SPEECH AT THE CONFERENCE IN NAPLES ON 14-15 JANUARY 2026
GIANCARLO MONTEDORO
Section President of the Council of State
The opinions expressed in this article are those of the author alone; they do not commit the Administrative Justice Research Office or the latter as an institution.
I have already said on other occasions that environmental law issues are a form of persecution.
The environment is an issue that stays with you and sticks to you when you deal with it at an administrative level.
I had experience as Chief of Staff, assisting the executive, at the Ministry of the Environment, many years ago.
Those who perform such functions gain awareness.
There, in day-to-day management and amid many emergencies, you get a clearer view of certain structural problems in the relationship between administration and jurisdiction, which I believe may be one of the things we will be discussing during today’s conference, which revives experiences of joint reflection carried out with many of you in past years.
More recently, this experience has been successfully renewed in the work of the Reform Commission chaired by Eugenio Picozza and Pasquale Fimiani, aimed at creating an environmental code or a new consolidated environmental text in implementation of Article 9 of the new Constitution.
This is an impressive undertaking, even if only in terms of compiling environmental law materials.
A flood of acts coming from Europe, which legislates endlessly.
The collection of these materials highlights some of the reasons for the unsatisfactory state of the sector’s legal system; reasons that we should probably reflect on, as they are the primary reasons for the ineffectiveness of environmental law; a law that is ultimately ineffective due to the extreme complexity of the regulatory framework, which is sometimes reminiscent of Manzoni’s cries of attempts at legislation that are more symbolic than practical: acts are repeated, and the more they are repeated, the less effective they are.
Currently, this ineffectiveness of environmental law creates uncertainty, first and foremost among operators, who are the first to have to apply the rules and receive clear guidelines and regulations.
This then translates into conflicts involving citizens and administrations, which end up being or having to be resolved by a judge who is burdened with expectations of salvation and who, at times, takes on more than he can handle, because he sometimes adopts an attitude that could be defined, in this matter, as natural law, i.e., the protection of Nature as an asset in accordance with a teleological canon of interpretation that often leads to uncertainty.
I would say that – almost physiologically and inevitably – there is natural law and positive law jurisprudence in environmental matters, and it is quite clear that this can happen regardless of the choices made by the positive legislator (natural law being a constant orientation of human legal thought, ready to remind us that another law is possible when positive law takes anti-humanistic turns).
The division found in jurisprudence is reflected in the political and social dimension of the issues.
We have the novelty of Article 9 of the Constitution.
We need to thoroughly rethink the approach to environmental law in light of the constitutional provision.
The transition, to use a formula, should be from protection against pollution to protection of nature (from a law that places limits on industrialism to a law that takes nature and its protection as its object, perhaps without subjectivising it but taking it as the primary object of protection).
However, the implementation of Article 9 of the Constitution at the legislative level is not underway.
This means that the mediation of values and interests at stake is entirely left to the judiciary, which can/must apply the constitutional provision without the interpositio legislatoris.
Why are comprehensive and perhaps concise environmental legislation projects unable to come to fruition? What is the reason for this?
I believe that there are many analyses on the subject, which have painted a very precise and absolutely accurate picture, albeit one marked by a certain bitterness in the reading of the current situation, which has reached a peak of complexity, fragmentation and disorganisation in the sector’s legislation.
This is part of the crisis of liberal democracies. Their difficulty in managing complexity and their inability to have realistic expectations, especially in EU law (the ordoliberalism of large-scale plans that have not been implemented).
Why is the legislation failing to be passed?
A draft delegation is drawn up to implement the newly reformed constitutional law (new Article 9 of the Constitution) and it comes to a standstill.
It is not even possible to discuss it in scientific circles due to the confidentiality that legitimately surrounds the contributions of thought provided to the Government.
I believe the answer can be found in a well-known quote by literary critic Jameson, who tells us: ‘It is easier to imagine the end of the world than the end of capitalism’.
Let’s say that we just can’t see the end of capitalism, or another form of capitalism – I’m not thinking (…) of a departure from the mode of production we know – but a fairer and more supportive form of capitalism, perhaps reconciled with the natural limits of development highlighted by the Club of Rome.
It is clear, however, that many intellectuals of all kinds have told us that we are heading towards a moment of confrontation between our form of civilisation, perhaps catastrophic, and natural limits.
The situation, among other things, is occurring at a time when we need to broaden the imaginative horizon of jurists beyond national borders, as this is a right that cannot be confined (and we have seen this while working in the Picozza Fimiani Commission on the collection of sources; this highlighted the need to assemble a large part of the supranational matrix, e.g. in circular economy law), only within national borders, both for spatial and temporal reasons.
With the two categories of space and time that underpin philosophy and physics, we can explain some of the need to make the mind work differently in environmental law, and I will clarify this.
Environmental law requires us to deal with spatial and temporal dimensions that are new to legal experience.
The spatiality of the regulation required by environmental law must be adapted to the spatiality of the problems we face, which are interconnected problems that link humanity according to new networks of activity and transformation (environmental incident).
The environment itself can only be conceived by resorting to the notion of a living system that postulates an interconnection between elements.
The Constitution – originating in the biological sciences – therefore incorporates the notion of the ecosystem, which postulates this holistic view of interconnection between elements of living beings (on which Edgar Morin’s method focuses).
This runs parallel to a technological revolution that opens up the possibility of considering similarities between the inorganic and organic worlds (silicon and the human and animal mind, not yet explored by science).
It was hoped that networks could bring about a more ‘aware’ mode of production, so to speak. This is not happening, because networks have not only proved to be a place of freedom, but are also proving to be a place of domination and even of unleashing new forms of energy and material consumption (leading to new wars that are unfortunately capable of further delaying the progress of necessary reforms; Yannis Varoufakis and Franco Bernabé have written knowledgeably about the dangers of this process).
There is therefore not only a possibility of harmonisation but also a latent and increasingly evident contrast, an irreconcilable contradiction, between the prospects of the digital revolution and those of the environmental revolution (the so-called Green Deal).
War and the re-emergence of the logic of force are not minor factors in the difficulties facing environmental law, which risks becoming recessive (except in terms of energy policy) when it enters the Constitution, even among its fundamental principles.
Unfortunately, globalisation is currently being followed, for geopolitical reasons, by a phase of deglobalisation that has deep-rooted causes. In fact, we have reflected a great deal on the problem of inequality, but we have been unable to prevent its unbalanced growth. This is at the root of the difficulties faced by liberal democracies since the end of the welfare state. In response to these difficulties, there is a simple solution that focuses on the restoration of authoritative (if not authoritarian) power, and a complex solution (the revival of social policies enriched by new environmental policies) that is difficult to reformulate.
All this is compounded by the obvious inadequacy of the state to respond to problems such as the protection of nature, which have a supranational dimension.
But it must be said with bitterness that the supranational dimensions that are taking shape are centred on an imperialistic rather than a solidarity-based logic (and solidarity in the lofty sense analysed by Guido Alpa – a sensitive man and unforgettable intellectual with whom I had the privilege of conversing in the past – is the hallmark of environmental law).
Then there is the question of time.
Environmental law requires a rethinking of the temporal dimension of law and democracy because it calls into question the rights of future generations.
The new generations are acrobats of time (the acrobat is a central figure in Rilke’s Duino Elegies). That is, not only, so to speak, ‘athletes of the present’, but precisely ‘acrobats’.
This means that we have an obligation to think about the situation of those who will come after us, not only in terms of posterity, but also in terms of humans in time and a time when humans did not exist (but today they do and have technology at their disposal, which is an important variable in the story).
This is an attitude that does not exist in our Judeo-Christian mentality, because we have thought from our sacred books that there is a beginning, a creation of man, the beginning of history and an end of time that is the end of man.
But the earth, so to speak, before us and after us, will probably have its own history (and in Pope Francis’ Laudato si’, creation and nature stand out as never before in the history of the Church, with almost Spinozian accents).
Therefore, thinking about the emergencies we face, in spatial and temporal terms, requires a mental effort that the human mind is perhaps not yet capable of.
I do not want to excuse any political force, but I would say that it is precisely man who is unable, at this moment, to produce the right we need, a right calibrated to the deep times that precede human history as studied by anthropology.
Then we have our national vices, we have a national problem that explains the centrality of jurisdiction; it is explained in some books, starting with Leopardi’s ‘Discourse on the Present State of Italian Customs’. The problem in this country is the rule of law, or rather the weak rule of law, but Europe is not helping, contrary to what was thought with the rhetoric of the need for so-called external constraints (Europe wants it!).
Europe has not helped us at all to solve this problem because it has filled us with rules that, given our temperament, our creative legal mentality, our weakness and sometimes precariousness or organisational approximation, are not easy to manage.
I see Europe very positively from a values perspective because, despite its predominantly economic competences, it has given us, for example, a framework of rules for the network (which we hope will not be undermined by the so-called omnibus AI rules currently being drafted), and it gives us regulations and directives that fill gaps which, if not filled, will be exploited by new forms of domination.
Europe has conceived an ambitious Green Deal – which may need to be revised – but which certainly constitutes an advanced horizon (and, incidentally, more and more environmental regulations contain comforting principles). However, an excess of dirigisme seems to characterise the fundamental choices of EU law policies.
What is the weakness of European legislation?
Some time ago, I heard Cass R. Sunstein, Obama’s ‘czar of regulation’, a legal economist at Luiss University, speak. He is someone who is fond of the concept of cognitive and behavioural economics that underlies so much of the reasoning I have heard in these reports. Cass Sunstein constantly talks about a tendency to manipulate people in their decision-making processes because reason is insufficient, perhaps even through the neurosciences dear to Eugenio Picozza, which are key to understanding the new techno-economy. However, it is important to note that these are manipulative forms.
The condition we live in is that we are in a mass society, there are large companies, there is a sort of objectivity of the techno-economy, so how can we pursue the public good?
The administration can no longer cope, but perhaps we can, through the instrument of regulation, achieve a gentle push, or nudge, as Sunstein calls it. This concept has been very successful.
One of his books is called Manipulation because behind it lies liberal paternalism, i.e. the open idea that liberalism cannot be separated from a certain amount of manipulation.
But here we must pause for a moment.
It is precisely liberal paternalism, the fairness of the European Union, that does not work well enough, that does not work sufficiently, that has no hold on the overall reality, that is fundamentally limited to softening the harshness of the world of technology but does not keep it under control.
What, then, is the possible pars construens?
We could start again from South America (we have a South American Pope and we have a fault line in the Americas and a North American Pope who was a missionary in South America, we have the great ecological and convivialist thinking of Ilich).
There is a different awareness of the ecological issue there. Green constitutionalism confronts these problems, not least because of the Amazon, one of the hearts of the planet, which is currently undergoing significant deforestation. Some interesting countries in the comparative constitutional analysis of critical constitutionalism are the Scandinavian countries, i.e. countries that are essentially marginal in the development of Western and South American capitalism. It should be noted with concern that the new formation of empires, which is supplanting states (and Europe is clearly failing to become an empire), does not place these experiences at the centre, even though they are the experiences we should be looking at.
In other words, as mentioned above, the object of protection becomes nature, as in the criminal law (natural law) of Law 68/2015 (which has been heavily criticised by Prof. Flick). Previously, only conduct involving administrative violations was punished, but now it is the offence against nature itself that is punished (with very severe penalties for criminal offences), with no small number of problems relating to the expansion of the principle of offensiveness and the catastrophically symbolic use of criminal law, which creates other systemic reactions.
This is because the protection of nature is a need that is emerging, even in legislation, albeit belatedly, but nevertheless in legislation.
In this context, since legislation is slow to be adopted, the judge inevitably plays a role that becomes the fulcrum of constitutional balances not made by the legislator.
In green constitutionalism, among other things, there are two perspectives: one is substantive in nature and is the one adopted by Article 9, which directly provides for obligations to protect nature, ecosystems, biodiversity, animals, etc.
The other is a procedural perspective, which provides for a role for minorities.
Choosing one or the other perspective obviously has an effect on the separation of powers, because if you choose procedural green constitutionalism, you are referring more to the political dialectic of a type of decision, whereas if you choose substantive green constitutionalism, it inevitably falls, in the absence of a balance of facts from the legislator, on the judge, who is unable to bear this burden, I confess openly (and I am thinking of the issue of so-called climate justice, which, although admitted by recent rulings of the Court of Cassation, remains problematic in its implementation, inevitably encountering the complexity of the balance that politics should be responsible for achieving), even if we could think of some corrective measures.
Then there is another issue concerning private law, which underlies everything. A friend who is a criminal lawyer recently asked me to write something about punishment, so I went back to Beccaria and discovered that in a Lausanne version of ‘On Crimes and Punishments’, Beccaria talks about the famous, terrible right of property (which became the title of a successful book by Rodotà), hypothesising that the protection of property implies a prison society.
In this forgotten passage, Beccaria also dreams of a communist society. This Lausanne edition has also been studied in the history of law, but it is unusual.
This is the question of questions, namely whether we fail to see the effects that property rights have on the planet.
A case in point is the launch of a rocket into space, which is hoped to return to the same piece of land owned by the launcher, but if it does not return, damages are paid under Article 2043 or the equivalent of what is provided for the fall of a satellite: we are developing, that is, the conquest of space using only the private law framework of property.
Quite frankly, I question our critical spirit: does such a thing seem possible?
It is clear that this has always happened. The gold rush in California followed the same mechanisms, and the conquest of the network, after the original idea that the Internet was a public good, was characterised by a logic of privatisation of the infosphere through a series of property rights, exclusion clauses and licences that tell us that, sooner or later, the Internet will be subject to a fee.
If there is this centrality of property rights, which has not been sufficiently metabolised in its critical aspects, the environmental repercussions are evident in the deterioration of public assets (in the oblivion of state ownership). Rodotà attempted this critical theory in his book Il Terribile diritto (The Terrible Law), an expression that we see dates back to Beccaria, so we are talking about the origins of our criminal guarantees (punitive law being linked to the need to protect property rights).
If this right of ownership does not exist, it is argued, there is the tragedy of the commons.
But this tragedy – the well-known issue of free riders with regard to public goods – can only be resolved by turning towards experiences of the ‘commons’, the revitalisation of community spaces and convivialism, and a cultural change that involves not the techno-law of the new objectivity but a rebirth of subjectivity.
There is some room for hope because the legislator has provided for collective use and, therefore, we are seeing the emergence or re-evaluation of institutions that are strange to administrative law scholars, such as agricultural cooperatives and other forms of collective use, recently re-examined by the Constitutional Court (judgment no. 152 of 2024), which recognised their innovative value.
We know that regulatory measures should not be isolated acts that address contingencies or immediate emergencies, and that, more than ever, environmental legislation must be far-reaching and forward-looking.
Only a cultural change can give us different, more general and abstract legislation that is capable of lasting and looking ahead; there is also a different force of jurisdiction when assisted by well-drafted legislation, because the quality of jurisdiction is always linked to the quality of the law, as judges are subject only to the law.
What prevents such breadth in legislation?
Without beating about the bush, we can say that it is the underlying nihilism of a desacralised society that prevents a non-appropriative relationship with Nature.
The idea of the sacred is the point, that is, we live in a completely desacralised, nihilistic society that has money as its myth and has removed the sense, even that of the ancients, of limits. To have a proper environmental right, all we need is a sense of limits that the ancients called hubris (the violation of limits). We could say that Western capitalism sins of hubris.
How can this be done?
According to some, literature can be more useful than behavioural psychology. Poets who ‘shout’, marginalised people, the subject (understood according to the origin of the word as sub-iectus, the one thrown under who aspires to emerge).
We are in a world, as Galimberti described it, of the new objectivity of the age of technology. Companies are so large that they have taken the place of states, and constitutionalists tell us that multinational companies now have the nature of sovereign powers. This new objectivity imposed by the economic world must be followed – in parallel – by an objective restructuring of our administrative process.
When studying modern public economic law, we see the decline of the public sphere and the emergence of defensive powers such as golden power, and we rightly hope that companies – including Big Tech, which has a significant environmental impact in many ways – will be regulated by states. Here and there, there are theoretical attempts to make them public, given that they have taken on public functions.
This is clearly a natural consequence of entrepreneurial activity as it has developed today, due to the unprecedented business models it is structuring.
The risk-profit nexus has been completely broken; the financial market makes us buy goods that do not exist, essentially expectations or illusions. This is well explained by behavioural economics, which says, ‘beware of buying goods that do not exist’, but we still buy time through these goods and go into debt, or at least invest in the short term in securities that could give us a profit if sold in time.
The techno-economy of the cloud is asserting itself in the weakening of independent administrations, in the context of exclusive intellectual property rights on new technologies, in the pre-eminence of leasing over selling (with the effects of feudalisation even in the public sphere and public services, which are there for all to see).
What can be done?
Apocalyptic visions are of no help to us whatsoever.
Apocalyptic visions always arise in times of crisis.
And there are two types: eschatological and non-eschatological.
The eschatological ones (transcendent and immanent) have led to world wars.
The non-eschatological ones remain, desperate.
Literature is also full of non-eschatological apocalypses, such as Cormac McCarthy’s famous ‘The Road’, about a father and son walking in the post-atomic age.
We also have someone in Italy who has written works of this kind, for example, the writer Bruno Arpaia wrote a book, ‘Qualcosa là fuori’ (Something Out There), about a Neapolitan professor in a desertified world after climate catastrophes who tries to go to Scandinavia, which is the only place left that is livable, a novel – we could say – of the Cormac McCarthy genre (a novel that now has a second instalment).
In any case, it is not the apocalypse itself that frightens us, but its consequences, because anxiety does not always lead to action. Anxiety can also be paralysing.
We need a particular kind of anguish to be able to make waves; we need a life-giving anguish. Please excuse me for not talking about law, but I am talking about the roots of law.
There is a kind of anxiety without fear, which simply takes note of reality and does nothing, and that is more or less what happens; in fact, it even denies it.
Of course, one can deny anguish up to a certain point because then it becomes irresistible.
But as a rule, a world where we live in anguish cannot be a pleasant world, so we try to take refuge in denial and live as if anaesthetised.
Even those who are aware, however, are not necessarily capable of acting because we have a culture of doing, not of acting, and the two things are somewhat different. Doing means doing for the sake of doing, to keep busy, to escape anguish, without purpose, doing as Severino said, because technology requires us to do.
Acting responsibly is different from doing: it means considering the problem of action, the effects of action, its responsibility, and even the unintended effects of action (Shakespeare, throughout Greek tragedy, but also Beckett: fail, fail, fail better, but learn from your failures). There is a life-giving anxiety in which at least one person comes out, does not know what to do, but protests: Greta Thunberg.
It is a life-giving anguish and is typical of young people. We should listen to them and not trample on them, unless they commit crimes. There must always be proportionality between action and reaction.
Then there is a loving anxiety, says Günther Anders, and this is the anxiety we need, that is, the anxiety that cares.
Administrative law is a law of care, that is, based on Eros, not on Thanatos and its transformative, metamorphic force. It is a law of stitching, not antagonistic. Our process, on the other hand (here we come to the more technical issue), is – by virtue of its historical origin – an antagonistic process based on an old nineteenth-century concept of authority-freedom that is completely incompatible with environmental law, completely incompatible, since the private appellant is confronted – in environmental matters but also in the law that structures markets – by private powers that exceed the dimension of states, with a situation that calls for a rethinking – at least partial – of the structure of the process.
I do not know if I am convincing you, but in the Picozza Fimiani Reform Commission we have sought ways to introduce some innovations (a public prosecutor in environmental administrative proceedings and an independent authority for the repression of environmental damage): these are ideas to be cultivated in the future and at least discussed.
The text of the bill includes the idea of a public prosecutor in administrative proceedings.
This is not because I idealise the public prosecutor, but because the action of the public prosecutor is not only, as it is represented in the current debate, a repressive action that is always at risk of error, but also an objective action that aims to restore the rule of law for those who have no voice, starting with the most disadvantaged.
Not enough is said about these aspects of the public prosecutor’s role, with the media dominated by reports of judicial errors of all kinds.
It must be said that there is a legitimate need for accountability on the part of judges and public prosecutors, but there are also roles that hold social cohesion together, and destroying them is not good for anyone.
When we discussed the role of the public prosecutor in administrative proceedings within our institute, the response was one of openness, so it would be worth discussing, because administrative proceedings in the objective world of techno-economics can no longer be based solely on subjective rights; they must include some element of protection of objective legality.
On the other hand, it has it in antitrust law. In antitrust law, there is an independent administration, the antitrust authority, which now exercises its control over legality in all areas, in order to protect competition. I would say that in the modern world, competition is at least as important as the environment. We want efficient businesses, of course, but we also want sufficient and adequate protection of the environment.
Therefore, in addition to the public prosecutor in environmental administrative proceedings, we also need a technical agency or an independent administration to deal with these environmental issues with sanctioning powers, and we need a different approach to the issue of standing to sue, which should be extended to include environmental class actions.
A public prosecutor could be an Amicus Curiae, perhaps initially established within the TAR Council of State complex. This does not necessarily have to be intrusive; it could be an office that, in the interests of the law, simply differentiates its voice from that of the administration.
Because, you see, if we are also moving towards the use of nuclear energy, I would point out a few things, as nuclear energy is a choice, which I do not necessarily consider negative, even though when I was in France, I don’t know if you have ever taken a trip to Normandy to go to Cherbourg, seeing Cherbourg is quite distressing, there are no French people, there are only nuclear power plant workers who are all black, and there is Greenpeace. You cannot eat fruit, you cannot eat vegetables, you cannot drink water that is not mineral water from somewhere safe.
Therefore, the effects on the territory of nuclear power plant locations are considerable, and nuclear power plants are normally managed by administrations in secret, with an apparatus that, if not military, is paramilitary. We will have executives who, in order to provide us with energy, if they were to make this legitimate choice, I repeat legitimate and probably to some extent also rational, because the costs of renewables are not as affordable as they are always portrayed, we will have an executive that will necessarily have to take part, for a certain type or mode of production. So when we discuss, say, environmental issues, what does the state attorney do? In short, I would like a public prosecutor who speaks out in the interests of the law, that’s all.
Because these are the real issues; we all remember the disputes over the location of nuclear power plants, as happened in the 1970s in Montalto di Castro.
The case went before the civil courts and there was discussion (as those who are older will remember) about the admissibility of a preliminary technical assessment of the potential damage to the population living near the power plant.
In this regard, the Court of Cassation upheld civil jurisdiction, with a view to 2043, and in abstract terms admitted a preliminary technical assessment and urgent injunction.
So politics makes these choices when it has to pursue strategic goals.
No society can tolerate a chaotic jurisdiction in which anyone can jeopardise public policy with their own civil action – individual – under Article 2043 of the Civil Code.
Public choices must be able to be implemented, and the effects of public choices, what in war are called ‘collateral damage’, must be managed. This is the problem of the fundamental rights of exclusive jurisdiction, which is still an unresolved issue in the division of jurisdiction, but I will stop here.
The world is objective, the process should reflect this new world, there should be two authorities, one for the economy and the other for the environment, both should be robust, we should have an Amicus Curiae and then we should have a criminal process that actually deals with the important things: the 2015 law, that is, environmental disasters, catastrophes that really put us at risk.
Then follow another path, with the traditional dual track, but in a secular manner, for all the micro-violations with which we are inundated; follow decriminalisation with administrative sanctions which can also be managed by administrative judges, with greater coordination with the ordinary criminal jurisdiction.
Does the civil judge have a role to play? The civil judge, of course, also has a role to play. All this is undeniable, especially since environmental damage claims are brought before civil judges: this is the issue of historical pollution. What I see as most difficult in this regard is the accounting judge, but the issue is so politically charged that I do not want to intervene.
I will limit myself to referring to the recent case law of the Constitutional Court. In its ruling no. 132 of 2024, the Constitutional Court, in upholding the rule limiting the liability of public employees to cases of wilful misconduct only, developed a lengthy argument on the temporary nature of these choices and therefore, how shall we say, contingent, to some extent, even if open to a review of the accounting jurisdiction, which must nevertheless be handled with extreme caution (since the Court of Auditors is precisely an objective jurisdiction and therefore entirely appropriate for the times ahead, and it would be unwise to weaken it excessively).
