War, mining, energy, environment

Recent events on the Eastern front have brought an issue to the fore that, until now, has received little attention: the energy self-sufficiency of States. In Italy, almost half of the demand for hydrocarbons and other natural gases is supplied by Russia.

To address the potential resource gap, a question has been raised: is it possible to increase mining activities on the seabed? The sea that surrounds Italy, especially the Adriatic Sea, contains significant quantities of hydrocarbons. The sector is open to the market, so many maritime quotas are assignable to foreign parties, meaning that resources would have to be bought from them. But how can these activities be balanced with the impact on the environment? Among other things to consider is that environmental protection has recently been included in the Italian Constitution, both in the Fundamental Principles (Art. 9) and in the regulation of economic activities (Art. 41).

This is a long-standing issue that has affected the relationship between central and local government in Italy for around two decades. The State generally prefers to maximize exploitation, whereas the regions and local territories prioritise the sustainability perspective.

The Italian Constitutional Court’s attitude of self-restraint, the “revolutionary” answer from the EC

The issue had already come to a head in 2017. At that time, on several occasions, the Italian Constitutional Court established that maritime territory was an area of exclusive State sovereignty and that the regions had no influence on it. On the level of interests, moreover, it also ruled that State legislation balances in a not implausible manner that of production with that of the environment. It thus manifested an attitude of self-restraint, where legislative discretion was sanctionable only in the case of manifest contradiction or unreasonableness.

Compared to this framework, the administrative jurisprudence is also interesting and correlated, because it has been much more “fluctuating” over time. After initially accepting local claims, the case law turned to State reasons, recognising that mining regulations deal with production and have nothing to do with the environment: an operator may obtain several adjoining patches of sea (all of which individually comply with the legislative limit on extent) to conduct activities; all that, while regions continuously contested this practice, finding it elusive, in the face of an environmental impact assessment limited to the single patch. This strand of case law culminated in the issue coming before the EU Court of Justice (ECJ), which in January 2022 (C-110/20) changed the view on the sector up to now: when entrusting several patches of sea to a single operator, an overall environmental assessment must be carried out. The environment has officially entered the sector.

However, this “revolutionary” pronouncement is coming up against a thick veil of impermeability. In fact, on receiving the ruling from the ECJ, the Italian Council of State did not change its position, assuming that the environment was not among the aspects expressly raised by the Apulian Region, which had instead focused on competition.

Which role for the Court and the legislator?

So, can the Italian Constitutional Court add anything to this setback? Can it come back into play? The principle that can be deducted from the European ruling, which, until now, had remained unfulfilled, can certainly represent a valuable opportunity. It must be said that in recent years, the Constitutional Court has been attempting to open up its scope of scrutiny, recognising the possibility to annul national rules that are at odds with both the Italian Constitution and the Charter of Fundamental Rights of the European Union (the Charter), possibly after a preliminary reference to the ECJ, either by itself or by the ordinary court.

Hence, a constitutional pronouncement could arise as a natural consequence of the Luxemburg one, in order to remedy the uncertainty related to application (especially at the administrative level) of the European statement. Constitutional references can be easily found in: Article 11 of the Treaty on the Functioning of the European Union (integration principle); the connected Article 37 of the Charter; and Article 9 and Article 41 of the Italian Constitution.

Only then, moreover, can the constitutional-environmental reform also be valorised. In fact, most scholars agree that these amendments are a formalisation of an interpretation already subsumed from the original text. Instead, a significant novelty would be found in the environmental interest “also” for future generations. But it might be too much of a stretch to apply this concept to the present case.

Rather, the reform can be a useful starting point for the Italian Constitutional Court. In particular, the environmental aspect is now both a limitation on economic initiative and an aim that the legislator must consider when regulating public and private activities. Here, two final considerations. The new Article 41 of the Italian Constitution could be used as an expression of the integrative-environmental dynamic that emerges from the aforementioned European provisions. However, the legislator must also seize the opportunity. So far, its silence, due to a legitimacy crisis and the economic constraints, has not achieved anything good. Its intervention, relaunched by the constitutional reform, may help the Constitutional Court to rationalise its scrutiny, in view of the balance of powers.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.