Justice chancellor: Green drive should not sideline legislative due process

Ülle Madise, Estonia's Chancellor of Justice.
Ülle Madise, Estonia's Chancellor of Justice. Source: Kairit Leibold/ERR

While the Constitution provides for the protection of the environment, equally if provides for the fair implementation of legislation, meaning the latter should not be rushed so as to meet obligations already taken on, Chancellor of Justice Ülle Madise says.

Madise made her remarks to the Riigikogu, in the context of climate change legislation which she fears will end up with the legislative process being ridden over roughshod, due to impending deadlines.

Speaking to the XV Riigikogu on Wednesday, Madise expressed concern over so-called "cluster laws", in which a tranche of legislation covering a wide area of topics is put up for a Riigikogu vote at the same time. Even if it passes the vote, the head of state, in his constitutional role, may deem one piece of legislation from among the cluster as counter to the Constitution and decline to promulgated it – with the net effect being that the entire suite of legislation is then halted.

"For this reason, I always recommend taking concrete steps, amending laws one by one, and discussing them calmly," the justice chancellor said in her speech.

Madise noted that constitutional checks are in any case in place, including taking a piece of legislation to the Supreme Court, where Madise would represent the state.

"Should any norm providing for extensive changes also end up at the Supreme Court for Constitutional review, then this is also a completely normal course in the life of the state," she added.

A previous example of a cluster law could be seen during the Covid crisis, while a recent case of a statute ending up before the Supreme Court comes from the same period.

Now, Madise said she feared a cluster law on climate might be held up or be opaque in its processing, regardless of how well coalition talks between Reform, Eesti 200 and the Social Democrats went, in getting the proposed legislation included in their governmental agreement.

A law need not outline nuanced details, but should instead resolve basic questions, she added.

"If that is not the case, a law does not have a clear meaning in constitutional terms, either."

"Talk that this or that this cannot be carried out in the event of a crisis should be disregarded," she went on.

"It is important in the event of any crisis to have thought through exactly what can in fact be done. This is essential."

The legislature nonetheless plays a crucial constitutional role, Madise noted; limiting oil shale extraction, for instance, can only be achieved via the corresponding legislation governing the earth's crust, in Estonia.

At present, the Earth's Crust Act allows for oil shale mining to go on beyond 2050, Madise said – this is the watershed year by which the EU wants to attain climate neutrality and a goal which Estonia signed up to several years ago.

In any case, with the requisite political will, previous legislative amendments can be rolled back; what Madise said was undesirable was when a law passed became something of a blank canvas, on which the executive or an unelected state official can "paint" whatever they would like.

"Unfortunately, the field of climate protection seems to be one of the relevant bad examples [here]," Madise went on, calling such legislation "nonsense".

The Estonian Constitution clearly provides for environmental protection, but equally for the fair and reasonable enforcement of required rules and regulations, she said.

The proposed climate law has led to many people, environmentalists and business-people alike, to approach her with questions, due to a lack of clarity in the legislative amendments as presented.

Minds must also be concentrated, since the first of several way-marker years to 2050 – namely every five years from 2030 – is but seven years away. Madise noted that this will spell big changes in industry, mining, energy, transport and many other areas.

The worst case scenario would see not only a legislative quagmire and a rush to see the necessary things getting done before the first deadline in 2030, but also potentially litigation and damages costs, which would, Madise said, put a strain on an already tight state budget.

In fact, these phases run beyond 2050, to at least 2055.

All this means enough time should be left for the required reorganization, with healthy debate and discussion at both domestic and EU level.

While during the term of the previous Riigikogu, entrepreneurs approached Madise, she said, telling her that they had been advised to plan their activities based on development plans and not laws, neither development plans nor coalition agreements entail any rights or obligations – this is attained via legislation.

Furthermore, adopting a development plan does not somehow expedite the achievement of required changes, she added.

At local level too, municipalities will need to consider how green transition policies will be implemented at a practical level, the justice chancellor said.

The advent of the new Reform-Eesti 200-SDE coalition has seen swingeing changes, in theory at least, to the set up of ministries and their agencies, plus the installation of a new ministerial post, to be held by veteran Reform politician Kristen Michal, of climate minister.

A more efficient state was a watchword of Eesti 200's pre-election messages, though it sits well with Reform's worldview also.


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Editor: Andrew Whyte, Barbara Oja

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