Is law failing to address vehicle caused air pollution in Bosnia and Herzegovina? Reflections on EU and international norms

By Boris Vukušić

Regardless of the level of development, social communities are depend on a number of complex internal and external factors, such as characteristics of the specific environment. Therefore, creating an effective public environmental policy requires a set of laws and norms based on subsidiary law that protect the environment at different levels, using legal, financial and institutional instruments,1 as well as a range of procedures. Such a policy should represent the foundation of long-term care for the health of social communities and one of the most important public interests of the state.

In a global legal context, legal norms are contained in the International Environment Law. Its developmental path, depending on the degree of development of a society and technological and industrial (r)evolution, can be divided into three periods.2 The adoption of a set of existing legal acts that make up the International Environment Law is initiated by influence of mankind on biosphere, limited natural resources, negative industrial impact on the living and non-living world and the increasing threat to the life and health of people. At the beginning of the twentieth Century, the first interstate activities were undertaken in order to solve the problem of transboundary pollution. However, certain social events in the 1960s and 1970s in the United States contributed to the rapid growth of domicile political activity focused on the protection of the human environment. The promulgation of the American Clean Air Act in 1970 marked the point of the rapid adoption of international legal acts dealing with the issue of environmental protection.

After the World Health Organization (WHO) confirmed in 2014 that the air pollution is the main cause of premature death,3 the reduction of emissions became an important provision of the environmental law, which can - also - be achieved by reducing and the cessation of the use of diesel fuel and the cessation of the production of diesel-powered cars that are recognized as significant sources of high-toxic substances.4 The seriousness of the consequences of global air pollution, largely driven by the increase in demand and the use of diesel fuels, has been confirmed by the death of more than 7 million people in 2012.5 In addition, this issue causes negative economic impact and increases public expenses. The growing issues that are evident in the implementation of air protection are varying from the failure of large countries to introduce significant restrictions on the use of diesel fuel and non-compliance with aero-pollution reduction agreements to the resistance of the automotive industry and expensive technology for the production of alternative fuel vehicles.

On a regional and global level, especially within the European Union (EU), intensive activities of a political and legal nature are being considered. Their goal is to reduce the number of diesel vehicles and ultimately to ban their production. Since 1973, through the implementation of seven action programs, and by establishment of the European Environment Agency in 1990. The EU has insisted on the importance of protecting and preserving the environment. Also, within the fiscal policy of the EU, a set of norms have been introduced in order to regulate the environmental pollution taxes, as well as financial penalties for environmental polluters. According to these norms, the polluters are obliged to bear the costs for the damage to the environment they caused or to provide means to compensate for any damage they incur to the environment.

Given the specific structure and basic principles of the acquis communautaire in the founding treaties, as primary communitarian legislation, environmental protection has been designated as one of the key objectives of the EU's formal policy.6 However, the principle of subsidiarity has been applied in this respect and, for this reason, political and legislative activities in terms of protection and preservation of the environment are left to the national parliaments of EU member states, except in cases where these activities can be more effectively implemented at the EU level.7 When it comes to environmental protection, including air pollution protection, it is important to note that the EU applies an integrated approach that, globally, prevents and monitors possible industrial environmental pollution.8 In the context of public expenditures, the EU is investing significant amount of money in the prevention of air pollution through various funds, and one of the capital examples is regular budget planning for the Trans-European Transport Network (TET-N), whose construction and expansion has a positive impact on the environment.9

In terms of preventing air pollution by motor vehicles, another powerful EU instrument are the standards that regulate the quality of propulsion fuels for motor vehicles and on which the euro norms are based.10 These norms served as a legal basis for the major capitals of the EU (London, Paris, Athens, Madrid, etc.) to introduce legal limitation and the complete elimination of diesel vehicle traffic.11 Acknowledging the jurisdiction of EU Member States and lower levels of their political and territorial organization to implement such plans is confirmed by the 2018 judgment of the German Supreme Court, which granted the local authorities in German cities the right to ban the traffic of diesel vehicles. However, the resistance to such plans coming from the carmakers is extremely strong, and the objective realization of such plans is a delicate political and economic issue.

Bosnia and Herzegovina (BiH) is facing the problem of enormous aero pollution, and some local communities are already on the list of the most polluted in the world (Tuzla, Lukavac, Sarajevo, Zenica). This is also supported by the fact that for years BiH has been designated as an "auto damp" from the EU. The reasons for this are numerous: the fragmented constitutional and legal system of the state in which the competence for air protection is not at the state level but at entity levels of government, incompetent and incoherent public policies related to environmental protection in the context of fuel quality and technical safety of cars, insufficient capacities the lack of inspection supervision, the complete lack of adequate response from the police authorities in terms of prompt and permanent elimination of defective vehicles from traffic, inadequate work of customs and tax authorities, lack of civic and political awareness of the importance of clean air, etc.

The BiH legislative framework, in terms of environmental protection, consists of sets of entity laws (five laws in the FBiH and RS) and the accompanying subsidiary laws. Among the aforementioned laws, there are, as the lex specialis, the FBiH Air Protection Act12 , the RS Law on Air Protection13 and the Air Protection Act14 of the Brčko District. Although the aforementioned legislation is nomotechnically detailed, and is containing a general norm about (1) quality of fuels for motor vehicles, (2) a strict annual control of the emission of harmful gases from motor vehicles and (3) the prohibition of the registration and placing on the market of vehicles exceeding legally determined emissions, application of this norm is absolutely inconsistent. At this point it should be noted that, according to recent reports, the number of cases of malignant lung disease in the previously mentioned cities in BiH, due to air pollution, is worrying and shows a trend of permanent growth.

With the entry into force of the Stabilization and Association Agreement in 2015, BiH is obliged to harmonize own legislation with the EU's communitarian legislation, also in the field of the air protection. EU activities that will result in a complete ban on diesel vehicle traffic are good news for EU citizens. However, with regard to environmental protection and public health in BiH, this can be highly demotivating information that requires an urgent and coordinated action by the authorities to prevent massive influx of such vehicles, taking into account all the above-mentioned arguments. More than that, Bosnia and Herzegovina, until now, has no plans to provide subsidies to the population with the aim of buying vehicles powered by alternative propulsion.

Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of the Balkan Studies Center(BSC).

BIBLIOGRPAHY


1Črnjar, M.,  Economics and Environmental Policy: Ecology, Economics, Management, Politics,  Faculty of Economics, University of Rijeka, Glosa, Rijeka, 2002., p.219
2 Sand, P. H.. The history and origin of international environment law, Edward Elgar Publishing, Cheltenham, UK, 2015., p.XIII
3 See more: http://www.euro.who.int/__data/assets/pdf_file/0006/298482/Health-risk-assessment-air-pollution-General-principles-en.pdf?ua=1, pp. 1-3 (access: 30.11.2018.)
4 Among the most abundant and most toxic are sulfur dioxide, nitrogen oxides, carbon monoxide, ozone and volatile organic compounds.
5 See more: http://www.euro.who.int/__data/assets/pdf_file/0006/298482/Health-risk-assessment-air-pollution-General-principles-en.pdf?ua=1, (accessed 30.11.2018.)
6 EU norms on environmental protection are contained in: Single European Act (1987), Treaty on European Union (TEU, 1992), Economic Community Treaty (TEC, 1997 ), indirectly in the Lisbon Treaty (ToL, 2000), through the fight against climate change, and the Treaty on the Functioning of the European Union (TFEU, 2007).
7 From the entry into force of the TFEU, the issue of environmental protection and protection is, therefore, shared competence between the EU, as the umbrella institution, and its member states.
8 In accordance with Directive 2010/75 (EU).
9 See more: http://ec.europa.eu/transport/infrastructure/tentec/tentec-portal/site/index_en.htm and http://europa.eu/rapid/press-release_IP-18-3570_en.htm   (accessed 03.12.2018.)
10 These standards are established by Directives 93/12 (EEC), 98/70 (EC), 2003/17 (EC) and 2009/30 (EC). For more information: https://www.transportpolicy.net/standard/eu-fuels-diesel-and-gasoline/ (accessed 30.12.2018.).
11 See more: https://www.technologyreview.com/s/604059/europe-is-dead-serious-about-killing-off-diesel-cars/ (accessed 30.11.2018.).
12 Official Gazette FBIH No. 33/03 and 04/10
14 Official Gazette of Republika Srpska No. 53/02, 124/11 and 46/17
14 Official Gazette of Brčko District No. 25/04, 1/05, 19/07 and 9/09