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Environmental Assessment in Federations

The EU and its regulatory role in environmental policy and assessment

15 September 2009

Thomas B FischerDepartment of Civic Design

Contents• Introduction• A brief outline of European integration and founding treaties• The EU’s environmental policy and assessment competence• Types of EU law• Extent of influence of EU – environmental – law • Content of environmental directives • Implementation and monitoring of EU law• Problems with implementing directives – EIA and SEA as

examples• Effects on individual MSs• Challenges and benefits of EU environmental policy

implementation• Conclusions and outlook

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Introduction • EU’s role goes way beyond a ‘free trade and

movement area’• EU’s ‘regulatory role has grown rapidly between

the 1980s and today’ (Thatcher, 2006)• For all internal matters, EU law governs

relationships between European institutions, MS and citizens of the EU

• Based on the Single European Act (1986), the EU’s legislative competence includes environmental protection

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Introduction• ‘Member states are no longer politically or

legally separate from EU environmental policy. In fact, they have undergone a progressive change (‘Europeanisation’) through their involvement in EU policy making. In other words, the member states have created an institutional entity to perform certain tasks which has, in turn, deeply affected the way they perceive and act against environmental problems.’ (Jordan, 2005)

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A brief outline of European integration and founding treaties• Initial European ‘Communities’; European Steel and Coal

Community, European Atomic Energy Community, European Economic Community

• Six successive enlargements

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• European Treaties primary source of European Law and must be considered in all law making and interpretation 6 Treaties and a failed constitution

• Treaties developed by intergovernmental conferences, approved by the European Council and later signed by MS; some of which require referenda of their citizens prior to their ratification

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A brief outline of European integration and founding treaties

The EU’s environmental policy and assessment competence

• Areas over which EU has exclusive competence, in which MS no longer have the power to introduce their own legislation (eg common agricultural policy, fisheries policy)

• Areas of shared competence, where EU legislates but does not have exclusive competence: eg environmental policy

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• Founders of EEC, notably Jean Monnet and Robert Schuman, ‘firmly believed that the cause of political integration would be best served if [...] the European Commission, focused [...] on [...] areas of ‘low politics’ like environmental, health and safety or internal market policy

• ‘Monnet method’ to pursue ‘European integration by stealth’ (Jordan, 2005)

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The EU’s environmental policy and assessment competence

• Principles and objectives of EU environmental policy: precautionary, preventive and polluter pays principles; sustainable development and environmental policy integration

• Principles based on Article 174(1) of the Treaty

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The EU’s environmental policy and assessment competence

• Objectives and concrete action of EU environmental policy formulated in six Environmental Action programmes (most recent legally binding) ‘Effective environmental protection requires the

consideration of environmental consequences in all ‘technical planning and decision-making processes at national and Community level (First Environmental Action Programme (EAP) of the European Community, 1973) OJ, 1973, 6

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The EU’s environmental policy and assessment competence

Types of EU law• EU law operates alongside laws of MS• EU law is both, directly and indirectly

effective• Regulations (and some treaty articles) are

directly effective• Regulations can be distinguished from

directives which need to be transposed into national law

• ‘Soft law’

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Extent of influence of EU – environmental- law

• between 1998 and 2004, 18,167 regulations and 750 directives (Plehwe, 2007)

• In 1970, 20 directives and 46 regulations; in 2003, 121 directives and 837 regulations (Thatcher, 2006)

• EU environmental acquis comprises well over 500 legislative items; about 75% of all national environmental acts go back to EU Directives (Steigenberger, 2009)

• German Federal Ministry of Justice study: 1998-2004: 84% of all new Laws originate in Brussels, only 16% in Berlin

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Content of environmental directives

• Principle of subsidiarity in EU policy making

• Regarding their content, directives can be subdivided into two main categories those aiming at establishing concrete

environmental objectives and targets, those introducing procedures which should

help to achieve more environmentally sustainable action

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• Most current environmental directives fall into second category; in eg planning and decision making processes: Water Framework Directive (WFD; 2000/60/EC), Birds

and Habitats Directives (BHDs; 79/409/EEC; 92/43/EEC), Flood Risk Management Directive ( 2007/60/EC), EIA (85/337/EEC, amended by 97/11/EC) and SEA (2001/42/ EC) directives

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Content of environmental directives

• Parliamentary formal acts / ordinances to transpose directives in MS (or direct referral)

• Regarding implementation and enforcement of environmental law, a group of environmental protection authorities in the MS was established in 1992 (IMPEL)

• EC responsible for ensuring that Community law is correctly applied; an infringement unit plays an important role

• Commission action for non-compliance or referral to the European Court of Justice (ECJ)

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Implementation & monitoring of EU law

• Infringement proceedings or action before the Court of Justice for non-transposition, non-communication or poor application of directives last step for ensuring compliance

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Content of environmental directives

Problems with implementing directives

• Directives are at times vague and may be interpreted in different ways: ‘Directives have in practice caused difficulties for many MS, often because of ambiguity and vagueness [...] This has led to inconsistencies across the MS’ (Marsden, 2008)

• Over-reliance on existing national legislation has in practice made it difficult for many MS to correctly implement EC law

• Quality in EU MSs differs a lot

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• EU regulation has been leading to: changes in environmental policy in the MS more consistent quality standards enhanced cross-border consultations

• In new MS, in particular, environmental situation has improved ‘as an effect of socio-economic advances and environmental policy reforms’ (Skjærseth and Wettestad, 2006)

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Effects on individual MSs

• EU legislation is affecting MS in different ways;

• states that are relatively good at nationalising or ‘domesticating’ (Wallace, 2000) EU policy, are touched by ‘Europeanization’ only to a small extent; net importers have to significantly adjust their policy systems (Jordan and Liefferink, 2003)

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Effects on individual MSs

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Table 1: anticipated impacts on environmental policy in MS based on EU legislation

Country Action required Austria Little overall change Finland Tighter standards France Tighter standards Germany Little overall change Greece Significantly tighter standards Ireland Significantly tighter standards Netherlands Little overall change Spain Significantly tighter standards Sweden Little overall change UK Tighter standards Source: Following Jordan and Liefferink, 2003, p5

Effects on individual MSs

Challenges and benefits of EU environmental policy implementation

• Implementation of directives a process in which different actors compete over meaning & consequences

• Those countries that joined the EU only recently are faced with particular challenges

• EU enlargement process primarily a foreign and economic policy issue; however, environmental questions played a vital role

• Large investments necessary in new MS• Extent to which values and attitudes are changing

unclear

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Conclusions and outlook

• EU environmental policy has become an important pillar of European integration

• 75% of all environmental acts go back to EU directives.• In order to increase certainty, clear substantive

thresholds and targets and possibly clear trade-off rules are needed

• Whether Lisbon Treaty will be ratified will have a bearing on EU environmental law

• Of crucial importance will also be how environmental policy integration will be developing

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