EU-UKRAINECIVIL SOCIETY PLATFORM

ПЛАТФОРМА ГРОМАДЯНСЬКОГО

СУСПІЛЬСТВА УКРАЇНА-ЄС

4th Meeting, EU - Ukraine Civil Society Platform, Brussels, 18 May 2017

ENVIRONMENTAL PROTECTION IN THE EU - UKRAINE ASSOCIATION AGREEMENT

Authors: Natalia Andrusevych, Resource and Analysis Center “Society and Environment”, RG5 Coordinator, Hanna Vronska, Foundation for the Sustainable Development of Ukraine, Tetiana Hodovska, NGO “Center for Modern Innovations”, Hanna Holubovska-Onisimova, Ukrainian National Environmental NGO “MAMA-86”, Oleh Perehon, NGO “Zeleny Front” (Green Front), Halyna Protsiv, Environmental Club “Krai” (Country), Anna Tsvetkova, Ukrainian National Environmental NGO “MAMA-86”.

I. MAJOR CHALLENGES PRESENTED BY THE IMPLEMENTATION OF THE ASSOCIATION AGREEMENT ENVIRONMENTAL COMPONENT

The implementation of the Association Agreement (AA) environmental component should be subject to the goal of reforming the environmental management system to improve the environmental condition and protection in Ukraine and to transit to sustainable development. Therefore, it is important to pay constant attention to the strategic level of environmental reforms and not just the technical issues of implementation of annexes and directives. A number of challenges arise in the course of the implementation of the AA environmental component that need to be analysed so as to minimise or avoid them during the further implementation of the AA.

(1) Challenges to strategic approaches One of the reasons behind the insignificant progress in the implementation of the AA environmental component is the non-priority status of environmental issues on the agenda of both the Government and the Parliament. Despite the serious environmental problems and cross-cutting nature of environmental issues, economic, financial, energy and social issues are always more important. The package of EU requirements for Ukraine included environmental obligations only once. However, it was just at the implementation stage of the Association Agenda (the requirement to

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prepare a comprehensive environmental policy strategy in the so-called Füle Matrix 1), but since the signing of the Association Agreement there have been no environmental requirements in any packages, such as the visa one.

Such an approach is clearly seen in strategic planning at the national level. For example, environmental issues had no “separate” goal in the draft Government Medium-Term Action Plan up to 2020 (2017)2. They were included in the “Efficient Governance” and “Security and Defense” sections.

The existence of a strategic vision in reforming the environmental sector in general and its particular divisions is especially important. Realising the magnitude of the current problems and related reform objectives, “selective” reforms may be considered appropriate to overcome the most pressing problems. However, this approach can only lead to fragmented reforming that will not be properly applied in the country due to neglect of certain features of the national system and reforms in other relevant areas. A good example in this context, with proper implementation, may be the waste sector, where first a waste management strategy is developed and as a next step the development and adoption of specific regulations necessary for implementation of the directives listed in the “Waste and Resource Management” section. The Ministry of Ecology and Natural Resources of Ukraine has started using this approach: firstly, policy analysis, prioritisation, concept, and strategy followed by the development and adoption of specific regulations. At the same time, the situation with the main instrument of environmental policy - Environmental Policy Strategy of Ukraine, which has been permanently under review since early 2015, remains critical. Thus, the current goals and objectives of the Strategy are ignored and no new goals are adopted.

The European integration process, including AA implementation, must be consistent with other reforms taking place in the country in certain areas. That is, AA implementation should facilitate the implementation of progressive pro-European reforms. The reforms, in turn, should comply with best European practice and should apply European norms and standards, including with regard to good governance. Good environmental governance requires a transformation of the environmental management structure into a highly integrated and inclusive system involving all interested parties, which will make and implement high quality solutions based on publicly available information. The harmonisation of the procedures for public participation in strategic decision-making commenced by the Ministry of Ecology and Natural Resources of Ukraine is a positive step.

It is also necessary to pay attention to ensuring that all environmental provisions in the AA are implemented, and not only the legislation approximation procedure. The provisions in Chapter 6 are extremely important in terms of reforming the environmental sector, and the environmental issues included in the scope of free trade are important because of the need to implement certain environmental standards and assess the impact of trade on sustainable development in Ukraine.

Not all directives and regulations adopted by and implemented in the EU are included in the list of those required for implementation in Ukraine, despite the fact that the issues they cover are pressing matters for Ukraine. In this context, we may mention the Registration, Evaluation, Authorisation and Restriction of Chemical (REACH) regulation.

It is important to develop national documents aimed at institutional, organisational, and substantive implementation of the AA. In this context, the Order of the Cabinet of Ministers of

1 http://www.kmu.gov.ua/control/publish/article?art_id=243877832

2 http :// www . kmu . gov . ua / control / uk / publish / article ? art _ id =249634799& cat _ id =244828445

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Ukraine of 2014 “On the Implementation of the Association Agreement between Ukraine, of the one Part, and the European Union, the European Atomic Energy Community and their Member States, of the other Part”, which stipulates a number of implementation measures, is an important document. However, despite its periodic updates, the action plan should be substantially revised with a view to updating it and include the issues that were missed (e. g., the Plan stipulates no measures aimed at implementation of the provisions of Chapter 6 of the AA, but only specific directives) as well as indicators of the measures of performance. It should also take into account the challenges and obstacles to implementation.

Other important planning documents are the implementation plans for each specific directive or regulation analysing the situation with the level of implementation of certain provisions and including a list of rule-making, institutional, organisational and other measures necessary for the implementation. These plans were a good start for a successful process. However, the deadlines for their implementation have not been met and some plans contain errors, so they also need updating.

(2) Challenges to institutional issuesThe issue of providing institutional support for implementation of the AA is important provided certain bodies responsible for the implementation, proper distribution of powers between the authorities and their cooperation and coordination, as well as the availability of financial, human and other resources, are vested with the necessary authority. Implementation of the Agreement, including in the environmental area, is constantly fraught with various institutional challenges, which, if tackled successfully, could speed up the implementation process, making it more efficient and effective.

The main body responsible for the implementation of the AA environmental component is the Ministry of Ecology and Natural Resources of Ukraine, which is the top performer of most plans implementing environmental directives and regulations. However, it is important to note that the provision of an integrated approach to environmental management is the responsibility of the entire Government for the efficiency of environmental reform; and without this the relevant ministry will not be able to implement the necessary changes. This, inter alia, relates to the specifying of the necessary human and financial resources and the mechanism for reviewing them, since although the Ministry of Ecology is responsible for the adaptation and implementation of the greatest number of EU directives and regulations among all the sectors of the Agreement, its resource base remains insufficient. It is necessary to strengthen the institutional capacity and allocate such a priority as paramount for the dialogue between the parties.

It is also important to point out the need for effective cooperation between the Ministry of Ecology and other central authorities which are listed as being co-responsible for the implementation of this or that directive. In addition, the environmental unit contains a number of directives to be implemented by other bodies, yet the environmental component necessitates close cooperation with the Ministry of Ecology for the timely and effective implementation of such directives.

The Government Office for European and Euro-Atlantic Integration should be the platform for dialogue and cooperation between different authorities. The Government Office is charged with another important duty: to provide its opinion on statutory compliance with Ukraine's obligations in European integration, including international legal commitments, and EU law. Therefore, the Government Office should have sufficient expertise in environmental matters so that such opinions are not a formality but truly ensure compliance with EU law. The appointment of a separate Vice Prime Minister for European and Euro-Atlantic Integration was politically important.

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The issue of the Parliament’s competence with regard to analysing EU integration bills submitted by the deputies is of special concern. Although each bill is subject to review by the Main Academic Expert Department and the Main Legal Department, the issue of compliance of such a bill with the relevant EU directives or regulations remains.

(3) Challenges to the approximation processThere are objective limits to implementation, i.e. specific conditions that complicate the implementation of EU norms and standards in Ukraine since Ukraine is not an EU member state and currently is not a candidate for EU accession. Therefore, the process of their implementation in Ukraine differs considerably from equivalent processes in the Member States or candidate states.

The institutional challenges are associated with the specific aspects of the reporting mechanism used by the Member States to report on progress in the implementation of directives, of the supervisory functions of the European Commission and the Court of Justice concerning the Member States’ non-compliance with the EU law, cooperation with the Member States and the need to take joint actions, as well as the creation of special bodies to assist in implementation. In particular, the directives provide for a reporting mechanism to the European Commission for member States as regards specific measures and the implementation of the directive as a whole. The mechanism for reporting on AA implementation is inadequate. In addition, a number of directives provide for the establishment of special bodies that support and assist EU Member States in the implementation. Ukraine is not able to use the results of such bodies or be involved in their work. The implementation process in Ukraine is deprived of the traditional control function of the Commission and the proceeding supervision of the Court of Justice.

Challenges related to the legal nature of the sources of EU law concern the special aspects of the application of EU regulations, the need to take into account the decisions of the Court of Justice of the European Union as a source of EU law, inclusion of international obligations of the EU Member States and the EU itself into relevant directives and regulations, as well as the wording of certain provisions in EU acts. Given the legal nature of the regulation as a source of European law, its implementation in Ukraine requires special approaches, other than the implementation of directives. The provisions contained in the directives sometimes apply only to the Member States of the European Union; their immediate implementation is impossible, especially where they refer to setting the goals, the scope of the directive or the powers / duties of Ukraine as a state. Ignoring the practice of the Court of Justice may lead to something like a “Ukraine-specific” EU law emerging. However, taking into account the decisions of the Court of Justice in the implementation of the acquis communautaire in Ukraine is not directly provided for by either the bilateral agreement between Ukraine and the EU or the national legislation of Ukraine (except for certain provisions on the free trade zone).

Technical challenges regard the quality of translation of the EU acts and the need to ensure the implementation of the latest (most recent) EU directives / regulations in Ukraine. EU legislation in all areas is a dynamic and not a steady process. No implementation mechanism has been provided for the latest versions of acts and for involving Ukraine in debates on the most pressing issues in a particular area. In these conditions, Ukraine will always “hurry after” the EU and will not have the proper level of implementation of legislation in a particular area. To ensure the effective implementation of the directives in Ukraine, accurate translation of the terms of the European legislation or their adequate substitutes, if no such terms exist in the Ukrainian language, is required.

II. REVIEW OF THE IMPLEMENTATION OF CHAPTER 6 OF THE EU -

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UKRAINE ASSOCIATION AGREEMENT

The Association Agreement is a powerful incentive for reforming the environmental policy based on present-day principles, as well as for ensuring its integrated nature and efficiency. EU - Ukraine cooperation in the framework of the Association Agreement is crucial for the success of the reform of environmental governance, which requires fundamental changes to the approach to policy planning, development and adoption of legislation, transforming environmental institutes and management principles, adequate resources, and reaffirming the political commitments to make environmental and climate change issues a priority on the country's agenda.

Chapter 6 of the Agreement (“The Environment”) outlines the main areas of cooperation to introduce changes to the existing environmental governance and is crucial to understanding the strategic essence of environmental reforms. As of 1 November, 2014, provisional application of certain sections / articles of the Agreement began, including Chapter 6, with the exception of Articles 361, 362(1)(c), 364, 365(a), and 365(c)3. However, hoping that the ratification process will be completed in the near future and the Association Agreement will take full effect, such important issues as strategic planning with regard to environmental and climate policy implementation cannot remain unaddressed at this stage of implementation of the Agreement.

In particular, Article 361(a) contains a commitment to develop the “comprehensive strategy on environmental issues”. Currently, the status of the main environmental policy documents (State Environmental Policy Strategy of Ukraine4 and the National Action Plan5, which would be the main instruments for ensuring appropriate reforms) remains uncertain. The Strategy adopted (in 2010) the goals of the State Environmental Policy of Ukraine until 2020. With a view to updating the objectives and their coordination with the international obligations of Ukraine (including under the Agreement), their implementation6 was analysed and the appropriate adjustments were made in 2014-2015. After a number of departmental approvals and public discussions, neither of the documents with the proposed changes has been submitted to the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine for review. In 2017, the Ministry of Ecology again updated the content thereof to conform to recent changes in international politics and national legislation. However, the procedure for completion of consultation, coordination and adoption obviously requires a significant acceleration.

The scheduled institutional reforms have so far been implemented on an individual basis. We are in the process of reforming the State Environmental Inspectorate by means of its abolition and the creation of a new body – the State Environmental Service of Ukraine (DerzhEkoBezpeka)7 – a single supervising authority in the environmental area (instead of the existing seven) and the transfer of all supervisory functions to the newly established body, including in its competence the requirements of Directive 2010/75/EU on industrial emissions and the implementation of environmental monitoring functions.

3 Note Verbale of the General Secretariat of the EU on the provisional application of the Agreement//

http://www.kmu.gov.ua/control/uk/publish/article?=1&art_id=247667894&cat_id=223223535 4

The Law of Ukraine “On the Fundamental Principles (Strategy) of the State Environmental Policy of Ukraine until 2020” // http://zakon3.rada.gov.ua/laws/show/2818-17 5

Resolution of the Cabinet of Ministers of Ukraine “On Approval of the National Action Plan for Environmental Protection for 2011-2015” // http://zakon2.rada.gov.ua/laws/show/577-2011-%D1%80 6

Assessment of Implementation of the State Environmental Policy Strategy of Ukraine until 2020 and the National Action Plan for Environmental Protection for 2011-2015. // http://www.menr.gov.ua/press-center/news/150-news28/3362-otsinka-vykonannia-stratehii-derzhavnoi-ekolohichnoi-polityky-ukrainy-na-period-do-2020-roku-ta-natsionalnoho-planu-dii-z-okhorony-navkolyshnoho-pryrodnoho-seredovyshcha-na-2011-2015-roky 7

The Concept of Public Environmental Supervision (Control) System Reformation // http://www.menr.gov.ua/press-center/news/123-news1/5358-kontseptsiya-reformuvannia-systemy-derzhavnoho-nahliadu-kontroliu-u-sferi-okhorony-navkolyshnoho-seredovyshcha-v-ukraini

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The issue of distribution of powers between national, regional and local environmental authorities is under transformation. Most modern environmental governance issues (from legal support to the proper organisation of environmental monitoring) result from unjustified administrative reforms of the last decade. These include the abolition of the territorial offices of the Ministry of Ecology8 and transfer of their powers to Regional State Administrations, which led to the breakdown of the environmental connections between the centre and the regions, thus undermining the influence of both the Ministry of Ecology at the national level and that of local nature conservationists.

As for decision-making and implementation to ensure good environmental governance, the problem of effective public engagement, which is a potentially powerful mechanism for integrating environmental policy with sectoral policies and an instrument to improve the quality of public decisions, deserves special attention. Unfortunately, such dialogues are just occasional at the moment and need better structuring and coordination on the part of the Ministry of Ecology.

As for the procedure facilitating the integration of environmental policy in other areas of national policy, it requires legislated changes in strategic planning, as currently the requirement for the integration of environmental policy into sectoral policies is not mandatory for consideration. The latest planning documents9 do not provide for the introduction of the environmental component to the sections on policy implementation in the transport, energy, agriculture, tourism, economic development, and national security sectors. The main mechanisms to ensure environmental policy integration, i. e. draft laws on Strategic Environmental Assessment (SEA) and Environment Impact Assessment (EIA), are being approved with major obstacles. Integrated environmental governance is a prerequisite for the transition to a green economy and it should ensure participation, transparency, accountability and better integration of environmental policy.

As for the development of sectoral strategies prior to the stage of drafting legislative acts, the first draft of the National Strategy for Waste Management10 has been developed. After the adoption of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning the Implementation of Integrated Approaches to Water Management by Basin Principle”, the priority is in building a long-term development strategy for the water sector. To this end, it is planned to initiate a National Dialogue on water policy, to draft and adopt the Concept of Reforming the State Water Resources Agency of Ukraine, as well as to develop and adopt the appropriate Water Policy Strategy at a later stage and in accord with the results of the National Dialogue. As for other topics to be the scope of the Strategies (improving air quality; the marine environment; nature protection; industrial pollution and industrial accidents), we are working on preparing components for the strategies and search for partners to perform the relevant works.

Significant assistance with the implementation of environmental reforms is provided by regional technical assistance projects funded by the EU and its Member States: EAP GREEN, SEIS, CLIMA EAST, EUWI II and the Emerald Network, aimed at the 6 EaP countries. The outstanding milestone in the regional cooperation in the framework of the Eastern Partnership (EaP) was the adoption of the Declaration on Environment and Climate Change by the Ministers of the EU Member States and the Eastern Partnership countries. Ukraine is actively involved in the preparation of a regional plan for the implementation of the Declaration and should also decide on its national measurement.

8 Decree No. 159 of the Cabinet of Ministers of Ukraine dated 13.03.2013 “On Liquidation of Territorial Bodies of the Ministry of

Environmental Protection” // http://zakon3.rada.gov.ua/laws/show/159-2013-%D0%BF 9

Draft Government Medium-Term Action Plan until 2020 // http://www.kmu.gov.ua/control/uk/publish/article?art_id=249634799&cat_id=244828445 10

http :// www . menr . gov . ua / garbage /5440- anatovana - struktura - natsionalnoi - stratehii - povodzhennia - z - vidkhodamy - vynesena - na - hromadske - obhovorennia

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EN

The Paris Agreement11 has entered into force. Among other states, it was ratified by Ukraine in 201612. The implementing decisions of the Paris Conference of the Parties (CP 21) provide for a number of “early“ measures to be taken before 2020, aimed at forming a new international climate law, reducing greenhouse gas emissions and adapting to climate change, increasing national contributions of the parties, as well as at launching early effective mechanisms of interstate cooperation. Implementation of the Association Agreement in Ukraine, particularly of its trade part, and Chapter 1 (“Energy”) and Chapter 6 (“Environment”), creates the preconditions for the Common Pan-European Energy and Climate Space, which will include Ukraine and other members of the pan-European energy and climate community, in addition to the EU and EEA 13. Article 365(c) provides that the objectives of cooperation in matters related to climate change be specified in Annex XXXI. However, the provisions thereof are obsolete and do not comply with current EU legislation and policies, international agreements and initiatives in this area. The aforesaid Annex must be subject to substantial revision.

ІІІ. ANALYSIS OF THE PROCESS OF ADAPTATION OF UKRAINIAN ENVIRONMENTAL LEGISLATION TO EU LAW

At present, the implementation of Chapter 6 – ‘Environment’ - of the Association Agreement (‘AA’) is focused mainly on the approximation of Ukrainian legislation with EU environmental law in accordance with Annex XXX to the agreement. The Annex itself contains a detailed list of 29 directives and regulations in 8 main areas. The Agreement also sets out a timetable for the implementation of each EU act, which is an obligation under the agreement.

The adaptation process is at the planning stage and, in part, at the development stage for the necessary regulatory acts. The AA Implementation Action Plan14 is focused on environmental issues as regards the approximation of legislation with EU law, and it has also introduced ‘development and submission of draft regulatory acts to the Cabinet of Ministers of Ukraine’ for the implementation of directives and regulations. There were attempts in 2016 by the Government Office for European Integration to amend the Action Plan but necessary changes are still lacking.

The greatest achievement to date is the development and approval of implementation plans for each specific directive and regulation15. An important element of the implementation plans, along with a brief description of the status of implementation, their purpose and objectives, includes a list of policy-making, institutional, organisational and coordination measures for the implementation of the directives / regulations. However, these plans have not been implemented, and most of the deadlines set by their provisions have already been missed. Experts stress the need to update the plans, since they contain inaccuracies, in particular, as regards the translations of terms, and do not provide all the measures necessary for the implementation of the directives / regulations. This concerns, inter alia, nature protection and the quality of atmospheric air.

During 2014-2016, the primary focus in the implementation process was on environmental management and environmental policy integration in other sectorial policies, in particular, on introducing Environmental Impact Assessment (‘EIA’) and Strategic Environmental Assessment (‘SEA’) in Ukraine, but no relevant regulatory acts were adopted. The water quality and the water resources management sectors can be considered as the most successful because of the adoption of necessary legislative changes regarding the introduction of integrated approaches to water

11 http :// unfccc . int / files / essential _ background / convention / application / pdf / english _ paris _ agreement . pdf

12 http :// zakon 3. rada . gov . ua / laws / show /1469-19

13 The idea of such a pan-European space was suggested in 2005 by the scientists of the Centre for European Policy Studies (CEPS),

Brussels.

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management by river basin principle. Waste reforms started with the development of the National Waste Management Strategy and the adoption of necessary legislation in this area should be the next step.

(a) Environmental Management and Environmental Policies Integration into Other Sectorial PoliciesThe main activity in this area for the period 2014-2016 focused on introducing a European model of EIA and SEA in Ukraine that would comply with the provisions of EU directives through the development and adoption of necessary draft laws16. The introduction of EIA and SEA will ensure that projects, plans and programmes which are likely to have significant environmental impacts are assessed and, accordingly, will contribute to reducing the negative effect on the environment. However, despite the work done by both the Ministry of Ecology and Natural Resources of Ukraine and the Parliament, such important environmental policy instruments were not introduced because of the veto by the President of Ukraine. The terms defined by the AA for the implementation of Directives 2011/92/EC and 2001/42/EC have already been missed, Ukraine’s breach of its obligations to introduce EIA into its legislation has become the basis for the initiation of proceedings by the Energy Community Secretariat17. In accordance with the Treaty establishing the Energy Community (Article 92), in the event of a persistent breach of obligations, the Ministerial Council may suspend voting rights and exclude from meetings or mechanisms provided for in this Treaty.

Implementation of Directive 2003/4/EC and 2003/35/EC is closely linked with the implementation of the provisions of the Aarhus Convention18. The introduction of the Directive on Public Access to Environmental Information does not require systemic changes to the legislation (definition of environmental information, definition of public authority, failure to refuse a request where it relates to information on emissions into the environment). A working group within the Ministry of Ecology and Natural Resources has developed a draft law on introducing necessary changes to the legislation, but the text has not yet been made available to the public. Almost full implementation of the Directive providing for public participation in the development of certain plans and programmes relating to the environment should have been ensured by the Law of Ukraine ‘On SEA’, but this was vetoed by the President of Ukraine.

The implementation of the directives of this section remains a top priority of the environmental reform agenda in Ukraine, as the development and adoption of important strategic documents in Ukraine continues to be carried out without environmental impact assessment procedures and public participation. In particular, the adoption, in 2016, by the Cabinet of Ministers of Ukraine of the Hydropower Development Program until 202619, which was also adopted in defiance of the opinion of the Ministry of Ecology and Natural Resources20, is a fine example in this respect.

14The Action Plan on Implementation of the Association Agreement Between Ukraine and the European Union and its Member States for the Years 2014-2017 was approved by virtue of Resolution of the Cabinet of Ministers of Ukraine No. 847-r dated 17 September 2014 рр // http://zakon5.rada.gov.ua/laws/show/847-2014-%D1%80

15Implementation Plans of 20 EU Legislative Acts were approved by Resolution No 371-r dated 15 April 2015 of the Cabinet of Ministers of

Ukraine, and Implementation Plans of 6 EU Legislative Acts were approved by Resolution No. 475-r dated 14 May 2015.16

The Draft Law of Ukraine “On Environmental Impact Assessment” (No. 2009a-d) // http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=58257 The Draft Law of Ukraine “On Strategic Environmental Assessment” (No. 3259) // http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=56730 17

https://www.energy-community.org/portal/page/portal/ENC_HOME/AREAS_OF_WORK/Dispute_Settlement/2016/1318

Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters // http://zakon3.rada.gov.ua/laws/show/994_01519

Resolution by the Cabinet of Ministers of Ukraine ‘On Approval of Hydropower Development Program until 2026’ // http://zakon2.rada.gov.ua/laws/show/552-2016-%D1%8020

http://menr.gov.ua/press-center/news/123-news1/5110-minpryrody-vyslovylo-svoiu-pozytsiiu-shchodo-prohramy-rozvytku-hidroenerhetyky-na-period-do-2026-roku

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(b) Air QualityImplementation of the directives of this section will affect the air quality standards and air quality management. However, their introduction is at an early stage. At present, the suggestion is to optimise the existing monitoring system, switch from inter-agency monitoring to comprehensive assessments, create a single observation network and conditions for technical re-equipment of monitoring, and fulfil the international obligations with regard to provision of environmental information21. According to the concept, such activity is closely linked to introduction of effective monitoring of emissions and discharges, but it has not yet been approved and has only passed the stage of public discussion.

Most efforts were focused on the implementation of Directive 2008/50/EC on ambient air quality and cleaner air for Europe. Methodological recommendations for the development of air quality plans for zones and agglomerations where the level of pollution exceeds the maximum allowable concentrations were developed but are not publicly available. There is no progress in the implementation of the directives on limitation of emissions of volatile organic compounds, and discrepancies found in the official translation of the directives will only complicate the implementation of this direction in the future.

With regard to the implementation of 98/70/EC Fuel Quality Directive, the liquidation of the MASMA State Research Institute for Crude Oil Refining and Petrochemical Industries, the main executor of most of the tasks provided for in the plan, has actually suspended further work on the implementation of the Directive. However, on 26 January 2017, the MASMA reorganisation process was cancelled by virtue of a decree of the Ministry of Energy and Coal Industry of Ukraine 22; therefore, the work on the implementation of the provisions of the Directive is expected to continue.

The implementation of the Directive on Reduction in the Sulphur Content of Certain Liquid Fuels is problematic, as the violation of the terms of its implementation has resulted in the initiation of proceedings by the Energy Community Secretariat. Developed in late 2016, the relevant draft resolution on amendments to the Technical Regulations Concerning Requirements to Motor Gasoline, Diesel, Ship and Boiler Fuels23 for the reduction of sulphur content, developed in late 2016, could have been a solution to the problem situation; however, it has not been approved. Instead, the government adopted a resolution that allowed the production and circulation of boiler fuel (fuel oil) with sulphur content of more than 1%24 until 31 December 2017, which would clearly not contribute to the implementation of the Directive.

(c) Waste and Resources Management

21The state environmental monitoring system reforming concept // http://www.menr.gov.ua/public/discussion/3988-proekt-kontseptsiyi-

reformuvannia-derzhavnoi-systemy-monitorynhu-dovkillia22

http://www.document.org.ua/pro-pripinennja-reorganizaciyi-derzhavnogo-pidpriemstva-nauk-doc296815.html23

Draft Resolution of the Cabinet of Ministers of Ukraine ‘On Amendments to Resolutions of the Cabinet of Ministers of Ukraine No 573 of 1 June 2011 and No 1927 of 1 August 2013’ // http://mpe.kmu.gov.ua/minugol/control/uk/publish/article?art_id=245160191&cat_id=35082 24

Resolution of the Cabinet of Ministers of Ukraine ‘On Amendments to Clause 2 of the Technical Regulation on Requirements to Automobile Gasoline, Diesel, Ship and Boiler Fuels’// http://zakon3.rada.gov.ua/laws/show/973-2016-%D0%BF

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The waste management reform began with the development of an integrated strategy25 in this area, rather than with the approximation of certain provisions of EU secondary waste legislation. The need for an integrated approach to waste matter is driven by the need to overcome the critical ecological situation caused by waste: its generation, accumulation, storage and management. In particular, the greatest risks are related to Types I-III of hazardous waste, unsuitable pesticides and agrochemicals, mining and petrochemical enterprises, energy and military-industrial complex toxic waste, medical waste, agricultural waste.

The proposed strategic model involves general provisions and regulations for certain types of waste, namely: solid household waste, industrial waste, construction waste, hazardous waste, agricultural waste, and special types of waste (waste electrical and electronic equipment). Waste hierarchy guidance was defined in accordance with the general principles for regulating the scope of waste management reflected in the strategy: the ‘polluter pays’, the ‘user pays’ and ‘the principle of availability’, financial autonomy, inclusion of the private sector, neighbourhoods, self-sufficiency, sustainable development, integration.

The development of a strategy is a major step towards aligning policies and objectives concerning the quality of the environment and healthcare improvement with the approaches adopted in the EU. The approved strategy should become a basis for further reforms - development and adoption of a new version of the Law of Ukraine ‘On Waste’, a detailed plan of activities, adoption of the National List of Wastes26, and the development and implementation of regional strategies.

(d) Water Quality and Water Resources Management, including the Marine EnvironmentIn 2016, a law27 was adopted on the adaptation of legislation in this sector, which was a step towards approximation of the main provisions of Directive 2000/60/EC on establishing a framework for Community action in the field of water policy (the Water Framework Directive or, simply, WFD). It became the first European integration law to implement the environmental component of the Agreement. The law amended and updated the terminology related to integrated river basin management, including incorporating 17 terms out of 41 WFD definitions, as well as adding 7 other water-related terms not related to WFD. Most of the adapted WFD terms were taken directly from Article 2 ‘Definition’, but there are those that have undergone significant adaptation. The law approved the principles, structures and tools of basin management. However, the Law had no place for some fundamental things: the goal of the WFD (achieving an appropriate condition of water bodies), definition of environmental objectives, economic principles and financial instruments for implementation of the river basin approach. The functions and subordination of the River Basin Councils are criticised. The drafting of the State Water Resources Agency reform and the preparation of a water monitoring system are currently underway. In addition, the Ministry of Ecology and Natural Resources has published an annotated structure of the Marine Strategy of Ukraine for public discussion.At present, work is underway on the adoption of necessary by-laws - over 10 in total (procedures, methodology, sub-basins allocation, etc.), as well as the beginning of the National Dialogue based on the existing working groups operating within various state agencies.

(e) Nature Conservation

25Draft Proposal of the National Waste Management Strategy // http://www.menr.gov.ua/garbage/5632-tekhnichna-redaktsiia-proektu-

natsionalnoi-stratehii-povodzhennia-z-vidkhodamy-dlia-podalshoho-hromadskoho-obhovorennia 26

The Ministry of Ecology and Natural Resources has developed a Draft Resolution of the Cabinet of Ministers of Ukraine ‘On the National List of Wastes Approval’ // http://www.menr.gov.ua/normbaza/regulatory/554-proekty-rehuliatornykh-aktiv

27The Law of Ukraine No. 1641-VIII ‘On Amendments to Certain Legislative Acts of Ukraine Regarding Implementation of Integrated

Approaches to Water Resources Management by River Basin Principle’ dated 4 October 2016 // http://zakon0.rada.gov.ua/laws/show/1641-19

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In 2016, a number of regulatory acts pertaining to nature conservation and protection of the nature reserve fund were adopted; however, they do not ensure the implementation of both environmental directives or inclusion of 271 environmentally protected objects in Ukraine in the Emerald Network of Europe (in compliance with the requirements of the Berne Convention)28. The Birds Directive implementation plan does not include measures aimed at ensuring the establishment and operation of Special Areas of Conservation, as required by Article 4.2 of the Directive, the implementation of which is also required within the framework of the Energy Community. The Working Group, which operates within the Ministry of Ecology and Natural Resources, has developed a Draft Concept and a Draft Law ‘On Conservation of Natural Habitats and of Wild Flora and Fauna [of pan-European importance]’ for the implementation of environmental directives, the texts of which have not yet been made available to the public.

(f) Industrial Pollution and Man-Made HazardsThe primary focus in this area is on the implementation of Industrial Emissions Directive 2010/75/EC (Integrated Pollution Prevention and Control), which has two main components: reduction of emissions from large combustion plants and introduction of an integrated permit. For the first component, the Draft National Emissions Reduction Plan (NERP) from Large Combustion Plants29, which had been developed, discussed with the public and supported by the Energy Community Secretariat, is still on the agenda, but has not yet been approved by the government. The proposal is to bring NERP into effect in Ukraine for the period from 1 January 2018 until 31 December 2033 (16 years). NERP is designed to reduce sulphur dioxide (SO2), nitrogen oxides (NOx) and suspended solids emissions, not differentiated by composition (dust), from large combustion plants with a total rated thermal input of 50 MW or more, the emission permit for which had been issued before 31 December 2015. By the end of the NERP validity period, every combustion plant must comply with the requirements of Directive 2010/75/EC on emissions of the above-mentioned pollutants.

As for the second component, the Ministry of Ecology and Natural Resources was tasked to draft, until August 2016, the Law of Ukraine ‘On Integrated Permit’; however, there is presently no information regarding the progress in this respect. Adoption of the Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine Regulating Relations with Regard to Obtaining Permits (Concerning Special Water Use)’30 is also declared to be for the purposes of this Directive. However, the mentioned Law suggests simplifying the procedure for issuing permits for special water use only.

28http://www.kmu.gov.ua/control/uk/publish/article?art_id=249515281&cat_id=244277212

29http://mpe.kmu.gov.ua/minugol/doccatalog/document?id=244996563

30http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=56820

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(g) Climate Change and Ozone Layer ProtectionUkraine’s ratification of the Paris Agreement was an important event with regard to climate change. Any activity in this sector should now take into account Ukraine’s commitment to this international legal instrument, as well as the global climate change processes. The first step in this direction was the approval of the Concept of National Climate Change Policy Implementation until 203031, which defined the grounds for drafting regulatory acts, strategies and other documents necessary for the implementation of various components of the State Policy on Climate Change. The Concept’s objective is to improve the state policy on climate change in order to ensure sustainable development of the country, create legal and institutional prerequisites for gradual transition to low carbon development under the conditions of economic, energy and environment safety, and promote the welfare of citizens.

The Ministry of Ecology and Natural Resources has presented a road map for the implementation of a system for monitoring, reporting and verifying emissions of greenhouse gases and national emissions trading systems32. These mechanisms must be implemented in accordance with Directive 2003/87/EC. A road map offers a step-by-step approach for its implementation. According to the road map, successful implementation and operation of the monitoring, reporting and verification system is a prerequisite for further implementation of the national emissions trading system. At this point, based on the Concept of National Climate Policy until 2030, the Ministry of Ecology and Natural Resources is updating the implementation plan for Directive 2003/87/EC.

With regard to the regulation on ozone-depleting substances and fluorinated greenhouse gases, necessary legislation that would provide for bans on the use of controlled substances, such as hydro chlorofluorocarbons, a ban on the import of equipment that contains hydro chlorofluorocarbons, introduction of requirements for monitoring and verification of leakages of controlled substances, certification requirements for personnel and companies, as well as a procedure for fluorinated greenhouse gases treatment, has not yet been adopted. The Ministry of Ecology and Natural Resources has made a Draft Law of Ukraine ‘On Ozone-Depleting Substances and Fluorinated Greenhouse Gases’, but its text is currently unavailable. Regulation of ozone layer protection is currently being carried out under the Montreal Protocol on Substances that Deplete the Ozone Layer to which Ukraine is a party.

(h) Genetically modified organisms (GMO)Work within this sector in terms of policy-making should focus mainly on amendments to the terminology base, bringing the procedure for conducting the state sanitary and hygienic expertise in line with EU legislation requirements, developing a procedure for implementing follow-up monitoring, and on confidentiality issues. The main achievement in this area was the development of a new version of the Law of Ukraine ‘On the National Biosafety System for Generating, Testing, Transportation and Use of Genetically Modified Organisms’33 The Draft Law is currently undergoing inter-agency approval. For the purposes of public discussion, the Draft Law is published on the website of the Ministry of Ecology and Natural Resources.

The suggested Draft Law takes into account the requirements of the deliberate release into the environment and transboundary movement of GMOs under Directive 2001/18/EC and Regulation

31Resolution of the Cabinet of Ministers of Ukraine “On Approval of the Concept of National Climate Change Policy Implementation until

2030” No. 932-r dated 7 December 2016 // http://www.kmu.gov.ua/control/uk/cardnpd?docid=249573705 32

http://menr.gov.ua/press-center/news/123-news1/6113-ostap-semerak-v-ukraini-bude-zaprovadzheno-ievropeisku-systemu-torhivli-kvotamy-na-vykydy-parnykovykh-haziv

33http://www.menr.gov.ua/public/discussion/5769-proektu-zakonu-ukrainy-pro-derzhavnu-systemu-biobezpeky-pry-stvorenni-

vyprobuvanni-transportuvanni-ta-vykorystanni-henetychno-modyfikovanykh-orhanizmiv

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No 1946/2003, and also amends the Code of Ukraine on Administrative Offences and the Law of Ukraine ‘On the List of Permits Regarding Economic Activity’.

The basic changes suggested in the new edition are related to amendments to the definitions of particular terms or the introduction of new ones - in relation to the term GMOs, amendments to genetic engineering techniques, as well as non-genetic engineering techniques, addition of a definition of ‘environmental risk assessment’, and amendments to the definition of ‘GMOs circulation’. ‘Creation of an integrated system of notification and information for trans boundary movements of GMOs, promoting an adequate level of protection with regard to safe transportation, handling and use of GMOs that may have adverse effects on conservation and sustainable use of biological diversity, also taking into account risks to human health’ were added to the main principles of the state policy on GMO management. The consideration of the Draft Law included GMOs movement across borders, provisions for regulating GMOs circulation within a closed system, and amendments to the relevant powers of the Cabinet of Ministers of Ukraine and respective central executive authorities.

IV. ASSOCIATION AGREEMENT IMPLEMENTATION AT REGIONAL LEVEL

All the reforms that have currently been implemented with a view to implementing the environmental component of the Association Agreement have a regional (sub-national) context. Ukraine agrees to gradually align its legislation with EU legislation. However, without proper implementation and compliance at the regional level, such legislation may remain a document for internal use. Following the development and adoption of appropriate regulations in a given area, the local authorities will have powers defined by legislative acts or regulations that will have an effect on the implementation of the Association Agreement.

Considering the decentralisation process that is presently gaining momentum and will have a significant impact on the redistribution of powers in the coming years, the opinion of local authorities, especially in the context of the functions that they will be assigned, should be taken into account when developing the laws and regulations.

The inability of the public administration system to properly ensure the performance of the functions and exercise of powers in the field of environmental protection is a challenge that arises at the national, regional and local levels34. Currently, in the absence of a single vertical implementation of sector policies, local administrations are in charge of the implementation of national environmental policy at the regional level. There is no proper understanding of environmental integration between the areas of the environment, economic development, infrastructure, military and social spheres, etc. at either the national or regional levels. Local state administrations continue to use the definition of socio-economic development programs with no environmental component. Although local natural resources are used to ensure the functioning of regional infrastructure, economy, energy and other facilities and hazardous industries cause environmental damage.

When implementing the Agreement at the regional level, it is also necessary to take due account of the reform of the State Ecological Inspectorate. The concept of the reform provides, among other things, for boosting the efficiency of environmental control in the process of decentralisation by transferring certain environmental control functions to local communities (these may include: land contamination, control of the natural protected areas of local significance, hunting, poaching, waste

34 NGOs Report “Public Assessment of National Environmental Policy” for 2015 / ed. S. Shaparenko. – Kyiv: IE “Klymenko”, 2016. – P. 24.

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management) and by organisation of the institute of public inspectors for environmental protection (the so-called “environmental sheriffs”) at local communities.

Another important aspect of implementation is providing information about progress in European integrations, which has not yet become a major topic of discussion, or of plans and AA implementation activities at the regional level. The low level of the local authorities’ awareness of the process of implementation of the AA environmental component must be noted, as it currently focuses mainly on aligning certain sections of Ukrainian law with European standards. Local authorities are not involved in national policy development and law-making for the purposes of implementation of the AA environmental component. This may have a negative impact on the following stage, i. e. the stage of practical implementation of accepted standards.

V. PROPOSALS TO IMPROVE THE IMPLEMENTATION OF THE ENVIRONMENTAL COMPONENT OF THE ASSOCIATION AGREEMENT

Implementation of the environmental component of the Association Agreement is gaining momentum: there are certain achievements but certain obstacles are still in the way. However, both parties to the Agreement (Ukraine and the EU) can take steps to speed up the process and make it more effective.

Proposals re strategic approaches- For the Ministry of Ecology to publish the terms and procedures for completion of

consultations, coordination and adoption of the draft of the revised National Environmental Policy Strategy and the draft document itself.

- For the Ministry of Ecology to prepare a strategic vision of the environmental management institutional reform to build a unified system for implementation of the state environmental policy, with due consideration for the decentralisation processes, and to bring it up for discussion.

- With regard to the implementation of the AA environmental component, attention should be given not only to legislation approximation, but also to other provisions in the Association Agreement regarding environment, in particular, the Articles contained in Chapter 6, as well as to the provisions pertaining to implementation of the international environmental conventions and to the issues of sustainable development in the context of free trade zones.

- The issue of implementation of the Association Agreement environmental component should be listed among the priorities in the strategic government documents or the Parliament plans, taking into account the cross-cutting nature of environmental issues, little progress in the implementation of the environmental acquis communautaire, and the environmental situation in Ukraine.

- In implementing the Association Agreement, greater attention should be paid to the regional context, namely, to improving the information on the challenges and benefits of implementing the European legislation and the involvement of local authorities in policy development and on taking their interests into consideration while developing plans, programs, and legislation aimed at implementing the Association Agreement in terms of environmental protection.

Proposals regarding institutional issues and cooperation- In accordance with Article 366, to provide an ongoing dialogue under the principles of

openness, publicity and broad opportunities for public participation.- To publish the reports of the Ministry of Ecology on the implementation of the AA’s

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environmental component on the website of the Ministry or the government portal. - To intensify the work aimed at establishing an ongoing dialogue with interested parties,

including the wider public, on strategic issues concerning the environmental policy reforms. - Open a dialogue with the public regarding the preparation for the upcoming Eastern

Partnership Summit and the National Component of the Luxembourg Declaration Implementation Plan.

- It is necessary to strengthen institutional capacity for the proper implementation of the AA’s environmental component, including through suitable examination for compliance with EU law of the adopted laws and regulations.

Proposals on topical studies- The Cabinet of Ministers of Ukraine, the Ministry of Ecology and other relevant central

executive bodies should study the options for legislative consolidation of the environmental policy integration requirement with sectoral policies.

- To introduce to the agenda the proposals on implementation mechanisms for the EU sections and legislative acts relevant for Ukraine that are not included in the AA, including on the handling of chemicals (Directive on the Registration, Evaluation, Authorisation and Restriction of Chemical (REACH)).

- Bilateral and multilateral cooperation on climate should start simultaneously with the formation of a new package of normative decisions of the Meeting of the Parties to the Paris Agreement. Without effective technical and financial assistance from the EU and G7 states, Ukraine will not be able to effectively implement a proper climate policy.

- It is necessary to open an extended climate dialogue with the EU within the Ukraine-EU Civil Society Platform. It should be multi-level and should be implemented in various forms and between interested parties, including business associations, environmental associations of citizens, scientists and experts. The primary steps in this context are the development of the Climate Dialogue Agenda and formation of proposals on the Agenda for consultations on the new wording of Annex XXXI.

Proposals re legislation approximation- Acquis communautaire implementation plans, as well as the developed and adopted laws and

regulations, should be aimed at achieving the goals of the directives in a given area and not only at retransmitting certain provisions of the directives into Ukrainian law. Since the directive does not require a literal transfer of its provisions into the national law, the peculiarities of the national legal system should be taken into account for the purposes of its implementation and the exact mechanisms that would be effective when used in this country should be chosen.

- Problems associated with the legal peculiarities of the implementation of European standards in Ukraine need to be tackled, in particular, to provide for a special mechanism for implementation of the rules into the national legislation of Ukraine, to consider the availability of newer versions of the document, and to provide for a special reporting mechanism for each specific directive / regulations.

- Documents adopted to ensure proper implementation of the AA, namely the Action Plan and implementation plans for each specific directive or regulation should be updated in view of the current challenges and gained experience in the course of AA implementation.

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