1 Environmental Policy and its Enforcement
1.1 What is the basis of environmental policy in your jurisdiction and which agencies/bodies administer and enforce environmental law?
Until April 2016, the main source of environmental law in Malta was the Environment and Development Planning Act, Chapter 504 ("EDPA"), making it the duty of the Government of Malta and every person to protect the environment (Article 3, EDPA. As a matter of interest, we point out that whereas the duty of every person, including MFTL, to protect the environment as provided in the EDPA is not, stricto jure, enforceable). The Malta Environment and Planning Authority ("MEPA") was established by virtue of Article 6 of the EDPA. In terms of Article 7(1)(a) of the EDPA, "the Authority shall be the principal means whereby the Government shall implement its duties under this Act". The functions of MEPA included the provision of advice to the minister on the formulation and implementation of policies relating to the promotion of sustainable development, protection and management of the environment and the sustainable management of natural resources, and on such other matters as may be necessary for the better carrying-out of the provisions of the EDPA. MEPA was also responsible for environmental audits, assessments and policies, training awareness programmes relating to environmental protection, advisory services for government and local authorities on environmental matters and other ancillary functions related to the enforcement of the terms of the EDPA (Articles 8(4)(a)-(g), EDPA). MEPA was empowered to "issue any license or permit that may be required by or under this Act under such conditions as it may, subject to any other provision of this or any other law, deem necessary to control and manage activities having an impact on the environment" (Article 8(3)(d), EDPA).
In 2016, new law was enacted that effectively replaced the EDPA. Three (3) Acts of Parliament have been passed, namely:
- the Development Planning Act, 2016 ("New Planning Act");
- the Environment Protection Act, 2016 ("New Environment Protection Act"); and
- the Environment and Planning Review Tribunal Act, 2016 ("New Review Tribunal Act").
Insofar as environmental law is concerned, the new law did not bring major changes to the applicable substantive law which continues to be regulated by the various regulations that were previously promulgated under the EDPA. Essentially, what the new law does is provide for a 'demerger' of MEPA such that the 'planning regime' is now administered by a new Planning Authority (the "PA") with responsibility for building and sanitary matters, while environmental protection, previously the responsibility of the Environment Directorate within MEPA, is now assigned to a newly established autonomous entity, namely, the Environment and Resources Authority (the "ERA") (Article 7(2)(a) of the Development Planning Act, 2016 et seq. Vide Parliamentary Secretary for Planning and Simplification of Administrative Process: For an Efficient Planning System – A Consultation Document (2014)). Reflecting this, the New Planning Act is concerned solely with land use while the New Environment Protection Act deals primarily with the management of the environment and natural resources. Simply put, the responsibilities previously undertaken by a sole authority, MEPA, are as from 4 April 2016 being assumed by two (2) distinct authorities that are to function independently from each other.
The new law also provides for the setting up of an Environment and Planning Review Tribunal with a mandate to hear and determine appeals from decisions taken by either of the two (2) Authorities. Other entities that have emerged as a result of the recent demerger of MEPA are the Regulator for Energy and Water Services (the "REWS") which to a degree takes over the functions of the Malta Resources Authority (the "MRA") and the Sustainable Energy and Water Conservation Unit (the "SEWCU").
The planning and environmental duties of the Government of Malta previously provided for in the EDPA have been generally mirrored in the new legislation. Like the EDPA, the New Environment Protection Act states that it is the duty of everyone together with the Government to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner. The Act also enshrines the principle that it is the Government's duty to protect the environment for the benefit of present and future generations.
The ERA is a statutory authority, independent of the Government. It is active in matters concerning the protection of the environment and as such has the leading role. Invariably, enforcement of environmental law is principally carried out by the ERA through the hand of its enforcement officers. The stated mission of the ERA is "to safeguard the environment for a sustainable quality of life". Various aspects of environmental law enforcement, however, fall (occasionally, jointly with the ERA) within the portfolio of other State entities, such as the Authority for Transport in Malta, the Executive Police and the local wardens.
Following Malta's accession to the EU in 2004, Malta has transposed EU environmental legislation and community environmental law is a further source of Maltese environmental law and policy.
The Strategic Plan for the Environment and Development ("SPED"), which was approved by Parliament in July 2015, is the official recognised document which addresses the spatial issues for the Maltese Islands in the coming years. The SPED, which has replaced the 1990 Structure Plan for the Maltese Islands, is based on an integrated planning system that regulates the sustainable use and management of land and sea resources. This is a shift in the way strategic planning is carried out in the Maltese Islands from traditional land use planning to a more holistic spatial planning approach. The Plan provides a strategic spatial policy framework for both the environment and development up to 2020, complementing the Government's social, economic and environmental objectives direction for the same period. The SPED is based on an integrated planning system which: (i) ensures the sustainable management of land and sea resources together with the protection of the environment; and (ii) guides the development and use of land and sea space. One must always remember that Malta is one of the most densely populated countries in the world and the sustainable use of land is one of its most pressing priorities. The basic objective of environmental and planning law in Malta is that of optimising the physical use and development of land which respects the environment and, at the same time, ensuring that the basic social needs of the community are, as far as is practical, satisfied.
The Malta Resources Authority is a public corporate body set up in 2000 through the Malta Resources Act to regulate water, energy and mineral resources, to promote energy efficiency and renewables, and with responsibilities in oil exploration and climate change. The Regulator for Energy and Water Services Act, 2015, changed the MRA's responsibilities mainly to registration and metering of boreholes, mineral resource regulation climate change reporting and operation of the emissions trading scheme.
Grant schemes, swimming pool licences and energy and water services licences are among the functions of the new regulator established under the Regulator for Energy and Water Services – REWS.
Energy efficiency, renewable sources of energy, the water framework regulations (inland waters) and protection of groundwater are among the functions of the Sustainable Energy and Water Conservation Unit.
The Malta Competition and Consumer Affairs Authority Act is also relevant as it is the basis on which (among other things) registration, evaluation, authorisation and restriction of chemicals (REACH as per EC Directive 1907/2006) is administered in Malta through the Technical Regulations Division of the Malta Competition and Consumer Affairs Authority ("MCCAA").
Other relevant bodies within the context of Maltese environmental law and policy include the Ministry for Sustainable Development, the Environment and Climate Change ("the Ministry"), which is responsible for, inter alia, sustainable development, climate change policy, environmental policy, waste management strategy, national parks, afforestation and the countryside, rural development, agriculture and horticulture, amongst other things.
The Authority for Transport in Malta seeks to promote and develop the transport sector in Malta by means of proper regulation and by the promotion and development of related services, businesses and other interests both locally and internationally. The newly enacted Authority for Transport in Malta Act, which came into force on 1 January 2010, divides the Authority into various "directorates". The Ports and Yachting Directorate is responsible inter alia for the prevention and control of marine pollution.
There are other bodies with specific tasks such as the Parks, Afforestation and Rural Conservation Department ("PARK"). The Directorate is responsible for afforestation and the management of various afforestation and recreational sites in Malta. The Directorate runs the 34U Campaign (tree adoption scheme), educational programmes and organises tree-planting activities for the promotion of public awareness on the importance of indigenous trees and flora.
The Strategic Environmental Assessment Focal Point has also replaced what used to be the Strategic Environment Assessment Audit Team (LN497/2010) and took on its function of overseeing the implementation of the new SEA regulations of 2010, which implements the EU SEA Directive (Directive 2001/42/EC). The SEA Focal Point is the Competent Authority for the Strategic Environmental Regulations 2010, which replaced the old 2005 SEA Regulations. The purpose of these Regulations is to provide as much information as possible to keep all interested parties up to date with the progress registered on plans and programmes which have been referred to the SEA Focal Point and for which a decision as to whether a SEA is required or has not been taken.
WasteServe Malta Ltd. is responsible for providing waste management infrastructure, which it administers at a national level.
1.2 What approach do such agencies/bodies take to the enforcement of environmental law?
In a country such as Malta with a high population density, decades of environmental inaction and a high dependence on tourism, the need to ameliorate environmental awareness, protection and enforcement is paramount. The authorities are fully aware of this. Within the last decade we have seen a notable increase in enforcement, with some difficult decisions needing to be taken between the protection of the environment on the one hand and the need, on the other hand, to ensure that development is sustained and that the requirements of the country are not stifled. Although the general perception is that environmental enforcement still has a long way to go, a more objective analysis is that in recent years, progress has been achieved and enforcement has indeed been strengthened. Enforcement of environmental law in Malta remains a highly contentious subject – not least given Malta's population density. Environmental authorities frequently organise campaigns intended to disseminate information that demonstrates the benefits of environmental protection and serves to sensitise the population to various environmental issues.
1.3 To what extent are public authorities required to provide environment-related information to interested persons (including members of the public)?
Malta ratified on the 23 April 2002 the UNECE Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters. Following accession to the EU, Malta transposed Directive 2003/4/EC of the European Parliament and the Council on public access to environmental information. Maltese legislation, in force since 17 May 2005 (SL549.39), guarantees the right of access to environmental information held by or for public authorities. The legislation also ensures that environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination.
The authorities may refuse to provide the requested environmental information if the request is: unreasonable; too general; concerns internal communications or concerns material in the course of completion, or unfinished documents or data. The authority may also refuse to provide environmental information if disclosure of the information would adversely affect:
- international relations, public security or national defence;
- the course of justice;
- intellectual property rights;
- the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned; or
- the protection of the environment to which such information relates, such as the location of rare species.
As part of its commitment towards regular publication of environmental information in a form that is easily accessible and user-friendly, MEPA (ERA's predecessor) published regular 'state of the environment' reports (which are also available online), fulfilling its obligation under Maltese law that requires it to publish a 'state of the environment' report every four years. ERA will continue in MEPA's footsteps. In the past, MEPA went beyond this requirement by also publishing annual updates of the key environmental indicators used in the report. The annual reports allowed the public to keep abreast of environmental trends, while having access to more long-term, detailed information and analysis in the tri-annual 'state of the environment' reports.
Interestingly, legislation is now moving away from the right to obtain information towards the right to be informed. Recent legislation imposes an obligation on the environmental authorities to ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of certain plans or programmes that have environmental repercussions; the Integrated Pollution Prevention and Control (IPPC) Regulations, 2002 (LN 234/02), as amended by LN 230/04; the Control of Major Accident Hazard Regulations, 2003 (LN 37/03), as amended by LN 179/15; the Environmental Impact Assessment Regulations, 2007 (LN 114/07); the European Pollutant Release and Transfer Register Reporting Obligations Regulations, 2007 (LN 152/2007); and the Strategic Environmental Assessment Regulations (SL549.61; the Plans and Programmes (Public Participation) Regulations, 2006 (SL549.41) that implement the provisions of article 2 of Directive 2003/35/EC of the European Parliament and of the Council of 26 May, 2003 and the Water Policy Framework Regulations (SL549.100) also provide for specific public participation mechanisms in environment-related matters.
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Previously published in the International Comparative Legal Guide
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.