In Re (#1-2 January-February 2022)

The Role of Environmental NGOs in Shaping the Sustainable Development System

by Oleh Vernyk

In recent years we have perceived the concept of sustainable development as a general concept of the need to find a balance between meeting the current needs of people and protecting the interests of future generations, including their need for safe and healthy environment. The Ukraine EU Association Agreement (effective since 1 September, 2017) significantly accelerated the process of substantive comprehension and full acceptance of the concept of sustainable development by all components of the extensive Ukrainian state and political machinery. However, it seems extremely important that the conceptual implementation of the sustainable development strategy actively involves not only structures of the young Ukrainian statehood, but also a wide range of public sector representatives.

It should be mentioned that the very concept of sustainable development emerged as a combination of three main components: economic, social and environmental. The sustainable development pattern contains comprehensive and integrated requirements to environmental protection, social justice, prevention of discrimination on the grounds of race or origin, and it is aimed at improving living standards. And public engagement and the fight for the implementation of this pattern in current Ukrainian legislation belongs to the public area one way or another.

Ukrainian environmental NGOs and environmental activists come to the forefront in the battle to implement the environmental component of the sustainable development concept. Environmental NGOs influence business owners to implement in full the environmental component of the sustainable development concept in Ukraine. Unfortunately, large business owners in Ukraine usually interpret the environmental component of the sustainable development concept only in view of their own needs. Everywhere in Ukraine, we see large polluting companies neglecting basic social or environmental requirements, and thus they pursue completely anti-social and anti-environmental approaches that directly conflict with the sustainable development regime. Soil, water and air pollution with harmful emissions are the current realities in Ukraine, and these are the current challenges that Ukraines environmental activists face when they make efforts to institutionalize the sustainable development regime.

The legal dimension of the activity of NGOs in Ukraine is generally characterized as discretionary. Legislation does not impose any restrictions on the establishment, activities, and membership of such organizations. The most important thing is to have the will to participate, to support the cause and goals of the activity, and to promote the organizations activities.

Even though the relevant Law of Ukraine On Public Associations does not contain any special terms or rules that would regulate the engagement of NGOs in protecting the rights of citizens, certain acts do contain special provisions. In particular, there is no special act on class actions, and procedural legislation does not specify a special procedure for such actions. However, Article 21 of the Law of Ukraine On Environmental Protection stipulates the possibility of filing class actions related to damages caused by violations of environmental legislation. And the role to initiate such actions is assigned to environmental NGOs.

The respective provisions have been effective since 1991, but for a long time the relevant norms remained dormant. That is, they only existed on paper. Similarly, the Aarhus Convention, which is the main international treaty governing the participation of citizens and the public in decision-making, access to information and access to justice in environmental matters was not fully implemented and enforced in Ukraine.

And only after the Ukraine EU Association Agreement was signed did Ukraine launch some positive changes in the legal field and judicial practices, which strengthened the role of NGOs in their fight for the right to a safe environment.

Thus, important decisions were made by the Grand Chamber of the Supreme Court (decisions of 11 December 2018, case No 910/8122/17, and of 15 June 2021, case No.904/6125/20), ensuring the unanimous attitudes of the courts to the status of environmental NGOs, including them being initiators of class actions.

I should mention that Ukraine already has successful cases of class actions filed by environmental associations to protect the interests of their affected members. As a public activist, I participated in preparing the first class action in Ukraine after the horrific events of June 2015.

The fire at the Vasylkiv oil depot was the largest environmental catastrophe in Ukraine since the Chernobyl disaster. For a long time after the tragedy no-one even defended the rights of local residents who had been affected. I was then approached by local activists for help. Responding to their request, I went to Vasylkiv. At first, I didnt even know how to help them. There were a lot of aggrieved persons. Each of them had their own stories, suffering, losses and
damages, and fates. But the cause of their suffering was common, the terrible fire that had raged. People felt disadvantaged and abandoned. Many of them were elderly people without much energy and resources to protect their rights individually through lengthy procedures.

It was necessary to unite people, establish a public environmental organization, and to decide on the mechanisms so as to restore the rights of those people who had suffered.

An NGO called the Vasylkiv Catastrophe Mitigation Fund was registered in the fall of 2016, and within four months several thousand members had joined it. This was followed by a long period of research and examinations to assess the non-pecuniary damages caused to each member and approximate sums of compensation. The situation was not too complex because the damage was caused by the same events, and the difficult issue was to determine the amount of damages for each of more than 2,000 aggrieved persons.

In summer 2018, a class action was filed with a court. In fall 2020, an amicable settlement was reached with some of the defendants and approved by the courts decision on ex gratia terms (totaling USD1 million). And people have already received their compensation. According to the amicable settlement, UAH22 million (about USD 800,000) was paid to aggrieved persons, which came to UAH 10,000 for every one of more than 2,000 people (approximately USD400). Of course, one could expect more, but when the proposal for an amicable settlement was received, a meeting of the Funds members was held to discuss the trial that had already lasted a few years at that time, and also the prospects for further litigation that could continue for another few years without any guarantees of victory, because the court is the court, and the law is imperfect. And Vasylkiv residents unanimously supported the decision that an amicable settlement was a more reasonable option in that particular situation.

That was not only the issue about the amount of compensation. More importantly, it was a first class action in Ukraine on environmental issues and the proceedings ended positively. And it was definitely a victory for those people who received their compensation. And a very important court precedent was set for the whole country.

As a public activist, I also joined the fight in the second class action against the Mykolaiv Alumina Refinery, which had illegally accumulated about 50 million tons of toxic waste called red mud. The waste has a very negative impact on the environment and its massive accumulation causes numerous cases of oncological illness in Mykolaiv.

We can see that implementation of the environmental component of the sustainable development concept in Ukraine is extremely timely, relevant, and inevitable. Ukraines civil society sector, including environmental organizations, should overcome the desperate resistance of short-sighted large businesses that put their immediate and changing profits above the strategic goal of the country and its civil society. We urgently need to meet the basic needs of all citizens of Ukraine and give everyone an opportunity to realize their hopes for a prosperous and environmentally-friendly life.

Environmental NGOs embody the publics efforts to restore environmental rights, participate in decision-making on environmental issues and to defend the rights of citizens in courts. The activities of NGOs, the principle of voluntary membership and participation, and the right to walk away at any time give citizens the opportunity to focus their efforts and work together, taking into account the interests of each person, and on behalf of each person with his/her goals and aspirations. It is difficult to imagine a better tool for preserving collective interests.

Oleh Vernyk is a public activist, Chairman of the NGO Vasylkiv Catastrophe Mitigation Fund, Chairman of the Board of the NGO Green Fund. Mitigation of Humanitarian and Environmental Catastrophes
Subscribe
The Ukrainian Journal of Business Law

Subscribe to The Ukrainian Journal of Business Law right now and enjoy the most relevant issues on doing business in Ukraine on your device or in print.

All this for just USD 9.99 a month.

 

Subscribe now