Le valutazioni tecniche degli organi preposti alla tutela dell’ambiente tra surrogabilità e sindacabilità giurisdizionale

Technical assessments have experienced a profound transformative evolution in terms of substance and procedure. In terms of procedure, technical assessments, which were once non-substitutable, have been subjected by the legislature to a process of simplification to overcome procedural stops and consequent delays. In point of judicial review, technical assessments, once unreviewable, have lost the dimension of a power reserved to the administration, which no longer has a monopoly on choosing the best technical solution. However, environmental issues, despite being particularly steeped in technical-scientific content, are not fully familiar with this development. On the procedural side, Law no. 241/1900 considers environmental technical assessments as unavoidable, in the sense that they must always and in every case be expressly formulated, and as infungible, in the sense that they must be issued by the only administration identified as the reserve holder of that act. A number of amendments to Law No. 241/1990 have superseded the unavoidability of the technical environmental assessment to the advantage of the speedy conclusion of proceedings in the particular case of service conferences or silence between administrations. But there are still two divergent logics: the first reluctant, the second inclined to soften the speciality of the procedural regime of environmental interests. On the procedural side, a part of jurisprudence tends to conceive of environmental technical assessments as not having an autonomous individuality, inasmuch as they are incorporated in the weighting of interests, and consequently operates a limited review. The broadening of judicial review of technical environmental assessments is there- fore to be welcomed, as it follows the general trend and leads the court to not exempt itself from reviewing the possible erroneousness of the administration’s appreciation. In fact, only a judicial review with these characteristics guarantees effectiveness and fullness of protection.