European Union Environment Policy and New Forms of Governance: A Study of the Implementation of the Environmental Impact Assessment Directive and the Eco-management and Audit Scheme Regulation in Three Member States

A Study of the Implementation of the Environmental Impact Assessment Directive and the Eco-management and Audit Scheme Regulation in Three Member States

Hubert Heinelt

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN:
  9781138704350
• Edition: 1
• eBook ISBN:
  9781351785914
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This title was first published in 2001. Outlining the results of a three-country study, this text examines the impact of EU policy on the domestic, political and institutional environment. It tests ideas about new forms of governance that reflect the values of participation and empowerment of local interests, particularly through a close scrutiny of the environmental impact process. The book also analyzes the responses of the business sector in three countries - Germany, Greece and Great Britain - to the introduction of a voluntary environmental management system, the eco-management and audit scheme.

Part I:
Policy Overview And Analytical Framework

1. Environmental Policy: The European Union and a Paradigm Shift

Hubert Heinelt, Tanja Malek, Nicola Staeck and Annette E. Töller

It is widely recognised that the EU is having an increasing impact on policy making in the member states. This is especially true for environmental policy, partly because national standards laid down in law are being questioned and in some respects harmonised and partly because the debate within member states about the aims, content and settings of environmental policy - i.e. what could and should be achieved by which instruments - has been influenced by policy developments at the European level. One feature of this debate has been the search for alternatives to the traditionally dominant “command and control” approach in the EU as well as in national environmental policy. However, since the command and control approach is closely linked to a state centred vision of co-ordination or at least state influenced forms of decision making by individual as well as collective actors, the questioning of this traditional approach implies the necessity to consider modern non-hierarchical forms of governance. The crucial question in this context is therefore: is the command and control approach still appropriate in a modern “risk” society or should one be seeking another approach in order to achieve governability?

This opening chapter offers an overview of the development of EU environmental policy, and is followed by a review of contemporary discussions about modern governance. These discussions are in turn linked to reflections on policy learning. The last section of the chapter outlines the analytical framework developed to investigate environmental impact assessment (EIA) and the Eco-Management and Audit Scheme (EMAS) as instruments of a new policy approach (or paradigm) which reflects horizontal forms of co-ordination through processes of negotiation and debate between societal and political actors rather than relying on command and control mechanisms laid down by the state.

The Development of European Union Environmental Policy

Before the Single European Act came into effect in 1987 there was no explicit mandate for an environmental policy at European level, although the case for a European environmental policy had been recognised by the member states of the EC as early as the beginning of the seventies. In the first Environmental Action Programme of the European Community (1973-1976), improving the quality of life and protection of the natural environment were defined as major priorities (O.J. 1973 No. C 122/1).¹ This first programme was followed by four more environmental action programmes developed by the European Commission and approved by the Council of Ministers each setting out environmental policy objectives, priorities and Community action plans in the period from 1977 to 1992.²

They did not however provide a binding legal basis for passing environmental measures, but served merely as guidelines according to which EC environmental policy should be focused. A number of broad principles underpinning environmental policy have emerged. They include sustainable development, upstream rather than end of pipe solutions, the precautionary principle and the polluter pays principle. In addition, the environmental impacts of all EU policies now have to be assessed.

The main reason for the development of an environmental policy at EC level in the seventies was the fear that common market trade could be obstructed by different national environmental policies and standards. In addition to competition policy based reasons, there were also other influences which played a role in the development of EC environmental policy, such as recognition of the growing importance of environmental problems and their transnational nature as well as the view that the EC could provide a suitable framework for addressing problems of global environmental pollution. However, in the early years there were always conflicts between these environmentally based arguments and the objectives associated with economic targets (Holzinger, 1994). Despite these conflicts of interest, over 200 pieces of legislation have been passed, covering many aspects of environment policy including treatment of waste, air, soil and water pollution control, protection of natural resources and of endangered species. As well as legal instruments, other initiatives have included information campaigns and the establishment of the European Environment Agency in 1994 as a central data collection point.

The link to single market developments is clearly reflected in the legal basis of EC environmental policy. For a long time, these measures had had to be based on Articles 100 and 235 of the EEC Treaty. Article 100 of the EEC Treaty allowed the Community to harmonise legal and administrative regulations of the member states which directly affected the establishment or function of the common market. In cases where Article 100 of the EEC Treaty was not applicable, Article 235 was used. Article 235 entitled the Community to act where action by the EC appeared necessary to implement Treaty objectives and where the required competence was not provided under the terms of the Treaty. Integrating EC environmental policy with the implementation of the single market through basing environmental policy initiatives on Articles 100 and 235 of the Treaty had a major impact in two ways on how environmental policy decision making functioned at EC level. First, the potential for action by the Commission was limited from the outset, as both Articles stipulated unanimity for decisions by the Council of Ministers. Whereas with qualified majority decisions the Commission has a greater chance to carry through its ideas with support from individual national delegations in the Council of Ministers, with decisions based on unanimity, it has from the outset to concentrate more on reconciling interests.³ As a result of the great variations in traditions in regulating the environment and in national positions on ecology and the economy, with the unanimity requirement it was often the case that special conciliation procedures were necessary to reconcile divergent interests. In addition to compensation payments and package deals, other strategies included the use of less ambitious quality standards or the drafting of legislation in broad terms which gave the member states more discretion in domestic application of the legal requirements.⁴ Thus the impact of implementing European environmental policy in different member states varied considerably and in some cases was inadequate.⁵

Second, the legal foundations for EC environmental policy were, as already noted, not primarily based on environmental protection as an independent objective. The primary intention was to create a framework of conditions for economic integration with the result that the implementation of the single market strategy acted also as a spur for the European institutions to act on environmental protection issues. This primacy of economic over environmental needs was intensified by the asymmetrical representation of economic interests compared to environmental ones in the European decision making process. Whereas bodies representing economic interests are widely represented on the advisory committees of the Commission and/or are often informally consulted, environmental bodies have had less access to these networks (see Hey and Brendle, 1994, 380 ff), even though the influence of some interest groups, such as the Royal Society for the Protection of Birds on the birds directive, and, more generally, the work of the European Environmental Bureau and the Institute of European Environmental Policy should be acknowledged.

Until the early 1980s European environmental policy in conceptual and regulatory terms was characterised predominantly by reactive reporting on acute environmental damage and the introduction of restrictions using classical regulatory instruments (see O.J. 1977 No. C 139/1). The third environmental action programme, passed in 1983 (O.J. 1983 No. C 46/1) and the establishment of the Directorate-General on the Environment marked the beginning of a new phase in European environmental policy.⁶ Although there was no change in the legal basis until the coming into force of the Single European Act, there were, with the growing awareness of environmental issues in the 1980s, some changes which were reflected in the gradual transition from the formerly predominant principle of protection against hazards to the principle of risk management (see Hillenbrand, 1994). Furthermore, the Commission has increasingly shifted the emphasis of its measures from ambient air quality to an emission oriented approach in the tradition of German environmental regulation.

The approval of the fourth EC environmental action programme (1987-1992), in which the idea of making the environment an integral part of all other EC policies was formulated for the first time (O.J. 1987 No. C 328/1), occurred in the year the Single European Act came into effect. The Single European Act explicitly integrated environmental policy into the EEC Treaty and this represented the formal consolidation of the principles developed in the action programmes over the years. The Single European Act provided a clear legal basis for environmental policy. This legal basis is to be found in Articles 130r-t and Article 100a of the EEC Treaty. Article 13 Or Section 1 defines objectives for the Community’s environmental policy. They range from conservation and protection of the environment and improving its quality to guaranteeing rational and prudent use of natural resources. The core principles of the EC environmental policy were fixed in Article 130r Section 2 and included the cross-sectoral principle which was intended to extend environmental considerations to other policy areas, as well as the three fundamental principles of the polluter pays, prevention not cure, and rectification of problems at source. This integration of the cross-sectoral principle into the Single European Act was novel in the development of EC law and its implementation is still in its infancy⁷ because of the fragmented and segmented nature of European policies.

At the same time the broad declaration of a resource saving and preventative EC environmental policy was also restricted by the issues that had to be taken into account which were incorporated in Article 13 Or Section 3. This highlighted the need to incorporate scientific and technical data, differing regional environment situations and the impact of environmental protection measures on securing regional growth when developing environmental policy.⁸ In addition, according to Article 13Or Section 4 (1) the Community was supposed to act in the environment sector only when the aforementioned objectives could be achieved better at Community level than at member state level.

Where regulations on environmental protection were linked to the establishment and function of the single market, they were decided on the basis of Article 100a of the Treaty. Under these circumstances the Environment Council could agree, via qualified majority voting, on proposals by the Commission, following the co-operation procedure with the European Parliament and in consultation with the Economic and Social Committee. For all other environmental protection regulations Article 130s stipulated that the Environment Council would need to vote unanimously to approve Commission proposals. Environmental policy rulings could then be approved by the Council itself with a qualified majority. The choice of legal basis was therefore very important, as different inter- and intra- institutional decision making processes would come into operation depending on the choice. It also allowed for more or less discretion to member states.

Modification of the decision making process to allow greater use of the majority principle as a result of the Single European Act meant that the Commission could discard a lowest common denominator approach to the weakest member state in terms of environmental protection. Rather, member states could search for coalition partners to help serve their own interests, which was more fruitful than blocking negotiations (see Knill and Heritier, 1996, 228). The tendency to agree at the level of the lowest common denominator is also made more difficult by the clauses reinforcing protection codified in Article 130t and Article 100a Section 4 of the Treaty. They allow the member states to continue to be responsible for environmental matters following European harmonisation by allowing EC rulings that provide minimum protection to be supplemented by more stringent practices in individual member states (see Hillenbrand, 1994). On the one hand, the scope for unanimous decisions is broadened despite a variety of views, but on the other hand, it increased the likelihood of creating differences in environmental standards in different member states.

Whereas the Single European Act left the tasks and measures listed in Articles 1 and 2 of the EEC Treaty unchanged, European environmental protection was specifically added to the list under the Maastricht Treaty which came into force on 1 November 1993. Article 2 signals a modification to the goal of economic growth. One of the tasks of the Community was “to guarantee harmonious and balanced development of economic life within the Community and consistent, non-inflationary and environmentally compatible growth”.⁹ In addition to these broad objectives the Maastricht Treaty further modified the environmental policy decision making process. Whereas prior to the Maastricht Treaty, environmental protection laws (with the exception of those related to the single market) had to be decided unanimously, measures in the environment sector based on Article 130s were, after Maastricht, to be decided by qualified majority in the Council and in co-operation with the European Parliament in accordance with Article 189c of the Treaty. In addition to the provision that in the adoption of future action programmes the European Parliament would participate through the co-decision procedure, Article 130s amounted in general to increased competence for the Parliament. Unanimous approval by the Council (after consultation with the European Parliament and the Economic and Social Committee) was therefore still required only for the measures specified in Article 130s Section 2 of the Treaty.¹⁰ Measures affecting the implementation of the single market and environmental protection continued to be based on Article 100a through the co-decision procedure between the Parliament and the Council.

The Amsterdam Treaty which came into force on 1 May 1999 further strengthened the responsibility of the Community for environmental protection. First, the guiding principle of sustainable development was included in the preamble to the EU Treaty and was also added to the list of objectives in Article 2 of the Treaty. Second, the cross-sectoral clause (i.e. the undertaking to integrate environmental protection requirements into other Community policies) which was formerly part of Article 13 Or Section 2 figured prominently in Article 6 of the new Treaty.¹¹ Third, the clause reinforcing protection formerly included in Article 100a (and Article 130t) of the old Treaty was strengthened such that, after agreement on EC level harmonisation measures, not only could existing stricter measures be retained, but new ones could also be brought in provided they were based on new scientific findings and did not lead to arbitrary discrimination (Article 95 Section 5). Finally, after Amsterdam the co-decision procedure became the standard way of approving environmental policy measures which before had been decided through the co-operation procedure. This further strengthened the role of the European Parliament in environmental policy decision making.

Recognition of the need to redress the balance between the economy and the environment, first addressed in the Maastricht Treaty and strengthened in the Amsterdam Treaty, was also underpinned in the fifth action programme “in support of sustainable, environmentally compatible growth” (1993-2000) (O. J. 1993 No. C 138/1). With the theme of sustainable development based on the Brundtland ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Preface and Acknowledgements
• List of Contributors
• Part I: Policy Overview and Analytical Framework
• Part II: Country Studies
• Part III: Reflections
• References
• Index