Environmental Policy

Implementation and Enforcement

Neil Hawke

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351742245
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto ambientale

This title was first published in 2002. Environmental Policy is an astute and far-reaching text which analyzes the intersections between environmental policy formation and its ultimate implementation and enforcement through the law. It sets this theme against the axis of EU law and policy and UK law and policy, paying particular attention to the variables which determine the nature and significance of law as a delivery vehicle. Among these variables are the shape and character of EU and UK law for present purposes, alternatives to law, and the culture of UK law and policy aiding a distinct pattern of response to Directives, for example. It takes an informed look at the reality of implementation and enforcement through its reference to policy objectives as well as the limits and appropriateness of law across the aforementioned axis. An indispensable resource for scholars and students of environmental law and policy, along with governmental and other environmental agencies responsible for policy creation, implementation and enforcement.

Chapter One
The Development of Law and Policy

Background to Law and Policy Development

It is the task of this book to look at the factors and variables which shape the evolution of policy and its crystallisation in law. Prior to accession to membership of the European Community by the United Kingdom such a task would generally have had a very different character, for reasons which will unfold in this first chapter and beyond. Indeed, much environmental law that is now implemented and enforced in the United Kingdom started life as a policy ambition of the European Community. Nevertheless there are some laws which do not owe their parentage to such policy, directly at least. Within this framework and its European emphasis there is a fundamental concern for the way in which policy’s dynamic character sees its evolution into law and, in turn, its enforcement in the United Kingdom. A major concern for this purpose is the extent to which member states of the European Community may be seen to have discretion in the style, extent and emphasis of their transposition of Community law. In so far as any discretion does exist here it arises from the fundamental status of the legislative instruments of the Community. More particularly, the main instrument of environmental law, the directive, often allows that discretion in transposition.

Evolution and Development

The 1990s were notable for the fact that a central concern of the European Community was with the process of implementation affecting member states. The years leading to this point can be characterised as being bound up with the process of creating the policy which in many instances flowered into law for implementation and enforcement in member states. This preoccupation appears to have represented an inward-looking exercise where little thought was given to the efficiency of the process overall. In other words, the appearance is of a regime with only a marginal preoccupation with whether the objectives behind the law and policy are being realised. Arguably, in a period of such rapid development where the status of the environment in the constitutional structure of the European Community was still beset with uncertainty, attention to effectiveness and efficiency in the implementation and enforcement process was never likely to be towards the top of any list of priorities. The development of environmental law and policy in this period up to the 1990s is usually characterised as involving a ‘top-down’ approach. The 5th Environmental Action Programme signalled a potentially important shift to what is often characterised as a ‘bottom-up’ approach.

The 5th Environmental Action Programme¹

This and the other programmes of the same name are essentially declarations of intent, as well as being discussion documents. In addition proposals for action may be prescribed by reference to a timetable for action. Nevertheless, the programmes have no legally binding status. Perhaps most importantly, the programmes and the 5th in particular provide something of a marker against which the progress of implementation and enforcement can be measured. The 5th Environmental Action Programme set out an ambitious strategy for environmental management at Community level, with quantified targets as well as the means of achieving them. Five target areas were selected for particular attention: industry, energy, transport, agriculture and tourism.² Within this framework the intention was to address procedures, to maximise public participation, to promote voluntary agreements, to stress horizontal rather than vertical policy development and enforcement, and to promote self-regulation. However, it was the 4th Environmental Action Programme (addressed below) which set the scene in relation to matters of environmental policy implementation.

The ‘Bottom-up’Approach

One attractive argument in favour of this approach is that there is potential for bringing matters of implementation and enforcement rather closer to the point, on the ground, where environmental law and policy has to have its impact. In turn there is the potential for better accountability as well as the potential for environmental policy integration, which will be examined later in this chapter. For the moment though, environmental policy integration seeks a better and more effective representation in the other policies of the European Community by means of horizontal rather than vertical policy development and enforcement.

One increasingly significant example of the ‘bottom-up’ approach is the development and implementation of policy on self-regulation through the Community Regulation allowing voluntary participation in the eco-management and audit scheme.³ Here local government (an important environmental regulator) has been notable for its pro-active involvement in adoption and implementation of what is usually referred to as EMAS.⁴ Whatever the context there are important matters of principle to be realised through the bottom-up implementation and enforcement of environmental policy, not least the appearance of greater credibility of the law that emerges from the foundation of that policy. In Chapter Six, where economic instruments are addressed, it will be seen that a bottom-up approach is particularly crucial since it is from this direction that markets and market-based instruments will gather their momentum as well as the synergy which allows flexible change as one of the outstanding characteristics of these instruments.

Increasing reliance on the foregoing bottom-up approach will tend to reduce reliance on the more traditional ‘command and control’ techniques of regulatory control. Although it is tempting to pose the question whether bottom-up approaches are more effective than command and control, such a question is probably naive, for two reasons. First, there is little doubt that economic instruments are for the foreseeable future complementary to the command and control approach to environmental regulation. Second, any enquiry into effectiveness is fraught with complexity and difficulty: any such enquiry is certainly beyond the scope of this book.

The 4th Environmental Action Programme⁵

This Programme stressed the need to deal with matters of implementation. As such this programme was an important marker in the progress from law and policy creation to realisation of environmental objectives in member states. Considerable stress was placed on environmental protection policy as an essential ingredient of economic, social and agricultural policy. The priority of policy integration (which is further developed towards the end of this chapter) was more clearly articulated than it had been in the 3rd Environmental Action Programme. Where agriculture is concerned, the 4th Action Programme emphasised the specific problems confronting agricultural policy, such as overproduction and variable soil quality.⁶ The 3rd Environmental Action Programme also represented an important, incremental building block in the development of environmental law and policy.

The 3rd Environmental Action Programme⁷

Environmental policy integration was first adverted to in this programme, as well as the significance of preventative action for the protection of the environment. Agriculture was one area mentioned as being in need of greater environmental awareness. The need to recognise and address the causes of environmental damage were adverted to also against the background of a need for a ‘rational’ management of landed resources.

Wisely, the Programme points to the fact that the way in which land is used very largely conditions environmental quality. Accordingly attention is directed to the need for reinforcement of policy priorities both at member state and Community level for the purpose of more successful protection and conservation of those areas which fulfil important ecological functions.

The 3rd Environmental Action Programme appeared just ten years after the accession of the United Kingdom to membership of the European Community. The environmental law and policy of the United Kingdom in the years up to 1973 will be examined later in this chapter and elsewhere in this book. More immediately though, the United Kingdom’s accession can be characterised by very significant changes in the style and emphasis of applicable environmental law and policy. In the years to 1973 the United Kingdom was used to arrangements which were less than transparent and far from objective, in part as a result of a devolved system. This picture is well worth stressing as developments in the European Community are dealt with.

The Shaping and Management of Policy Creation

There is no easy way of defining the variables which affect the creation of environmental policy. One critical issue is that some elements of such policy will be intended to crystallise into the law of the Community before being implemented by transposition in member states. In principle, therefore, policy creation necessitates attention to the practicalities of the transition into law that is both capable of effective implementation and enforcement in member states. In theory that path should be smooth enough to facilitate that process. In practice there are various factors which stand in the way of the effective realisation of that process, not least the blurring of the edges that occurs where (typically) a directive finally agreed is the product of political compromise following often tortuous negotiation within the Community. Against this background it is possible to generalise for the purpose of suggesting that five variables will tend to predominate in the creation and shaping of policy on the environment: science, technology, economics, risk and geography. For present purposes the first three of these will be examined in a little more detail. To a large extent these variables are recognised in the EC Treaty, as will be seen below.

Science

It is not unreasonable to surmise that the very nature of the environment, its regulation, management and control suggest the centrality of science and scientific principles. The fundamental shortcoming of science is that it may not deliver the certainties that policy-makers hanker after. In order to cope with this uncertainty there may be resort to devices such as the ‘precautionary’ principle which is examined in Chapter Three. Furthermore, the Royal Commission on Environmental Pollution in its 21st Report on ‘Setting Environmental Standards’ had this to say:

The requirement for sound science as the basis for environmental policy is not a requirement for absolute knowledge or certainty and should not be interpreted as such. Rather ... its limitations should be made explicit.⁸

The Royal Commission indicates that, in setting an environmental standard, the starting point should be scientific understanding of the problem or potential problem being addressed. Whether pollutants should be released to the environment raises issues which go well beyond scientific evidence in many cases. Should the (assumed) assimilative capacity of the marine environment be relied upon? Should there be a presumption in favour of precaution? These and very many other issues and variables lie beyond the scientific boundary. It is here that, as will be seen in Chapter Three, the precautionary and preventative principles at the centre of much European Community environmental law and policy-making provide opportunities for the balancing of all sorts of factors before the final decision is forthcoming on the shape and extent of environmental law and policy. One of these factors may well be technology.

Technology

Reference will be made elsewhere in this book to criteria such as ‘BATNEEC (best available technology not entailing excessive cost) and ‘BPEO’ (best practicable environmental option), both of which are now well-entrenched in important areas of environmental law in the European Community and its member states. Beyond these criteria for decision-making in member states other dimensions affecting this variable may require development in the early years of the twenty-first century. The possibility that ‘technology’ for present purposes may be indicative of a rather wider constituency is adverted to by the Royal Commission on Environmental Pollution.⁹ The Royal Commission suggests that assessments of technological options ought to have a broader perspective, examining the whole supply chain to determine whether it may be managed in a less environmentally-damaging way. In other words, life-cycle analysis should be a constituent of this technological variable in law and policy-making.

Economics

A crude recognition of economic variables occurs through an identification of the costs and benefits of the implementation and enforcement of environmental requirements. Simple examples come to mind: for example, what are the consequences of a cessation of sea-dumping of sewage sludge in the North Sea? Are any indirect consequences of a prohibition on sea-dumping acceptable? Are there net benefits here, in terms of the alternative management and disposal of sewage sludge through incineration, treatment and land-spreading? These questions beg many other fundamental questions en route to any meaningful analysis of costs and benefits. For example, what value can be placed on the technology necessary and the externalities relied on for the purpose of managing huge quantities of sewage sludge accruing as a result of a prohibition of sea-dumping? One simple generalisation here may suggest that replacement of sea-dumping with incineration, treatment and land-spreading is a good deal more expensive. If this is the case and economic or financial variables are part of the dec...