The EU's Green Dynamism

Deadlock and Change in Energy and Environmental Policy

Henning Deters

• Publisher: ECPR Press
• Year: 2018
• ISBN:
  9781786606662
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política medioambiental y energética

The high voting threshold in the Council together with conflicting national preferences should frustrate effective European problem-solving. This famous prediction of the "joint-decision trap" (JDT) is at odds with Europe's dynamic environmental policy. Yet there is scarce research on the limited impact of the JDT in this realm. We know little, therefore, about the conditions of effective environmental policy-change in the EU. By comparing cases of stability and change, including CO2-limits for passenger cars and the phase-out of inscandescent lamps, the book examines the ways in and out of the JDT in environmental policy. It shows how both the highly politicized summit level and the bureaucratic "comitology" facilitate change by acting as informal bypasses to the Council. The book contributes to a better understanding of the JDT. It speaks to the recent debate about Europe's "new intergovernmentalism" and the reliance on "informal politics," especially in the wake of the Euro crisis.

Chapter 1

Environmental Policy in a Trap?

When the European Union (EU) adopted the first piece of environmental legislation five decades ago, it was far from obvious that its environmental policy would later come to be regarded as a ‘success story’ (Lenschow and Sprungk 2010, 151). The EU was, in name and substance, still an Economic Community¹ with limited goals and competences when environmental protection first became an issue. Europe’s green dynamism has continued since and although often taken for granted, it is as unlikely today as ever. Although the EU has grown to include twenty-eight member states with the most diverse national institutions, economies and interests, its decision-making still hinges on a small blocking minority, if not the veto of single governments. Presumably then, Europe’s environmental policy would be distinctly shaped by the ‘least ambitious program’ (Underdal 1980). And yet, rather than settling for member states’ lowest common denominator, the EU pushes national environmental policies forward (Holzinger, Knill and Sommerer 2008; Tosun 2013). European provisions often reach the highest levels of protection and have grown in scope and number: more than 700 pieces of environmental legislation were adopted by the Council since 1970, exceeding one act per month (see table 1.1). In short, the EU may well have the most progressive environmental policy of any state without being one (Jordan and Adelle 2013, 1).

Understanding how the EU catalyses environmental policy change despite the enormous heterogeneity and controversy among its member states is crucial, in the face of our deteriorating natural resources (Meadows, Randers and Meadows 2009). Europe’s environmental problem-solving capacity, moreover, is not boundless after all. In fact, ambitious policies coexist with failed attempts and lazy compromises – examples in which the EU has fallen behind its potential. How can Europe stay clear of these pitfalls when enlargement, the financial and economic crisis and Brexit pose unprecedented challenges?

This book examines two related puzzles. The first is a gap between theory and practice of European environmental policymaking. There is a long-standing debate about the constraints imposed on the EU’s capacity for effective policy change by the diversity and sheer number of veto players, with the ‘joint-decision trap’ (JDT) being one of its classical and most sophisticated theoretical interpretations (Scharpf 1988; 2011). Still, however, little attention is paid to the stark contrast between seeming institutional constraints and the amazing dynamism of European environmental policy: How can the EU be an environmental pacemaker, if it virtually depends on the agreement of all member states? The second puzzle is the empirical variance of the levels of protection in EU policy. Although more ambitious than the JDT would suggest, protection levels are far from uniform. What are the conditions of progress and stalemate in EU environmental policymaking?

This study argues that despite the EU’s remarkable green dynamism in the past half century, the JDT continues to shape European environmental policymaking. But more often than not, the JDT shapes the policymaking dynamics (politics) rather than the outcomes of decision-making (policy). By analysing in detail three cases of environmental policymaking in the novel area of energy efficiency, I examine the specific mechanisms that lead into and out of decision traps. Among these, the shifting of policy decisions from the full Council of Ministers to alternative arenas is shown to be a crucial exit mechanism. This includes the high politics of summit diplomacy as well as non-political decision-making in transnational expert networks. Containing the JDT, moreover, requires skilled process management.

Research in European Environmental Policy

Scholars working within a functionalist tradition interpret the emergence of European environmental policy as spillover from economic integration. Divergent national provisions, as the argument goes, pose obstacles to trade, and companies from highly regulated states competing on the single market push for a level playing field. Furthermore, European policy is seen as a functional response to the transnational nature of many environmental problems. Most environmental issues, these researchers argue, are ‘low politics’. They are not salient enough to generate controversy. To the contrary, their complexity and the uncertainty of associated costs and benefits make them amenable to technocratic problem-solving (Weale 2005; Eichener 2000; Neyer 2004).

A similar line of research emphasizes the role of supranational policy entrepreneurs, namely the European Commission and the European Parliament (EP). Both have a vested interest in promoting European integration to maximize their competences and influence. Relatively isolated from the member states, they may push for decisions exceeding the national status quo without bearing the costs, and they are well placed as access points for ‘diffuse interests’ (Majone 1996a, 74; Pollack 1997b). This depiction is more accurate of the initial establishment of European environmental policy than of its present state. The Commission’s agenda-setting powers have considerably declined (Tsebelis and Garrett 2000), and since the EP has become more and more coequal with the Council, it no longer needs to distinguish itself by acting as an environmental champion (Burns, Carter and Worsfold 2012).

The supranational functionalist perspective captures important dynamics of the policy area, but it tends to downplay the extent of actual conflict. Researchers with a stronger focus on the Council have uncovered a considerable extent of diversity among member states, which distinctly shapes the dynamics and outcomes of environmental policymaking. Environmental politics, in this view, revolves around leaders and laggards (Jänicke 2005; Knill, Heichel and Arndt 2012; Liefferink and Andersen 1998; Liefferink and Wurzel 2017). Overcoming the differences between these camps often requires distributive bargaining strategies like package deals and side payments (Skjærseth et al. 2016). The extent of summitry in recent European climate governance illustrates this ‘high politics’ image.

An intermediate position confirms the leader-laggard dynamics but places equal importance on the agenda-setting and gatekeeping role of the Commission. In order to minimize the institutional adaptation required when implementing European environmental policy, member states try to upload their domestic solutions. To be successful, the leader governments need to win over the Commission, since it has the formal monopoly of initiative (Héritier, Mingers and Knill 1996; Börzel 2003). There are thus strong incentives and opportunities for the pioneers to shape European environmental policy.

Regardless of the pioneer’s initial success in agenda setting, however, the draft legislation still faces a tall hurdle during the subsequent negotiation phase. The final decision may still be watered down in the Council to a minimum compromise, especially when the level of conflict is high and technocratic problem-solving is early replaced by distributive bargaining. To the same effect, one of the few studies (Zito 2000) that directly address the JDT argues that problem-solving interactions play an important role in moving away from an unsatisfactory status quo protected by national interests. But problem-solving is demanding and tends to break down in the face of salient distributive conflicts. One precondition, for example, is the support of an impartial actor that can broker mutually acceptable solutions before the bargaining starts (ibid., 168–71).

The Argument

As this short review has shown, the driving forces behind the European integration of environmental policy and the question of its effectiveness are major issues in European policy studies. Scarcely any work, however, directly examines the contradiction between the EU’s reliance on joint decision-making and its green dynamism.² This is unfortunate, since the JDT lies at the very core of European integration. Although more modest in its scope, it shares the fate of the grand integration theories, liberal intergovernmentalism (LI) and neofunctional supranationalism, often to be used as a blanket model to simply affirm or reject. The present book aims to move beyond this blanket approach, which has been a major roadblock to theoretical progress. Starting from the premise that empirically informative social theory is only ‘sometimes true’ (Coleman 1964, 517), the book examines the specific mechanisms that lead in and out of JDTs. The theoretical contribution of these mechanisms lies in refining the JDT model and in bridging empirical policy research and integration theory.

Drawing on both strands of literature, I distinguish three groups of mechanisms that may serve as ‘exits’ (Falkner 2011b) from the JDT. Intergovernmental exits draw on the distribution of bargaining power between environmental leaders and laggards, which I define in terms of their relative dependency on agreement, or conversely, their unilateral alternatives. Further, negotiators can link and delink issues or add side payments and other forms of compensation to create acceptable solutions. Supranational exits draw on the hierarchical interventions by the European Commission and the EP into joint decision-making. The Commission may shape bargaining outcomes either through its agenda-setting powers or by acting as an honest broker and facilitator of efficient bargains. The Parliament may invoke its veto powers to increase environmental protection levels. Finally, multilevel governance exits take account of the fact that the EU system offers multiple arenas in addition to the needle’s eye of Ministerial Councils. Shifting negotiations to the summit arena may facilitate cross-sectoral compromise-building and serve to bypass the opposition of individual member states. Likewise, however, another exit route may lead through the underpinning of the EU’s emerging transnational administration, in which decisions are de facto made by technical expert groups that are only loosely coupled to member states’ interests.

For each of these exits, I develop a process-tracing test (see Beach and Pedersen 2013), which spells out the links of the respective causal mechanism and specifies what counts as evidence for their presence. These tests guide the within-case analysis of my case studies. They are enhanced with a cross-case analysis of similar cases with diverging outcomes (see Gerring 2007, 131–32).

The book’s empirical contribution lies in analysing three salient cases of environmental policy from the novel and understudied area of energy efficiency. At the crossroads of energy, climate and the environment, energy efficiency is a crucial building block in Europe’s strategy to reach its ambitious climate and energy targets for 2020 and beyond. The phaseout of incandescent lamps (chapter 5) and the fuel economy regulation for cars (chapter 4) were both ambitious and controversial. The ‘light-bulb ban’ generated strong public contention, while the fuel economy regulation for the first time set carbon dioxide (CO₂) emission standards for passenger cars, challenging the reliance on the combustion engine and promoting electrical drive technology. The disappointing energy efficiency directive (EED) (chapter 3) provides necessary contrast to these examples of policy change and illustrates a case where the JDT could not be escaped. The case studies draw entirely on original research, conducted through interviews and archival study. Political scientists have begun to study the fuel economy regulation (Gulbrandsen and Christensen 2014), but research on the other cases is still lacking.

My findings can be summarized as follows: first, I submit that the JDT continues to be relevant in European environmental politics, although its impact on policies is limited. In all cases, member states defended their particular interests and targeted specifically those provisions that were costly for them to implement. To the extent that exit mechanisms were not available, this resulted in a process of negative coordination, in which the level of protection was reduced step by step in line with idiosyncratic national concerns. This was true in particular for the EED, but to a lesser extent even for the other cases, in which the JDT was avoided to different degrees.

Second, neither the supranational exits nor the intergovernmental exits alone can explain the different degrees of policy change across cases. The EP promoted a higher level of protection than the average member state, but its coherence is weakened by intergovernmental conflict, in particular on issues with salient redistributive implications. When the EP adopted a strong and progressive position, the Council took only a fraction of its amendments on board. Similarly, the Commission sometimes is just a lukewarm advocate of environmental protection. Its exact position depends on the intergovernmental preference constellation as well as on a dossier’s allocation within the Commission. Moreover, while its agenda-setting power allows the Commission to frame a policy’s contour, it does not prevent the Council from watering down a policy’s substance. The Commission does, however, play an important role as honest broker. A valuable brokering strategy consist in setting a target as common focal point and accommodate national diversity through separate burden-sharing negotiations.

The case studies partly confirm the leader-laggard dynamic, but the positioning of member states is more contingent than the literature suggests. The same member state can even be a laggard with respect to one aspect of a policy proposal, and a leader with respect to another. In terms of intergovernmental bargaining exits, there is no obvious congruence between the leeway for unilateral action and the outcome. For example, the fuel-efficiency regulation was adopted without any threat by pioneer states to adopt unilateral measures – different from the experience with earlier car emission standards (see later).

Third and finally, comparing the cases of deadlock and progress, I argue that policymaking outside of the sectoral Council helped to avoid or escape JDTs. In both success cases, and only in those cases, crucial decisions were made either in parallel summit talks among the most strongly affected governments or through non-political deliberations among experts and stakeholders. As I argue later, there is reason to believe that supranational activism and active policy-shaping by front runners declined as environmental protection became an established policy area of the EU. Escaping the JDT may have to rely more often on summit diplomacy or technocratic governance.

Europe’s Green Dynamism

To illustrate the high level of environmental regulation and thus the mismatch between the prediction of the JDT and the reality of EU environmental policy, the following sections briefly sketch how the field developed from afterthought to centre stage. Despite the need to ensure unanimous agreement and the lack of formal treaty powers, a European environmental policy avant la lettre emerged already in the late 1960s. Then, the JDT was a strong constraint that could be overcome only through intergovernmental bargaining. There was, however, abundant ‘low hanging fruit’ in the form of congruent member state interests. With the Single European Act (SEA), environmental policy entered a new period of remarkable expansion and, subsequently, consolidation. The community method now provided the European Commission and Parliament with opportunities for supranational intervention, and national pioneers were empowered by rulings of the Court of Justice of the EU and by the move to qualified majority decisions. The expansion seems to have reached its apex at the turn of the millennium. More recently, the environmental policy output has in fact been declining, and there is a revival of the JDT. Supranational intervention is dwindling and intergovernmental bargaining is becoming insufficient in a Union of increased heterogeneity and in times of economic stagnation. In this environment, non-political ‘infranational’ (Weiler 1999, 272) decision-making and, ironically, the high politics of summit meetings and ‘coalitions of the willing’ are crucial exit mechanisms.

Against All Odds: The Emergence of EU Environmental Policy

Environmental protection emerged as EU policy area in spite of rigid institutional constraints. The first constraint was the lack of a legal basis. The founding treaties did ‘not expressly permit Community institutions to act in the field of environmental protection’ (Rehbinder and Stewart 1988, 15), but the Commission based environmental legislation on articles 114 (approximation of laws for the single market) or 352 of the Treaty on the Functioning of the European Union (TFEU) (subsidiary powers) or on both at once. Any attempts to stop this practice were scotched right away by the Court of Justice, which saw environmental protection as part of the ‘accelerated raising of the standard of living’ that the treaty defined as Community goal (McCormick 2001, 42; Rehbinder and Stewart 1988, 21). Already in 1973, in advance of any formal competence, the Council adopted the Commission’s first Environmental Action Programme (EAP), marking the beginning of a European environmental policy (Knill and Liefferink 2013, 13).

The second constraint was the decision-making rules. Qualified majority ...