22 ELR 10597 | Environmental Law Reporter | copyright © 1992 | All rights reserved

Environmental Law Drafting in Central and Eastern Europe

Ruth Greenspan Bell

Editors' Summary: Legal reforms are sweeping Central and Eastern Europe, including the drafting of new environmental laws. Advisors from western countries, including the United States, are trying to apply lessons learned during the past 20 years to the current law drafting effort. However, the history of environmental regulation and the economic transitions currently taking place make this process unique.

The Article explores different factors that law drafters should consider, such as building confidence in law as an institution and the need for setting realistic environmental goals. It suggests ways that the law drafting effort might be better connected to current priorities during a period of economic and social transition. It explores ways to connect environmental law and environmental results, and examines the strengths and weaknesses of the United States' contribution to the drafting process.

Ruth Greenspan Bell is Senior Attorney in the International Activities Division of the Office of General Counsel, U.S. Environmental Protection Agency, Washington, D.C. From March 1991 to August 1991, Senior Fellow, Polish Representative, Regional Environmental Center for Central and Eastern Europe (Budapest). The author assists a number of central and eastern european contries in their law drafting effort. The views expressed here are the author's and do not necessarily represent EPA or the Regional Environmental Center. The author has benefitted from discussions on this subject with Margaret Bowman (ELI), David Hunter (CIEL), Jan Bloom (Paul, Weiss, Rifkind, Wharton & Garrison), Joseph Bell (Hogan & Hartson), and Eckart Meyer-Rutz (Bundesministerium fuer Umwelt, Naturschutz and Reaktorsicherheit).

[22 ELR 10597]

The political and social changes in Central and Eastern Europe since 1989 have led to a rethinking of the legal regimes of those countries. Spurred by socialism's environmental neglect, reformers include environmental law on their agenda. Outsiders wanting to help need to understand the history of environmental law implementation and enforcement and the extraordinary stresses of economic transition. Otherwise, reform could turn out to be illusory, and in fact could undermine fundamental concepts of the rule of law.

For much of the time that there have been environmental laws in Central Europe, the laws have been ignored or subjugated to other interests. The effort to write new laws comes directly on the heels of a long period during which accumulating degradation made a lie of legal requirements; most people could see for themselves the wide disparity and judge whether law was an effective tool for environmental control. New efforts at writing laws must also consider how to build confidence in law as an institution.

This Article will explore these issues and offer suggestions about ways that the environmental law drafting effort might be better connected to the current priorities of the countries of the region during an extended period of economic and social transition. It will also explore how better to draw the connection between environmental law and environmental results, and to build confidence that laws can better people's lives. Finally, it examines some strengths and weaknesses of the United States's contribution to that effort.

Background to the Law Drafting Effort

Most of the countries in the region are drafting new laws, which are often necessary to create and regulate institutions that did not exist under communism but must if a market economy is to function. Countries are writing or reviving commercial codes and laws governing banking, securities, and other financial institutions. In essence, they must create a structure to address the legal issues related to private property rights.

As part of their legal reforms, most of the countries in the region are also drafting new environmental laws. Advisors from the United States and the international legal community have been active in this effort, including the U.S. Environmental Protection Agency, the Regional Environmental Center for Central and Eastern Europe (Budapest), and the Environmental Law Institute. The European Bank for Reconstruction and Development has recently adopted procedures to ensure that projects the Bank sponsors are environmentally sound.1

Many of the draft laws reflect a thirst for environmental tools that have entered the arsenal of the western regulators over the past years. Even though environmental experts in Central and Eastern Europe have lived under generally ineffectual environmental regulatory systems, they are often sophisticated professionals who have followed, and in a few cases participated in, western developments. Some of the provisions have been refined with the assistance of western experts, based on their more than 20-year experience with procedures such as environmental impact assessment.

The outpouring of support for and interest in this effort is easily understood. Many in the west are excited by the transition from communism to democracy and want to participate. Those who have lived through the intense 20-year evolution of western environmental laws may hope that the western experience can be used as a laboratory so that the countries of Central and Eastern Europe can avoid costly mistakes and build on programs that have proven successful. More parochially, western companies seeking to do business in the area want a system of laws that they can understand. For multinational companies, requirements roughly equivalent to those of the European Community (EC) or United [22 ELR 10598] States will create a more level playing field for economic competitors. Finally, the countries of Central and Eastern Europe sit in close proximity to their European neighbors and these neighbors frequently feel the effects of many years of environmental neglect. Environmental reform is part of a larger effort to address problems of regional or global scope.2

In most of Central Europe, however, law drafting does not write on a clean slate. Environmental laws — often very comprehensive and sometimes more stringent than EC standards — have been on the books for at least 20 years. There are several possible explanations for the drafting of new laws. The social, political, and economic changes dating from late 1989 argue for a legal framework more suited to a market economy and for institutions that look westward. The drafting efforts may also reflect a desire for a clean break with the past and the frustrations of living under a system of comprehensive but generally unimplemented laws. Finally, most governments of the region anticipate EC membership; Poland, Hungary, and Czechoslovakia have already achieved associate status. EC obligations will include adopting environmental directives and requirements.3

The reality of Central and Eastern Europe is that there is little support at this time for environmental expenditures. The economic stress of transition has been thoroughly publicized. Failing industries and rising unemployment in societies accustomed to full employment are just two of the more pressing issues that command attention and raise serious questions about when and how environmental issues might begin to be addressed. Few people in the region currently believe that environmental problems will be imposed as long as economic conditions remain uncertain and unemployment continues to rise.

These realities raise important questions about the role of law and the direction of the law drafting effort.4 The effort to write and implement environmental laws fits into the broader and more fundamental problem of building a society in which laws are respected because they represent an essential consensus about how society is to proceed. There are substantial social costs if the current law drafting effort produces more unattainable high aspirations without real implementation or enforcement. If this happens, the result will mirror the present condition in which laws have been on the books for almost 20 years as environmental conditions continue to deteriorate dramatically. Conditions like these encourage cynical attitudes toward law and sour people on democracy.

While this Article discusses law drafting efforts in general, the countries of Central and Eastern Europe have different approaches to enforcing their current environmental laws. In Poland, for example, some local districts (voivodas) aggressively use fees and fines to influence behavior. In Katawice, the most polluted area of Poland, fines are being used to influence activities that pollute heavily, such as mining. In some cases these policies can work at cross purposes with other government policies. Escalating fees, such as those assessed on heavy water users such as pulp and paper mills in Poland, are making certain enterprises uncompetitive and therefore unattractive for privatization. On the other hand, most people knowledgeable about environmental enforcement in Central Europe would agree that, in general, the current laws have not been seriously enforced.5

Existing Environmental Laws

Ancient countries like Poland can identify traditions and laws protecting the environment that date back to the Middle Ages.6 Most modern laws protecting the environment in Central and Eastern Europe date from the late 1960s and early 1970s. They generally consist of numerous apparently comprehensive laws. These laws existed in the context of socialist ideology that dictated that pollution could not exist because it did not fit the philosophy of comprehensive central planning and state ownership of the means of production.7 Commentators have attributed the environmental protection legislation of the 1970s to a reaction to the mounting empirical evidence of environmental disaster that followed the heavy industrialization of parts of Central Europe and the former Soviet Union. Confronted with the reality of widespread degradation, countries sought to "'Legislate' the problem away."8 Other commentators trace environmental protection laws to the Stockholm Declaration of 1972.9

Pollution control received ringing official endorsement at the same time that legal requirements were undercut by systematic failure to enforce, and by executive orders and other devices that gave higher priority to production.10 Ceausescu of Romania, for example, remarked that "it is imperative to pay a special attention to the ensurance of the ecological balance of nature, to act with all our firmness against pollution phenomena, to keep the water clear and clean, to protect the forest, … to ensure the clean air."11 Some commentators believe the laws were never intended as more than mere formalities, "'window dressing' never really intended to be enforced when it conflicted with major policy objectives such as expanded production or military [22 ELR 10599] strength."12 Tomasz Zylicz puts this more gently: "[i]n the case of conflicts between protection and production, the former [under socialism] must inevitably yield to the latter."13

Romania is an example of a country with a well developed body of environmental law dating from the early 1970s.14 Law No. 9, a general law enacted in 1973, provides a conceptual framework for environmental regulation, including principles and duties for the protection and improvement of all environmental media.15 These principles were developed through special laws, including:

* air law establishing maximum allowable concentrations for 35 polluting substances, maximum allowable levels of noise, and minimum distances of medical protection between inhabited zones;16

* water law establishing water bodies subject to protection, restrictions on use of water including limit values for the main polluting substances, and other measures for preventing and combatting water pollution.17 A more recent requirement established a conservation surtax;18

* laws protecting soil and subsoil establishing controls for depositing, throwing, discharging, or injecting substances, residues, or waste materials and for the protection of cultivated plants and forests;19

* forest and vegetation laws establishing requirements for re-forestation and other measures to preserve and protect forests;20

* land and water fauna requirements, including measures for combatting toxic, microbic, and other kinds of polluting agents and for controlling and protecting wild fauna;21

* laws to protect reservations and natural monuments that prohibit degradation or modification without approval and that provide for the obligation on conservation, maintenance, and ensuring their safety;22 and

* laws establishing rules for human activities in the environment, including environmental protection in urban and rural localities, construction of sewers and water purification stations, and rules for transport, traffic, and related noise.23

Other laws distributed responsibility for regulating the environment to ministries and other bodies of public administration including the Ministries of Health, Agriculture, Forestry, Chemical Industry, and Machine Engineering, the National Water Council, the Academy of the S.R. of Romania, the National Council for Science and Technology, and others. An independent Environmental Ministry was created by a 1991 government decision.24

The laws often contained extraordinarily strict requirements. The Romanian water law forbade as a general principle the pollution of waters in any way.25 The law apparently required that there be no alteration of water quality, because pollution of waters is defined as the "alteration of the physical, chemical or biological properties of waters directly or indirectly caused by man's activities, which alteration renders water unfit for normal utilization for the purposes for which utilization was possible before such alteration."26 The statute permitted discharge or injection of waste water or discharge and injection or throwing off of materials that may induce water pollution only if these activities did not pollute surface or underground waters and only on the basis of, and under the conditions stated in a license. The statute defined waste water as water whose chemical, biological, or physical properties, including temperature and radioactivity, were altered through use, explicitly including rainwater that had come into contact with "foreign substances derived from social or economic activities."27

Despite these laws, Romania is a country with significant deterioration of its environment and little real environmental regulation. By its own assessment, Romania has many areas where water quality requirements are exceeded permanently or "with a high frequency,"28 and a [22 ELR 10600] trend of "continuous worsening";29 60 percent of effluent is "insufficiently treated"30 and 30 percent receives no treatment at all.31

Pollution at levels that endanger human health is widely reported and there have been regular reports of devastated areas. For example, the Finnish press reported that cellulose factories in Suceava, Romania, caused at least seven worker deaths and injury to approximately 250 others, as well as effects on estimated thousands of city residents, including a high incidence of birth deformities and miscarriages.32 In 1988, after publicity about these problems, Nicolae Ceausescu visited the city to investigate conditions. City officials closed the factory temporarily about a week before the visit, and Ceausescu proclaimed that concerns about pollution were groundless.33

It may not be sensible to try to be analytic about the gulf between environmental rhetoric and reality in a society as Kafkaesque as Nicolae Ceausescu's Romania. Nevertheless, throughout Eastern Europe, environmental laws for the most part stated only broad philosophical goals.34 At worst, they were rhetoric. A report on the current Hungarian law, which dates from 1976, states that

it reflects wishes and not reality; the required standards are considered highly improbable to meet … and the law has not been accompanied by regulations on how to implement. It focuses on punishment as an implementation tool, but has no effect since fines are pre-calculated in the prices [firms charge]….35

An environmental prosecutor at the Polish Ministry of Justice summed up the situation: "Ecological law in its practical applications faces important and difficult tasks, but at the same time this law is unfortunately without a good past, and still in its formation period."36

The Current Law Drafting Effort

If the old laws were fig leaves for governments that felt an obligation to espouse environmental values, the new situation has its own dangers. The euphoria that accompanied the political changes in 1989 has been replaced by varying degrees of economic uncertainty. Although environmental concerns were among the catalysts for change in many of the countries of Central Europe, priorities have shifted. Environmental values that were a rallying point for opponents to the old regimes have been replaced by deep concern about unemployment and economic stability.

A fundamental concern is that these fragile new democracies will not be able to bear the weight of economic instability. In this sense, the economic concerns in Central and Eastern Europe cannot be compared with environment/economy tradeoffs in the United States in times of recession. In the United States the issues, while complicated, have mainly to do with whether the economy can tolerate additional costly pollution controls in a system of working environmental regulation. The concern in Central and Eastern Europe is whether continued economic stress will erode support for democracy itself, and the choice in favor of jobs is much more stark. The other distinction is the 20-year base on which U.S. environmental protection rests compared to the long history in Central and Eastern Europe of little real environmental compliance.

Thus the current law drafting effort is taking place at the same time that commitment to environmental progress has slipped. Nevertheless, to date, the debates over draft laws generally involve substantive approaches. New laws regulate waste and air,37 introduce or extend the use of environmental impact assessment,38 and introduce concepts of public information and participation.39 The Polish draft framework law would shift Poland from ambient-based to technology-based regulations. Many of the new draft laws provide for market-based approaches such as tradable permits.

The crucial issue is how to keep these efforts from being mere theoretical exercises. What needs to be added to this exercise is a realistic appraisal of whether and when laws can be implemented and the implications of this determination. Reformers in many areas (for example, energy efficiency, which draws urgency from the rising price of energy) are finding that insufficient infrastructure and capital are barriers to otherwise obvious reforms that the market itself is supposed to stimulate. In view of the long history of noncompliance and nonenforcement, the unique problems of economic transition, and deep-rooted cultural issues that have encouraged cynicism and in some countries an [22 ELR 10601] attitude of resistance against laws,40 part of the debate over new environmental laws should be over whether they realistically can be implemented.

The Debate Between Complete Laws and Implementable Laws

Most of the countries drafting laws appear to be taking the approach that a new law must be a comprehensive law. Thus, typically, the country drafts a "framework" environmental law, followed by numerous media-specific laws. Those laws are often followed by implementing executive orders, somewhat analogous to U.S. regulations. Undertaking this effort has the same implications that it does in the United States. Re-drafting laws and writing implementing orders requires a significant commitment of resources and is time consuming. Environment Ministries in Central and Eastern Europe are often thinly staffed. Efforts directed toward the new laws can detract from attention given to existing laws. Moreover, the very process of law drafting raises additional doubts about the validity of the requirements of the existing laws, particularly in view of the political transition and the failure to fully implement existing laws. In the time of my own involvement in these issues, I have frequently received calls from U.S. law firms anxious to obtain draft laws from the countries of the region; typically, they seem surprised when it is suggested that they review the existing laws.

A comprehensive law clearly states a country's environmental intentions and aspirations and sets goals. Where a country is trying to attract new investment, it sets out the rules of participation. However, where comprehensive rules are being written to replace earlier comprehensive rules that were rarely or inconsistently applied, or were applied in ways that undercut their utility (for example through state subsidies for pollution fines and charges), one has to question whether the newer rules stand any greater chance of being implemented.41 The bodies charged with implementing laws frequently have little real experience in making laws work effectively. Additionally, environment ministries are fearful of taking actions that are perceived as adding significant costs or burdens to faltering industries and that lack support from the more powerful ministries.

In this respect, the danger in the region may not be one of failing to address all possible legal issues in a set of laws, but of addressing too many. Where infrastructure is weak, the economy is soft, and there is little real history of legitimate environmental regulation, a law that is too ambitious might actually impede progress on the most fundamental issues.

The second danger is the possibility that the new laws do not really represent consensus in the society. They may not be the product of a process that recognizes numerous conflicting goals and interests in society and works out real accommodation among them. Countries with workable environmental laws have not always been entirely candid about the tradeoffs between environmental goals and economic reality. In the United States, these issues are sometimes obscured rather than clarified in legislation. On occasion, critical issues are settled in linguistic compromises that create ambiguity about what principles Congress intended to guide specific decisionmaking, leaving these policy ambiguities to be resolved by administrative agencies or courts under the guise of statutory interpretation.42

The United States has at numerous times set goals and deadlines that could not practically be met: for example, the goal of eliminating the discharge of pollutants into the navigable waters by 198543 and the goal of attaining water quality that provides for protection and propagation of fish, shellfish, and wildlife by July 1, 1983.44 Judicial intervention has been necessary to reconcile the disparities. Legally mandated but unrealizable deadlines have led to lawsuits seeking court enforcement of the legislative directive ("schedule suits") and extended compliance schedules.45 Workable laws are generally compromises pounded out with all interest groups, and in the United States, the courts play an active role in reconciling disparate interests and making laws work. If affluent nations with longer histories of practical environmental protection have difficulty striking a workable balance between environmental goals and technical and economic realities, countries experiencing the unique transitions of Central and Eastern Europe should be even more alert to such issues.

The existing environmental laws in Central Europe have not typically been the product of a free-ranging public debate about the value and costs of protecting the environment. Whether the new laws will emerge from such a process remains to be seen. In at least one country of the region, steps have been made to initiate these kinds of debates. In March 1992, an Hungarian Parliamentary Committee held its first public hearing to discuss a draft environmental law. The Regional Environmental Center in Budapest made it possible for the hearing to be observed by law drafters from [22 ELR 10602] throughout the region, many of whom had no previous experience with such a proceeding.

In fact, the draft laws frequently promise more than they can possibly deliver at this time. One example of this involves extremely broad language such as that found in the draft Romanian law:46 a broad statement establishes the right of each person to a healthy environment. As a goal, it is understandable and sets out the basis of the state's interest in regulation. Broad goals like these are also familiar to U.S. drafters because they permeate U.S. legislation.47 However, the language of the Romanian law is intended as a requirement. By its very nature, the language is unenforceable. Citizens who use this language to bring suit against the state will inevitably be disappointed because the state is not able to guarantee a healthy environment in all situations and likely never will. Moreover, no equity courts exist that can use this broad language to fashion remedies. The example also illustrates some of the weaknesses of U.S. assistance in the law drafting effort. Drafters from the United States tend to assume that language like this is a basis for court-fashioned remedial action, based on their familiarity with common law principles and the powers of equity courts.

Another example of requirements that may be too ambitious for current environmental institutions is in various draft laws that would require environmental impact assessment (EIA). The draft Hungarian environmental law would require EIAs for activities that may have a substantial effect on the environment; substantial modifications, alterations, or capacity extensions of already operating licensed installations; and in connection with the granting of permits. The draft law would create two lists: for one, an EIA would be required; for the second, an EIA would be discretionary with the regional environmental inspectorate.48 The law is clearly intended to be action forcing.

The Bulgarian law would also appear to subject almost any activity of persons, corporations, or the state or local government to an EIA. A project that has not been subjected to an EIA analysis, or that has a "negative" EIA "is prohibited or must be discontinued."49

EIAs can be expensive if done properly. They require expertise and assume that an infrastructure exists to give environmental considerations a role in the various stages of project design and implementation. EIAs in the United States, a far richer country, are prepared pursuant to the National Environmental Policy Act (NEPA)50 only where a major federal action is contemplated, and certainly not for every proposed construction or potential disturbance of the environment. Moreover, U.S. courts have found that these requirements are procedural;51 there is no requirement that a project with serious environmental impact must be terminated or modified so long as the EIA is complete and accurate.52

Countries with well-developed systems of environmental regulation have not found it easy to adopt EIA. Adoption of a Directive on Environmental Impact Assessment had a long gestation period in the EC. The proposal submitted to the Council was the product of about 20 drafts53 that followed a number of preparatory studies and a 1979 seminar to review experience in the field.54 "After long and difficult negotiations,"55 agreement was reached on a Directive in 1985.56 An informed commentary on the implementation of the Directive indicates, "implementation will depend on the availability of people with the knowledge and skill to carry out and to evaluate impact studies, the development or improvement of appropriate methodologies, the refinement of methods for consulting the public about proposed developments."57 Assessment of the efforts of particular EC countries to adopt EIA varies. Many countries have struggled to reconcile the requirements with existing local laws.58 Another commentary says that the repercussions in the member states on planning for the directive "cannot be predicted in full … but … doubtless will be considerable."59

A third example of potentially overambitious requirements involves the Waste Act enacted on May 22, 1991 (effective August 1, 1991) by the national government of Czechoslovakia.60 Disposal requirements for non-house-hold waste resemble the Resource Conservation and Recovery Act's (RCRA's) requirements for storage, handling, recordkeeping, and reporting.61 In addition, each generator, including local governments, must establish a "waste management program that emphasizes source separation, recycling and waste minimization and to neutralize wastes that cannot be recycled."62 Generators must also "provide downstream users with information on appropriate recycling of unused portions of the product, waste resulting from the produce and packaging."63 The [22 ELR 10603] Czech and Slovak Republics are directed to "establish permitting procedures for operating disposal and treatment facilities, handling dangerous wastes, importing wastes other than for neutralization and transit of waste through the Republics…."64 These are potentially very complex requirements that require enormous infrastructure for successful implementation.

Comparisons can be made with the RCRA program in the United States and the new German requirements for extensive recycling. Effective implementation of any regulatory program requires organizational and resource commitment. The complexity and expense of the RCRA regulatory regime has been well documented.65 The U.S. experience has encountered implementation delays that reflect "EPA's limited resources, the sheer magnitude of the regulatory problem … and technical and political controversy over the details of implementation."66 One stark example of both the complexity of the program and the infrastructure required for effective execution is that EPA receives more than 1,000 calls each month on definitional issues alone.67

Waste management programs that emphasize source separation and recycling are also not easy programs to implement. Few such programs are really up and running in the United States. Germany has begun an elaborate mandatory program, the first stage of which went into effect on December 1, 1991.68 Suppliers are required to take back distribution packaging from retailers for recycling.69 Considerable infrastructure and private initiative resources are necessary to implement this type of program. Germany has created a private curbside collection system to recycle 50 percent of household packaging by 1995.70

In addition to the organizational issues, recycling programs will also have to overcome cultural issues related to the emergence from socialist economies. For many years in Central and Eastern Europe, hoarding and recycling were survival techniques. Recycling may be a hard sell to people who prefer to forget many bad years of scraping through.71

Knowledgeable observers within Central and Eastern Europe have noted the lack of institutional infrastructure necessary to implement efforts at higher priority economic reform programs.72 Institutions that have been slow to respond to priority government programs for change are likely to be even less responsive in the case of programs with less governmental and public support, such as environmental reform. Moreover, "enforceability will remain questionable as long as the administrators are lacking monitoring capabilities, and the largest polluters are facing serious financial troubles — which involves the usual employment-versus-environment argument."73 Finally, one should not underestimate practical infrastructure weaknesses such as completely inadequate telephone systems and other barriers to communication, as well as the lack, as a practical matter, of institutions such as a hazardous waste disposal industry equipped to carry out complex waste disposal programs.

Some of these barriers can be overcome through the privatization effort, discussed below, which will introduce new capital and experienced market economy managers. But ambitious programs of privatization take time. In any case, the great bulk of industry will likely not be privatized through foreign investment. Many more enterprises are being privatized through "liquidation," in which the assets are essentially handed over to domestic groups or persons willing to try to make the enterprise workable. In Poland, for example, the purchaser is required only to put up 20 percent of the value of the enterprise as working capital. The commitment proves that the investor has the money to operate the company. Ongoing payments are due to the State Treasury on the balance due. At the end of an established period, title goes to the new company.74 The viability of these enterprises may be greatly in doubt. Moreover, the enterprise may have little institutional compliance, and its new owners may have little actual experience in that area. Time is needed not only to address normal obstacles such as planning, financing, and the ordering of equipment, but also for more fundamental issues, such as changes in the culture, and indeed to see whether the enterprise can produce earnings sufficient to support environmental improvements.

There are several ways to bridge these gaps. A comprehensive law can be written so long as it explicitly recognizes that it will be implemented in stages. The law itself would establish which efforts have priority and establish time periods during which each section of the law would come into force. In this way, a core law (for example, basic discharge requirements) can be the first priority for implementation, followed over time by media-specific laws and implementing regulations. Investors and others will know what goals they mustreach over time, but they will be given adequate time to adjust their practices. There are some variations of this approach in laws in the region. The draft Hungarian environmental law takes this approach for certain of its requirements. The Czechoslovakian air and waste [22 ELR 10604] laws also have five-year phase-in periods for implementing regulations issued by the Czech and Slovak Republics,75 and the Bulgarian law would allow projects subject to EIA no more than five years to come into compliance.76

The major difficulty with this approach is that the time periods may be set with little practical experience in how long it takes to implement a functioning environmental protection system, particularly in the unique circumstances of transitional economies. One example of this is the Polish National Environmental Policy, through which Poland hoped, within three or four years of the date the policy was issued in October 1990, to address risks that have immediate effect on human health or life.77 Even though significant efforts have been made, it still seems unlikely that this goal will be reached, given the magnitude of the problems. Moreover, a system that sets all requirements into place with one law arguably does not allow the environmental agencies to learn from and apply experience; a more limited set of goals and responsibilities that evolve over time and experience into more complex requirements could benefit from practical lessons learned along the way.

A second approach would be to acknowledge explicitly that any initial law will be revisited ("reauthorized," in American parlance) within an established time period. Investors are assured of a set of rules to follow in the short term and a predictable process for change. This is essentially the U.S. model. As a practical matter, early U.S. laws were relatively simple and covered fundamental problems. These laws became more elaborate and comprehensive over a period of more than 20 years, as U.S. regulators and the regulated community have gained experience, and as new problems have become apparent. In Central Europe, it might be preferable to concentrate first on activities that have significant adverse effects on the environment, directly affecting human health, or affecting issues that arise as a result of privatization since there appears to be increasing support for addressing those issues. As economic conditions improve and support for environmental regulation is nurtured by increasingly effective environmental protection institutions, additional requirements can be added. This approach also puts industry and investors on notice so that they are familiar with when the rules of participation might change and when there is a needed process for change.

Equally important, there must be some assurance that whatever laws are in place are being enforced in a steady, evenhanded way. The countries must make organizational and managerial commitments, including adequate resources for personnel who write and enforce permits, and technical back up, monitoring, research and other programs.

Tools developed in the United States and Western Europe such as compliance schedules and adjustment periods can be used to make allowances for the time and effort necessary to bring dischargers up to environmental standards. Using these tools, the countries can set out the exact steps that must be achieved to meet environmental standards and time periods for each step. In the United States, these schedules are supervised by a court using its equity powers; if steps are missed, penalties are exacted and managers and owners of the plant can be held in contempt of court. It would be necessary to think carefully about how a compliance schedule might fit a civil law system.

A compliance schedule recognizes that compliance can be costly and may involve purchasing new technology or making process changes in the plant. Even in more affluent countries, there may be numerous barriers to the purchase and installation of new technology. For example, parts may be on back order, or it may be necessary to learn new techniques to install and run new technology. Where the economic situation is less certain, compliance schedules can tie change to economic recovery or other indicators that enterprises are able to bear the burden of environmental compliance. In the case of properties with more uncertain economic viability that are transferred by procedures such as liquidation, it may be necessary to structure responsibility for cleanup and other environmental requirements so that specific duties are tied to profitability targets or assumed by the national government, although the latter may in effect result in permanent deferral of needed improvement.

Generating Support for Effective Environmental Regulation

Environment ministries must also persuade their more powerful fellow ministries that the effort at drafting laws and environmental regulation deserves attention now, not later, and that it must be more than in name only. Two relatively strong arguments can be made. First, the countries in the region are very interested in membership in the EC. The reasons for this are economic and psychological. One requirement of EC membership will be harmonization of laws including environmental laws. Poland, Hungary, and Czechoslovakia have already signed agreements of association. The agreement between Poland, the member states, and the EC has several requirements specifically directed to building environmental institutions.78 Article 73 requires that

Policies designed to bring about the economic and social development of Poland, in particular policies relating to industry including the mining sector, investment, agriculture, energy, transport, regional development and tourism should be guided by the principle of sustainable development. This entails ensuring that environmental considerations are fully incorporated into such policies from the outset.79

Article 80 (Environment) requires Poland to work with the EC to develop and strengthen cooperation "in the vital task of combating the deterioration of the environment"80 and emphasizes cooperation on "approximation of laws (Community standards)."81 The countries of Central and Eastern Europe will have to do the hard work of creating a working system of environmental regulation in order to attain membership in the EC.

[22 ELR 10605]

Additional motivation is found in the massive privatization effort currently underway in the region. The movement of state-owned properties into private hands provides an important opportunity to introduce some predictability into the effort to translate environmental goals, whether stated in existing or new laws, into reality. This issue has been addressed in a previous Dialogue.82 Because investors and their financing banks must be able to calculate all of the costs of investment, including environmentally related expenses, the host countries must, in turn, be clear about environmental obligations. This requires the countries to have clear, understandable laws and policies that are applied and enforced in a consistent manner. Moreover, although the pressure for addressing these issues is coming from western investors, environmental issues should be addressed in all types of privatization, including those in which citizens of the country assume responsibility for enterprises, such as liquidation.

Privatization is a unique type of transaction in which a number of values are being expressed. Where the government is the seller, one can argue that the government has responsibilities beyond those of the normal seller, and the transaction should reflect the public trust, addressing all legal obligations and requirements of the purchaser. If it fully addresses the environmental responsibilities of the new owners at the time of sale, the state will be in the strongest possible position to insist upon compliance with the agreed upon program.

Finally, international lending organizations such as the World Bank are requiring the formulation of clear environmental policies as a condition of their loan agreements.83 These conditions have often not been implemented, but the lending organizations should insist that the countries do so. Moreover, the country response should be formulated in a manner that reflects a serious government commitment to making the environmental policies work. The easy part of such a response is writing a position paper; the difficult part is the organizational and other work that translates principles into action. But the result can be positive pressure for environmental results.

Conclusion

An important goal in the environmental law drafting efforts in Central and Eastern Europe should be to create opportunities for law to better people's lives. In this respect, the effort to establish an effective system of environmental protection is like other rebuilding efforts in the region. The new governments must ensure that all parts of society develop respect for the law, which in turn involves developing institutions that make laws work. This will not be easy in societies that are still suffering the aftershocks of many years of oppression and hypocrisy about the role of law, but they are attitudes that are an indispensable part of compliance. These changes in attitude are a long-term investment by the countries involved and their importance cannot be overrated for the well being of these new democracies and the environment.

1. See Environmental Guidelines Adopted by Eastern Europe Reconstruction Bank, 15 Int'l Env't Rep. (BNA) 71 (Feb. 12, 1992). See also Chris Wold & Durwood Zaelke, Establishing an Independent Review Board at the European Bank for Reconstruction and Development: A Model for Improving MDB Decisionmaking, 2 DUKE ENVTL. L. & POL'Y F. 59 (1992).

2. International lending organizations such as the World Bank and the European Bank for Reconstruction and Development are sponsoring coordinated efforts with respect to pollution in the Baltic Sea and the Danube. See Environmental Guidelines Adopted, supra note 1, at 71.

3. See generally Turner T. Smith & Roszell D. Hunter, The European Community Environmental Legal System, 22 ELR 10106 (Feb. 1992) (explaining the EC's legal structure and environmental legislation).

4. See Margaret Bowman & David Hunter, Environmental Reforms in Post-Communist Central Europe: From High Hopes to Hard Reality, 13 MICH. J. INT'L L. 301 (1992).

5. Zbigniew Bochniarz, Overview of the Polish Environmental System: Deficiencies and Constraints, in DESIGNING INSTITUTIONS FOR SUSTAINABLE DEVELOPMENT: A NEW CHALLENGE FOR POLAND 19, 21-22 (Zbigniew Bochniarz & Richard Bolan eds., 1991)(providing examples of laws that do not have appropriate enforcement mechanisms or where significant aspects of environmental protection, such as permissible levels of additives in food and standards for noise, are missing).

6. Id. at 21.

7. Vera Gavrilov and Matthew J. Sagers, Energy and Environmental Concerns 102 (1991)(report prepared for PlanEcon, Inc.).

8. Id. at 102.

9. Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/C.48.14 (1972), reprinted in 11 I.L.M. 1416 (1972).

10. Bochniarz, supra note 5, at 21-22.

11. Report at the National Conference of the Rumanian Communist Party, December 14-16, 1987, quoted in Dumitra Popescu, The Evolution and Diversification of the Legal Framework of Environmental Protection in the Socialist Republic of Romania, 33 Rev. Roum. Sci. Sociales — Sciences Juridiques 39 (1989).

12. Gavrilov & Sagers, supra note 7, at 102.

13. Tomasz Zylicz, Environmental Reform in Poland: Theories Meet Reality, in DESIGNING INSTITUTIONS FOR SUSTAINABLE DEVELOPMENT: A NEW CHALLENGE FOR POLAND 271 (Zbigniew Bochniarz & Richard Bolan, eds., 1991).

14. This section draws heavily on the work of Dr. Dumitra Popescu of the Institute for Legal Research in Romania. See Popescu, supra note 11.

15. Law on Environmental Protection, June 20, 1973, COLECTIA DE LEGI SI DECRETE, Law No. 9/1973 (Rom.) [hereinafter Romanian Law on Environmental Protection].

16. Ministry of Health, Order No. 623, Dec. 4, 1973.

17. Law on Waters, Mar. 29, 1979, COLECTIA DE LEGI SI DECRETE, Law No. 8/1974 (Rom.) [hereinafter Romanian Law on Waters]; Art. 11, Romanian Law on Environmental Protection, supra note 15; Law No. 5/1989, June 29, 1989 (amending Law No. 8/1974); Law for the Adoption of the National Prospective Programme for the Arrangement of Hydrographic Basins, Law No. 1/1976; Decree Establishing Permissible Value Limits, COLECTIA DE LEGI SI DECRETE, Decree No. 414/1979 (Rom.).

18. Law No. 5/1989, supra note 17.

19. Romanian Law on Environmental Protection, supra note 15; Law on the Protection of Cultivated Plants and Forests and the Regime of Pesticides, Law No. 5/1982; Law No. 59/1974 (repealed by Law No. 18/1991).

20. Romanian Law on Environmental Protection, supra note 15, art. 23, para. 6; Forest Code of 1962, Law No. 3/1962 [hereinafter Romanian Forest Code]; Law on the Adoption of the National Programme for Conservation and Development of the Forest Fund, Law No. 2/1976; Law on the Conservation, Protection, and Development of Forests, Their Rational Economic Utilization, and the Maintenance of the Ecological Equilibrium, Law No. 2/1987.

21. Law on Pisciculture and Fishing, Law No. 12/1974; Law on Hunting, Law No. 20/1976. See Romanian Law on Environmental Protection, supra note 15; Romanian Forest Code, supra note 20, art. 22.

22. Romanian Law on Environmental Protection, supra note 15, arts. 32 and 33.

23. Romanian Law on Environmental Protection, supra note 15, art. 34. See also Law on the Systemization of the Territory and Urban and Rural Localities, Law No. 58/1974, art. 7.

24. Decree on the Organization and Functioning of the Ministry of Environment, Law No. 264/1991, COLECTIA DE LEGI SI DECRETE Decree No. 264 (Rom.).

25. Romanian Law on Waters, supra note 17, art. 10.

26. Id.

27. Romanian Law on Waters, supra note 17, art. 11. The United States has only recently begun a comprehensive system of stormwater regulation. Federal Water Pollution Control Act (FWPCA) § 402(p), 33 U.S.C. § 1342(p), ELR STAT. FWPCA 060; Storm Water Discharge Rule, 40 C.F.R. § 122.26 (1991), as amended by 57 Fed. Reg. 11394 (Apr. 2, 1992).

28. Romanian National Committee, National Report for the United Nations Conference on Environment and Development 57 (July 1991).

29. Id.

30. Id. at 30.

31. Id.

32. Antti Vahtera, Emissions Destroy Cities in Romania; Cellulose Factories Are Feared to Have Poisoned All Life in Suceava, HELSINGIN SANOMAT (Helsinki), Feb. 27, 1990, at 3.

According to local physicians, 90 percent of the 2,800 persons who work in the department using carbon disulfide have acquired toxic contents that could kill them or ruin their lives in their final years. The incidence of children with birth deformities and miscarriages as well as of deaths caused by cardiovascular diseases is very high.

Id.

33. Id.

34. See also Eugene N. Lisitsyn, Environmental Law and Management in the USSR: A Reflection on Contemporary Reforms, 17 REV. SOCIALIST L. 125 (1991) (discussing very similar conditions and issues in the former Soviet Union).

35. Judit Galambas, Environmental Law in Hungary 1 (Feb. 24, 1992 draft) (manuscript on file with Ms. Galambas at the Regional Environmental Center for Central and Eastern Europe in Budapest). See also Kazimierz Klimek, Poland 111 (Environmental Status Report 1988/89 for the International Union for Conservation of Nature East European Programme) (Krakow 1989); Zylicz, supra note 13.

36. Henryk Sowinski, The Role of the Public Prosecutor's Office in Saving the Environment 15 (July 1990) (unpublished manuscript, on file with the Environmental Law Reporter).

37. See, e.g., Waste Management Act, May 22, 1991, Czech and Slovak Federal Republic (CSFR) Act No. 238/1991 [hereinafter CSFR Waste Act]; Clean Air Act, July 9, 1991, CSFR Act No. 309/1991.

38. See, e.g., Environmental Protection Act, art. 19, Oct. 2, 1991, DURZHAVEN VESTNIK No. 86/1991 (Bulgaria) [hereinafter Bulgarian Act]; Environmental Protection Code of Hungary (tentative draft, Mar. 1992) [hereinafter the Draft Hungarian Environmental Law]; Act Concerning the Environment, art. 17, Dec. 5, 1991, CSFR Act. No. 17/1992; see also Jane L. Bloom & Mark A. Silberman, Recent Developments in Environmental Law in Eastern Europe (manuscript at XIII-1) (forthcoming in ENVTL. CLAIMS J. Fall 1992).

39. See, e.g., Bulgarian Act, supra note 38, ch. 2; Draft Hungarian Law, supra note 38. See also Bloom & Silberman, supra note 38, at XIII-1.

40. See, e.g., Bochniarz, supra note 5, at 22 (examining Polish attitudes toward law after 130 years of partition and 40 years of Communist rule).

41. Similar concerns have been expressed by observers of the environmental law movement in the former Soviet Union. Lisitsyn, supra note 34, at 143.

42. The vinyl chloride cases illustrate part of this problem. Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 804 F.2d 710, 17 ELR 20188 (D.C. Cir. 1986) and Natural Resources Defense Council v. U.S. Environmental Protection Agency, 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987). The issue was whether the Administrator of EPA must base a decision under CAA § 112, 42 U.S.C. § 7412(b)(1)(B), ELR STAT. CAA 028, on entirely health-related factors. NRDC argued that he must, and that uncertainty about the effects of certain carcinogenic agents required the Administrator to prohibit all emissions. EPA argued that uncertainty allowed the Agency to "set standards that require emission reduction to the lowest level attainable by best available control technology whenever that level is below that at which harm to humans has been demonstrated." 824 F.2d at 1147-48, 17 ELR at 20133-34. The substantive issue was how to strike the balance between risks to health and the costs to society of controlling those risks. However, it was formulated as an issue of statutory interpretation because Congress had not been clear about its intentions.

43. FWPCA § 101(a)(1), 33 U.S.C. § 1251(a)(1), ELR STAT. FWPCA 003.

44. FWPCA § 101(a)(2), 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA 003.

45. See, e.g., FWPCA § 301, 33 U.S.C. § 1311, ELR STAT. FWPCA 028; Natural Resources Defense Council v. Train, 6 ELR 20588 (D.D.C. June 9, 1976), modified 9 ELR 20176 (D.D.C. Mar. 9, 1979), aff'd in part sub nom. Environmental Defense Fund v. Costle, 636 F.2d 1229, 10 ELR 20803 (D.C. Cir. 1980), modified sub nom. Natural Resources Defense Council v. Gorsuch, 12 ELR 20371 (D.D.C. Feb. 5, 1982), cert. denied sub nom. Union Carbide Corp. v. Natural Resources Defense Council, 467 U.S. 1219 (1984).

46. Environmental Protection Act of Romania (9th draft, Dec. 1991).

47. See, e.g., FWPCA § 101(a), 33 U.S.C. § 1251(a), ELR STAT. FWPCA 003; National Environmental Policy Act § 2, 42 U.S.C. § 4321, ELR STAT. NEPA 003; Resource Conservation and Recovery Act (RCRA) § 1003(b), 42 U.S.C. § 6902(b), ELR STAT. RCRA 004; and Clean Air Act § 101, 42 U.S.C. § 7401, ELR STAT. CAA 006.

48. Draft Hungarian Environmental Law, supra note 38, pt. VIII, ch. V. The drafting committee is headed by Professor Andras Sajo, who is Legal Advisor to the President of Hungary, Professor of Law at the Hungarian Academy of Sciences, head of the Legal Studies program at Central European University, and was a Visiting Professor at the Benjamin Cardozo School of Law during the 1991-92 school year.

49. Bloom & Silberman, supra note 38, at XIII-27.

50. NEPA § 102, 42 U.S.C. § 4332, ELR STAT. NEPA 003-04.

51. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 8 ELR 20288, 20297 (1978).

52. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 10 ELR 20079, 20080 (1980).

53. ECKARD REHBINDER & RICHARD STEWART, ENVIRONMENTAL PROTECTION POLICY 104 (1988).

54. Myles McSwiney, Environmental Impact Assessment — EEC, 1987 EUR. ENVTL. Y.B. (DocTer — Instituto di Studi e Documentazione per il Territio (Milan)) 166.

55. Id.

56. Id.

57. Id. at 168.

58. See id. at 166-86.

59. LUDWIG KRAMER, EEC TREATY AND ENVIRONMENTAL PROTECTION § 1.41 (1990).

60. CSFR Waste Act, supra note 37.

61. Compare CSFR Waste Act § 3(5) with RCRA §§ 3001, 3005, 3012, 42 U.S.C. §§ 6921, 6925, 6933, ELR STAT. RCRA 010, 016, 022. See Bloom & Silberman, supra note 38, at XIII-11. See also Margaret Bowman & David Hunter, An Overview of the Environmental Community in the Czech and Slovak Federal Republic 3 (1991) (report prepared for the Center for International Environmental Law in Washington, DC).

62. Bloom & Silberman, supra note 38, at XIII-11, citing CSFR Waste Act, supra note 37, § 3(5).

63. Id.

64. Id.

65. See, e.g., Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, 21 ELR 10254 (May 1991); Marcia E. Williams & Jonathan Z. Cannon, Rethinking the Resource Conservation and Recovery Act for the 1990s, 21 ELR 10063 (Feb. 1991).

66. REHBINDER & STEWART, supra note 53, at 123.

67. Id. citing OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY, RCRA: THE NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM AT A CROSSROADS, EPA Doc. No. 205-001 (July 1990).

68. Ordinance on the Avoidance of Packaging Waste, June 12, 1991. See Turner T. Smith, Jr. & Lucas Bergkamp, Packaging Waste Developments in Europe, 14 Int'l Env't Rep. (BNA) 522 (Sept. 25, 1991).

69. Final Draft Being Readied of Plan to Curb Packaging Waste, Officials Say, 15 Int'l Env't Rep. (BNA) 73 (Feb. 12, 1992).

70. Id.

71. See SLAVENKA DRAKULIC, HOW WE SURVIVED COMMUNISM AND EVEN LAUGHED (1991).

Yes — how did we [survive communism]? Certainly not by throwing away useful things. Generally speaking, in any communist country there are not many things to throw away…. You recycle, recycle, and recycle, redefining an object … by turning it into something else, giving it one function after another and you throw it away only when you have made absolutely sure … that it won't be used anymore.

Id. at 181.

72. See, e.g., Dariusz Rosati & Zbigniew Bochniarz, The Process of Change From a Centrally Planned Economy and Society to a Decentralized Market Economy: Potential and Constraints, in DESIGNING INSTITUTIONS FOR SUSTAINABLE DEVELOPMENT: A NEW CHALLENGE FOR POLAND 259-60 (1991).

73. Zylicz, supra note 13, at 272.

74. Law on the Privatization of State Owned Enterprises, July 13, 1990, Journal of Laws No. 51, Positions 298-99.

75. Bloom & Silberman, supra note 38, at XIII-8.

76. Bloom & Silberman, supra note 38, at XIII-8.

77. MINISTRY OF ENVIRONMENTAL PROTECTION, NATURAL RESOURCES, AND FORESTRY, NATIONAL ENVIRONMENTAL POLICY (1990).

78. Agreement establishing an association between the European Communities and their member states, of the one part, and the Republic of Poland, of the other part, December 16, 1991, O.J. Eur. Comm. (the agreement has not yet been ratified by the national assembly of Poland).

79. Id. art. 73.

80. Id. art. 80.

81. Id.

82. Ruth Greenspan Bell, Industrial Privatization and the Environment in Poland, 22 ELR 10092 (Feb. 1992).

83. See World Bank Strengthens Environmental Requirements for Major Project Funding, POLLUTION PREVENTION NEWS, July 1991, at 5.

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