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Nature Protection as a Public Interest
- Edited by Luboš Tichý, Michael Potacs
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- Book:
- Public Interest in Law
- Published by:
- Intersentia
- Published online:
- 25 May 2021
- Print publication:
- 20 January 2021, pp 329-346
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Summary
INTRODUCTION
In 2002, the United States Court of Appeals, Tenth Circuit, had to balance the interest in protecting eagles and the interest in fostering and preserving Native American religion and culture (which entail use of eagle feathers). Concerning the first interest, the Court noted that it was supported not merely due to the scarcity of the birds, but rather due to the bald eagle's unique status as one of the enduring symbols of our nation: “The bald eagle would remain our national symbol whether there were 100 eagles or 100,000 eagles. The government's interest in preserving the species remains compelling in either situation.” In this particular case, the birds were granted legal protection not because they are threatened with extinction or because they contribute to the ecosystem, but because they embody a specific cultural value. This particular value might not be recognised in other countries, which venerate other animals or plant species as their national symbols. In other words, public interest in nature protection which overlaps with culture protection would have different content elsewhere.
So why does the law protect nature? As superfluous as this question seems, there is no simple answer to it. Indeed, healthy ecosystems clean water, purify the air, maintain soil, and regulate the climate. They also provide raw materials, food and other resources. However, in attempting to define nature protection as a public interest, one is always facing an odd paradox: nature is protected for its productive function, and at the same time, the ratio behind the law on nature protection is to keep it inso far as possible, intact and alone. Away from Man, that is. The cause of environmental degradation is deeply rooted in human culture. The more we use our nature, the less natural it is. Although nature is constantly changing, and was doing so even before the dawn of humanity, its rapid degradation in recent decades has pushed the legislators worldwide to impose considerable restrictions on human activities.
As a consequence, the corresponding public interest entailed in the national constitutions and legal acts regarding nature, or the environment as a broader category, is often two-fold, embracing both the use and protection of nature.
Chapter 11 - Balancing Nature Protection and Other Public Interests: the Czech Example
- from PART V - ECOSYSTEM APPROACHES AND ADAPTIVE MANAGEMENT
- Edited by Helle Tegner Anker, Birgitte Egelund Olsen
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- Book:
- Sustainable Management of Natural Resources
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 09 October 2018, pp 177-192
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Summary
ABSTRACT
This paper focuses on the broader scope and the implications of recent changes in the Czech nature conservation policy in which EU rules on habitat protection are perceived as a major obstacle to infrastructure development. It analyses the case law of the Czech Supreme Administrative Court to see whether it is in compliance with the requirements of the Habitats Directive (HD), as interpreted by the Court of Justice of the European Union. In particular, it focuses on interpretation of the most important conditions for derogating procedures under the Habitats Directive, the absence of an alternative solution, and the existence of imperative reasons of overriding public interest.
The author concludes that there is basically no major difference in divergent procedures between the long-established national system of nature protection and the requirements of EU law. Furthermore, the Czech courts interpret individual conditions for derogation in the same or similar way to the findings of the Court of Justice. In practice, however, the goals of EU law are undermined by incorrect transposition of the Habitats Directive and constant attempts of the Czech government to avoid its protective regime.
INTRODUCTION
The EU has long been committed to protecting nature, namely since the adoption of the first version of the Birds Directive (BD) in 1979. Even nowadays, however, EU law does not constitute a comprehensive system that encompasses all the aspects of managing natural resources. Biodiversity protection in the Member States is therefore two-fold in its structure, based on the implemented EU rules and the specific national system, which often has its legal roots far in the past. It seems, consequently, that the effectiveness of legal instruments and approaches towards biodiversity protection and the overall quality of the sustainable management of natural resources in the Member States depends on the relationship between EU law and the traditional system of nature conservation. Where these two systems of legal regulations collide, their goals are simply jeopardized.
Public Participation and EIA in the Multi-Stage Decision-Making Process: The Czech example
- from Procedural Environmental Rights and EIA
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- By Petra Humlícková, Charles University, Prague; legal attorney, Vojtech Vomácka, Masaryk University, Brno
- Edited by Jerzy Jendroska, Magdalena Bar
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- Book:
- Procedural Environmental Rights
- Published by:
- Intersentia
- Published online:
- 12 October 2018
- Print publication:
- 22 February 2018, pp 389-408
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Summary
ABSTRACT
In Czechia, the EIA procedure is the very first step in a long chain of permitting procedures. This chapter focuses on such multi-stage decision-making process from the perspective of public participation, and provides several examples from the Czech case law and administrative practice. The authors conclude that the quantity of various specific regimes itself has a huge impact on effectiveness of public participation and the narrow scope of various proceedings seems restrictive, pushing the public to carefully select its arguments or employ a “carpet bombing” tactics instead. Moreover, multiple decision-making generates costs on all sides, including investors and administrative bodies.
KEYWORDS
Czech Republic; EIA; infrastructure development; public participation
INTRODUCTION
The separate environmental impact assessment (EIA) usually forms a part of a multi-stage decision making process which, at first glance, brings additional requirements as regards coordination of the official authorities and their statements or decisions.
Furthermore, a multi-stage decision making process might create problems which are not obvious per se but may present substantial threat to effective public participation.
In our contribution, we will discuss these issues on example of the legal regulation in Czechia and its recent changes. We focus on the advantages and disadvantages of the EIA as a part of the multi-stage decision making process from the perspective of public participation, and provide several examples from the Czech case law and administrative practice to answer the question whether the public participation can be an effective and under which conditions.
QUEST FOR COMPLIANCE
First of all, some introductory remarks should be made as regards a long struggle of the Czech legislator to fulfil the criteria of the EIA Directive. While most of the Member States opt for the EIA procedure integrated into the existing procedures for development consent to projects, some countries, including Czechia, use the second option offered by Article 2.2 of the EIA Directive and establish a specific, separate procedure to comply with the aims of the Directive.
HISTORICAL DEVELOPMENT
The EIA procedure was introduced in the Czech legal system more than two decades ago, in 1992. Current legislation was adopted in 2001 and has been amended several times since then. In 2006, the European Commission had opened a case against Czechia, and although it amended its legislation in 2009, the case was brought to the Court of Justice.