by Stefano Civitarese[*]
One of the issues addressed in the conference held in Pescara on 14th December on ‘Bears without borders’ revolved around the role of the National Plan for the Protection of the Marsican Bear (PATOM), which was conceived as a means to devise measures of protection of this species beyond the historical borders of the National Park of Abruzzo, Lazio, and Molise as well as to deal with the lack of a statutory law on wild animals besides the management of game hunting carried out at a regional level.
At the international level, from a conservationist perspective, an Action Plan is a set of measures to secure the protection and restoration of biodiversity. In an issue of the journal “Quaderni di Conservazione della Natura” devoted to the PATOM, one can read that an Action Plan is the best approach to protect biodiversity as well as to manage the interaction between species and habitats. Indeed, it is not always possible to preserve the biodiversity of natural ecosystems as a whole, which is normally pursued by creating highly protected zones inside national Parks. To adopt, then, a so-called species-specific approach, is in many circumstances the most adequate technique to pursue ampler objectives of environmental protection. By focusing the effort on the protection of some species critically in danger of extinction, a kind of domino effect can be triggered from which other species and the environment in which they live benefit as well. That is the approach recommended by the Council of Europe. Indeed, a specific plan for the conservation of the Appennine bear has been indicated as a priority by the Bear Action Plan implementing the Bern Convention. In addition, conservation campaigns about particular species having a renown charisma – so called flag-species – can yield such an impact on public opinion to make it easier the design and implementation of actions to preserve entire ecosystems.
By assuming the viewpoint of a single legal system, though, under the label ‘Action Plan’ an array of different legal instruments is evoked. In Italy a specific legal provision traceable to an action plan for biodiversity does not exist, whilst, for example, in the US the Endangered Species Act establishes the automatic protection of the species contemplated in conservation plans, which in turn triggers specific actions and measures.
In other words, in Italy the main problem regarding such plans concerns their legal nature and implementation. In the first lines of the mentioned ‘Quaderno PATOM’ the risk of non-enforcement is addressed by detecting two probable causes for it: the absence of an explicit legal scheme for such Action Plans and the fragmentation of the administrative network regarding wild animals management, which requires laborious negotiations between local authorities, different administrative agencies and Park’s authorities.
For animals which roams over vast territories, such as bears, the latter aspect is even more prominent. Given the ‘interference’ of bear’s life with human activities such as agriculture, tourism, infrastructure, roads, zootechnics, hunting, etc. many administrative competences and decisions have to be taken into account. The necessity of coordinating different public authorities is even more important outside the borders of National Parks, as one of the main goals of the PATOM should be to create animal corridors and stop the further destruction of natural habitats in a way that the expansion of the population range along the Central Appennine is made possible. On this point a caveat is fitting. One should not think that within National Parks the issues that the PATOM is meant to face are far less urgent. The zoning technique there applied – by the way still not in place due to the huge delay in the implementation of planning processes – albeit correct in principle, only in some highly protected areas does make sure that biodiversity protection is given absolute precedence over human activities. Besides, the creation of such areas is a quite limited policy regarding the conservation of species which move around to a great extent. Even though such highly protected areas are key to restoring conditions of quasi-wilderness and letting animals carry out essential biological functions (let us think of winter quarters for bears), most of the times the most needed and urgent measures apply to anthropic areas. To mention a very fresh and sad news (the umpteen killing of a female bear by car accident on Christmas Eve), let us think of the issue regarding traffic regulation and road works, about which Park authorities have no competence at all, whilst measures relatively straightforward, such as speed reduction, are decided by public authorities who do not take into any account the use of roads by wild animals.
An action plan to coordinate all the public authorities involved into bear-related issues, including Parks authorities, then, is not only an excellent thing, but it is the only viable solution at hand to pick up the challenge we face. The point, though, is what is this plan and what should and could be.
In the view of the operators (the people actually working within the PATOM scheme), influenced by the above-mentioned idea that Action Plans lack legal value, the opinion that the PATOM is just a way to share practices and elaborate non-binding guidelines seem to prevail. This is not something of little moment, in fact some good practices which have been developed over the last decade – for example regarding monitoring and capture protocols – can be ascribed to the existence of a permanent forum of discussion which the PATOM has made possible. Notwithstanding, it is utterly inadequate to the ultimate goal, which is to secure the long-term future of the Marsican bear population.
Let us go back to the issue regarding the legal nature of the PATOM, then. The legal form within which it has been imbued is an agreement between public authorities pursuant to article 15 of the Administrative Procedure Act of 1990 (APA). The agreement presently in force, regarding the period 2019-21, reads that the Minister for Environment, the Abruzzo, Lazio, and Molise Regions, the Abruzzo, Lazio and Molise National Park, the Majella National Park, and the Forestry Service Arm, agree on a number of actions to undertake pursuant to the «statutory law n. 241 of 7 August 1990, which provides for the possibility that different public authorities strike agreements, and in particular its article 15 which establishes that “public authorities can always contracting out to regulate how to carry out by way of mutual cooperation activities of common concern” and that “such agreements should abide by the provisions as set out in article 11, paragraphs 2 and 3”».
The latter reference is the crucial one, since it means that the agreements through which various authorities discipline how to carry out together tasks which are somehow interconnected find their legal grounds in the principles on contracts and obligations as set out in the civil code. Administrative courts constantly rule that such agreements are contracts between public parties from which genuine legal obligations spring.
Consequently, it is wrong to sustain that Action Plans necessarily lack ‘legal traction’: once the plan has been moulded into a public contract, it has acquired the legal value of a contract and the signing parties have thus subscribed to justiciable obligations. The problem with the PATOM is that, even though it was given the form of a public contract, it was designed from the beginning in a way that its legal character of a binding contractual instrument was diluted as much as possible. The obligations set out in the contract – which in the text of the agreement are called “synergic priority actions between administrations” – are pretty vague and they do not determine tasks and responsibilities conferred upon each and every signing party. Besides, a serious flaw is that local authorities and some relevant national authorities (e.g. ANAS, in charge of road managing) are not parties of the scheme. The provision of a so-called Managing Authority – of which neither powers nor responsibilities are specified – with the duty to devise an annual plan, which in fact boiled down to no more than a different spelling of the priority actions mentioned above, does not make up for the lack of ‘bite’ of the agreement.
Whoever has experienced the process of negotiating the simplest of contracts knows that once the subject is set out (what one commits to give, do or not to do) the tough bit comes: price, sanctions for non-compliance, mechanisms to sort litigation out, etc. If one purports that an action plan has to be based on an agreement between public authorities – which is a reasonable course of action given the sizeable fragmentation of Italian public administration – it is paramount that the agreement is designed in a way that the plan stands on its own feet or, resorting to an easy metaphor, that it has got ‘fangs to bite’.
In our legislation does exist a type of agreement between public authorities, called planning agreement (a species of the genus provided for in article 15 of APA) which spells out in a more detailed way the structure of the agreement. Pursuant to article 34 of the basic law on local government, in order to decide and implement public works, interventions or programmes which require the integrated and coordinated action of local authorities, provinces, regions, state administrations and other administrative bodies, a planning agreement can be settled on to secure the harmonisation of the actions to determine times, manners, funding and any other connected operations. If, as it is the case for the PATOM, the plan requires the participation of more than one region, the agreement is promoted by the Presidency of the Government. As a matter of fact, given that the PATOM is also a means of implementation of an international convention (Bern), the national authority in charge of superintending the setting up of the plan must be the Ministry for Environment. Article 34 also establishes a mechanism of audit on the execution of the agreement and provides for substitutive powers by a scrutiny organism headed by a representative of the government. According to this scheme the mentioned Managing Authority would change into an organism to scrutinise the sound and timely execution of the obligations which have been subscribed to.
We must acknowledge that to pursue such an agreement a strong and complex political and institutional effort is required. This is a route plenty of twists and turns with foreseeable resistance from, say, regional politics used not to practicing what it preaches. On this line, one of the crucial points is that a well-conceived action plan must contemplate adequate financial resources deployed by each level of government, but primarily central government.
By widening our viewpoint, we can see that at the hearth of the issue there is a necessity of resetting the PATOM in a different institutional context. The sort of informal agreement between ‘expert’ bureaucrats and local politicians we have seen until now is unfit for the purpose. An agreement which aspires to carry out the actions appropriate to a successful conservation campaign should be promoted, discussed and struck by the people at the apex of the governing institutions who have the power both to dictate fundamental policy directives and decide on funding, that is the Council of Ministers, regional Councils, Boards of Directors. From this a fundamental question arises, which is at the same time of a political and constitutional nature: how do we rank the protection of the Marsican Bear within a scale of values/principles? Are we as a polity who shares certain constitutional values actually prepared to advocate that the protection of our bear, as a flag-species, is a direct consequence of a collective right to the environment as a supreme constitutional principle? This question should be asked, firstly, to the Ministry for Environment, an office created in 1986 in the wake of the affirmation of environmental issues as a new national subject-matter as such prevailing on interfering matters attributed by the law to the Regions. Without answering positively to that question, technicalities aside, the PATOM will keep remaining in a sort of limbo or at best in an institutional niche.
If truth must be told, such an acknowledgment should be a concern for Parliament too as the highest expression of the polity. If, indeed, the following statements – deducible from what precedes – are plausible: i) we have an international obligation to protect the Marsican bear; ii) this is instrumental to an ampler policy for the protection of biodiversity; iii) the latter is part of the pursuing of a national interest highly ranked in the constitutional order; iv) in addition, sustainable development (a Green New Deal) is the primary objective of the EU in the next decades, then there are the conditions to hold that the PATOM should be included among the so called “extraordinary state policies” (given the actual risk of extinction of the species) decided by way of legislation.
The model, still in the vein of an agreement between public authorities, may be based on an Institutional Development Contract, a scheme which has been laid down in a piece of legislation in 2011 (legislative decree n. 88) in order to promote economic development and social and territorial cohesion, to get rid of economic, social, institutional, and administrative disequilibrium throughout the country, and to boost the actual enjoyment of human rights. It must not be seen as a rhetorical argument that a ‘plan for the Marsican bear’ is framed as an instrument of development, social cohesion, and promotion of equality and human rights: undoubtedly measures of conservation have to be precise and strict, but adequate measures of promotion and compensation have to be provided for as well. This Institutional Development Contract, which is meant to put into black letter a well-designed plan, according to the law shall lay down the responsibilities of the parties, a plan timetable, the criteria for assessing and monitoring the implementation of the plan and the sanctions for possible non-compliance. It is also expected to establish cases of drawing back funds from any unattended actions as well as the conferment of resources to a different level of government if necessary. Remedies for delay or non-compliance regarding the obligations undertaken under the institutional contract are proportionate to its primary and national interest. The Government is indeed responsible for exercising a substitute power and to this end it can come to the point of appointing a special commissar in lieu of the inert institutions.
To work towards the suggested direction requires a change of attitude, a clear choice for a model of society and development which – despite signals coming from young generations (to be honest in Italy less than overseas) – our politics still barely lends an ear to. To encourage public opinion, and consequently politics, to acknowledge the need for change is a very important aim of environmental mobilisation.
To save Marsican brown bear is a complex and fascinating challenge for a political leadership in its own right. The stake is not only about letting future generations continue dreaming about the unforgettable meeting with the ‘lord of the forest’, but to gift them with a better world.
Save the Bear, whose main asset is to take action on the field, would like to make available its own expertise and experience to look into the legal and political-institutional aspects of the PATOM, in order to change it into a fully operational scheme which can live up to the historical goal it is meant to achieve. This is the reason why it has decided to co-fund a scholarship grant, along with the Department of Legal and Social Studies of the University of Chieti-Pescara, to take on a research, of a comparative nature as well, on conditions, limits and procedures for designing a PATOM agreement which ‘bites’.
[*] Professor of public law, Department of Legal and Social Studies, University of Chieti-Pescara.
 See Bears without borders: a conference in the city by Angela Tavone, in Terre dell’Orso, 11, 2019, 72.
 VV. AA, Piano d’azione nazionale per la tutela dell’orso bruno marsicano – PATOM, Quad. Cons. Natura, 37, Min Ambiente – ISPRA, 2001.
 R. Gerstl, B. Dahle, e A. Zedrosser, Action plan for the conservation of the brown bear in Europe, Nature and Environment, 2000, 114, Council of Europe, Strasbourg, France, 44.
 Even though, not even all of those are included in such highly protected areas (Paolo Ciucci, pers. comm.).
 This ‘authority’ has been acting as an informal mechanism through which the representatives of the signing parties meet every now and then.