Energy development and the problems of legal environmental protection in the Arctic zone of the Russian Federation. I.A.

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1 Energy development and the problems of legal environmental protection in the Arctic zone of the Russian Federation I.A.Ignatyeva 1 Abstract: Energy development in the Arctic zone of the Russian Federation the urgent social and economic need. However, the unique ecological systems in the Arctic and its unique flora and fauna, the properties of forming of the climate of the planet require special legal protection measures with the proposed increasing of the economic activity in the region. Solution of the problem of sustainable development while preserving vulnerable Arctic environment is currently significantly complicated by the absence of specific legal norms for the protection of the Arctic environment, insufficiency of clear measures to protect the environment in the planning, strategic documents, filled sometimes with contradictory reference points of development with substantial superiority of the economic targets to environmental. Keywords: energy development, sustainable development, Arctic zone of Russian Federation, environment, use of natural resources, environmental protection, development and use of the Arctic. 1. Introduction Energy development in the Russian Arctic is considered to be an urgent national task and one of the most important trends in modern public policy. The National Security Strategy of the Russian Federation until stressed the necessity of formation of the basic energy infrastructure in the Arctic zone. The Energy Strategy of Russia until (hereinafter referred to as the Energy Strategy) treats the energy exploration of the Arctic among the major regional strategic initiatives of the government and business. The image of the future of the Siberian Arctic in the Strategy of socio-economic development of Siberia until is linked directly with the upgraded power industry. In turn, the Strategy of development of the Arctic zone of the Russian Federation and for national security for the period up to (hereinafter referred to as the Strategy of development of the Arctic zone) provides among the priorities and the major activities the 1 Doctor of law, Associate Professor, the Subdepartment of Environmental and Land Law, the Law Faculty of Lomonosov Moscow State University, igna@land.law.msu.ru 2 The Decree of the President of the Russian Federation is dated May 12, Item 62. In this article, references to legal normative acts are taken from the Informational legal system ConsultantPlus. 3 The order is dated November 13, r. Paragraph 6 of Section V. 4 The Decree is dated July 5, r. 5 The Strategy was approved by the President of the Russian Federation (no data, no number.) 1

2 formation of the reserve fund of deposits in the Arctic zone of the Russian Federation guaranteeing energy security and sustainable development of the energy sector in the long term 6. Such a setup about the development of the economy, including its energy sector, as applied to the Arctic is quite understandable. Energy plays the leading role in the economy of the Arctic territories, as it is outlined in the Concept of state support for economic and social development of regions of the North 7. This Concept states that the system of energy supply for Arctic settlements remains inefficient. The total lack of development of the energy system, as well as the irrational structure of power generation capacity, the high cost of generation and transmission of electric power are stressed either in Section 5 of the Strategy of development of the Arctic zone. Thus, the need for energy development in the Arctic is obvious and justified. It is important however, that at the same time the Arctic zone marks a unique ecological systems, and unique flora and fauna of the Arctic. The Arctic is the region that generate the climate of the planet. Perhaps the most detailed and diverse characteristics of the Arctic territories listed in the subprogram "Development and use of the Arctic" Federal Program "World Ocean" 8. The economic significance of the Arctic lies in its natural resource and marine logistics capabilities, the geopolitical role is connected with its special geographical position, and the existence of unique ecosystems, its role in biodiversity and the preservation of the traditional indigenous system of nature, for which biological resources make the basis of their life activity, determine the ecological significance of the region. At the same time the Arctic environment is seen as extremely vulnerable, and what's more, it is emphasized that a violation thereof is practically irreversible. 6 Ibid. Paragraph The resolution is dated March 7, 2000 number The resolution is dated August 10, 1998 N

3 Bearing in mind that the fuel and energy complex is one of the main sources of pollution of the environment, as noted in the concept of long-term socio-economic development of the Russian Federation for the period up to (hereinafter the Concept), energy development in the Arctic appears to be a difficult problem that requires special approaches in rulemaking. Today, the realization of the idea of sustainable development of the Arctic region is in need of additional environmental regulations focus, perhaps, special regulations for the Arctic zone (currently Russian Ministry of Regional Development has organized the lawmaking activities of creating the draft of federal law "On the Arctic zone of the Russian Federation" 10 ). 2. Legislative basis, programmatic and strategic documents about environmental protection during energy development in the Arctic zone The legislator establish the general requirement to protect the environment when doing business in the energy sector. So, environmental safety is put forward as a principle of organization of economic relations and the state policy in the sphere of electric power 11, as well as among the principles and methods of state regulation and control in electric power 12. A set of requirements in the field of environmental protection at the location, design, construction, reconstruction, commissioning and operation of energy facilities is provided for in the laws on the protection of the environment 13. The rules on the environmental protection in relation specifically to the Russian Arctic have appeared to date only in the documents of programmatic and strategic planning nature. 9 The order is dated November 17, r Federal Law of March 26, FZ "On Electric Power Industry". Article Ibid. Article See: The Federal Law of January 10, 2002 N 7-FZ On the environmental protection. Article 40. 3

4 It is noteworthy that intensification of development of the Russian sector of the Arctic is provided in the following areas in environmental sphere: a reduction of environmental damage from increased economic activity and environmental restoration, disturbed as a result of past activities in the Arctic territory of the Russian Federation; development of information and communication technology to provide by 2015 monitoring of the natural environment; timely warning about the high levels of pollution 14. The follows specific activities are called in the Basis of state policy of the Russian Federation in the Arctic up to 2020 and beyond 15 : and also: to ensure the conservation of the biological diversity of the Arctic flora and fauna, including through the expansion of the network of specially protected natural territories and water areas, with taking into account the national interests of the Russian Federation, the need to preserve the natural environment during the expansion of economic activity and global climate change; to implement the planned utilization of ships with nuclear power units, end-of-schedule operation 16 ; the establishment of special regimes of natural resources and protection of the environment in the Arctic zone of the Russian Federation, including the monitoring of pollution; restoration of natural landscapes, disposal of toxic industrial waste, chemical safety, especially in areas where the population 17. Exactly the same activities for the protection of the Arctic environment are repeated in the Strategy for the Development of the Arctic zone 18. There must be provide the adoption of measures aimed at protecting the natural environment of the Arctic zone, based on its systematic complex scientific research at all stages of the implementation of the Strategy Item 3 of Section VII of the Concept. 15 The Basis of state policy of the Russian Federation in the Arctic up to 2020 and beyond are adopted by President of Russian Federation in September 18, 2008 N Pr Ibid. Item 8 of Section IV. 17 Ibid. 18 Item Ibid. Item 33. 4

5 The Energy Strategy plans consecutive reduction of load on the environment and climate made by the energy sector, by reducing pollutant emissions, wastewater discharge, as well as greenhouse gas emissions, reduce waste production and energy consumption 20. For the implementation of the environmental safety of the energy sector there had been developed special measures of the state's energy policy, in particular, these include: promoting and creating the conditions for the introduction of clean and resource-saving energy-efficient technologies in the production, transportation, storage and use of energy resources; removal of basic infrastructure, technological and other barriers to the rational use of associated petroleum gas and minimize the volume of its flaring, creating conditions for the expansion of production of electricity and heat from renewable energy sources, the formation of future regulations, standards and regulations, the development of an environmental audit in relation to the organizations all forms of property, engaged in business activities in the energy sector, promotion of increased production of high-quality motor fuels with improved environmental performance in line with international norms and standards Problems of providing of the environmental measures during energy development in Arctic zone The adequacy of such a complex environmental measures can be examined on the following example. Both the Concept and the Energy Strategy consider energy conservation and energy efficiency as one of methods to resolve environmental problems in the process of energy development. It is important to note that the very development of the energy complex is linked not only with solving problems of accelerated development of electricity infrastructure to overcoming the shortage of perceived generating and transmission capacity, technological innovation and energy sector and creating a new system of institutions of the liberalized energy market, improvement of the scope and efficiency of extraction and 20 Section II. 21 Ibid. Section 2, Title V. 5

6 processing of oil, gas and coal, providing an increase in exports and meeting the growing needs of the domestic economy, but equally with the solution of the active energy savings due to structural factors, modernization of production, introduction of new technologies and the implementation of energy conservation measures 22. In turn, the implementation of measures aimed at improving the energy efficiency of the Russian economy will to a large degree ensure environmental safety, and specifically reducing the negative impact on the environment. The Concept plans to reduce this level by at least 20% by We believe that the implementation of environmental objectives through the introduction and implementation of the idea of energy conservation and energy efficiency significantly hampered by the presence of other benchmarks established the same concept. Thus, among the priorities of social and economic policy 23 it is planned to expand the resource base of the economy, the active exploration of hydrocarbon deposits of the Arctic shelf and Eastern Siberia. Activation of development of the Russian sector of the Arctic provides, among other areas of intensification of work on development of oil and gas fields, the transmitted resource users, as well as unallocated subsoil fund of the Arctic continental shelf. It is noteworthy that the development plans of another region, including the Arctic and territories North-West Federal District are also associated primarily with the implementation of the project for the extraction of hydrocarbons. Strategy for Socio- Economic Development of the North-West Federal District until , in terms of determining the basis of socio-economic development of the Murmansk Region considers a draft of integrated development of the Shtokman gas condensate field as creation of a strong 22 Item Section II. 24 The order is dated November 18, r. 6

7 groundwork for future development of hydrocarbon resources in the Arctic. Around the project should be formed a technological cluster of offshore production in the Arctic. Objectively, the build-up of mining operations does not stimulate saving of natural resources and energy conservation. The concept sets up the two opposite directions of future development, and that make two polar mentalities, two different types of thinking emerging in the society with regard to the environment. The Federal Law "On Energy Saving and Energy Efficiency Improvements and on amendments to certain legislative acts of the Russian Federation" in its two basic notions "energy saving" and "energy efficiency" is focused respectively on the volume and cost of energy resources 25. This is a course on energy savings, which are logically opposed the planned intensification of large-scale use of natural resources. The said contradiction also applied to the course for the development of non-fuel energy and use of renewable energy sources (geothermal, solar, wind energy, bio-energy) and energy26 designated in the Energy Strategy. In this area of action is also difficult to establish the unity of interests. As pointed out in the Energy Strategy itself, involvement in the fuel and energy balance of new renewable energy sources will balance energy demand and reduce the environmental load from the power plants on the environment. This is correct but only on the condition the law creates certain mechanisms eliminating the interest of energy companies just to maintain this demand and at a high level. The second significant problem of the implementation of sustainable development policies in the Russian Arctic is generated by the overall state of the legislation on the environmental protection. This state is such that does not provide the opportunity to realize the full range of nature protection measures outlined in the strategic documents. For example, 25 The Federal Law "On Energy Saving and Energy Efficiency Improvements and on amendments to certain legislative acts of the Russian Federation" on November 23, 2009 N 261-FZ. Article Section VI. 7

8 the reduction of pollutant emissions, wastewater discharge, and so on, which are planned in sections II, V of the Energy Strategy, directly depend on the decision of a problem how the current legislation creates economic incentives. The same can be said about the stipulated environmental audit. This part of the Russian environmental legislation is still undeveloped. 4. Concluding Remarks From the legal point of view there is a strong need of systemic understanding of the areas of strategic and program planning, development frameworks, therefore existence of divergent goals and controversial conditions in a single document should not be allowed. Official position of the state and development priorities should be more clearly defined and well structured. Priority areas are not simply a list of tasks at a certain stage, they require a systematic approach to the formulation and interrelated presentation. In addition, as a rule, such documents as strategies, programs, concepts, doctrines are designed primarily for some specific purposes, mainly economic (with the exception of some of the same sort the documents designed for a particular region, but even then economic guidelines have a significant advantage). Environmental aspects are difficult to reflect in such kind of documents, they are often being dealt with formally and perfunctorily. In the acts of the prevailing economic content it is appropriate to apply and take into account the idea of sustainable development, which involves the development of industries in compliance with the harmonious combination of economic and environmental interests. With respect to the Arctic zone plans of increasing of the economic presence in the region, significantly increasing the load on the environment and natural resources of the Arctic should be fully compensated by environmental measures, policies designed to prevent and limit the activities that could adversely affect the environment of the North. 8

9 The State Program of the Russian Federation "Protecting the environment" for identified specific threats associated with large-scale economic plans in the Arctic. However, the appropriate responses to these threats must be included in laws and other legal acts the implementation of which gives rise to unfavorable forecasts for the environment. In addition to the nomination of tasks in the field of environmental protection it is also important to think of and establish the mechanisms for solving them, building a system of duties and standards of responsibility for non-compliance (if necessary improvement of legislation). This is the condition for the plans in the Arctic to be consistent with the principles of sustainable development, will take into account the unique original characteristics of the region. 27 The Decree is dated December 27, r. 9