1.1 Defining environmental permits: a premise
It is difficult, if not impossible, to reach an unanimously accepted legal definition of environment and this is the reason why, also at the juridical level, different approaches to such a concept have been adopted according to its divergent understandings. As a consequence, the regulatory measures conceived for tackling the phenomenon of pollution have often been numerous and diverse too.
It is possible to argue that all legal interpretations of the environmental concept fall under two main approaches: the traditional approach, which conceives the environment as the sum of diverse components put together with one another; and the integrated approach, which understands the environment as a unique and organic entity.1
This chapter will describe and discuss the key features of these two approaches, eventually highlighting how different types of environmental legal tools and permits derive from each of them. However, prior to this, it is necessary to define the concept of environmental permitting.
Environmental permitting is one of the fundamental tools in the hands of regulatory authorities to abate pollution and reduce (industry’s) environmental impacts, facilitate its compliance with environmental requirements and foster technological innovation. The main objective of permits is to protect the environment and human health by defining – in a transparent and accountable manner – legally binding requirements for major sources of pollution.2 Hence, the permitting system regulates all kinds of planning, development, construction and discharge activities possibly affecting the environment and, particularly since the 1970s, it is broadly recognised as the key pillar of environmental protection and pollution prevention laws worldwide.3
Given this definition of environmental permitting, it is now necessary to make a step backward and define the characteristics of the traditional and integrated approaches.
1 OECD, “Integrated Environmental Permitting Guidelines for EECCA Countries,” (2005): 12–13.
2 OECD, “Guiding Principles of Effective Environmental Permitting Systems,” (2007): 3 and 8.
3 Id. 4.
A closer look at each of those approaches is necessary to better identify what elements need to be taken into consideration when tackling environmental problems, and eventually to understand whether it is possible to establish, if not a unanimously accepted legal definition of the environment, at least one that is consistent and useful. Finally, because the role of environmental permits – and their required functions – varies according to the overall context of the environmental regulatory system in which they operate, understanding what would be the preferable approach will also lead us to select the kind of permits more suitable to abate pollution effectively.
1.2 The traditional regulatory approach
Since the late 1960s, when dramatic events4 pushed countries to consider the problem of pollution in all its perilousness, the dominant approach consisted of separately regulating each damaged environmental sector on a case-by-case basis. Having to deal with particularly serious cases of pollution, the normal and most logical response by authorities was to tackle the problem by finding a direct solution to it: indeed, rather than looking at the broad picture, decision makers tended to address pollution cases by focusing on the immediate identification of an effective solution, thus adopting specific legislative measures aimed to solve the problem. Environmental crises generally affect a single environmental medium, hence the links between media were unknown or voluntarily ignored.5
It followed that the environment was such a heterogeneous element, characterized by frequent interrelations among its components, that it was practically impossible or too costly to properly assess and establish suitable intervention measures for facing its overall pollution problems. As a result, pollution started to be understood as the sum of many single problems, factors and episodes that had to be considered separately, one at a time, according to when and how they took place. For this reason, up until the beginning of the 1980s, each regulation that was put in place at the international and EU levels focused only on a single environmental medium.6
4 See the environmental impact of marine pollution generated by the numerous shipwrecks of oil tankers that occurred in the late 1960s. For example, it is possible to recall – inter alia – the case of the Korean oil tanker Sea Star which dumped of around 115,000 tonnes of crude oil in the Gulf of Oman as well as the case of the oil tanker Othello which sank on 20 March 1970 off the coast of Sweden. Finally, it is important to recall the Italian industrial accident of 10 July 1976, known as the Seveso chemical spill, in which a chemical manufacturing plant in the north west of Italy caused the highest known dioxin exposure in residential populations. The accident not only gave rise to several scientific studies, but it also led the EU to standardize industrial safety regulations – described later in this chapter – known as the Seveso Directive. Dagmar Schmidt Etkin, “Historical Overview of Oil Spills from All Sources (1960–1998)” (International Oil Spill Conference Proceedings, March 1999, Vol. 1999, No. 1, 1097–1102).
5 Nicola Lugaresi, Diritto dell’Ambiente (Vicenza: Wolters Kluwer, 2015), 75–76.
6 At the national level, only a few countries (France and UK in particular) started to move away from the traditional approach during 1980s; in those years, neither China nor Italy made any step in this respect. Joseph Di Mento, The Global Environment and International Law (Austin, TX: University of Texas Press, 2003), 2–6.
This traditional approach deals with pollution abatement through the adoption of three main sets of sectorial regulations, well mirrored by the Directives introduced by the European Economic Community (later European Union)7 in the mid-1970s and early 1980s.
First, it focuses on the type of environmental medium affected, namely air, soil or water. A good example is Council Directive 76/464/EEC of 4 May 1976 on Pollution Caused by Certain Dangerous Substances Discharged into the Aquatic Environment of the Community. This Directive applies to inland surface water, territorial waters, internal coastal waters and groundwater.8 EU Member States are required to take the appropriate steps to eliminate pollution of the above-mentioned waters by certain dangerous substances (a list of the families and groups of such substances is provided in the Annexes to the Directive).9 Another example is Council Directive 84/360/EEC on the Combating of Air Pollution from Industrial Plants which, as mentioned in its title, lays down measures and procedures designed to prevent or reduce as far as possible air pollution from industrial plants within the Community. For the purposes of these provisions, “plant” shall mean any establishment or other stationary plant used for industrial or public utility purposes which is likely to cause air pollution.10 According to Article 4 of the Directive, authorization may be issued only when the competent national authority has verified that: 1) all appropriate preventive measures against pollution have been adopted; 2) the use of plant will not cause significant air pollution, particularly from the emission of the indicated polluting substances; 3) none of the emission limit values applicable will be exceeded; and 4) all the air quality limit values applicable will be taken into consideration.11
The second method in which the traditional (or fragmented) approach deals with pollution reduction and control is by tackling specific polluting substances. Among the many pieces of legislation adopted at the EU level between the late 1970s and early 1980s, it is worth mentioning Council Directive 80/779/EEC of 15 July 1980 on Air Quality Limit Values and Guide Values for Sulphur Dioxide and Suspended Particulates. This Directive establishes limit and guide values for sulphur dioxide and suspended particulates in the atmosphere and the conditions for their application in order to increase the protection of human health and the environment. In the areas in which a given Member State deems it necessary to reduce or prevent a foreseeable increase in pollution by sulphur dioxide and suspended particulates in the wake of development, in particular urban or industrial development, such Member State shall fix values which must be lower than the limit values foreseen by the Directive.12 Another example in this respect is provided by Council Directive 84/491/EEC of 9 October 1984 on Limit Values and Quality Objectives for Discharges of Hexachlorocyclohexane (HCH), which lays down limit values and quality objectives for discharges of a specific toxic and polluting chemical substance. The limit values shall normally apply at the point where wastewaters containing HCH leave the industrial plant. The Member States concerned shall be accountable for monitoring the aquatic environment affected by industrial discharges. This Directive applies to the waters referred to in Article 1 of the aforementioned Directive 76/464/EEC with the exception of groundwater.13
7 The European Economic Community, created with the Treaty of Rome of 1957, was dissolved into the European Union by the Lisbon Treaty in 2009. https://europa.eu/european-union/about-eu/history_en.
8 Council Directive 76/464/EEC, Official Journal L 129, Article 1.
9 Id. Article 2.
10 Council Directive 84/360/EEC, Official Journal L 188, Article 2.
11 Id. Article 4.
12 Council Directive 80/779/EEC, Official Journal L 229.
13 Id. Article 1; Council Directive 84/491/EEC, Official Journal L 274, see the 7 Articles and 4 Annexes.
The third way in which the traditional approach faces the challenge of pollution is by legally regulating the different subjects or activities affected by the polluting substances. An example of such regulations is Council Directive 70/157/EEC on the Approximation of the Laws of the Member States Relating to the Permissible Sound Level and the Exhaust System of Motor Vehicles.14 This Directive sets limits for the noise level of the mechanical parts and exhaust systems of the vehicles concerned. For the purposes of these provisions, vehicle
means any motor vehicle intended for use on the road, with or without bodywork, having at least four wheels and a maximum design speed exceeding 25 kilometres per hour, with the exception of vehicles which run on rails, agricultural tractors and machinery and public works vehicles.15
1.2.1 Pragmatic incrementalism
Hence, the decision-making model of the traditional approach applies an incremental and progressive logic in which the priority is to adopt more and more tailored (and effective) abatement and control measures against pollution rather than comprehensively tackling environmental problems with laws and regulations capable of reflecting the complexity of such challenges. To define this modus operandi, some scholars argue about a “pragmatic incrementalism” or “step-by-step approach”, others define it a “trial-and-error approach” or “a way of muddling through”, meaning a way to deal with the problem and somehow work it out.16
In other words, “single-medium permitting – the traditional regulatory approach – derives fr...
