European Environmental Law

A Comparative Perspective

Ludwig Krämer

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351938594
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

European Environmental Law pulls together the most significant material on the subject from legal and other periodicals to form an essential compendium for those wishing to study the role of law in protecting and conserving the environment. The studies are arranged in three sections which examine the Europeanisation of law and policy, analyse the application and enforcement of law and discuss the improvement of standards in Europe.

Part I
Europeanization of Environmental Law and Policy

[1]

ECKARD REHBINDER
RICHARD STEWART

Legal Integration in Federal Systems: European Community Environmental Law

This article examines the development and implementation of European Community environmental law and policy. Drawing on US as well as Community experience, it first develops hypotheses about the incentives for and pattern of integration of environmental law in federal systems. It then examines the progress of Community environmental law and the institutional factors that have shaped it. The conclusion assesses the initial hypotheses in light of the European experience and offers an evaluation of the current situation of environmental law in the Community.

I. INTEGRATION IN ENVIRONMENTAL LAW

What are the incentives that operate for and against integration in a federal system, and what form of harmonization is likely to result? We examine these questions in the specific context of environmental law.¹

Integration of environmental law in a federal system occurs through two basic approaches: central determination by a federal/community authority (legislature, executive authority or court), or coordination of law and policy by member states through negotiated agreement, development of common working understandings, conscious parallelism in judge-made law, and so on. The latter approach has been of scant importance in the European Community (EC) and the United States (US). This Article therefore focuses on the first approach. The degree of integration achieved in particular areas reflects institutional arrangements and the following incentives and disincentives to integration:

A. Incentives for Integration

Removal of trade barriers with respect to products and resources. The adoption by different states of different environmental regulations with respect to products impedes free commerce among states, thus reducing producer revenues and economic welfare, and may impose cumulative and potentially inconsistent regulatory burdens on producers seeking to sell their products or services in more than one state. Adoption by a state of stringent controls or taxes on the use of its resources (for example, extraction of energy minerals or use of a site for toxic waste disposal) may also impede commerce and reduce the welfare of persons in other states.

Removal of the “competitive distortions” and relocation incentives caused by differing controls on industrial processes and natural resource development. Different regulatory requirements governing industrial processes do not threaten free trade and consumer welfare as directly as differential product regulations. But adoption by one state of more stringent controls will increase the costs of producers located within that state, creating a competitive advantage for producers in states with less stringent controls.² This advantage may cause firms to locate new facilities in states with less stringent controls or even relocate existing facilities to such states. Competition among states to attract or retain industry may encourage laxity in controls everywhere. Those states and interests in favor of more stringent environmental controls will accordingly favor measures to achieve equivalent (and relatively high) levels of control in all states.

Transboundary spillovers. Transboundary spillovers are unlikely to be adequately dealt with by resort to the municipal law of either the originating or receiving state, which may often have a municipal bias. In addition, the receiving state may face serious difficulties in enforcing remedial measures against activities in originating states.

Economies of scale in research, analysis, and decisionmaking. To the extent that environmental regulatory problems in different states present common scientific, technological, and analytical issues, there may be economies of scale in acquiring and processing the necessary information once on a centralized basis, rather than many times on a decentralized basis. In addition, adequate resources to perform the necessary work may not be available in some states.

Achievement of more stringent and effective controls through centralized direction. As noted above, “competitive distortions” may hinder the adoption by states of effective environmental controls. Centralized decisions may also favor more stringent environmental controls because central bureaucracies and political actors are less subject to short term political accountability and more attuned to the achievement of longer term objectives.

Need for common front in international negotiation. In order to achieve greater bargaining power in international negotiation, a common environmental policy may be desirable. This has, for example, been a strong incentive for EC regulation of chemical manufacture and sale.

B. Disincentives to Integration

Variations in preferences. Citizens in different states often have different preferences for enhanced environmental quality versus economic and industrial development and higher money incomes. Because of political and administrative factors, integrated environmental policies often tend to be uniform. Uniformity can result in insufficient environmental quality in states with a high preference for environmental quality, and excessive environmental quality in those states with low preferences. These discrepancies will generate opposition to integrated environmental policies.

Differences in geographic, ecological, and industrial conditions. Quite apart from differences in preferences, the uniform environmental standards that often result from integregation may be inappropriate because of geographic and ecological differences that can significantly alter the consequences of a given amount of pollution. For example, welfare losses attributable to reduced visibility are much greater in scenic than industrialized areas. Organic waste discharges that can cause serious damage to a stream or river may have little effect if discharged into deep ocean sites. Uniform environmental quality standards and uniform technology-based source controls fail to deal fully with these variations, resulting in overcontrol in some areas and undercontrol in others.

Resentment of centralized direction. Common environmental policies, particularly if formulated and enforced by central authority, cause resentment of the resulting interference with member state autonomy. This resentment is likely to be especially severe when it infringes on industrial policies and land use and development decisions.

Differences among legal and administrative systems in member states. Considerable reliance must be placed on state and local authorities to implement and enforce common environmental policies, particularly in the case of industrial process regulation and land use and natural resource management. Differences in legal and administrative systems will often translate into differences in implementation and enforcement, hindering effective harmonization.

Diseconomies of scale and information processing. To the extent that decisions about environmental policy are made centrally, information must be gathered and processed centrally. In addition, central authorities will have to monitor state and local implementation and enforcement. This will introduce substantial information processing costs, and tend to introduce multiple and redundant layers of decisionmaking and review.

Functional interconnection between environmental regulation and local functions. Many forms of environmental regulation involve traditional local functions such as zoning and other forms of land use control, water supply, waste disposal and so on. So long as these functions are exercised by local officials in response to local circumstances and pressures, the effective degree of integration in environmental policy is substantially reduced. On the other hand, to centralize the exercise of such functions would create very substantial diseconomies and seriously intrude upon local autonomy.

Industrial and commercial opposition to integrated policies. Particularly in the area of industrial process regulation, integrated environmental policies are more likely to be protective of the environment than decentralized policies, imposing costs upon and restricting development by industry and commercial interests. They will accordingly tend to oppose integration. Transboundary polluters will oppose such measures for similar reasons.

C. Mechanisms of Integration

The several underlying incentives and disincentives to integration are accommodated in different ways by the various available legal mechanisms of integration. We first examine mechanisms of complete integration, and then discuss mechanisms of partial integration.

Centralized determination of environmental law and policy. Centralized legislative or executive determination of environmental law is the most direct and obvious method of insuring integrated environmental policies. However, it can also be the most destructive of state autonomy, and may result in uniformities that exhibit various diseconomies. Central adoption of regulatory standards and screening programs (which review particular development projects or new products like chemicals on a case-by-case basis under general criteria like “unreasonable risk”) has been the dominant mechanism for integration of environmental laws and policies in the US and the EC. Once established, centrally determined law and policy must be implemented and enforced. The most reliable means of insuring that such implementation and enforcement occurs in an effective and uniform way is through federal/community administrative agencies and courts charged with responsibility for issuing regulations and permits, monitoring, initiating enforcement actions, and adjudicating controversies.

State implementation of federal/community law. An alternative mechanism of integration that encourages greater responsiveness to different conditions and preferences in member states is for central authorities to determine environmental measures and laws, but leave their implementation and enforcement in the first instance to member states while retaining powers of supervision and review. These powers may allow a central authority to: institute litigation against member states, compelling them to undertake implementation/enforcement; impose sanctions for implementation failure, such as cut-offs of funds; directly assume implementation/ enforcement responsibilities when member states have failed to do an adequate job; or develop federal/community law that would allow environmental advocates to challenge and remedy deficient implementation/enforcement by member state authorities through litigation in member state or federal/community courts.

Federal/community encouragement of state environmental measures. In lieu of adopting regulatory standards and programs (whether implemented centrally or by member states), central authorities could seek to encourage state adoption of similar environmental measures through research and information programs, subsidies to underwrite the administrative costs of such programs, or waiver of federal law that would otherwise displace such programs. The central authority may impose criteria which state programs must meet in order to qualify for subsidy or waiver. Alternatively, the central authority may urge states to adopt standards to deal with certain environmental problems, with the threat of more intensive central intervention if state action is not forthcoming.

Judicial invalidation of state environmental measures that impede trade. The methods of integration discussed above are positive efforts to obtain a minimum level of environmental protection in all states, as well as to eliminate the barriers to trade created by nonharmonized state measures. In contrast, courts applying the “negative commerce clause” doctrine or its equivalent,³ may act to invalidate state product standards that are more restrictive than those a...