Comparative and legal analysis of authorized environmental government bodies reform in the Republic of Kazakhstan and in the United States of America

Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016

Authors:
Gavrilova Yuliya, Kazakh-American Free University, Kazakhstan
Sagidoldin Kanat, Kazakh-American Free University, Kazakhstan

In Nation Plan 100 Specific Steps to implement five institutional reforms (May, 2015) President of the Republic of Kazakhstan set a clear goal, transition of government administration, to the government administration of specific results [1]. It applies to the whole system of government bodies, including environmental management departments. Plus, above mentioned step emerges full blown in circumstances of the state detraction from environmental issues, status reclassification of government bodies accredited to ensure natural resources conservancy and environmental rights of human.

How the system of environmental government bodies in RK has been reforming since Kazakhstan became an independent state? What are eco-law consequences of such reorganization of environmental government administrative bodies to the environment, its components, and humanТs health and life? Is the activity of environmental body result oriented, as indicated in УNation Plan 100 Ц specific steps to implement five institutional reforms? Are we able to use international experience of government administration to solve environmental issues in our state?

In an effort to answer these questions on the assumption of, that organization particularly, and creation of government administration bodies in the field of society and environment interrelation is the underlying function of environmental management. It has been truly stated by M. Brinchyuk, that Уenvironmental functions implementationТs efficiency predetermined largely by accurateness and scientific validity of the created specific bodies system in charge in the field of environmental protectionЕФ [2, p. 34]. Upon that, this statement is relevance of to each state regardless to its socio-economic and political development. Assuming commonness of environmental issues each of RK and US, it deemed necessary to conduct comparative legal analysis of the main RK and US environmental government bodiesТ reformation aiming to derive positive international practice of government environmental regulation.

Thus, December, 20, 1990 the Decree of the President of Kazakh Soviet Socialist Republic УAdministrative government bodiesТ readjustment in Kazakh SSRФ formed Kazakh SSR State Committee for Geology and Protection of Minerals and Kazakh SSR State Committee for Water Resources on the basis of Ministry of Land Reclamation and Water Management of Kazak SSR. Two specific natural resources bodies were established in the field of water and mineral resources. Kazakh SSR State Committee for Environmental Protection and Management became the main environmental body on the basis of abolishing Kazakh SSR State Committee for Environmental Protection.

It should be highlighted, that Kazakh SSR State Committee for Environmental Protection and Management, as the authorized governmental body in the field of environmental protection, was readjusted in 1992 in the execution of Cabinet of Minister of the RK Order #345 to the Ministry of Ecology and Bioresources of the Republic of Kazakhstan. Following incorporated units formed Ministry of Ecology and Bioresources of the Republic of Kazakhstan:

- Ministry of Forestry Management of the Republic of Kazakhstan was merged into Committee for Forest Management (Kazleskomitet);

- Committee for fishery under the Ministry of Agriculture of the Republic of Kazakhstan was merged into Central administrative board on fishery protection and supervision over nature management at fishery basins (Kazglavrybokhrana) with industrial acclimatization station;

- Central Administrative Board on Wildlife Protection (Kazglavzhivokhrana);

- State research and production association of industrial ecology УKazmekhanobrФ on the basis of State research and project institute УKazmekhanobrФ of color metal and ore beneficiation.

Evidently, the special freestanding government body on the level of Ministry was formed at the establishing of Kazakh statehood, and was responsible for environmental protection and management.

In 1996 new Regulations affirmed by RK Government Resolution confirmed Ministry of Ecology and Bioresources as a main executive body of government supra body supervision over environmental protection and management on the territory of the Republic of Kazakhstan. Therefore, the Ministry carried out following tasks:

- development of unified government policy in environmental protection and management;

- organization and implementation of government control of compliance with requirements of Kazakhstan Environmental Law, International Agreements and Conventions ratified by RK in the field of Environmental protection and management;

- development and enhancement of natural management economic mechanism;

- organization of events to disseminate environmental awareness and environmental consciousness upgrade.

For the purposes of tasks implementation, the Ministry was assigned with functions of organization and implementation of government control in the field of environmental protection and natural resources management, also prevention of radioactive pollution, conservation measures of waste utilization, storage, transport and product waste disposal, transboundary movement of toxic material, substances and hazardous waste and etc. What is more, functions assigned to the Ministry reflected and emphasized environmental-oriented activity of this government body.

However, the Ministry of Energy and Natural Resources of the Republic of Kazakhstan was formed in compliance with the Decree of the President of the Republic of Kazakhstan dated March, 4, 1997 #3377 УRegular measures on reformation government bodies system of the Republic of KazakhstanФ. The Ministry exercised government administration in power sector, petroleum, natural-gas, metal mining and nuclear industry, subsurface protection and management, also within the pale of the law cross-sector co-ordination.

Ministry of Natural Resources and Environmental Protection of the Republic of Kazakhstan had been being at the head of government administration bodies system in the field of environmental security from 1999 to 2002. The Ministry was the central executive body in the field of environmental security, and was assigned to carry out functions of government administration and supervision, also to implement cross-sector co-ordination in the field of environmental protection and rational exploitation of natural resources, including nature conservation areas. The Ministry had administrative entities, such as Committee for Environmental Protection, Committee for Forestry, Fishery and Game Management, Committee for Water Resources. As to its main functions, they were almost conceptional identical to the area activity functions of the Ministry of Ecology and Bioresources of the Republic of Kazakhstan. Although, except implementation of government supervision, Ministry of Natural Resources and Environmental Protection of RK, was obliged to take measures to improvement of the whole government supervision system in the field of environmental protection and conservancy of nature.

Unfortunately, Ministry of Natural Resources and Environmental Protection of RK was reorganized to Ministry of Environmental Protection in 2002. Its authority and functions in the field of water resources, forestry, fishery and game management was transferred to the Ministry of Agriculture. The Committee for Environmental Protection of the Ministry of Natural Resources and Environmental Protection of the Republic of Kazakhstan was abolished.

The new function of environmental protection system optimization and participation in the nature management system optimization stood out amongst the other conventional functions such as: government supervision in the field of environmental protection; environmental compliance supervision, environmental regulatory compliance; improvement of the government administration and monitoring system in the field of environmental protection; economic methods of environmental protection within the scope of competence. Not to mention the fact, that management of particular natural resources was transferred to another governmental body, the Ministry of Environmental Protection was assigned a function of government supervision over environmental protection and rational exploitation of natural resources, and environmental legislation compliance, including the following:

- observance of: specified standards on fugitive emission to atmosphere; production facilities sanitary-protection zone regime; standards, rules and other air protection regulations.

- technogenic pollution protection of soil, undertake set of measures on protection, restoration and improvement of soil fertility;

- observance of: specified terms in permissions to use natural resources and state expert conclusions, enforcement of the agreements on natural resources use.

- rational use of water resources; pollution, clogging and depletion protection of surface water; observance of water consumption and water disposal limits and rules; observance of water usage regime, and sewage disposal conditions and procedures;

- radiation safety claims observance;

- environmental compliance measures of process, consumer and other waste burial (storage);

- observance of: environmental regulations and rules at mining, minerals processing; widespread mineral deposit extraction and exploitation claims;

- observance of rules and regulations of pesticide, artificial fertilizer and other chemical agents treatment, storage, transport and utilization;

- assimilation of capital investment to environment protection purposes; observance of environmental standards in the field of animal and plant world protection, reproduction and exploitation, also observance of environmental safety regime of special protected areas;

- observance of import and export claims of wild animals and culture species or their derivatives threatened with extinction;

Committee for Conservational Supervision was formed as a division in the Ministry of Environmental Protection of the Republic of Kazakhstan in 2004. One of its main functions was the implementation of ecological supervision.

Next reform of environmental ministry was its reorganization in 2013 by transforming it to the Ministry of Environment and Water Resources of Kazakhstan, it was assigned with authority and functions to form and implement government policy in the field of:

1) water supplement to users or to association of users and its drainage in purpose of soil hydro technical amelioration related to Ministry of Agriculture of the Republic of Kazakhstan;

2) rational and multipurpose use of subsoil water, except geological study of subsurface in subsoil water that related to Ministry of Industry and New Technologies of the Republic of Kazakhstan.

A regulation on Ministry of Energy of the Republic of Kazakhstan was affirmed by The Government of the Republic of Kazakhstan in as little as a year in 2014 in order to modernize and efficiency improvement of the government supervision system. The main executive body carried out organization and implementation of government policy and cooperation procedure management in the field of environmental protection, natural management, protection, supervision and oversight over rational exploitation of natural resources, domestic solid waste management, development of renewable energy resources, and supervision over government policy for Уgreen economyФ improvement.

Therefore, nowadays there is no special independent government body of administration in the field of environmental protection in the Republic of Kazakhstan. In the theory of environmental law such process qualifies as Уde-ecolization of government powerФ reflected in detraction of government from consideration environmental standards when executive decision making, financial backing cuts of environmental activities; status lowering of governmental bodies authorized to insure environmental protection, rational exploitation of natural resources, human and other objects environmental safetyЕ[3, p. 62]. Since Kazakhstan became independent state, these are the results of endless government bodiesТ reformation in the field of environmental protection.

In terminated for reasons undefined under the Decree of the President of RK dated April, 13, 2011 #47 Ecological Concept to 2004-2015 of the Republic of Kazakhstan, it was emphasized that, УЕ massive improvement in environmental situation has not happened yet, and it is still described by environmental system degradation, that leads to destabilization of biosphere, losing its ability to keep the environmental standards, indispensible for vital activity of society.Ф Apparently, even the official concept regulatory legal act has recognized essence and unsettled environmental problem by government, which affects adversely to human health and life in the Republic of Kazakhstan. Except that, Уthere are grounds to consider defects in administrative power as one of the main reasons of environmental crisesЕФ, noted professor M. Brinchyuk, environmental law section leader at Institute of State and Law of the Russian Academy of Science, doctor of Juridical Science [2, p. 34]. At that rate, step 91 of aforementioned Plan turns of important relevance, which guides government bodies to specific result, in our case, government activity according to Article 31 of RK Constitution sets an objective to protect the environment, favorable for life and health of the person.

What is the history and development of the US main environmental agency? Is it possible to exercise international experience in the field of natural resource management in RK to settle ecological issues?

As is well known, there are three levels of government administration in the US: federal, state and local. Consequently, government administrative bodies in natural management are represented by federal (specialized bodies; branch administration bodies); state and local agencies. The core value of American national identity is the supremacy principle of federal law over states law. States legal activity shall not impair any, neither US Constitution nor US Laws [4].

The main federal executive body in the field of environmental protection is U.S. Environmental Protection Agency (EPA), which supervises the execution of US environmental law.

Beginning in the late 1950s and through the 1960s, Congress reacted to increasing public concern about the impact that human activity could have on the environment. A key legislative option to address this concern was the declaration of a national environmental policy. Advocates of this approach argued that without a specific policy, federal agencies were neither able nor inclined to consider the environmental impacts of their actions in fulfilling the agency's mission. The statute that ultimately addressed this issue was the National Environmental Policy Act of 1969.

The law was signed by President Nixon on January 1, 1970. NEPA was the first of several major environmental laws passed in the 1970s. It declared a national policy to protect the environment and created a Council on Environmental Quality (CEQ) in the Executive Office of the President. To implement the national policy, NEPA required that a detailed statement of environmental impacts be prepared for all major federal actions significantly affecting the environment. The "detailed statement" would ultimately be referred to as an environmental impact statement.

In 1970, President Richard Nixon proposed an executive reorganization that would consolidate many of the federal government's environmental responsibilities under one agency, a new Environmental Protection Agency. That reorganization proposal was reviewed and passed by the House and Senate.

The act was modeled on the Resources and Conservation Act of 1959, introduced by Senator James E. Murray in the 86th Congress. That bill would have established an environmental advisory council in the office of the President, declared a national environmental policy, and required the preparation of an annual environmental report. In the years following the introduction of Senator Murray's bill, similar bills were introduced and hearings were held to discuss the state of the environment and Congress's potential responses to perceived problems. In 1968, a joint House-Senate colloquium was convened by the chairmen of the Senate Committee on Interior and Insular Affairs (Senator Henry M. Jackson) and the House Committee on Science and Astronautics (Representative George Miller) to discuss the need for and potential means of implementing a national environmental policy. In the colloquium, some Members of Congress expressed a continuing concern over federal agency actions affecting the environment.

When EPA first began, the private sector felt strongly that the environmental protection movement was a passing fad, and the agencyТs first administrator, William Ruckelshaus, felt pressure to show a public that was deeply skeptical about governmentТs effectiveness that EPA could respond effectively to widespread concerns about pollution [5].

Thus, Agency was established as a response to global environmental challenges, which cause discontent of American society.

Today, AgencyТs head-quarter is located in Washington D.C. The Agency is represented by 10 offices and 27 laboratories at regional level. Agency is chaired by administrator, who is Cabinet level official.

EPA is formed by 13 departments, for air Ц Office of Air and Radiation(OAR), for land Ц Office of Land and Emergency Management (OLEM), for water Ц Office of Water (OW), for pollution prevention Ц Office of Chemical Safety and Pollution Prevention (OCSPP) are responsible and etc. The activity of Office of Enforcement and Compliance Assurance (OECA) is worth of special emphasize, which places special emphasis to law enforcement for environmental offenses.

Amongst functions and tasks of the Agency can be distinguished: law enforcement supervision; introduction of environmental standards; issuance of permits; offense prevention; monitoring and research conduct in the field of environmental protection and etc. Given the scope of responsibilities consider allowance for delegation of authority to states, e.g. supervision functions assigned to the office inspectors conducting audits in form of assessment [6].

For example EPA has right to issue certificate for particular activity with environmental impact. However, if states have EPA approved certificate issuance program, or such right is delegated by EPA, they are allowed to issue such document unto itself.

States have to provide legal background that proves their organizational and technical capability to issue certificates. At present, over 75% of states issue certificates unto itself, in other states it is implemented by EPA. Certificate generally is issued for a term of five years; after expiration the new certificate shall be obtained. New certificate cannot be issued with more amenable regulations of pollution discharge. New certificates, usually specifies harder requirements. Certificate can be amended whenever it is necessary, in case of restrictions violation certificate might be cancelled.

All known pollution sources has to regularly (monthly) submit reports on water polluting substance discharge to EPA or equivalent regulatory body of state. Data content of reports and certificates are open to public. To this end it is easy to audit by data comparison and reveal regulations violation facts [7].

Latest instance demonstrates one more important moment in AgencyТs activity, which applies the principles of transparency. All information about organizationТs structure and activity, US law in environment protection, agencyТs science achievements are available at official web-site http: // www.epa.gov. Planning information, budget information and EPA activity results on public access, has special practical value.

Overall, EPA functions in the US for 46 years, and during its long-lasting activity it did not go through any reorganization and did not change its legal status, unlike Kazakhstani analogue, environmental Ministry that was reorganized.

Moreover, at the begging, in 1970 the EPAТs budget was equal to over one billion USD, and 4 084 employees. For comparison here is a reference to organizationТs budget for 2016 Ц 8 139 887 000 USD, and 15 376 employees [8]. As seen, AgencyТs staff amount for the whole functioning period has grown for almost 4 times, and the budget has risen 8 times. In other words, environmental agency is rapidly growing, that proves organizationТs vital capacity. It appears, that deeper analysis of AgencyТs activity is to be interesting for the Republic of Kazakhstan, especially at the fore front of EXPO 2017 under the slogan УFuture EnergyФ, which covers one of the most relevant topics Ц alternative energy sources.

REFERENCES

1. План нации – 100 конкретных шагов по реализации пяти институциональных реформ // www. kazpravda. kz.

2. Бринчук М.М. Трудные времена экологического права// http: // igpran. ru/ articles.

3. Русин С.Н. Организационно - правовые формы экологической деятельности Федеральной пограничной службы Российской Федерации // Экологическое право России на рубеже ХХI века. – М., 2000. – 432 с.

4. Волков А.М., Лютягина Е.А., Линьков А.С. Органы управления природопользованием и охраной окружающей среды в США // http: // cyberleninka. ru /article/n/.

5. Unated States Environmental Protection Agency // http: // en.wikipedia.org/

6. Лютягина Е.А. Об органах публичной администрации в сфере природопользования и охраны окружающей среды за рубежом // http: // cyberleninka. ru / article/n/.

7. Брославский Л. И. Законодательство об охране вод в США// http: // cyberleninka. ru/ article/n/.

8. EPAs Budget and spending // http: // www.epa.gov.



Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016

  
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