. This applies also to civil suits brought by individuals against the decisions of public authorities or bodies of local self-government which violate citizens’ interests.

  Example 4: In 2006 EPL lodged a claim with the court against the Cabinet of Ministers Resolution on disposing of State-owned land belonging to the reserve territory of “Granite-Steppe Pobuzhya” in the Mykolaiv region[5]”  EPL is arguing that its interest in retaining the natural reserve fund of Ukraine have been breached by the Cabinet of Ministers decision. The court accepted the civil claim and considered it without disputing the right of civic organizations to appeal against resolutions of the Cabinet of Ministers on land issues. The case is presently under examination in the Mykolaiv Regional Court of Appeal.

  Example 5: With legal accompaniment from EPL, residents of the city of Mykolaiv A. H Halkin and Ol. Malytsky lodged a civil suit to have the decision of the Mykolaiv Regional Council on changing the borders of the reserve territory of “Granite-Steppe Pobuzhya” and removing 27,72 hectares of land from the regional landscape park to join to the Alexandrovsky Reservoir on the river Southern Bug.  The local court allowed the claim by the two residents who had demanded that the unlawful decision be revoked, arguing that their right to general use of nature and right of State ownership of natural resources had been violated. We thus see that individuals succeeded in standing up for their right to natural resources of national significance – the Southern Bug River with its flora and fauna in order to stop the land being flooded by the Alexandrovsky Reservoir

A separate and important category of court practice is seen in civil suits in defence of people’s constitutional right to a safe environment and to compensation for damages sustained through violation of this right. There can, however, be difficulties in proving a cause and effect link between the pollution and the moral or material damages. This kind of court case often involves the need for a forensic medical examination which leads to additional expense for the claimant. This prevents people who are suffering the adverse effects of pollution of claiming moral or material damages due to the pollution. Without a specialist forensic medical assessment the size of compensation for damages awarded by the court is often not adequate to recompense the actual change in the victim’s state of health.

Item e of Article 21 of the Law “On protection of the natural environment” allows civic environmental associations the right to lodge compensation claims with the economic court for damages sustained as the result of violations of environmental legislation, including damage to individuals’ health and to the property of civic associations. However there is a category of cases “closed” for participation by individuals or civic organizations. This involves civic suits filed in the interests of the State or of a territorial community by the relevant empowered bodies. For example the State departments for environmental protection in the regions may file compensation claims for damages and expenses incurred as the result of a violation of environmental legislation, as well as suits to have environmentally hazardous activities stopped or suspended. Unfortunately, individuals and civic organizations are only allowed to attend such court proceedings. They may submit explanations or evidence to the court but they do not have the status of parties to the court proceedings which substantially limits their procedural rights. Only where the court allows an application from one of the parties to involve individuals or civic organizations in the procedure as a third party on the side of the claimant who is not presenting independent claims with respect to the dispute, can the public gain access to a wide range of procedural rights, including the right to appeal the court ruling according to legally stipulated procedure. Sometimes in defending their right of access to justice civic organizations are forced to turn to higher-level courts.

Example 6: On 5 March 2007 the High Administrative Court of Ukraine passed a decision to institute cassation proceedings over the claim by the civic organization MAMA-86-Odessa against the ruling of the Odessa Economic Court of Appeal from 4 April 2006.

This case arose over a large-scale construction plan, the so-called “boat station” in the natural flood lands of the Dniester River near the village of Mayaki and the Opinion of the State department which did not agree a working plan for the boat station.

  In examining the case in the Odessa Regional Economic Court several civic organizations from Odessa and the Odessa region applied on the basis of norms of the Aarhus Convention and the Code of Administrative Justice to be included as third parties to the proceedings. Among these were MAMA-86-Odessa, the Natural Legacy Fund, the Vernadsky Youth Environmental Centre, the civic organizations Vidrodzhennya and the Socio-Environmental Union.  However both the Odessa Court of Appeal and the Economic Court turned the civic organizations down due to “a lack of sufficient interest”. The decision to turn them down was appealed in the Odessa Regional Court of Appeal however this court refused to institute appeal proceedings.  

  The Civil Code stipulates that the activities of an individual or legal entity which lead to the destruction, damage or pollution of the environment are unlawful. Each person is entitled to demand that such activities be suspended, and such activities can be stopped by court order. This means that there is no requirement in the given case that the said activities infringed the rights of a specific individual. Therefore each member of the public, regardless of whether he or she is personally affected by the activities, has an interest in preserving the environment, and therefore the right to seek a court ruling suspending the activities.

  An analysis of the present situation with access to the court by individuals and civic organizations shows a fairly weak level of activity in this direction and a lack of confidence in judicial bodies. A major constraining factor is the lack of legal aid and financial resources for lodging a civil claim. Civic organizations and individual members of the public often lack sufficient legal knowledge, or the financial resources to pay for a lawyer, and therefore more often seek to resolve environmental problems without recourse to the courts.

  There is also a relatively small number of cases considered by the courts involving compensation for environmental damage or criminal proceedings into crimes against the environment (Articles 236 – 254 of the Criminal Code).

  Example 7: In response to a formal information request from Zeleny Svit, In Letter № 380/01-07 from 09.02. 2007  the State Judicial Administration provided statistical information regarding court cases in 2006.

  The data shows that during the year local general courts considered 1,059 cases under Article 236-254 of the Criminal Code, with 1,023 individuals being convicted. The huge difference in the number of such cases when broken down into regions is striking.. For example, whereas in the Luhansk region 119 charges involving crimes against the environment were considered and in the Ivano-Frankivsk region – 94, the numbers in the Zhytomyr region was 6; Lviv region – 11, and in the cities of Kyiv and Sevastopol, the figures were 8 and 5 respectively. The largest number of cases considered and convictions related to Articles from the Criminal Code No. 249 (“Illegal fishing, poaching of wild animals or other water-related poaching business”) and No. 246 (“Illegal forest felling”), 400 and 340 cases respectively. The smallest number of cases – two in all - involved Article 252 (“deliberate destruction or damaging of territory under State protection, and of parts of the Nature Reserve Fund”).

There were virtually no criminal proceedings over crimes against the environment in appellate courts. The State Judicial Administration has only two such cases recorded, in the Volyn region.

During 2006 the courts considered 3,444 compensation claims for damages incurred through infringements of environmental legislation. The greatest numbers were in the Transcarpathian and Zaporizhya regions (334 and 343 cases, respectively), while the smallest number were in Kyiv – 6 cases. 2,480 claims were allowed, with the overall amount of compensation awarded coming to over 125 million UAH. The State Judicial Administration’s letter gives no information as to how much of the compensation has in fact been paid.

At the same time the Prosecutor General , responding to an information request from Zeleny Svit on the number of civil claims lodged by individuals over infringements of environmental legislation, as well as criminal proceedings under Articles 236-254 of the Criminal Code instituted and submitted by prosecutor’s offices to the courts, did not deem the information requested to come under the category of environmental information and refused to provide it (Letter from the Prosecutor General № 07/4 – 111-07 from 30.01. 2007).

We should not forget that the safeguarding of environmental rights, including via legal remedies, is the function and responsibility of the State. This is clearly articulated in Article 16 of the Constitution, and Articles 5, 10, 11, 37 of the Law “On protection of the natural environment”. Article 11, for example, affirms the State’s guarantee of its citizens’ environmental rights as enshrined in legislation, and obliges structures within the Ministry for Environmental Protection to provide members of the public with comprehensive assistance in exercising these rights.

According to Article 121 of the Constitution the Prosecutor supervises observance of human rights and civil liberties. Article 37 of the Law “On protection of the natural environment” stipulates that the prosecutor’s office may approach the court “with compensation claims for damages resulting from infringements of environmental legislation, or seeking suspension of environmentally hazardous activities”.

One should perhaps understand that members of the public may also submit to the prosecutor’s office claims in defence of their right to a safe environment, to compensation for damages sustained as the result of environmentally hazardous activities, as well as to have criminal proceedings instituted, at least those under Articles 236, 237, 238, 244, 253 of the Criminal Code which are investigated by the Prosecutor. Cases when the Prosecutor represents individual members of the public in court are reasonably clearly set out in legislation. As a rule they involve minors, those mentally unfit, or others who are not able to represent themselves. The prosecutor’s office would accordingly respond to such claims by appearing in court on behalf of the citizens whose environmental rights have been violated. Unfortunately, we know of virtually no precedents for such activities by the prosecutor’s office.

Summarizing the facts set out in this section, one can conclude that the provisions of the Aarhus Convention and of Ukrainian laws on ensuring access to environmental information, public participation in decision-making and access to justice on environmental matters were not properly enforced during 2006.  The conditions to ensure their full and effective enforcement have yet to be safeguarded, and the procedures and mechanisms are inadequately developed. The circle of authorities answering for the right to receive environmental information in Ukraine is artificially squeezed into the frame of the insufficiently influential Ministry for Environmental Protection and its regional departments.

The few laws and subordinate legislation passed in Ukraine in implementation of the provisions of the Aarhus Convention in fact diminish the possibilities for citizens to exercise their constitutional right to receive environmental information and limit the role of the public in the process of observance of the right to a safe environment.

These all contribute to the violation of people’s constitutional right to an environment which is safe for health and life.

 

3.   Plans with particular impact on environmental rights

3.1.   Construction of the canal through the Danube Biosphere Reserve

  The most prominent case involving the destruction of a natural reserve over recent years in Ukraine has been the construction of the deep-water Danube – Black Sea canal through the Bystroye Estuary on the territory of the Danube Biosphere Reserve.  The process of building this canal has brought with it infringements not only of a number of provisions of domestic legislation, but also international agreements which Ukraine is a signatory to, namely: the Bonn Convention on the Conservation of Migratory Species of Wild Animals; the Convention on Cooperation in the Protection and Stable Use of the Danube; the Espoo Convention on Environmental Impact Assessment in a Transboundary Context, the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, the Bern Convention on the Conservation of European Wildlife and Natural Habitats and the Aarhus Convention.

  The public campaign against this project was a milestone for the changes taking place in Ukrainian society. The vast scale of the destruction of a natural reserve which is under the protection of UNESCO was not opposed by the National Academy of Sciences, nor natural sciences circles, but almost exclusively by environmental civic organizations.  As the Director of the reserve, Oleksandr Voloshkevych put it, the reserve’s only allies proved to be civic society.

The campaign last from 2001 thanks to the active role played by a group of civic organizations: “Pechenihi”, “Environment – People - Law” [EPL], the Odessa branch of the International Socio-Environmental Union and the Kyiv Environmental and Cultural Centre. In 2006 EPL lawyer Olha Melen became the first Ukrainian to receive the Goldman Prize, the most prestigious prize in the world awarded to civic figures for their exceptional achievements in environmental protection.  At official level the event was simply ignored.

At a meeting with journalists from Odessa, the Minister for Transport and Communications B. Bondar stated that the income from the exploitation of the canal did not cover the cost of its upkeep. Therefore, he believed, it needed to be decided whether the canal was a commercial project which must bring a profit, or a political project.[6].  With regard to the “political” nature of this project, it should be noted that despite clear violations in its implementation of a number of international agreements and the damage to Ukraine’s image in the world, during 2005 and 2006 one of its main lobbyists in Ukraine was the Ministry of Internal Affairs. The project was also actively lobbied by other public officials and politicians, for example the Speaker of the Verkhovna Rada V. Lytvyn., the Minister for Transport Y. Chervonenko and the Head of the Odessa Regional Administration V. Tsushko.

In July 2006 the results of an Accounting Chamber audit on environmental measures carried out in 2004 and 2005 while constructing the deep-water canal was published. The audit showed that the Cabinet of Ministers had not ensured adherence to legislation nor control over observance of environmental safety requirements. It had failed to carry out effective and comprehensive measures to protect the natural environment during the construction of the canal. The auditors noted that the actions of the Cabinet of Ministers, the Ministry for Transport and Communications and the Ministry for Environmental Protection on resolving the issue of restoring the deep water shipping route had been unsystematic and inconsistent. The audit found that the planned spending on construction of the canal had been exceeded by 12.3 million UAH. At the same time the objective in creating the waterway had not been achieved and ship passage had been suspended. By the date when the canal was officially opened for use, measures of the protection of the environment had not been carried out. 71 million UAH had been used inefficiently.

The Accounting Chamber concluded that the present system for environmental monitoring had not provided the information needed for the process of designing and constructing the deep-water canal and had rendered it difficult to make optimum design decisions. It had furthermore prevented the public authorities, bodies of local self-government, civic and international organizations from receiving well-founded, objective and trustworthy information about the state of the environment and had failed to avoid a negative reaction from the international community to the canal’s construction.

During 2005 and 2006 the public authorities in Ukraine continued to exert pressure on the reserve. This pressure had begun earlier. From 2003-2004 more than 20 fiscal checks were carried out, some of them lasting up to two weeks. Not only of the checks uncovered any irregularities. In November 2004 in response to a letter from the Director of the state enterprise “Delta-Lotzman” V. Bezdolny the Odessa Regional Prosecutor launched a criminal investigation against staff of the Danube Biosphere Reserve “over a case of abuse of official position”. The investigation was terminated in 2005 when the reserve won a court case on this issue against the Odessa Regional Prosecutor. In general, all of 2005 passed peacefully for the reserve. However in February 2006 the Regional Prosecutor re-launched the criminal investigation.

The unclear situation over the further fate of the canal radically changed after the 2006 parliamentary elections and the appointment of a new Cabinet of Ministers. By 18 August the new Minister for Transport and Communications  M. Rudkovsky had reinstated V. Bezdolny in his post as Director of “Delta-Lotzman”. The latter had been dismissed on 7 July 2005 following a series of machinations which cost the government more than 100 million UAH.

On 3 October 2006 the latest campaign of public disinformation began with the newspapers flooded with material about the economic viability of the canal through the Bystroye Estuary and its supposed harmlessness. It is typical that top figures in the country took part in the campaign, including the First Deputy Prime Minister M. Azarov who threatened journalists and hinted that critics of the canal through the Bystroye Estuary were working for the Romanian government.[7].

On 30 October the Minister for Environmental Protection V. Dzharty suggested to the President of the National Academy of Sciences B. Paton that the Danube Biosphere Reserve be placed under the jurisdiction of his Ministry. He asserted that such a transfer was expedient because the Reserve did not have land documents. The Academy of Sciences rejected the Minister’s suggestion.

  On 24 November the official newspaper “Holos Ukrainy” published an Environmental Impact Statement regarding the consequences of building and using the deep-water canal which began the official State expert environmental analysis of the plan.  Before the adoption of the Environmental Impact Opinion, dredging of the Bystroye was restarted, with 13 million UAH being allocated from the State Budget for it. On 20 December “public hearings” in support of the project were held at Izmail. The official organizer of these “hearings” was the Izmail City Council, unofficially they were arranged by Delta-Lotzman. The preferences and specific features of the organizers were reflected in the nature of the “hearings” – partisan and biased, and aimed at deceiving the communities living near the Danube.

The situation by the end of 2006 with regard to the deep-water Danube – Black Sea canal was almost identical to that at the end of 2004. In concluding this analysis, one should note several particular features. This project is distinguished by its virtually uncontrolled options for using State funding (it being impossible to check the real scale of the dredging work). All Ukrainian governments have had a vested interest in this, regardless of their political orientation. Political preferences have been reflected in the forms of lobbying for the project.

 

3.2   Construction of the Tashlyk Hydro Accumulating Power Station and the destruction of the regional landscape park “Granite-Steppe Pobuzhya”

In formal terms the problem is over conflict between environmental and “economic” interests in implementing the planned construction of the Tashlyk Hydro Accumulating Power Station {HAPS]. This envisages further raising of the water level in the Alexandrovsky Reservoir which will lead to the flooding of land on the regional landscape park “Granite-Steppe Pobuzhya”  (if the water level is raised by 20.7 metres, this will flood around 870 hectares).  Under threat of being flooded are also monuments of historical and cultural heritage, including the Gard Tract which is the last authentic landscape from the time of the Zaporizhyan Sich [the fortress of the Zaporizhyan Cossacks on the Khortytsa Island]. 

The Tashlyk HAPS is being built without a positive Opinion from the State environmental impact study. The conditions given in the expert opinion of the Ministry for Environmental Protection in 1998 have still not been carried out. In total, this project has infringed over 20 normative legal acts on the environment, including the Laws “On protection of the Natural Environment”, “On the Nature Reserve Fund of Ukraine” and ““On environmental impact assessments”.

The thing that stands out in this project is the fact that it received a negative assessment from competent government bodies: the Ministry for Environmental Protection, the Ministry of Culture and the Prosecutor General. Despite this, it is continuing to be implemented with financing from the Special Fund of the State Budget.

The Ministry for Environmental Protection’s position: From 10 to 15 October 2005 the builders of the Tashlyk HAPS carried out illegal land work on the territory of the regional landscape park “Granite-Steppe Pobuzhya”. The work was carried out on the left bank of the Pivdenny Bug [Southern Bug] River at river level near the Gard Tract, and was stopped through an order from the regional Department for the Environment and Natural Resources.

In spring 2006 Ministry of Fuel and Energy engineers raised the water level in the Alexandrovsky Reservoir resulting in a part of the regional landscape park being flooded and causing deterioration in the state of the nature complex. In doing this, the Ministry of Fuel and Energy breached a number of environmental normative legal acts, including the Laws “On the Nature Reserve Fund of Ukraine” (Article 7); “On the animal world” (Article 39); “On the plant world” (Article 27); “On Ukraine’s Red Book” (Article 11) and  “On protection of cultural heritage” (Articles 22, 24, 30, 37).  Liability for such actions is set down in Article 252 of the Criminal Code (“deliberate destruction or damaging of territory under State protection, and of parts of the Nature Reserve Fund”), as well as Articles 90 (infringement of the norms for the protection of animals and plants in Ukraine’s Red Book) and 91 (infringement of the rules for the protection and use of territory and objects of the Nature Reserve Fund) of the Code of Administrative Offences. The decision was taken against the position of the Ministry for Environmental Protection that the water level at the Alexandrovsky Reservoir must not be raised by 14.7 metres.

Pursuant to Article 123 of the Land Code, the Ministry for Environmental Protection and the Mykolaiv Regional State Department for the Environment and Natural Resources had examined the plans for passing land into the permanent use of the State Enterprise NNEGC [National Nuclear Energy Generating Company] Energoatom for the locating of the tail end of the Alexandrovsky Reservoir within the boundaries of the regional landscape park and had not approved them.

The Ministry for Environmental Protection provided the public with the Act for the check carried out to ascertain whether Energoatom had complied with environmental legislation when constructing the Alexandrovsky Reservoir.  The check was undertaken by the State Environmental Assessment Inspectorate from 16-19 May 2006. The act, for example, states that in a letter from 06.04.2006 №05/460 the Mykolaiv Regional State Department for the Environment and Natural Resources had called upon the management of AtomEnergoBud [a supposedly independent subdivision of Energoatom] to immediately set about reducing the water level of the Reservoir to its normal level of 8 metres and to agree a schedule for achieving this by 10.04.2006.  The Acts and the orders of the Mykolaiv Regional State Department were ignored.

On 1 June 2006, at a special meeting of the Ministry for Environmental Protection Public Council, the Minister P. Ihnatenko released information about the last meeting of the Cabinet of Ministers on that issue. The Minister stated that the issue had been reviewed with infringements of procedure, and the decision had been taken virtually on a show of hands, with members of the Cabinet not having been provided with the relevant documents. Despite the objections of the Deputy Prime Minister V. Kyrylenko, the Minister for Environmental Protection P. Ihnatenko, the Minister for Culture and Tourism I. Likhovy, as well as protest from the Deputy Prosecutor General  T. Kornyakova, the issue had been approved by the overwhelming majority present. The objections to the decision were linked with the unique importance of the territory which would be flooded, both from an environmental and a cultural and historical point of view.  The Prosecutor General’s protest was over numerous breaches of legislation on the environment and on protection of historical and cultural heritage.

Finally, the Ministry for Environmental Protection with a letter from 29.05.2006 had not agreed the draft Resolution of the Cabinet of Ministers “On handing into permanent use land for social and other needs, with amendments to the designated purpose of the land”, which transferring land of the regional landscape park to Energoatom, that is, for the flooding of the Gard Tract. Despite opposition, the Mykolaiv Regional Council had on 17 March 2006 with Decision No. 3 agreed the plans to transfer the land. Material on the issue was handed by the Ministry for Environmental Protection to the Prosecutor General.

On 20 June 2006 the Cabinet of Ministers officially approved the transfer of this land through its shameful Resolution No. 841 “On transferring land for permanent use”. The Resolution was adopted with infringements of virtually all possible procedure, with members of the Cabinet not having been provided with the relevant documentation, where some members of the Cabinet were categorically against it, and without the Ministry of Justice having assessing its legality.

The position of the Verkhovna Rada: The Resolution of the Verkhovna Rada №565-ІУ from 20.02.2003 “On recommendations to hold parliamentary hearings on adherence to environmental legislation” (Item 15) recommended that the Cabinet of Ministers take measures to prevent implementation of economic projects at the expense of territory from the Nature Reserve Fund.  With Verkhovna Rada Resolution №609-ІУ from 06.03.2003 “On recommendations to hold parliamentary hearings “The flooding of land in Ukraine: problems and ways of overcoming them” (Item 12) the Cabinet of Ministers was called upon to ensure the preservation of the regional landscape park “Granite-Steppe Pobuzhya”.

The question of the environmental consequences of building the Tashlyk Hydro Accumulating Power Station has been considered on several occasions in the Verkhovna Rada. One such occasion was in the Verkhovna Rada Committee on environmental policy, use of nature and the liquidation of the consequences of the Chernobyl Disaster hearings on ““Problems for the creation of a national nature park “Granite-Steppe Pobuzhya”. (29.03.2005). The aim was to give deep and comprehensive review of implementation of the Law from 21.09.2000  № 1989-ІІІ "On approving a National Programme for forming Ukraine’s environmental network for 2000-2015”, with regard to the creation by 2005 of the relevant national nature park on the basis of the regional landscape park “Granite-Steppe Pobuzhya”.. The participants in these hearings were unanimous in agreeing that a national nature park “Granite-Steppe Pobuzhya” was needed. No compromise was reached over the possibility of implementing a Revised Plan for the construction of the Tashlyk HAPS, which was linked with the removal and flooding of a part of the land of the regional landscape park.

  However, the Verkhovna Rada, largely preoccupied in 2006 with sharing out their own powers, avoided any active measures in response to calls from the public and some local councils on the unlawfulness of removal and unacceptability of flooding the regional landscape park.

  For example, the Ternopil Regional Council at its third meeting on 28 November 2006 passed a separate appeal calling on the Verkhovna Rada to not agree to the removal of Nature Reserve Fund land from the regional landscape park with its being handed over in order to be flooded. Articles 6 and 13 of the Land Code stipulate, after all, that it is within the jurisdiction of the Verkhovna Rada to agree issues linked with the withdrawal of especially valuable land. Pursuant to Article 8 of the Land Code, Regional Councils have the authority to dispose of land which is in the joint ownership of territorial communities. The Ternopil Regional Council therefore believes that the Mykolaiv Regional Council, lacking the authority to dispose of especially valuable land owned by the State acted unlawfully by removing this land from the regional landscape park “Granite-Steppe Pobuzhya”.

In response to this appeal, the Verkhovna Rada on 11 January 2007 claimed that “the Mykolaiv Regional Council, in reviewing this issue, did not infringe any environmental legislation. In this respect, it must be pointed out that it is not within the competence of the Verkhovna Rada to agree to the withdrawal of land of environmental designation. That is within the jurisdiction of the Cabinet of Ministers”.

  The position of the Prosecutor: The response to a letter from the National Ecological Centre of Ukraine to the Prosecutor General №125-1/12 from 06.03.07 on infringements of legislation in the additional construction work at the Tashlyk HAPS indicates that on “5.05.2006 the prosecutor’s office of the Mykolaiv region registered its protest with the Mykolaiv Regional Council, calling for the cancellation of the decision by the Council on 17.03.2006 No. 3 which agreed the land survey department’s plan for handing land over for the permanent use of State Enterprise NNEGC Energoatom  The said protest was rejected by the Mykolaiv Regional Council on  26.05.06  by a decision of the Council’s meeting. Due to this the Regional Prosecutor lodged an application with the Mykolaiv Regional Economic Court on 26.06.2006 asked that the disputed decision be declared unlawful and revoked.  The case in connection with the application was reviewed by the court on several occasions and was not allowed, however a judgment from the Odessa Economic Court of Appeal on 28.11.2006 revoked the ruling from the Mykolaiv Regional Economic Court and sent the case back for new examination. A resolution by the Mykolaiv Regional Economic Court on 11.12.2006 accepted the case for review, however up till now no judgment has been issued. The Mykolaiv Regional Council has yet to consider the protest of the Regional Prosecutor from 14.07.2006.

In implementation of Cabinet of Ministers Resolution № 841 on handing over sites of land for the permanent use of State Enterprise NNEGC Energoatom, through decision of the Mykolaiv Regional Council No. 10 on 06.07.2006, land with an area of 27.7 hectares was withdrawn from the regional landscape park and on 14.07.06 the prosecutor’s office of the Mykolaiv region registered its protest calling for the cancellation of the decision by the Council on 06.07.2006 since it is in breach of legislation.

However the Prosecutor General did not appeal against the decisions of the central authorities, specifically Cabinet of Ministers Resolution № 841 on handing over sites of land for the permanent use of State Enterprise NNEGC Energoatom. Appeals for the Prosecutor General to do precisely that were sent on a number of occasions by civic organizations.

  Position of the Ukrainian Accounting Chamber: As became clear from the response of the Accounting Chamber to an information request № 16-11 from 25 November 2006, checks of the legal use of money from the Special Fund of the State Budget allocated for the construction of the Tashlyk HAPS over the entire period of construction (25) have not been carried out. Nor does the work plan of the Board of the Accounting Chamber for 2007 envisage such a check.

The position of the public: in 2005-2006 environmental, historical and cultural, as well as tourist civic organizations carried out several dozen public events against this project. However the nuclear lobby proved stronger than the public and the authorities ignored public opinion.

In October 2005 at the initiative of the National Ecological Centre [NECU], a nationwide civic campaign was launched until the title “YES to Gard!” This was prompted by a visit made by NECU activists to Gard on 15-16 October. During this visit they registered infringements of environmental legislation – unlawful land work on the territory of the regional landscape park which was being carried out without any agreement. Following the intervention of the Ministry for Environmental Protection, the work was suspended and the material passed to the court. Fresh from this tour to Gard, on 19 October civic organizations and ordinary members of the public held a picket outside the Cabinet of Ministers premises, reminding Prime Minister Yekhanurov that 2 years earlier he, as one of 175 National Deputies, had signed an information request to the President on stopping violations to legislation as a result of the additional construction on the Tashlyk HAPS and the flooding of territory of the regional landscape park.

During the picket the participants signed and submitted to the Cabinet of Ministers office an open letter to Prime Minister Yekhanov with the following demands:

1. Suspend construction of the Tashlyk HAPS given that the results are not ready of a scientific study of the permissible effect of the building and functioning of the Tashlyk HAPS on the reserve of national and international significance – the National Nature Park “Granite-Steppe Pobuzhya”, being created as per Instruction of the Cabinet of Ministers № 32797/3/1-05 from 4 August 2005.
2. Suspend any actions by the authorities of the Mykolaiv region and of the city of Yuzhnoukrainsk, the builders of the Tashlyk HAPS, etc, which are illegal and pose a threat to the regional landscape park “Granite-Steppe Pobuzhya”, and which obstruct the creation of a national nature park with the same name, as envisaged by the Law "On approving a National Programme for forming Ukraine’s environmental network for 2000-2015”.
3. Hold a State environmental impact study on the Revised Plan for the construction of the Tashlyk HAPS taking into consideration the creation of a national nature park, amendments made to the Tashlyk HAPS after the study of 1997-98 and the provisions of the Aarhus Convention.

On 2 November 2005 members of the campaign “YES to Gard!” held a picket outside the Ministry of Fuel and Energy. They passed on a letter addressed to the Minister I. Plachkov regarding the systematic violation of legislation by “AtomEnergoBud”, the enterprise South Ukraine Nuclear Power Plant Complex and NNEGC Energoatom  in building the Tashlyk HAPS.

A few days later, on 9 November, NECU and the club “Four Sides” picketed NNEGC Energoatom protesting at the latter’s consistent violation of Ukrainian legislation and procedure in the construction of the Tashlyk HAPS.  The picket was specifically aimed at stopping illegal work by Energoatom on the territory of the regional landscape park “Granite-Steppe Pobuzhya”. The picketers addressed an appeal to Y. Nedashkovsky, President of Energoatom, calling on him to stop the unlawful work being carried out by his people.

On 23 November another picket was held outside the Cabinet of Ministers calling for the creation of the national nature park “Granite-Steppe Pobuzhya” and a stop to the construction of the Tashlyk HAPS. Another letter was passed to the Cabinet of Ministers. During the next few days press conferences were held in Mykolaiv and Yuzhnoukrainsk, as well as a protest action directly at Gard.

On 6 June 2006 pickets were resumed of the Cabinet of Ministers premises, involving civic and Cossack organizations and political parties (the Ukrainian People’s Party, the Green Party, the civic party PORA, the Ukrainian Conservative Party). The picket was aimed at drawing the attention of the Cabinet of Ministers to the destruction of a historical area on the State Register of Immovable Monuments. A letter was passed to Prime Minister Y. Yekhanurov, together with a copy of the Act from the Ministry of Culture’s check of the state of the regional landscape park.

Then on 23 June the members of the civic campaign held a protest march with pickets of the Cabinet of Ministers, the Ministry of Justice and the Ministry of Fuel and Energy, protesting at the violations of Ukrainian legislation in the process of construction of the Tashlyk HAPS.  The Prime Minister was called upon to put an end to the unlawful work in constructing the plant and to protect “Granite-Steppe Pobuzhya” as an invaluable part of Ukraine’s natural environment and cultural heritage.  

On 30 June the focus of the picket was the President’s Secretariat, with the President being called on to intervene in the situation which had arisen as a result of the adoption by the Cabinet of Ministers of Resolution № 841, and to use his power to revoke acts passed by the Cabinet of Ministers, in accordance with Item 16 of Article 106 of the Constitution.

  On 6 July 2006 EPL [“Environment – People – Law”] filed a civil suit to have the decision of the Mykolaiv Regional Council of 17.03.2006 declared illegal.

EPL had two court victories in January 2007 over this case. On 29 January 2007, the Lviv Regional Economic Court allowed its claim against the Prosecutor General. ELP had complained that the Prosecutor General had not properly considered EPL’s complaint against the Resolution of the Cabinet of Ministers which had allowed Energoatom to receive some of the land from the regional landscape park “Granite-Steppe Pobuzhya”.

The Court found that the Prosecutor General’s lack of action on this claim had been unlawful and ordered that a proper check of the legality of the Cabinet of Ministers’ Resolution be carried out.

On 26 July 2006 civic activists A. Halkin and O. Malytsky  had filed a civil suit with the Central District Court in Mykolaiv calling for the decision of the Mykolaiv Regional Court of 6 June 2006 (removing 27.7 hectares from the regional landscape park and passing it to Energoatom – translator) to be declared invalid.. Energoatom had, on their part, made efforts to influence their opponents also through the courts. For example, at the end of 2005 they filed a suit against O. Malytsky over the publication of an article on the South Ukraine Nuclear Power Plant and the Tashlyk HAPS. Energoatom demanded 100 thousand UAH in compensation for moral damages.

A number of court hearings were held over the suit filed by A. Halkin and O. Malytsky, with one of them involving a visit to the Tashlyk HAPS and examining the building documentation. The claimants were represented in court by EPL lawyer O. Melen and expert consultant from the Mykolaiv branch of NECU, O. Derkhach.

On 22 January 2007 the Central District Court in Mykolaiv  allowed the claim. It found that the decision of the Mykolaiv Regional Court No. 10 from 6 June 2006 to remove 27.7 hectares from the regional landscape park “Granite-Steppe Pobuzhya” in order for Energoatom to use it as the tail part of the Alexandrovsky Reservoir serving the Tashlyk HAPS  to have been unlawful and therefore revoked the decision.

An appeal against this ruling is presently being heard in the Mykolaiv Regional Court of Appeal.

On 16-17 October 2006 an environmental fact-finding tour took place to the regional landscape park “Granite-Steppe Pobuzhya” and the construction site of the Tashlyk THAPS.  It was organized by NECU and the Chortkiv (Ternopil region) branch of Zeleny Svit, and also included representatives from MAMA-86, “Pechenihi” (a Kharkiv group) and Ecoclub from Rivne, as well as a group of journalists from various Kyiv media outlets. .

The tour was aimed at ascertaining the real consequences of the flooding of the reserve lands, the attitude of the local population, the public authorities and bodies of local self-government, as well as the point of view of the administration and construction staff of the Tashlyk HAPS.

The group looked over Alexandrovsky Dam and the lower part of the reservoir, as well as visiting the Domanivsky district where agricultural land was flooded as a result of the first raising of the water level. On 28 July 2006 a session of the Domanivsky District Council specially addressed the issue of the environmental situation in the district in connection with the end of construction of the launching complex of the Tashlyk HAPS.  The environmental situation was described as critical, and it was decided to approach the Cabinet of Ministers and Energoatom seeking compensation for losses incurred by the district’s enterprises and to have budget subsidies designated for the development of the social infrastructure.

At the present time, the construction of the Tashlyk HAPS is continuing. Work by AtomEnergobud is near completion on accepting the station for exploitation. This work is considering options which have not undergone expert assessment. The first hydroelectric unit of the station is still not running, despite the pompous ceremony “launching the Tashlyk HAPS” which was attended by Prime Minister V. Yanukovych and shown to viewers of all national television channels. The level of flooding of the Alexandrovsky Reservoir is being unlawfully held at 15 metres.

 

Proposals:  In the situation which has emerged, we need to fundamentally review the entire complex of problems linked with threats to natural and cultural heritage in building the Tashlyk HAPS and ensuring the rights of the public in this process. The following steps must be taken.

1. Suspend introduction of the Tashlyk project in its present form and review the options for changing its profile and for new technical decisions;
2. Immediately formalize State Acts for the permanent use of the regional landscape park “Granite-Steppe Pobuzhya” and accelerate the decision-making process over creating on its base a national nature park (in accordance with the Law from 21.09.2000  № 1989-ІІІ "On approving a National Programme for forming Ukraine’s environmental network for 2000-2015”);
3. Ensure unconditional implementation of the proposals provided by the Ministry for Environmental Protection on establishing the regime for the water system for the river basin of the Southern Bug in order to return the situation to a legal footing as soon as possible. This includes urgent reduction in the water level of the Alexandrovsky Reservoir to 10 metres, bearing in mind the need to gradually reduce the level established in accordance with legal decisions. Draw up a regime for gradually reducing this level to 8 metres;
4. Implementation of the Instruction on identified infringements of environmental legislation from the State environmental impact inspection of the Ministry for Environmental Protection from 16-19 May 2006 and provision to the Ministry of all material pertaining to scientific and expert assessments;
5. Carry out a new independent scientific study of the situation and a technical project for the construction of the Tashlyk HAPS within the context of the work of the whole South Ukraine energy network, envisaging in the future development of alternative options, for example closed cooling ponds or forms of dry cooling for the nuclear power plant, as well as considering conceptually new technical decisions;
6. Ensure observance of the public right to participate in decision –making on the construction of the Tashlyk HAPS in accordance with the Aarhus Convention.

3.3.   Further construction on the Dniester Hydro Accumulating Power Station

The plans for the Dniester energy complex were developed in the 1970s and include hydroelectric stations HES-1 and HES-2, nuclear power plants and the Dniester Hydro Accumulating Power Station (the Dniester HAPS). The construction of the latter began in 1988, however due to the lack of State funding and investors, it soon stopped and was only restarted in 2000. The construction is mainly being carried out at with money from the Special Fund of the State Budget which is created out of the target-based administrative surcharge on the market tariff of electricity and established by decision of the Cabinet of Ministers.

According to information from the Ministry of Fuel and Energy, the general construction is 67% complete. In the opinion of civic organizations, for example, NECU, who in 2005-2006 investigated the actual construction, the level of completion is considerably lower. This is generally confirmed by Ukraine’s Accounting Chamber which reports that as of 1 June 2006 1.72 million UAH of capital investments, this being 33% of the overall cost of the work on construction of just the first phase had been used.

  The efforts of the Government to attract nongovernmental investment to accelerate construction of the

Dniester HAPS have not yet been successful. At the present time no strategic investor has been found. In November 2005 the Ministry of Fuel and Energy approached the World Bank asking it to support the project for the Dniester HAPS through a loan of $200-250 million (in all, to complete work on the first hydro-aggregate around $500 is needed). The Bank proposed submitting an application and project documents by the end of 2006. As of May 2007, there were no reports on the official World Bank website about the results of the review of an application, nor about any conclusions from the Bank regarding the Dniester HAPS project and the prospect for the participation by nongovernmental organizations in the decision-making process. As a result, it is the State Budget which is bearing the main burden for financing the project.

  It was from November 2005 that the authorities began intensively pushing through decisions concerning the Dniester HAPS. A considerable part of these decisions, both in content and procedure, violate Ukraine’s international commitments, as well as norms of domestic legislation, for example, on access to information and public participation in decision-making on environmental matters.

  The international political and legal aspect of the project: The construction of the Dniester HAPS is being carried out on the transboundary Dniester River. Certain technological parts of the Dniester energy complex (the HES-2 Dam, a part of the constructions of the Dniester HAPS) are on sites which remain a subject of territorial dispute between Ukraine and Moldova.  The State border has yet to be demarcated.

It is this transboundary aspect which in the political and legal sense distinguishes the Dniester HAPS project from construction projects for the other Ukrainian hydro-accumulating power stations – Tashlyk and Kaniv. Yet some government authorities in Ukraine constantly deny the considerable transboundary influence of the construction and potential functioning of the  Dniester HAPS on the hydrological regime and state of the Dniester ecosystem, which the Moldovan side and some civic environmental organizations dispute. The Ukrainian authorities sometimes say that there was a review and agreement with the project by the Moldovan Government. However there has been no success in obtaining official documents on this, or at least specific references to them.

  In response to an information request from Zeleny Svit regarding the completion of the construction of the Dniester HAPS (first phase involving three aggregates), the Ministry for Environmental Protection in a letter from 16.12.2005 № 14-12 also stated that  “The project of the Dniester Hydro Accumulating Power Station was agreed by the bodies of local self-government and State administrations of the regions where the construction is taking place, as well as by the State Committee for Water Management, the State Geological Committee, the Ministry of Health and the Council of Ministers of Moldova”.

In response to information requests from Moldovan civic organizations, the Moldovan Government denies any such agreement. In the final analysis there is no official confirmation that Ukraine ever informed government authorities in Moldova about the planned activities.  The process of informing the public about the construction of the Dniester HAPS in Moldova is also not being carried out in proper fashion. It is clear that there have been no officially recognized public hearings on the subject in Moldova and the public has not been properly involved in the decision-making process.

Yet the environmental and legal problems caused by the building of the Dniester HAPS have in 2006-2007 been giving rise to ever greater concern among the public, scientists and some parliamentarians in Moldova. Members of the Moldovan Academy of Sciences and nongovernmental organizations point to an inadequate level of implementation by the parties of their international obligations with respect to the Dniester complex hydraulic unit and the construction project for the Dniester HAPS, starting from the stage of providing material giving technical and economic justification for the project and an assessment of the environmental impact (EIA).

  One can site as an example the release on 5 March 2007 of an “Open letter to the President, Parliament and Cabinet of Ministers of the Republic of Moldova, as well as to the missions of international organizations, from scientists and representatives of nongovernmental organizations in Moldova concerned by the environmental problems of the Dniester River”. The letter was signed by a group of current Members of the Moldovan Academy of Sciences, scientific research workers, representatives of ministries, government departments and nongovernmental organizations.

In connection with this, on 20 March 2007 the Moldovan Parliamentary Commission on public governance, the environment and development of territories passed a separate “Division on the influence of the Dniester hydro-technical complex (Ukraine) on the environmental situation of the Dniester River”. The parliamentarians called on their Cabinet of Ministers and Minister of Foreign Affairs and European Integration to:

• Initiate the creation of a bilateral commission including scientists, representatives of civic society, as well as independent experts from the World Bank, the European Union, the USA and others. This commission should carry out a scientific assessment and suggest measures for optimizing the regime of exploitation of the Novodnistrovsk hydro-complex in keeping with the needs of the Middle and Lower Dniester ecosystems.
• Accelerate the drawing up of a bilateral agreement of cooperation between Moldova and Ukraine on protection and sustained development of the Dniester River Basin, basing this on the draft drawn up under the auspices of OSCE and the United National Economic Commission for Europe [UNECE];
• Initiate negotiations on broadening the mandate of the OSCE Mission in Moldova through including issues of environmental safety;
• Apply all diplomatic means to ensure that Ukraine honours its commitments under the Espo Convention and provides Moldova with material relating to the impact assessment of the Novodnistrovsk hydro-complex on the Middle and Lower Dniester;

A group of Ukrainian and Moldovan environmental organizations who have begun public monitoring of the construction of the Dniester HAPS are guided by the awareness of the need to bring the work under this project into line with norms of international law and to take the environmental risks of the project into consideration during the decision-making process.

The options for applying international conventions and agreements

It is well-known that the foundation for a legal regime for transboundary waters is the principle of “reasonable and fair use”, in accordance with which each country within international water flows is entitled within its own borders to the relevant part of the benefits from the use of water resources.  This principle was first clearly articulated in the 1997 United Nations Convention on the Non-Navigational Uses of International Watercourses. However neither Ukraine, nor Moldova is a party to this Convention.  Nor have practically any mechanisms from other international conventions on transboundary impact on the environment been activated.

At the present time the regime for the use and protection of boundary waters between Moldova and Ukraine is regulated by only two bilateral agreements: the Intergovernmental Agreement signed on 23.11.1994 in Kishinev (The Agreement between the Government of the Republic of Moldova and the Government of Ukraine on Joint Use and Protection of Transboundary Waters) and the Protocol on Cooperation on Environmental Matters between the Ministry for Environmental Protection of Ukraine and the State Department of the Republic of Moldova on Protection of the Environment and Natural Resources from 19.11.1993.

In general, looking at the 1994 Agreement on Transboundary Waters, you can conclude that although it does create a certain legal base for bilateral cooperation on using and protecting transboundary waters, the base is however not in line, either in form or content, with standards and criteria accepted in modern international practice.

Ukraine and Moldova are parties to a number of UNECE multilateral conventions whose provisions can be directly applied to issues involving protection of transboundary water resources, including the implementation of water management and energy projects on the Dniester.  This applies in the first instance to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsink, 1992). The Convention binds the parties to it to take individual and joint measures to prevent or limit transboundary impact.  One of the belated steps directed at implementing the Convention should be considered the preparation by the Ministry for Environmental Protection of a Concept for a “State Programme of environmental regeneration of the Dneister River Basin”.  In general, as mentioned in 1.3 of this section, work on implementing the Convention has not yet taken on a systematic and planned nature. One of the paths of development for a legal base on transboundary cooperation within the context of adhering to the commitments of the Helsinki Convention (Article 9) is drawing up and passing a special Dniester River Basin Agreement. Work on this is at present continuing.

The legal and procedural aspects involved with assessing the impact of work under the project on the environment of the neighbouring countries are also regulated by the international Espo Convention on Environmental Impact Assessment in a Transboundary Context. The Espo Convention was new in stressing the right of the public to information, in seeking sustainable development, as well as preventing or reducing transboundary impact on the natural environment and organizing international environmental monitoring.  The Convention imposes obligations regarding environmental impact assessment at the planning stage. It also envisages measures and procedure on preventing, controlling and minimizing any, especially transboundary, harmful impact on the environment. The present scope of the Espo Convention covers 22 types of activity (set down in Appendix 1 to the Convention). These include: nuclear and thermal power stations; the building of motorways and railways; chemical installations; waste disposal installations; major installations; reservoirs, ports, canals, groundwater extraction activities and others. If the proposed activity set down in Appendix 1 could have considerable harmful impact, the party intending to carry it out must as soon as possible, but no later than when it informs its own public, inform other parties who may be affected. A party whose territory may be affected has the right to take part in the environmental impact assessment (EIA).

The Aarhus Convention has in its list of activities which must envisage public consultation in accordance with Article 6 of the Convention: “Dams and other installations designed for the holding back or permanent storage of

water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres”. It should be noted here that the upper reservoir of the Hydro-Accumulating Power Station contains 32.7 million cubic metres, over an area of more than 2 square kilometres on a plateau 150 metres high, and that this territory has extremely difficult geological and seismic conditions. Without any possible doubt, therefore, the plans for construction of the Dniester HAPS meet the criteria of the Aarhus Convention, and its implementation should from the very earliest stages involve full-scale public participation in decision-making.

Breaches of domestic legislation:  The basic laws “On protection of the natural environment” (Article 21) and “On environmental impact assessments” (Articles 10-11) guarantee public participation in decision-making on environmental matters.  Cabinet of Ministers Resolution № 554 from 17.07.1995, passed in implementation of the Law “On environmental impact assessments” added to the list of particularly environmentally hazardous activities and objects the construction of hydro-energy and hydro-technical constructions. These are subject to mandatory State environmental impact studies.

We would note there that no State Environmental Impact Opinion has been made public regarding the other parts of the Dniester complex hydraulic unit,: the Dniester HES-1 dam and the HES-2 buffer dam, despite 24 years having passed. Te Chernivtsi Regional Department for the Environment and Natural Resources will neither confirm nor deny the existence of such an Opinion, understanding the level of their liability in the event that there is none.  The environmental protection community has no information to date proving whether or not there has been such an Opinion.

The environmental impact assessment procedure for HES-1 and HES-2 as functioning hydro-energy structures has not yet begun. This is despite the fact that Article 7 of the Law “On environmental impact assessments” stipulates that environmental impact studies are mandatory for functioning structures and complexes which have a strong adverse impact on the state of the environment.  Such impact is confirmed, for example, by letter from the State Department for Water Management № MB/9-166 from 23.03.05 (to a letter of the Cabinet of Ministers № 9883/1/1-05 from 11.03.2005), where it is stated: “regulation of the discharge has led to a change in the hydrological and temperature regime in the ecosystem of the Dniester below the dam of the Dniester HES which is adversely affecting the condition of the water meadow system in the lower part of the river. The situation is exacerbated by excessive manmade pressure in the Dniester basin over recent decades.”

The first environmental impact assessment of the Dniester HAPS was carried out in 1994 and in no way met the requirements of current Ukrainian legislation, including with regard to public participation. The signing by the Ministry for Environmental Protection of the State Environmental Impact Opinion № 10-3/2-3-877 from 05.11.97 was also carried out with infringements of legislation, including the requirement for public consultation which were simply not organized.

However in the material from the 1997 State Environmental Impact Opinion there are a number of serious reservations as to the environmental and technical safety aspect of the project. For example, in the descriptive part it is stated that “the walls of the basin of the Dniester HAPS have a small safety margin”.

The project envisages the organization of monitoring studies of the hydro-geological conditions and state of the geological milieu in the area over which the Dniester HAPS can have impact. It is a requirement of the Law “On environmental impact assessments” that this be made public, and the lack of such a publication suggests that it has not been carried out.

The positive State Environmental Impact Opinion №307 from 23.11.2005 on just one page was signed by the Deputy Minister for Environmental Protection A. Hrytsenko in an atmosphere of haste and secrecy. The only report suggesting that a new environmental impact assessment was being planned was the publication in the newspapers “Bukovyna” from 11.05. 2005 and Vinnychyna from 13.05.2005 of a “Statement on the environmental impact of activities”, approved by the head of the boards of the joint stock companies Dniestrovska HAPS and Hydroproekt. However, in breach of the Law “On environmental impact assessments” the Ministry for Environmental Protection did not publish any notification itself on the preparation of a new expert study. This violates the fundamental principles of State environmental impact assessments which should be based on a balanced assessment of economic, environmental, medical and biological, and social interests, taking public opinion into consideration.  Such assessments must be scientifically well-founded, independent and objective, comprehensive, provide options; it must seek to prevent adverse impact and be open.

No mention is made in the Opinion of previous comments on the project, especially with regard to its manmade or seismic danger. State Environmental Impact Opinion №307 was prepared in a mere 20 days – from 3 to 23 November. This time was enough for official letters and the relevant material on the issue to be exchanged between the Speaker of the Verkhovna Rada, the Prime Minister, Ministry for Environmental Protection, National Deputies from Bukovyna, the Director of the Academy of Sciences Geochemical Institute, the Mayor of Novodnistrovsk and other public officials, with the main correspondence taking place between 16 and 23 November 2005.  Half of Opinion №307 is devoted to so-called “public hearings” which took place on 21 November 2005 in Novodnistrovsk, proper invitations to which were not issued to representatives of the regional public councils, members of national civic organizations, or to representatives of local environmental civic organizations whose activities cover the Dniester Basin area. The management of the Dniester HAPS submitted Information and documents on the “hearings” in a letter dated 23.11.2005, this being the day also that the positive State Environmental Impact Opinion was signed. Bearing in mind normal bureaucratic procedures, doubts must arise as to whether this could have been achieved without prior agreement between the parties involved.

On the basis of some facts known about the use of State funding in the construction of the Dniester HAPS, one may be speaking of infringements of the principles stipulated in Article 7 of the State Budget Code., specifically the principles of budgetary funding being used for designated purposes, as well as those of public accountability and transparency.

In 2006 the Accounting Chamber for the first time carried out an audit of the use of State funding allocated from 2003-2005 for the construction of the Dniester HAPS. The conclusions of the audit have not been widely publicized, however they were provided in letter No. 16-1272 from 12 July 2006 in response to an information request from Zeleny Svit.  The Accounting Chamber points to “a lack of well-considered government policy from the Cabinet of Ministers with regard to introducing new capacities for the countries energy system, in particular the Dniester HAPS.  As of 1 June 2006 1.72 million UAH of capital investments, this being 33% of the overall cost of the work on construction of just the first phase had been used. The efforts of the Government to attract nongovernmental investment to accelerate construction of the Dniester HAPS have not proved successful. At the present time no strategic investor has been found. As a result, it is the State Budget which is bearing the main burden for financing the project.  During 2003-2005 295,336 thousand UAH from the State Budget’s Special Fund were spent. Of this amount, 13,607 were not used for their designated purpose and 61,300 thousand UAH were used ineffectively. In 2006 207 million UAH from the Special Fund is scheduled to be spent on the construction.”

According to the Head of the Chernivtsi Regional Control and Audit Department, the last review of the financial activities of the Dniester HAPS found that the scopes of work of 14 subcontractors had been over-estimated by 321 thousand UAH.[8].

Violations of the public’s rights: In 2005-2006, a group of Ukrainian and Moldovan environmental organizations joined forces to carry out public monitoring of the construction of the Dniester HAPS.  They included the National Ecological Centre of Ukraine (NECU), the NECU Bukovyna branch “Krona” (Chernivtsi); MAMA-86-Odessa; the civic organization “Krai” (Berezhany); Zeleny Svit (Chortkiv), “Biotika” (Kishinev), the international environmental association Eco-Tiras, and others. The group is impelled by the need to ensure that the project is implemented in accordance with norms of international law and taking environmental risks into consideration in decision-making.

  “Krona”, for example, in 2005 sent detailed comments and proposals to the Chernivtsi Regional Administration regarding the construction of the Dniester HAPS and the procedure linked with it. During the year the Public Council attached to the Chernivtsi Regional Administration also repeatedly called for a proper environmental impact assessment of the entire Dniester complex hydraulic unit and to hold public hearings.

  As mentioned above an imitation of public hearings was held on 21 November 2005 in Novodnistrovsk (Chernivtsi) region. These were supposedly for public discussion of the construction of the Dniester HAPS, however not even the Public Council attached to the Chernivtsi Regional Department for the Environment and Natural Resources was invited, nor were invitations sent to civic organizations with direct involvement in the area. It remains unclear who organized these curious “public hearings”, where information was placed about them, what conclusions were drawn and added to the environmental impact assessment and how the public can find out about them. The information and “documents of the hearings” were provided to the Ministry for Environmental Protection by the management of the Dniester HAPS itself in a letter from 23 November. The Resolution from these “hearings” states that “the community of the region (? – Ed.) , the Novodnistrovsk  city and village councils are concerned by the situation over the possible suspension of work on completing the construction of the Dniester HAPS. .From information received by the authorities with regard to the results of the scientific environmental study and assessment of the material of the project “Completion of the construction of the Dniester HAPS (first phase of construction involving three hydroelectric units) it has become known that, together with the positive opinions from the expert study of the project by official bodies, objections against the advisability of the construction of the Dniester HAPS have been expressed by some civic environmental organizations, in particular Zeleny Svit and the National Ecological Centre of Ukraine “Krona”.

  The Ministry for Environmental Protection acceded to a situation whereby the right to participate in the “public hearings” on the Dniester HAPS project had essentially been monopolized by groups of its builders and residents of the city of Novodnistrovsk. It closed its eyes to the hundred-percent failure of the “hearings” procedure to comply with the norms of its own Regulations on public participation and hastily, on the very same day 23 November, approved the new State Environmental Impact Opinion concerning the Dniester HAPS project which removed 17 major reservations from the previous Opinion in 1997.

In view of this Zeleny Svit wrote to the Minister P. Ihnatenko on 16 December 2005 describing the Instruction of the Ministry to approve the State Environmental Impact Opinion concerning the Dniester HAPS as in violation of Articles 5, 6, 7 and 8 of the Aarhus Convention, as well as Articles 3, 6, 10 and 11 of the Law “On environmental impact assessments” regarding the environmental rights of members of the public, as well as the fundamental principles of an environmental impact study, which include considering public opinion, proper scientific backing for the Opinion and openness.  Zeleny Svit also point out infringements in the procedure, set down in the same law, for carrying out an expert study both from the point of view of content and conclusions,  It therefore stated that the Ministry had serious grounds for reviewing the content of the Opinion and sending the project for a new State Environmental Impact study.

  The response received on 16 December contained no official material on the organization and running of the purported “public hearings”. Instead it described the event as follows: “At a meeting attended by representatives of parties, civic organizations, city and settlement councils whose areas fall within the area of impact of the propose work, the staff of the Dniester HAPS, as well as representatives of the Chernivtsi Regional Department for the Environment and Natural Resources. Particular issues regarding the functioning of the existing hydro-accumulating stations and analogous structures in economically highly-developed countries, their impact on the environment, the history of decisions to design and build the Dniester HAPS were discussed, as well as a number of questions regarding the actual state of affairs at the present time. Representatives of the public at the meeting unanimously supported the need for completing the construction in order to resolve a number of social, economic and environmental issues, and a resolution to this effect was passed.”

  The National Ecological Centre of Ukraine and members of the Dniester Basin Working Group of the All-Ukrainian Association of Civic Environmental Organizations “Ukrainian River Network” received analogous letters from the Minister in response to their letters.

During 2005 and the first half of 2006, environmental groups repeatedly approached the relevant authorities asking whether State Environmental Impact studies had been carried out on the other parts of the Dniester complex hydraulic unit  in Ukraine  - HES-1 and HES-2.  Only on 20 June 2006 did the Ministry for Environmental Protection confirm that there had been no such studies.

The issue of the construction of the Dniester HAPS has been considered at three sessions of the Ministry for Environmental Protection Public Council (in December 2005, January and February 2006). Following the last meeting, on16 February the Public Council sent a letter to the Minister P. Ihnatenko demanding that Opinion 307 be recalled as having been prepared in a non-transparent fashion, and further procedure for agreeing the project for the construction of the Dniester HAPS, in particular calling for new public hearings to be organized. However no substantive answer to this letter was received.  The Public Council’s request that the Environmental Impact Assessment be made public was also not heeded. Neither the Ministry of Fuel and Energy, nor the Ministry for Environmental Protection, not the join stock company Ukrhidroenergo, nor the Chernivtsi Regional Department for the Environment and Natural Resources have found themselves able over the last year to make public the material from the Environmental Impact Assessment of the project and material from additional studies. It was possible to receive this material only directly from the office of the Dniester HAPS, and this was only thanks to the understanding and cooperation of the heads of the Department, and not public officials taking decisions on this environmentally hazardous project which could have adverse transboundary effects.

On 3 August 2006, i.e. 8 months after the positive State Environmental Impact Opinion  was signed, the civic organization “Ukrainian Society for Sustainable Development” sent an email informing members of the Ministry for Environmental Protection Public Council and some civic organizations working in the Dniester River basin that on the instruction of the joint stock company Ukrhidroenergo on 2 September 2006 they would be holding new public hearings on  the construction of the Dniester HAPS in Novodnistrovsk. Civic organizations received no official information about these hearings.

Given that the issues involved with the construction of the Dniester HAPS do not only concern energy industry and construction workers at the station and residents of Novodnistrovsk, but also those living on the entire Dniester basin, this being the Vinnytsa, Chernivtsi, Odessa, and Ternopil regions of Ukraine and Moldova, and in view of the fact that material needs to be read before the hearings, on 15 August Zeleny Svit (Chortkiv) sent official letters to the organizer of the Ukrainian Society for Sustainable Development, the Ministry for Environmental Protection and the Ministry of Fuel and Energy suggesting that more information be provided on the subject of the hearings, that the time and place be changed (Kyiv, Odessa and Chernivsi were suggested, and not during the period of summer vacations, and that the procedure for preparing such hearings be brought into line with the procedural norms of the Law  “On environmental impact assessments” and the Ministry for Environmental Protection Provisions on public participation. Similar requests were made by the National Ecological Centre of Ukraine. However the organizers of this latest farce masquerading as “public hearings” simply ignored the suggestions put by the civic organizations. A decision was therefore taken to not take part in the hearings in Novodnistrovsk, but to send their own observers.

  These observers again found many irregularities in the procedure for organizing and holding the “hearings”. The organizers, for example, ignored the appeal from the Ministry for Environmental Protection Public Council sent to the organizing committee.

  It has still not proved possible to get to see the relevant resolution from these “hearings”.  At one stage the Ministry for Environmental Protection posted a press release on its official website, where it stated that 350 people had taken part in the Novodnistrovsk “hearings”. In fact,  a copy of the registration list, received through official channels, shows that there were 230 people registered, with only 7 representatives of civic organizations, one of them from a Moldovan organization. 112 people were from the management and staff of various parts of the energy complex.  The procedure and makeup therefore of the “public hearings” rendered the event so entirely predictable and unanimous, that there was no attempt even to formulate the extremely vague plans approved into any kind of resolution.

It is frustrating that the Ministry for Environmental Protection once again acquiesced to numerous normative and procedural irregularities. The specially empowered government body on the environment and natural resources which is responsible for holding State environmental impact studies should, of its own initiative, ensure public participation in the process of running such hearings, as stipulated in Article 11 of the Law “On environmental impact assessments”. Nor were written comments, proposals and recommendations from civic organizations considered in any way, and the inclusion of representatives of the public on expert commissions was not envisaged.

In this sense, we feel that there can be only one conclusion, this being that the Ministry for Environmental Protection in preparing the Opinions from State environmental impact studies regarding the project for completing construction of the Dniester HAPS did not allow for the participation of civic organizations in the process of holding expert environmental impact studies, and through this, infringed the Law “On environmental impact assessments”.

In this sense, at least surprising is the fact that the “public hearings” in Novodnistrovsk”, as an element of public participation, were organized under the leadership and on the instructions of the joint stock company Ukrhidroenergo which is not a party involved in such environmental assessments.

In its response on 1 September 2006 № 7345-к-08-11 to a letter from Zeleny Svit on 15 August, the First Deputy Minister S. Kurulenko confirmed that the Deputy Head of the department on State environmental impact studies would be taking part, and also asserted that written invitations had been sent by the organizers to a considerable number of civic and other organizations, the latter being deliberate disinformation.

For this reason, on 14 September the Ministry for Environmental Protection Public Council addressed a letter to the Minister for Environmental Protection expressing concern over the procedure for decision-making on issues involving the construction of the Dniester HAPS, public consultations and State environmental impact, these being, as the letter clearly articulated, in violation of both the Aarhus Convention and domestic legislation. Unfortunately the Ministry failed to respond appropriately to the Public Council’s statement.

  At the end of 2006, public actions concentrated on possible World Bank support for the construction of the Dniester HAPS.  On 15 December civic activists held a protest action against any financing of the project outside the World Bank’s representation in Ukraine.  The organizers of the protest argued that the energy industry in Ukraine did not need this project, that financing by the World Bank would only increase Ukraine’s foreign debt. It stressed also that the Dniester HAPS posed manmade, environmental and social dangers. The protesters handed representatives of the World Bank an NECU report which evaluates the risks of the Dniester HAPS project.

  In April 2007, at the initiative of NECU, a group of 13 nongovernmental organizations in Ukraine sent another appeal to the World Bank Mission for Ukraine, Moldova and Belarus regarding the Dniester HAPS project.

The letter proposes:

• The World Bank should make efforts to help the Ukrainian government to develop an energy strategy

which is much more effective, as well as support projects that are aiming to increase energy efficiency and

the independence of the Ukrainian economy;

• The World Bank should withdraw its financial consideration until the project is brought into compliance

with Ukrainian and international legislation;

• The World Bank should conduct its own assessment of the project’s compliance with relevant international and Ukrainian legislation and publicly disclose its findings;
• The World Bank should organise public meetings with relevant stakeholders to discuss the ongoing schedule of preparatory work and areas of concern, on account of the project sponsor’s ignorance of public opinion during the project preparation thus far.”

  In May 2007 the Ukrainian River Network ran an information and awareness raising tour through populated areas along the Dniester River. Participants noted that the people they met were very ill-informed about the environmental state of the Dniester and about the specific features of the Dniester complex hydraulic unit.

In the course of the tour, recommendations were drawn up and submitted to the local authorities and bodies of local self-government on improving the socio-environmental situation in the region, the situation with drinking water, possible future action from the local authorities, etc.

The objective of environmental civic groups working in the Dniester River Basin is to ensure that Ukrainian legislation is properly adhered to. Each individual has the right to information, to a safe environment and decent living conditions. It is these rights that the authorities as well as those involved in the energy industry must accept and observe.

 

3.4.   Human rights and the Zaporizhya Nuclear Power Plant

The Zaporizhya Nuclear Power Plant [Zaporizhya NPP] was built in a densely-populated region without any public consultation and against the will of the local population. Ignoring protests from the public and appeals from bodies of local self-government, the Zaporizhya NPP was the first in the CIS in 2001 to begin building the world’s largest dry storage facility for used nuclear fuel. The stories of how first the Zaporizhya NPP and then the dry storage facility were created provide glaring examples of flagrant disregard for the environmental rights of the local population, specifically of their right to information and to participate in decision-making on the development of safe nuclear technologies in a densely-populated and industrial area of Ukraine.

The population of the area where the Zaporizhya NPP is located was kept out of decision-making process on strategic environmentally important issues involving the construction of a nuclear power plant and a facility for storing used fuel. The largest nuclear power station in Europe was built at a distance of 8 kilometres (with a norm of no less than 25 kilometres) from the city of Nikopol with a population of 150 thousand in a zone which had been flooded from the Dnipro reservoir above it. This is in contravention of IAEA requirements which stipulate that there should not be more than 4 reactors of a nuclear power station on one area in order to ensure radiation safety. The Zaporizhya NPP has long been the second station in the world, after Chernobyl, in terms of the amount of low-level and middle-level radioactive waste products. There are already 49 dry storage containers, each of which containing around 455 kilograms of deadly spent nuclear fuel. This as a whole is around 220 million Curie and is thousands of times greater than the radioactivity released from the nuclear bombs dropped on Hiroshima and Nagasaki.

Having realized following the tragedy of Chernobyl the dangers and high risk involved in living near a huge nuclear complex, the population of Nikopol, together with residents of other cities and settlements in the controlled zone began their struggle for the right to an environment which is safe for life and health, as enshrined in Article 50 of the Ukrainian Constitution.

From 1988 in Nikopol and other populated area where the Zaporizhya NPP is located held dozens of anti-nuclear rallies and pickets, including a picket of the Verkhovna Rada and Cabinet of Ministers against the construction of fifth and sixth reactors and then of the dry storage facility.

  Nuclear industry representatives constantly claim that dry storage facilities have radiation no higher than that of the natural radiation background. However even after the first container was loaded in 2001, the readings for radiation tripled. In June 2004 the officially released level of gamma rays at the border of the industry square of the storage facility were several times higher than the natural number of gamma rays.

  To this day the Programme for comprehensive environmental monitoring passed back in 1990 has not been implemented. Nuclear industry staff themselves acknowledge that the lack of information not only makes it impossible to gain full information about the state of the environment in the area around the Zaporizhya NPP, but also prevents the possibility of registering unfavourable changes.

  Systematic infringements of the environmental rights of the population of the controlled 30-kilometre Zaporizhya NPP zone continued, while the staff went on building the world’s biggest dry storage facility for spent nuclear fuel. The population of the city remained ill-informed about events at the plant. There are not enough Geiger-counter tableaux with this leading periodically to rumours and panic concerning supposed incidents at the station

  The city’s residents are not provided with information on what to do if there is an accident involving release of radiation at the Zaporizhya NPP, and about supplies of potassium iodide. Despite this, in 2007 the Zaporizhya NPP is planning to extend the dry storage facility and complete work on the construction of the second phase, intended for 280 containers. At the same time, Energoatom is studying the possibility of building several more nuclear reactors within the framework of the recently adopted Energy Strategy.

For this reason, on 26 April 2007, on the twenty first anniversary of the Chernobyl Disaster a rally was held in Nikopol, under the banner “Nikopol against new Chernobyls”. The participants of the anti-nuclear protest organized by “Public Watch” stated that despite the will of the population of the controlled zone expressed in a local referendum in 1994, the nuclear power plant was continuing to build he world’s biggest dry storage facility for spent nuclear fuel 12 kilometres from Nikopol and to dump water contaminated with radionuclides from the power plant’s cooling tank into the Dnipro River.

At the same time, the largest nuclear power plant in Europe is incapable of ensuring fundamental measures to protect the population in the case of a nuclear accident. Despite repeated appeals, training courses on what to do in an accident are not being carried out for residents of the city, nor are they provided with up-to-date leaflets on what to do (the last time such leaflets were published was in 1988, still in Soviet times). And most importantly, they are not provided with potassium iodide, a sufficient number of Geiger counter tableaux, and means of personal protection. Promises and formal fob-offs do not lead to a real change in the situation and reflect cynicism and disregard for the fate of the local population.

  A Resolution passed at the rally demanded protection of the public’s constitutional right to an environment safe for life and health, and demanded a ban on any construction or exploitation of nuclear installations without the consent of the population of the controlled zone of the Zaporizhya NPP. It called for a transparent State comprehensive sanitary environmental expert study of the environment of the controlled zone, and for the results to be made available to the public. It also demanded a moratorium on further exploitation and development of storage facilities for spent nuclear fuel.

The Nikopol City Council meeting on 27 April supported the protesters’ demands and adopted in their turn an appeal, encompassing these demands, to the President, Prime Minister, Energoatom and the State Department for nuclear regulation.

 

Conclusions and recommendations

The above indicates that the situation with observing environmental rights in Ukraine is far from satisfactory. One sees a constant narrowing of options and the creation of obstacles towards access to information, participation in decision-making and access to justice on environmental matters. With the political events around the parliamentary and local elections, the formation of a ruling coalition and division of posts, the issues of environmental protection became ever less prioritized.

Ukraine thus shows signs of lacking a systematic State information policy of environmental matters.

Specific recommendations

• Draw up and pass a number of amendments and additions to the Laws “On information”, “On protection of the natural environment”, “On the Fundamentals of health care legislation in Ukraine”, “On safeguarding the sanitary and epidemiological wellbeing of the population”, “On the use of nuclear energy and radiation safety”, “On environmental impact assessments”. These amendments should ensure compliance with basic standards on information about the state of the environment as set out in the Aarhus Convention;
• Introduce a system on legal education on issues pertaining to the Aarhus Convention for public officials, as well as representatives of other concerned parties who take part in the process of information sharing, as well as decision-making on environmental matters

Summing up the sections here on environmental rights, one must note that efficient legal remedies for protecting people’s environmental rights and government environmental policy have yet to be properly set in place. Amendments to current legislation and subordinate acts have still not been developed enough to comply with the standards of the Aarhus Convention and help ensure its implementation.  One is unable to talk therefore of full participation by the public in decision-making on environmental matters.

This is probably explained by the general level of maturity of the government and the public, the weakness of the Ministry for Environmental Protection and the inefficiency and corruption among the law enforcement agencies. Unfortunately, the issues of protection of the environment and of people’s environmental rights cannot be named a priority area for Ukraine’s political sphere, the authorities or for the mass media.

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[1]  Prepared on the basis of a monitoring report “Observance of environmental rights: Ukraine, 2006”, to which the following contributed: Hennady Marushevsky and Yaroslav Movchan (National Ecological Centre of Ukraine); Serhiy Fedorynchyk (Information Centre of the Ukrainian Environmental Association “Zeleny Svit” [“Green World”]; Serhiy Shaparenko (“Pechenihi”); Hanna Holubovska-Onisimova (All-Ukrainian Environmental Civic Organization “MAMA-86”); Olha Melen (“Environment – People – Law”); Andriy Olenyuk (“Helsinki Initiative – XXI) ; Yury Babinin (Union “Civic Watch”); Oleksandr Stepanenko (the environmental and humanitarian organization “Zeleny svit”) and others. General Editor: Oleksandr Stepanenko

[2] http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2169-15

[3] http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=z1510%2D05

[4] http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2169-15

[5]  Resolution No. 841 from 20.06.2006 handed over the land for the permanent use of the State “National Atomic Energy Company” Energoatom, with amendments to the designated purpose of the reserve lands (translator)

[6] http://ara.com.ua/onenews.php?oid=5211

[7] http://unian.net/ukr/news/news-170901.html

[8] Yury Chornei: “A tricky situation” – http://zerkalo-nedeli.com/nn/show/576/52032/.