The Erosion of the Rule of Law: How Populism Threatens Environmental Protection

The year I was born, the Yugoslav rock band, Riblja Čorba, released one of its major hits; ‘Pravila’ (‘Laws’). The song questions the authority of law and the countless procedures that it prescribes, and provides the soundtrack to Tesna Koža—a now classic Yugoslav movie about the Sisyphean struggles of a dutiful and honest civil servant in a deeply corrupt, state-owned company.

Fast forward 37 years and to Serbia, one of the countries that made up former Yugoslavia. In this constitutional democracy, legal procedures are again undercut—not by a rock band but by populist movements that have gripped the country. These acts are more mundane than those of, for example, Poland’s attempt to overhaul its judiciary, or the Hungarian government’s unabashed attack on the media and minorities—both of which have made international headlines¹ and prompted counter-action from EU institutions.² In Serbia, we witness a more discreet development, a gradual chipping away at the rule of law through attempts to withhold information, limit public participation and restrict access to the judiciary in areas relating to environmental protection. Populism, the rule of law and environmental protection thus operate within a kind of Venn diagram that shows their interconnectedness.

As projected by Riblja Čorba and Tesna Koža, Serbia enjoys a rich history in bureaucracy. Marx, and later Lenin, relied on the term ‘bureaucracy’ to identify a form of state power to be replaced post-revolution.³ In Yugoslavia, ‘bureaucracy’ came to signify ‘an apparatus standing above civil society and implying a separate social group (possibly class) in the discourse criticizing or indeed opposing socialist State power’.⁴ Administrative structures and organisations have thus long been an object of mistrust in the region.

The current political discourse in Serbia plugs into that history, even as it is swept up along with a global populist movement. Like most populism,⁵ this movement draws a distinction between the ‘people’, which it purports to represent, and ‘the elite’, the antagonist. Although who the people are is not always clear in populist rhetoric,⁶ the view is always ‘anti-pluralist’, and ‘the people’ tend to be conceived as a moral entity with its claims rooted in moral claims.⁷ This is currently being put into practice by the Serbian President, Aleksandar Vučić, who, in a recent newspaper column trades on cultural and economic grievances by identifying his political opponents—the ‘elite’—as possessing all the privilege, leaving ‘the people’—whom the President, however, offers to ‘defend’—to endure everyday hardship. ‘Elitism’, Vučić explains, means ‘detesting’ (‘prezireš’) your people and your country.⁸

This is significant. If the leader represents, or embodies ‘the peoples’ will’, and ‘the people’ are always right, as supposed in Benjamin Moffitt’s hypothesis, ‘then the leader is also always right’.⁹ As a consequence, any opposition, whether institutional or from within civil society, represents a difficulty for populists, as it undermines their claim to be the sole representatives of the people.¹⁰ This is why populist regimes go to such lengths to discredit their opponents, arguing that ‘civil society isn’t civil society at all’, and that what appears to be popular opposition on the streets ‘has nothing to do with the real people’.¹¹ In the case of Serbia, the President has followed this rule in an exemplary way and branded recent protesters against his regime ‘fascists, hooligans and thieves’, while also claiming their numbers, on the streets, to be insignificant, despite media reports to the contrary.¹²

The judiciary, similarly, is often targeted by populist movements for its ability to constrain executive force,¹³ as is the media reporting on such developments. In Serbia, this was recently manifested through public attacks by the ruling party on an appeal court judge who had criticised revisions of the criminal code as unconstitutional,¹⁴ and persistent threats, intimidation and violence against journalists.¹⁵

Clearly, populists are ‘impatient with procedures’¹⁶ and prefer a direct, unmediated relationship between the personal leader and the people. This is not to say that they ‘eschew constitutionalism’¹⁷ altogether. As Fieschi has explained, institutions and procedures are needed in order to create those ‘betrayal’ stories upon which populism depends.¹⁸ To understand populist movements and their impact on the legal framework, we must shed light on the undercurrents that cause the erosion of the rule of law, which, at least in its ‘formal and procedural ideal’, seeks to protect the judiciary and its proper functioning, as well as peoples’ access to law, and their ability to rely upon fair and respectful procedures in the determination of their rights and claims.¹⁹ Populism has been described as ‘chameleon-like’ in the way that it is ever adapting to the colours of its context.²⁰ To better understand it, we thus need to zoom in on the particular legal culture in which it operates to examine the pressure it exercises on the rule of law.

But how far should the rise in populism interest environmental law scholars? The corrosive effects on the rule of law in Serbia is particularly visible against an environmental backdrop—in the case of the development of small hydro-power facilities—making environmental law a useful site for investigation.

With the ratification of the Treaty establishing the Energy Community, Serbia assumed the obligation to promote electricity from renewable energy sources,²¹ which it incentivises through subsidies and feed-in tariffs.²² This has resulted in a ‘gold rush atmosphere’²³ in the hydro-power sector but with the calamitous environmental effect of threatening to push nearly one in ten of Europe’s fish species to the brink of extinction.²⁴ In many ways, this forms the setting of a typical environmental problem where a public good—here, rivers—are overused for a private benefit—that of private investors in hydro-power facilities—backed by a national measure implementing EU law, which, however, has been discretionarily applied to favour hydro-power above other renewables. The mechanisms that environmental law has developed to deal with such problems—including environmental impact assessments (EIAs), and providing access to the judiciary to adjudicate—are here significantly undermined.

As an example of such undercutting procedures, consider how access to environmental information—which is needed to understand and challenge the regime regarding the development of hydro-power plants—has been arbitrarily restricted. This was manifested, for instance, when a request for access to environmental information was rejected on the basis that the relevant civil servant was on a business trip with the required document, and later, on the grounds that the information in question was confidential for undisclosed reasons.²⁵ Also, the collection of environmental information for impact assessments is often delegated to the developer,²⁶ which has been identified as jeopardising the neutrality of the assessments.²⁷ Moreover, in collating environmental information, recent studies have established that building permits were granted automatically without any examination of the authenticity of the hydro-power projects described,²⁸ nor referring to available reports on strictly protected species in the area.²⁹

Similarly, public participation—‘an integral and essential part of the environmental assessment procedure’³⁰—is being undermined in cases relating to permits for hydro-power plants. Threats have been reported of physical violence against environmental non-governmental organisations (NGOs) attempting to participate in consultations as part of environmental assessment procedures, and public hearings have been organised in places or at times that make attendance impossible.³¹ Another way to circumvent public debate has been to proclaim that the development in question has no environmental impact³²—even in instances where the court suggests otherwise³³— with the aim of relieving the public authorities of public consultation obligations.

Access to the judiciary to enforce individuals’ rights and claims is also being undermined. This has taken the form of challenging environmental NGOs’ ability to gain standing before the courts through which they seek to enforce their environmental claims.³⁴ Equally, orders by, for instance, environmental inspectors, demanding that hydro-power plant projects under construction be halted are undercut by failing to implement these.³⁵ In this way, their decision-making power to stop such projects is rendered futile.

What is then the role of environmental law scholars in the wake of populism? To start, we must recognise the close link between the rule of law and environmental protection.³⁶ The populist style of politics, ‘impatient with the rule of law’,³⁷ puts pressure on environmental protection. Populism is a broad spectrum of political tendencies,³⁸ and the way different populist regimes restrain the rule of law will inevitably also vary. A careful mapping exercise is thus necessary, whereby scholars examine the extent to which a particular regime threatens the rule of law and environmental protection, noting whether other conditions intervene. Often, this will involve identifying undercurrents, such as seen in the case of Serbia, that chip away at environmental governance.

There is then a need to analyse the demand for populist rule, which frequently appears as a voice for the curtailing of environmental regulation.³⁹ Considering that populism depends on bureaucracies as culprits, to generate betrayal stories around environmental law, and that environmental law is overwhelmingly procedural in nature,⁴⁰ this makes environmental law especially susceptible to populistic pressures.

The same year that Riblja Čorba first sang about laws, they released another song that muses about ignorant citizens.⁴¹ As Alison Young has explained, it is easy to be complacent about populism —it is a contested concept and its connections to the broader legal architecture are not easy to map.⁴² In times of serious environmental threats that ultimately erode the rule of law, however, ignorance is a luxury that environmental law scholars cannot afford.

ACKNOWLEDGEMENTS

Thanks to Ulrika Carlsson, Elizabeth Fisher and Kristijan Stojanović for their comments. All errors remain my own.

Footnotes

1

See eg Marc Santora, ‘Poland Purges Supreme Court, and Protesters Take to the Streets’ The New York Times (3 July 2018) <https://www.nytimes.com/2018/07/03/world/europe/poland-supreme-court-protest.html> accessed 6 September 2019; Udo di Fabio and Manfred Weber, ‘Wie Rechtsstaatlichkeit Besser Verteidigt Werden Kann’ Frankfurter Allgemeine (New York City and Frankfurt am Main 17 March 2019) <https://www.faz.net/aktuell/politik/ausland/eu-polen-und-ungarn-wie-rechtsstaatlichkeit-besser-verteidigt-werden-kann-16093459.html> accessed 6 September 2019.

2

See eg the court action before the Court of Justice of the European Union, C-619/18 Commission v Poland, EU:C:2019:531, and European Parliament proposal calling on the Council to determine, pursuant to art 7(1) of the Treaty of the European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)).

3

Darko Suvin, ‘Bureaucracy: A Term and Concept in the Socialist Discourse about State Power (Before 1941)’ (2011) 48 Polit Misao 193, 194.

4

ibid.

5

Jan-Werner Müller, What is Populism? (Penguin 2017) 40.

6

See Elizabeth Fisher in this issue.

7

Catherine Fieschi, Populocracy (Agenda 2019) 27.

8

Aleksandar Vučić, ‘Elita i plebs’ Politika (Belgrade 10 July 2019) <http://www.politika.rs/sr/clanak/433411/Elita-i-plebs> accessed 6 September 2019.

9

Benjamin Moffitt, The Global Rise of Populism: Performance, Political Style, and Representation (Stanford UP 2016) 148.

10

Jan-Werner Müller, ‘Populism and the People’ (2019) 41(10) London Rev Books 35, 37.

11

ibid.

12

BBC News, ‘Serbia Protests: President Vucic the Target of Belgrade Rally’ (17 March 2019) <https://www.bbc.co.uk/news/world-europe-47602362> accessed 13 September 2019.

13

See eg the Daily Mail following the High Court’s verdict in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768.

14

Nataša Anđelković, ‘Miodrag Majić: ‘Šta napadi na njega pokazuju drugim sudijama’ BBC News (London 24 May 2019) <https://www.bbc.com/serbian/lat/srbija-48385140> accessed 13 September 2019.

15

European Commission, Serbia Report 2019, SWD(2019) 219 final, 25.

16

Müller (n 5) 61.

17

Nicola Lacey, ‘Populism and the Rule of Law’ (2019) 12 Annual Rev Law Social Sci 12.1, 12.9.

18

Fieschi (n 7) 35.

19

Jeremy Waldron, The Rule of Law and the Measure of Property (CUP 2012) 77. Note that this is not the exhaustive definition. Raz, for instance, adopts a formal or ‘thin conception’, while Bingham offers a substantive view, see Joseph Raz, ‘The Rule of Law and its Virtues’ in Joseph Raz (ed), The Authority of Law: Essays on Law and Morality (Clarendon 1979) 210; Tom Bingham, The Rule of Law (Penguin 2011).

20

Bojan Bugaric and Alenka Kuhelj, ‘Varieties of Populism in Europe: Is the Rule of Law in Danger?’ (2018) 10 HJRL 21, 22.

21

As found under Directive 2009/28/EC on the promotion of the use of energy from renewable sources [2009] OJ L140.

22

This is explained in more detail elsewhere, see Sanja Bogojević and Mirjana Drenovak-Ivanović, ‘Environmental Protection Through the Prism of Enlargement: Time for Reflection’ (2019) CMLR 949.

23

RiverWatch, The Balkan Rivers: Save the Blue Heart of Europe <https://riverwatch.eu/en/balkanrivers/background> accessed 6 September 2019.

24

Steven Weiss and others, Endangered Fish Species in Balkan Rivers: Distribution and Threats from Hydropower Developments (RiverWatch and EuroNature 2018) 1, 38.

25

Decision of the Commissioner, No 07-00-03821/2013-03.

26

Under Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124, the developer needs to follow specific procedures, as outlined in art 5(1)–(3) and ensure, eg, that relevant experts are involved in the assessment reporting.

27

Akademija Inženjerskih Nauka Srbije/The Academy of Engineering Sciences of Serbia, ‘AINS ponovo o MHE’ (22 February 2019) <www.ains.rs> accessed 6 September 2019.

28

Mirko Popović and Jovan Rajić, ‘What Can You Do in Serbia When You Build a Small Hydro-power Plant?’ (CRTA 2019) <https://crta.rs/wp-content/uploads/2019/07/What-can-you-do-in-Serbia-when-you-build-a-small-hydropower-plant.pdf> accessed 6 September 2019.

29

Decision of the Ministry of Environmental Protection, 18 June 2017, No 353-02-1374/2017-16.

30

Statement of the Energy Community Secretariat on small hydropower development (13 November 2018) <www.energy-community.org/news/Energy-Community-News/2018/011/13.html> accessed 6 September 2019.

31

Peter J Nelson, ‘EIA/SEA of hydropower projects in South East Europe: Meeting the EU Standards’ (South East Europe Sustainable Energy Policy 2015) 23 <http://d2ouvy59p0dg6k.cloudfront.net/downloads/hidro_v6_webr.pdf> accessed 6 September 2019.

32

See eg the ongoing ‘Aleksinac’ case <https://www.reri.org.rs/seca-stabala-u-aleksincu-mimo-svih-procedura> accessed 6 September 2019.

33

This is exemplified in a recent case—albeit not in relation to the development of hydro-power plants—on the construction of a cable car in Belgrade. For an overview, see <https://www.reri.org.rs/en/for-execution-of-preparatory-works-on-the-development-of-cable-car-usce-kalemegdan-without-construction-permit-reri-submitted-private-criminal-claim-against-the-investor-jp> accessed 6 September 2019.

34

See eg the ‘cable car’ case <https://www.danas.rs/beograd/insajder-slucaj-gondola-pred-vrhovnim-kasacionim-sudom> accessed 6 September 2019.

35

See eg the case of ‘Rakita’, Lazara Marinković, ‘Mini-hidroelektrane u Srbiji: Zašto su borci za opstanak reke spremni da žrtvuju i sopstvenu slobodu’ BBC News (London 29 May 2019) <https://www.bbc.com/serbian/lat/srbija-48279097> accessed 6 September 2019.

36

As argued in Bogojević and Drenovak-Ivanović (n 22).

37

Lacey (n 17) 12.9.

38

Bugaric and Kuhelj (n 20), for instance, discuss a specific strand of populism found in Eastern Europe.

39

See Elizabeth Fisher in this issue.

40

As exemplified by the environmental impact assessment-regime, and the construction, as well as operation of environmental rights, at least in the EU, see Sanja Bogojević and Rosemary Rayfuse (eds), Environmental Rights in Europe and Beyond (Hart 2018).

41

‘Kako je lepo biti glup’ (Buvljava pijaca 1982).

42

Alison Young, ‘Populism and the UK Constitution’ (2018) 71 CLP 17, 19.