La tutela della vita come matrice ordinamentale della tutela dell’ambiente (in senso lato e in senso stretto)

The paper proposes the following theses. The protection of life can be considered the legal matrix of the protection of the environment. On the one hand, life reveals itself in its existential and minimum dimension, that is to say as the inviolable right of men to defend their own biophysical survival (being). On the other hand, life reveals itself in its qualitative and expansive dimension, that is to say as the full development of the human person and the material or spiritual progress of society (well-being). In analysing the hypertrophied set of legal rules that variously qualify as ‘environmental’ norms, it is therefore necessary to make an effort to discern which norms are devoted to the protection of life in its qualitative and expansive dimension, i.e. aiming to avert harmful risks to development that, while not threatening survival, nevertheless reduce or worsen the quality of life/the level of well-being for humanity, leading to a regression or halt in development; and which norms, on the other hand, are more radically devoted to the protection of life in its existential and minimum dimension, i.e. are intended to cope with catastrophic risks to existence/threats to human survival, whether individual or collective, in the short, medium or long term, with particular regard to the risks of ecological collapse determined by the overstepping of the limits of the ecological systems by socio-economic systems, which are included in the former. The circumstance that legal sources sometimes use the term «environment», other times different terms such as «ecological» balances or features, «ecosystems», «nature», «biodiversity», does not seem to be a mere matter of nominalism. It is rather a matter of ‘linguistic symptoms’ revealing a substantial difference: the ‘environment’ is a generic and all-encompassing term, which evokes the protection of life mainly in its qualitative and expansive dimension, i.e. with respect to risks to human development; the more specific terms borrowed from ecological sciences, such as ecosystem, biodiversity, species, resilience, planetary limits, etc., on the other hand, evoke the protection of life also in its existential and minimal dimension, i.e. with respect to risks to the very existence of the human species. The reform of the Italian Constitution by the Constitutional Law no. 1/2022, with special reference to the new formulation of Article 9, has made it possible to distinguish between a legal concept of the environment in the broad sense, marked by the use of the well-established term «environment», and a legal concept of the environment in the narrow sense, expressed notably by the terms «ecosystems» and «biodiversity». The environment in the broad sense is a system of relations between not only ecological, but also social, cultural and economic factors; it is therefore the legal result of a balancing between these factors, which is carried out on the basis of decisions characterised (as administrative case law on environmental assessments testifies) by a very high rate of (not technical, but) pure administrative discretion. The environment in the narrow sense - or the “nature”, if you prefer to use a more traditional term - on the other hand, consists exclusively of the ecological factors (which, in balance with social, cultural and economic ones, give rise to the environment in the broad sense): unlike the environment in the broad sense, it is not to be constructed, through a balancing by assessments with a very high degree of political-administrative discretion; rather, the environment in the narrow sense is to be observed, recognised, andù safeguarded, since the fundamental ecological properties, such as resilience, or ecological limits, such as planetary boundaries, or ecological cycles, such as biogeochemical ones, being the natural foundations of life, are not negotiable ex contractu, abrogable ex lege, or directable ex actu; with respect to the environment in the narrow sense, the administrative law is called upon to bring into play, in the light of the new constitutional framework, not so much pure administrative discretion as technical discretion, recognising the need for a close transdisciplinary dialogue with ecology, whose conceptual categories now appear to be explicitly transposed at the highest level of the legal system. The environment in the broad sense includes in itself the environment in the narrow sense, but the latter, now constitutionally enucleated and differentiated, looks set to rise to the status of autonomous subject of mandatory protection: in the renewed constitutional framework, the regulation of the environment in the broad sense, in balancing multiple factors, finds its foundation in biophysical existence and legal protection of the environment in the narrow sense, so that it would be inconceivable to jeopardize the latter at the time of regulating the former; that is, the protection of the environment in the narrow sense is set up as an a priori for the management of the environment in the broad sense.