ROAD CONSTRUCTION THROUGH PROTECTED NATURAL AREAS
AND OBJECTS: THE LEGAL PROBLEMS
Current Russian legislation stipulates that Protected Natural Areas (PNAs) and objects include state nature reserves, biosphere reserves, national parks, state nature nurseries (hunting nurseries excluded), natural monuments, and botanical gardens (Article 94 of the Land Code of the Russian Federation; Article 2 of the Federal Act On Protected Natural Areas). Economic activities on these lands are limited and must be carried out in compliance with the imposed regimes. The law forbids confiscation of lands in PNAs and objects in the Russian Federation.
Let’s first consider the legitimacy of the very question of road construction through a PNA. Take, for example, the Kavkazsky State Nature Biosphere Reserve and Sochinsky National Park. As we know, construction of a road across Lagonakskoye Plateau that would connect Maikop with Sochi is now being considered for the third time. Another road construction project is being developed by the Caucasus Golden Ring Program. This road will connect Psebai Settlement (Mostovsky District of Krasnodarsky Krai) with Krasnaya Polyana Settelemnt (Adlersky Distirct of Bolshoy Sochi). There is also talk of laying a railroad though the Main Caucasian Mountain Ridge, again across PNAs.
For any road to be built, land must first be allotted. For that land to be allotted it must first be taken away from its former manager, user or owner. This procedure has been established by law and there’s not getting around it! Moreover, in addition to the land allotted for the actual road, the land adjacent to the road also falls under the jurisdiction of the Road Service. For federal highways the adjacent land strip should be no less than 50 meters to either side. If the user of the land is a reserve or a national park, how can it be allotted for road construction?
As we’ve already said, the confiscation of lands belonging to state nature reserves and national parks for economic use is forbidden. The following pieces of legislation confirm this: the Land Code of the Russian Federation: Part 6, Art. 1; Part 2, Art. 7; Part 6, Art. 94, Parts 3 and 7 of Art. 95; the Federal Act On Environmental Protection: Part 4, Art. 58; the Federal Act On Protected Natural Areas: Part 2, Art. 6; the Federal Act On Fauna: Art. 23; articles in the Statement on Russian State Nature Reserves and the Statement on Russian National Parks, approved by Russian Government Decrees as well as numerous departmental normative acts.
The regimes of most PNAs do not envisage such activities as the construction of arterial roads. First of all, road construction is very often prohibited by the Statements of these PNAs, both model and individual. Secondly, even if the road builders meet the requirements and obey the norms and regulations, road construction inevitably destroys the habitats of animals and plants within the impact zone. It also destroys a certain part of the organisms living there, including rare and endangered species. Furthermore, road construction produces long-lasting after-effects such as the “disturbance factor”, destruction of migration tracks, splitting up of plant and animal populations cut off from each other by the road. These circumstances are taken into account in the new Russian Land Code (p. 7 Art. 95). Unlike the old Land Code, it stipulates that “in federal PNAs it is prohibited to construct federal automobile roads”.
Legislation on PNAs prohibits any activities that disturb natural processes or threaten to disturb natural complexes and objects as well as activities unrelated to a PNA’s own aims and objectives. Articles 59 and 60 of the Federal Act On Environmental Protection prohibit activities causing the reduction of rare and endangered species of animals and plants or leading to the degradation of their habitats. The same is confirmed in Art. 24 of the Federal Act On Fauna. Various restrictions are imposed by normative acts of the Russian Government, such as the Statement on protection zones of water objects and their coastal or shore protection belts and the Order to prevent the death of wildlife objects during industrial development as well as in the process of utilization of transportation mains, trunk pipelines, connection and electricity transmission lines.
Given all the above legislation, road construction in PNAs is, as a rule, legally impossible. Irrespective of the level the decision is to be made on, the allotment of land (if the laws are observed) will be suspended once the state ecological examination has been conducted. We may, of course, assume that the signatures on all the required documents will appear after an order has come down from above. However, taking into account the vital importance of the Kavkazsky State Nature Biosphere Reserve and Sochinsky National Park, both nationally and internationally, the conservation traditions of these PNAs dating back to the times of Great Prince Kuban’s game-shooting, and their UNESCO World Natural Heritage status as part of the Western Caucasus nomination, problems in these areas will attract the attention of the Russian and international conservation and scientific communities, political leaders, famous artists and businessmen. Also a public ecological examination of the road construction project must be done. The right to conduct such an examination is stipulated in Chapter 4 of the Federal Act On Ecological Examination.
The only way to avoid these legal problems is if amendments are made in current Russian legislation: at least two Codes, three federal acts and two government decrees. Given the unpopularity of such amendments, one can guarantee that approval by the State Duma and other bodies would take a very long time. The draft laws would have to be checked by commissions of experts, both state and public. It is doubtful that all these amendments will pass (they may not pass at all!), since their approval will cause greater negative consequences than road construction without permission.
If the ban on confiscating lands from PNAs and natural objects and the ban on economic activities unrelated to the aims and objectives of nature reserves and national parks remain in force, any construction within PNAs will be illegal. Construction will count as a violation of the PNA regime with all the ensuing consequences (administrative, criminal and civil code responsibility).
As of July 1, 2002, administrative responsibility in the form of fees is envisaged by Articles 8.1, 8.4—8.6, 8.8, 8.9, 8.12, 8.13, 8.28—8.31, 8.33, 8.35, 8.38, 8.39 and 9.5 of the new Code on administrative violations of the law. References to administrative responsibility appear in Art. 75 of the Federal Act On Environmental Protection; Art. 55 of the Federal Act On Fauna; and Art. 32 of the Federal Act On Ecological Examination.
Criminal responsibility starts when illegal actions have caused considerable damage, which is inevitable due to the scale of planned construction works and the importance of PNAs. The current Criminal Code envisages such ecological crimes as violation of environmental protection rules and regulations during industrial development (Art. 246); water pollution (Art. 250); destruction of vital habitats for organisms in The Red Book of the RussianFederation (The Book of Rare and Endangered Animals) (Art. 259); illegal cuttings of trees and bushes (Art. 260); and violations of the regime of PNAs and natural objects (Art. 262).
Civil legal responsibility stipulates reimbursement for damage caused to natural objects and complexes in PNAs in accordance with the fixed rates and methods of evaluating the damage. In the absence of fixed rates and methods of evaluation — the violator reimburses the actual cost of restoring the natural objects and nature complexes. Reimbursement of damages may be done at the expense of those juridical and physical persons who permitted the violation as well as at the expense of the Russian Federation (in case of illegal civil and construction works on the basis of a legal act issued by government bodies) (Art. 16 of the RF Civil Code).
Preliminary calculations show that only part of the direct damage (most evident) to the forest fund in a reserve’s territory, calculated by using fixed rates (Russian Government Decree ¹ 388, May 21, 2001), will amount to tens of billions of rubles. This aspect of the legal problem overlaps with technical and economic aspects of road construction at the planning stage since possible losses due to reimbursement for the damage done as well as the inevitable additional cost of meeting the stricter requirements of a construction site within a PNA should be included in the project budget. As a result the cost of the project, big to begin with, will increase several times, and the self-repayment period will exceed all reasonable limits.
Valeriy Brinikh,
Kavkazsky State Nature
Biosphere Reserve
