Why do we need to deal with disaster risk reduction when there is a civil protection system?

24 грудня 2021

The current legal framework for disaster risk reduction (natural and technogenic emergencies) is not perfect. It is required to fill gaps and improve understanding of the complexity of disaster risk management. The Civil Protection Code of Ukraine (hereinafter – the CPCU) does not regulate state management mechanisms in this area adequately, as it does not apply to environmental safety settings, in particular, the extremely urgent issues of climate change.

Analysis and assessment of the existing regulatory practice shows a neglect of the legally established requirements in the field of safe environment, which is the primary duty of the state. A lack of relevant legal regulation is caused by lack of strategic and policy documents, which would contribute to the development and implementation of the principles of Sendai Framework Program for Disaster Risk Reduction [1] in the legal field of Ukraine.

It should be noted though that disaster risk reduction issues are not ignored in Ukraine, as the risk-based approach is recognized as an important tool for sustainable development and environmental safety. However, due to the lack of coordination, cooperation and communication among public authorities (both at horizontal and vertical levels), significant progress in the implementation of international commitments on disaster risk reduction and proper disaster risk management has not been achieved yet [2].

Importantly, environmental issues are an integral part of good disaster risk management. This situation is driven, in particular, by climate change, which is manifested by more frequent natural disasters – floods, hurricanes, etc. It is assumed that the financial consequences of natural disasters caused by climate change will increase 15-fold in the near future [3].

In 2009, a Memorandum of Understanding on Cooperation on Natural Disaster Risk Reduction and Rapid Recovery [4] was concluded between the Ministry of Emergency Situations and the United Nations Development Programme in Ukraine (hereinafter – the UNDP). According to this Memorandum, the cooperation was to facilitate implementation of key priorities of the Hyogo Framework for Action (the predecessor of the Sendai Framework). In particular, the memorandum envisaged development of the policy and elaboration of a national strategy, a national platform and an intra-sectoral forum for disaster risk reduction [5].

According to the Association Agreement between Ukraine and the EU countries [6], Section 6 Environment contains Article 364 defining cooperation in the field of civil protection.

Despite the fact that Section 6 of the Association Agreement between Ukraine and the EU countries emphasizes the need for environmental protection measures, coordination of efforts of all authorities, and cooperation, the implementation of Article 364 of the Agreement is the sole responsibility of the State Service of Ukraine for Emergencies [7].

Such an approach looks misbalanced, as it precludes the planning of relevant actions in coordination with operations of the other public authorities. This issue needs to be addressed, and bringing international cooperation under Sendai Framework in the field of responsibility of TESE Commission (Technical and Environmental Safety and Emergencies Commission) [8] might be one of the possible solutions. Besides, we believe that the composition of the Commission should be expanded.

Civil and environmental safety are those markers, which indicate that the right to a safe environment for life and health has been ensured. The Civil Protection Code of Ukraine does not contain such a concept as “civil safety”. It defines “fire safety” and “technogenic safety”. At the same time, the definition of environmental safety is contained in the Law of Ukraine “On Environmental Protection”.

Environmental safety is a state of natural environment preventing the deterioration of environmental conditions and health hazards. Article 16 of the Constitution of Ukraine specifies that it is the duty of the state to ensure environmental safety, to maintain environmental balance within the territory of Ukraine, to prevent the consequences of Chornobyl catastrophe, a global disaster, and to preserve the gene pool of the Ukrainian people.

There is no definition of environmental balance in the legislation. However, in view of the definition of environmental safety, it follows that the environmental situation is deteriorated upon occurrence of an emergency, which is accompanied by loss of environmental equilibrium and deterioration of environmental situation.

At the same time, environmental rights are guaranteed through the obligation of central executive authorities, enterprises, institutions, and organizations to implement technical and other safeguards to prevent harmful effects of economic and other activities on the environment, to comply with environmental requirements in planning, allocation of productive forces, construction and operation of economic facilities [9].

Therefore, it can be assumed that the occurrence of an emergency is accompanied by violation of environmental rights.

Article 66 of the same law stipulates that during the design and operation of economic and other facilities, the activities of which may have a harmful effect on the environment, safeguards to prevent accidents, as well as to eliminate their harmful environmental consequences, shall be developed and implemented. In other words, these safeguards reduce disaster risks and ensure taking of actions to mitigate and reduce vulnerability if such safeguards fail, regardless of the causes of the disaster (natural or technogenic).

In the case of an accident, which caused the environment pollution, enterprises, institutions, organizations shall immediately proceed with the liquidation of its consequences.

At the same time, officials or owners of enterprises, as well as heads of institutions and organizations shall report about accidents and actions taken to liquidate their consequences to the executive committee of village, settlement, city council, central executive authority in charge of the implementation of state policy in the sphere of sanitary and epidemic welfare of population (MOH of Ukraine and State Service of Ukraine for Food Safety and Consumer Protection) of a corresponding regional, Kyiv, Sevastopol city state administration, and in the territory of Autonomous Republic of Crimea and the city of Sevastopol – to the body of executive power of the Autonomous Republic of Crimea for environmental protection, as well as to the general public.

The Code of Civil Protection of Ukraine defines the prevention of emergencies as a set of legal, socio-economic, political, organizational and technical, sanitary and hygienic and other actions aimed at ensuring the technogenic and natural safety, conducting an assessment of risk levels, proactive responding to the threat of emergency on the basis of monitoring, expertise, research and forecasts on the possible course of events to prevent them from escalating into an emergency in compliance with paragraph 11 of Article 1 of the CPCU.

Thus, the issue of disaster prevention or disaster risk reduction necessitates the implementation of procedures, such as environmental impact assessment and strategic environmental assessment, as these are the procedures aimed at assessing risks.

Paragraph 2 of Article 2 of the Law of Ukraine “On Environmental Impact Assessment” states that environmental impact assessment (EIA) shall be performed in compliance with the environmental protection laws, taking into account environmental conditions in the location of the planned activity, environmental risks and forecasts, prospects for socio-economic development of the region, capacity and types of cumulative impact (direct and indirect) on the environment, including the impact of the existing facilities, planned activities and facilities in respect of which a decision on the planned activities has been received or the issue of making such decisions is being considered.

The Environmental Impact Assessment Report for a particular proposed activity shall describe risks to human health, cultural heritage sites and the environment, including those due to the possibility of emergencies, as well as a description of the expected significant adverse environmental impacts of the activity due to the project vulnerability to the risks of emergencies, actions to prevent or mitigate the environmental impacts of emergencies and actions to respond to emergencies.

Thus, the legislator has integrated some requirements of the Sendai Framework into the environmental impact assessment procedure when planning the activities, a list of which is contained in Article 3 of the Law of Ukraine on Environmental Impact Assessment.

When issuing a conclusion on the environmental impact assessment, the authorized body, i.e. the Ministry of Environment or the relevant department, or the Department of Ecology and Natural Resources of the Regional State Administration, shall specify in the conclusion the environmental conditions to be met, which, in particular, shall address such issues as conditions for prevention of emergency situations and elimination of their consequences; prevention, avoidance, reduction (mitigation), elimination, limitation and monitoring of the proposed activity impact on the environment, as well as conduct of the post-project monitoring.

Thus, the Ministry of Environmental Safety, as well as relevant departments and divisions of the regional state administration manage disaster risks during environmental impact assessments.

The Law of Ukraine “On Strategic Environmental Assessment” in its Article 3 defines that SEA is conducted with the aim to promote sustainable development by way of ensuring the environmental protection, life safety of population and public health, integration of environmental requirements in development and approval of state planning documents.

A report on SEA must describe environmental issues, including risks of impact on public health, related to the state planning document, in particular in relation to areas holding a special nature protection status (according to administrative data, statistical information, and research findings). It should also assess the impact on the environment, including public health, namely any possible effects on flora, fauna, biodiversity, soil, subsoil, climate, air, water, landscape, natural areas and sites, population safety and health.

Moreover, the SEA must identify, describe and assess the consequences of the implementation of the state planning documents for the environment, including public health, justified alternatives, develop actions for the prevention, reduction and mitigation of eventual adverse effects. Definitely, like the EIA, the SEA is of limited effect and applies only to the activities defined in Article 2 of the Law. It should be noted that both the EIA and the SEA may be used for a wider range of issues than those provided for in the relevant laws.

Despite the fact that the law is improving continuously and it can be argued that it covers such a concept as environmental risks that determine environmental safety, Prof. V. Andreytsev's [10] statement that “the ensuring of environmental safety in practice is hampered by the presence of different approaches to the application of environmental legislation”, remains relevant.

We find confirmation of these thoughts in the Concept of Risk Management of Technogenic and Natural Emergencies [11]. The purpose of the Concept is to introduce modern risk management methods to reduce the number and minimize the social and economic consequences of emergencies, ensuring the achievement of a guaranteed level of safety of citizens and society.

The achievement of acceptable risk levels throughout Ukraine must be implemented using a stage-wise approach. The first stage is to identify risk levels in all sectors of the economy, as well as the most dangerous sources of emergencies and ensure that they are reduced to the values of accepted risk levels. The second stage must ensure that the risk levels throughout Ukraine will be consistent with those used in economically developed countries [12]. Unfortunately, the issue of environmental protection and environmental risks is not raised by this Concept.

The national standard for overall risk management [13] specifies that there are certain standards for dealing with the risk, regardless of its setting. In particular, the purpose of the overall risk assessment is to ensure that evidence-based information is obtained and analyzed in order to make informed decisions on how to handle specific risks and how to choose their management option.

Picture 1. The contribution of overall risk assessment to the risk management process

According to the Sendai Framework, disaster risk reduction aims to prevent the occurrence of new and reduce the existing disaster risk, as well as manage the residual risk, which contributes to building resilience and hence achieving sustainable development. Disaster risk reduction is a policy goal of disaster risk management; its goals and objectives are defined in disaster risk reduction strategies and plans.

Environmental protection function of the state should be focused on prevention of consequences of cataclysms irrespective of their cause – natural reasons or human recklessness [14].

In view of the above, the duty of the state of Ukraine to guarantee to its citizens the right to a safe environment for life and health may be fulfilled only through deep coordination, cooperation and communication of all authorities regardless of their business and territory of operation. After all, as noted above, security risks are inherent in all areas of economic activity, because even in the absence of technogenic threats, natural disasters may occur, and they should be monitored, analyzed, predicted, and prevented.

"Civil and environmental safety are those markers, which indicate that the right to a safe environment for life and health has been ensured."

[1] On March 8, 2015, in Sendai, Japan, the Third UN World Conference on Disaster Risk Reduction adopted the Sendai Framework (2015-2030), a 15-year voluntary non-binding agreement outlining complex, human-oriented measures to reduce the risk of disasters.

The Sendai Program focuses on various kinds of disasters, more and less large, frequent and infrequent, sudden and gradual, regardless of the cause, whether natural or anthropogenic, as well as related natural, biological and technological losses and risks. The program provides for multilevel risk management. The program is expected to significantly reduce the risks of disasters, human losses, deterioration of health, living conditions, economic, physical, social, cultural and natural assets of individuals, businesses, communities and countries.

[2] https://www.undrr.org/news/ministers-across-europe-and-central-asia-endorse-new-roadmap-reduce-risk-disasters-amid-covid

[3] https://efdrr.undrr.org/

[4] https://zakon.rada.gov.ua/laws/show/995_i43#Text

[5] https://disasterscharter.org/web/guest/activations/-/article/potential-collapse-of-a-tailing-pit-dam-ukraine

[6] Annex XXX of the EU-Ukraine Association Agreement contains a list of 29 environmental Directives that need to be implemented.

[7] The action plan for the implementation of the Association Agreement between Ukraine and the EU countries, approved by the Cabinet of Ministers of Ukraine dated October 25, 2017 (N 1106) involves State Service of Ukraine for Emergencies in the implementation of most measures for improvement of environmental safety, in particular, the organization of air monitoring, control of hazardous substances lists, basin management principle, as well as combat flooding.

[8] On the State Commission on Technogenic and Ecological Safety and Emergencies https://zakon.rada.gov.ua/laws/show/18-2015-%D0%BF#Text

Prime Minister of Ukraine, Chairman of the State Commission, Minister of Communities and Territories Development, First Deputy Chairman of the State Commission, Minister of Internal Affairs, Deputy Chairman of the State Commission, Minister of Health, Deputy Chairman of the State Commission, Chairman of the State Service of Ukraine for Emergencies, Deputy Chairman of the State Commission,

Minister of the Cabinet of Ministers of Ukraine, Minister of Defense, Minister of Foreign Affairs, Minister of Justice, Minister of Finance, Minister of Infrastructure, Minister of Energy, Minister of Environment and Natural Resources, Minister of Education and Science, Minister of Social Policy, Deputy Minister of Health - Chief State Sanitary Doctor of Ukraine, Minister of Economic Development, Trade and Agriculture, Head of the State Border Service, Head of the State Food and Consumer Service, Head of the National Police, Head of the Security Service of Ukraine (by agreement), Chairman of the National Bank (by agreement), Deputy Secretary of the National Security and Defense Council of Ukraine (by agreement), President of the Ukrainian Red Cross Society (by agreement).

[9] Article 10 of the Law of Ukraine "On Environmental Protection".

[10] Ecological risk in the system of legal relations of ecological safety: problems of practical theory,  “Law of Ukraine”, 1999, № 1.

[11] https://zakon.rada.gov.ua/laws/show/37-2014-%D1%80#Text

[12] Action Plan for the implementation of the Concept of risk management of technogenic and natural disasters for 2015-2020 https://www.kmu.gov.ua/npas/248135163

[13] https://khoda.gov.ua/image/catalog/files/dstu%2031010.pdf

[14] O. Plotnikov, Ecological and legal norms in social systems, “Law of Ukraine”, 1999, № 1.