Semantic Differences Between Ukraine and the EU in Chapter 27 “Environment and Climate Change”: A Memo for Negotiations

This is not the first time Ukraine is participated in such negotiations. However, there are two main differences at this stage of the talks. Previously, Ukraine used to pick from the European acquis the clauses that align with Ukrainian legislation. Now we have to simply transfer to Ukraine “the content, principles and political objectives of the EU Treaties”, as well as all provisions on “common rights and obligations that constitute the body of EU law”. 

Moreover, there is a significant difference between the concepts and principles of EU Treaties and the rules and technical standards of EU law. A common understanding of concepts between Ukraine and the EU is necessary from the very start of the accession negotiations, while Ukraine will have some time for the implementation of laws and technical standards.

Current social discussion on EU accession creates an impression that the major issue of Ukraine’s EU accession is the necessity to adjust a large number of EU technical standards rather than the common understanding of the sense of EU Treaties. This is wrong: Ukraine approaches the EU not to move away from Soviet technical standards but to get rid of Soviet ideology, including  “Michurin” approaches to environmental management.  

As a theoretical physicist with 40 years of experience, I offer the Ukrainian delegation my notes on the key semantic differences between Ukraine and the EU in the field of environment and development formulated during the work on the Policy Roadmap for Environmental Damage Assessment within the framework of the Sweden-UNDP project “Reducing the Risks of Long-Term Environmental Disasters in Ukraine through the Establishment of a Coordination Center for Environmental Damage Assessment” as well as on the development of “Manual for the city’s climate risk assessment” commissioned by GIZ. 

In the European Commission‘s observations on Ukraine’s progress under Chapter 27 “Environment and Climate Change”, the following concepts need special attention (they need to be clarified and rethought during the accession negotiations):

• Environmental Restoration Liability
• Environmental impact assessment (EIA)
• Understanding climate risks and approaches to their reduction (Green Deal)
• Understanding Sustainability

Environmental liability in the USSR and the EU

In 2016, when working on the approximation of the EU Water Framework Directive, a working group of experts, including me, tried to add the first paragraph to the preamble of the Water Code of Ukraine: “Water is not a commercial product like any other but, rather, a heritage that must be protected, defended and treated as such.” Our attempt faced resistance from the Ministry of Environmental Protection and the State Water Resources Agency, which had just been renamed from the State Water Management Agency without any substantive changes to its functions and responsibilities.

As a physicist who works with the laws of nature, I have always been outraged that according to the Soviet “Michurin” attitude to the environment, environmental liability arises only as a result of violating laws and regulations established by the state, and not as a result of violating the limits established by nature. However, in the post-Soviet Law of Ukraine on Environmental Protection, “environmental damage” is still assessed based on the Soviet “normative” approach as “losses and damages caused to the state as a result of violation of environmental protection legislation.” In the EU, environmental damage is assessed by measurable changes in a natural resource or disruption of natural resource-related services and by the amount of funds required to restore the environment to its original state.

This discrepancy leads to several negative consequences. First, its corruption risks are obvious, when the damage assessment is easily changed hundreds of times by a simple Cabinet of Ministers Resolution. For example, before the war, the State Ecological Inspectorate of Ukraine counted billions of hryvnias of environmental damage per year, and in 2002-2023 – a thousand times more. Second, using such fundamentally different from international methods of environmental damage assessment makes it impossible to integrate this data into the Register of Damage Caused by the Russian Aggression against Ukraine, created by the Council of Europe in Hague.

Thus, after the recent adoption of the EU Nature Restoration Act, we should finally agree to introduce European-style environmental liability in Ukraine before starting negotiations by amending the basic environmental laws accordingly (see my recommendations here, here, and here). Without this, we will see neither EU membership nor environmental restoration projects. What kind of environmental restoration can we talk about if no one in Ukraine is responsible for this restoration?

EIA is not a legal procedure for assessing violations of environmental legislation, but a process of measurable assessment of physical impact on the environment

Another Soviet legacy is that concepts such as “environmental security” and “environmental impact/damage” are not quantified in Ukraine, but are defined dichotomously (either present or absent). The absence of measurable objective data on changes in the state of the environment and the impact on it causes the ineffectiveness of such dichotomous control because if you cannot measure, you cannot effectively manage. 

Another reason for ineffectiveness is that the dichotomy between violators and inspectors is a “zero-sum game” (i.e., a game in which there is necessarily a winner and a loser). In this game, zero is left for the restoration of the environment. This type of management makes it possible to punish violators but it does not allow us to even ask where, how, and why we need to improve the environment. 

Before the negotiations, it is necessary to decide on the proposals for a radical reform of the environmental impact (and damage) assessment process, moving from a “normative” dichotomous assessment to an inclusive management of achieving common development goals at the lowest cost to society. 

Understanding climate risks and ways to reduce them

Legislation inherited from the USSR (the Law on Environmental Protection and the Civil Protection Code) still maintains the understanding that security is the absence of risks and that there are only two states of security – security and insecurity. Therefore, all attempts to shift to climate or environmental risk management are met with resistance and misunderstanding. In the negotiations, it would be worth mentioning that according to the updated Environmental Strategy, security in Ukraine is now understood not as the absence of risks, but as risk reduction, and that the relevant changes will be made to other basic environmental laws.

Green Deal

Regarding the understanding of ways to reduce risks, most experts in Ukraine still believe that the Green Deal is a unilateral Green Course on emissions reduction as the only possible way to combat climate change (CC) and its consequences, and not a deal between the necessity both to reduce emission and to adjust to the life in a different climate. This is reflected in the difference between the Ukrainian and UN understanding of Sustainable Development Goal (SDG) 13:

SDG 13 (UN): Take urgent action to combat climate change and its impacts

Target 13.1. Increase resilience and adaptive capacity to climate-related hazards and natural disasters in all countries

SDG 13 (Ukraine): Mitigate the effects of climate change

Objective 13.1: Limit greenhouse gas emissions in the economy

Indicator 13.1.1. Greenhouse gas emissions, % to 1990 level

The reason for this one-sided approach is, in our opinion, an outdated understanding of risk as the probability of a negative event (as defined by the Soviet Construction Norms), while ISO now defines risk as the “effect of uncertainty”, i.e. probability of event times its impact. Unfortunately, when developing the EIA Law, Ukraine refused to change the definition of risk accordingly. As a result, all environmental management practitioners have the impression that risk can only be reduced by reducing the likelihood of a negative event and not by reducing the impact of that event. In reality, the reduction of climate risks is possible not only by reduction of emissions but also through adaptation, i.e. the reduction of the negative impact of climate change. However, the Ukrainian government does not see “adaptation benefits” in the Nationally Determined Contribution (NDC) to the Paris Agreement.

Despite the officially submitted comments on the discrepancies between Ukrainian climate terminology and the IPCC Glossary (Intergovernmental Panel on Climate Change), the discrepancies were transferred to the new Law on the Basic Principles of State Climate Policy. It would be good to indicate in the negotiations that we are aware of these differences and plan to overcome them

Understanding Sustainability

As for the other SDGs, Ukraine has been debating how to translate Sustainability since the Rio Summit in 1992, but mostly without discussing the meaning of the term.

The situation has become even more confusing with the advent of the EU Taxonomy classification of economic activity. The EU Taxonomy’s approach to Sustainability is rather misleading, as it defines an activity as sustainable if it contributes to the achievement of at least one of the goals: either climate change mitigation or adaptation to climate change. 

At the same time, the IPCC insists that achieving sustainable development requires synergies between these two main actions – mitigation and adaptation. In the Summary for Policymakers of the sixth report of the IPCC, it is explicitly stated:

• “Current development paths, combined with the observed effects of climate change, lead away from sustainable development rather than toward it.

• Mitigation plays a key role in reducing the threat of climate change.

• Adaptation plays a key role in reducing exposure and vulnerability to climate change. 

• Only simultaneous emissions reductions and adaptation can ensure sustainable development for all.

• Climate-resilient development is the process of implementing mitigation and adaptation options to support sustainable development for all.

• The window of opportunity for climate-resilient development is closing fast“.

Commentary by Dennis Meadows

Dennis Meadows describes the situation even better in his lecture dedicated to the 50th anniversary of the concept of “Limits to Growth” (personal communication – AD): 

Meadows’ statement — “We should not strive for sustainable development but for the system’s resilience to external influences” — deserves serious discussion.

Understanding the distinction between resilience and sustainable development is crucial for effective alignment with European policymakers during accession negotiations and for shaping Ukraine’s post-war recovery strategy. For a fragile nation like Ukraine, resilience is even more important. As the saying goes, “Before the fat man loses weight, the thin man dies.”