La natura della Valutazione di Impatto Ambientale tra tecnica e discrezionalità: spunti per un superamento del self-restraint del giudice amministrativo in materia

This contribution aims to critically analyze a kay institute of environmental law, namely the environmental impact assessment (EIA). Primarily, the analysis focuses on the principles underlying this institute, first among all the precautionary principle. The latter, in particular, is based on the assumption that all the activities that are potentially harmful for the environment should be prohibited. This principle should not, however, be an absolute brake on economic development. On the contrary, it should always be analyzed in relation to the proportionality principle: the choice of giving priority to environmental protection rather than the freedom of economic initiative in the EIA, however, is a complex and highly discretionary activity and, for this reasons, it is source of much controversy. Secondly, the nature of the EIA has been analyzed. The ruling in question, specifically, considers the latter an expression of the discretionary power of the public administration, a solution that does not seem, however, to foster a virtuous development of the institute. On the contrary, the possibility of bringing the EIA back to its original nature, namely a technical phase within a pain procedure where the balancing of interests takes place, has been envisaged. this theory would also have the consequence of ensuring a greater cognition on the EIA by the administrative judge, since the perspective that boils the institute down to the discretionary power necessarily entails a merely extrinsic control on the administrative decision. In order to concretely implement the provision of art. 113 of the Constitution, it would instead be crucial for the judge to have a full known-ledge on the fact: if it were otherwise, the review carried out by the latter would be a purely formal guarantee.