Considerazioni intorno all'esperienza di verifica di assoggettabilità a valutazione di impatto ambientale

Cotza, Paolo

2024-01-01

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Abstract

The starting point was two facts: the pitfalls underlying the jurisprudential expression "wide discretion", referring to the generality of administrative assessments in environmental matters, and the related implications in terms of limits of the review of legitimacy. Thus translated that discourse, with reference to the relationship between "Environmental Impact Assessment" and "Verification of Subjectability to Environmental Impact Assessments", first of all the difficulties in separating the moments that one would like to be of respective relevance, of "pure" discretion and of assessment or technical discretion were noted; dissociating itself from the thesis of a prevailing rationale of simplification and efficiency. This, since the legal system has provided several arguments that lean towards the thesis that, even in the context of the "Verification of Subjectability", there is an activity, not only technical, but of comparison between interests involved in the protection of the environment. Hence, by reflex, a systematic relocation: with recognition, to the "Environmental Impact Assessment", of a more in-depth and wide-ranging comparative task (by type of underlying interests). At this point, it was decided to give greater rigor to that 'revisionist reading', on the basis of a theoretical-epistemological argument that made it possible: both to find, in the discipline of reference, a (potentially) consequentialist matrix; and (and correspondingly) to arrive at an updated notion of administrative discretion, as related to the interpretative applicative operation (hermeneutic circle). Thus lending a favorable support: not only to the recommended functional consideration of the institute as including a comparative component; but also to a generalized field of use; and then, through a 'rehabilitation' of 'administrative merit' with a view to enhancing the 'result', to a maximisation of the judicial reviewability of the institution itself (based on the 'best' outcome).