Jean Monnet Center at NYU School of Law


6. Implementation and the Role of Environmental Regulation in the Twenty-first Century

The developments in society and the change of styles in the implementation and enforcement of environmental policy and law pose more questions than answers. We lack evidence on how the new developments and methods will affect the implementation of environmental policy and law. Or, to put it positively, there is a wealth of research material waiting for the interested observer!

However, when looking at change affecting the public sector, one element is striking: states still continue to be the principal actors on the national and international scene (although the competition with global firms and NGOs is increasing). Surprisingly, and despite the changing mode of interaction (for example through the emergence of more network-like regimes), the regulatory state is not about to disappear. In addition (despite growing distrust) people continue to expect their governments to stabilise the economy, provide for national defence, insure its citizens against the risk of disability, unemployment and poverty and illness in old age, finance and improve public education, promote public safety, fund scientific and medical research, control air traffic, protect the environment - in short, to respond to almost every imaginable economic and social need. In fact the nation-state will survive not only because of people's expectations but because of people's needs. The nation-state is perceived not only as an instrument but as an entity with two deep human values which find an expression in nationhood: belonging and individuality. As Weiler writes in The Constitution of Europe: "At a societal level, nationhood involves the drawing of boundaries by which the nation will be defined and separated from others. The categories of boundary-drawing are myriad: linguistic, ethnic, geographic, religious, etc. The drawing of the boundaries is exactly that: a constitutive act, which decides that certain boundaries are meaningful both for the sense of belonging and for the original contribution of the nation."62 One reason is that people need "boundaries" to build up their identities. The European Union in its current state lacks public identification because - in Weiler words - it does not offer enough incentives for the people to identify with. The classical ideals such as peace and prosperity are no longer attractive (thanks to the success of the Union). The EU is now perceived by many rather as a technocratic monster, representing modernity and postmodernity, rationality, bureaucratism, centralism, mobility, change and little to identify with.63 This does not mean that a supranational European Union is unnecessary and not an objective which is worth pursuing (especially in the environmental field). But why is this a problem? Public distrust in the European Union has increased over time and so will administrative distrust against "Europe". The more powerful the European Union becomes the more it is seen as a threat. The more the people know about the EU the more they wish to distance themselves from it. And this is likely to increase as long as the process of European integration cannot offer positive ideals to the broader public. Trust in the European institutions is thus generally low. In environmental policy this is reflected by the fact that Member States have never agreed to give inspection and enforcement powers to the European Commission. Yet, the powers of the Commission to propose fines to the European Court of Justice (since 1993) are more a political weapon than a deterrent instrument. Fukuyama shows in his book The Great Disruption that people's distrust can pose threats to the very existence of institutions and even nation states.64 Since the distrust in European administrations is even stronger than in the administrations in the Member States it cannot be excluded that the correct implementation of environmental policy and law will not considerably improve, or will even deteriorate, in coming years.

Despite all the difficulties in predicting the future of the Union, the new developments in public administration can without doubt contribute significantly to further improvements in the implementation of environmental policy and law: to what extent will depend on the development of the Union, the judicious choice of methods and the ability and capability of the authorities to adapt to new circumstances. The scope of the new developments and their impact on the capacity of the public administrations to steer policies efficiently and effectively remains unclear, but certainly the era of the state - and within it public administration - is not over yet.65 "Government will likely neither expand nor contract a great deal but it will certainly change."66 So will the implementation of European environmental law. In the future, it seems, national administrations will become much more inventive and will use the full range of instruments and tools to apply and enforce community law. The crucial question will be to find the right mix between incentives (carrots) and threats (sticks).

Despite all criticism, it seems that regulation will not disappear. Regulation remains central to policies of nation-states since the reason for it (market failure or establishment of markets, redistribution tasks, non-market tasks or the need to promote collective values or democratic aspirations, achieving cooperation and integration, the need to provide information, etc.) is likely not to change.67. Regulation is also the product of private sector demands (currently especially in the field of antitrust enforcement, international trade and standard-setting in biotechnology, etc.), and this is likely to continue.68 However, the problems surrounding regulation have led many to look for generic solutions. The regulatory state, it seems, is not so much the problem as is the search for the right mixture of centralised and decentralised approaches, incentives and threats, flexibility and strictness, etc.

At present, most shortcomings in implementing the provisions of Community law include failures to notify, to establish programmes, to set up authorities, to inform the public, to monitor, etc. All these failures constitute legal violations in implementing Community law, but not all will harm the environment (or public health) and not all constitute a serious breach of Community law. Environmental administrators may find it possible to remove 90 per cent of a river's industrial effluent, but when they seek to remove the final 10 per cent of the pollutant they face mounting difficulties. At that point, costs begin to rise and inspectors meet strong resistance from firms and enforcement problems may become so serious that the programme ends up being less effective than if the ministry/agency/commission had begun with a more modest goal.69 Beyond this, the discussion suggests that regulators (in this case, the Commission) should aim at worst cases. One solution would therefore be, that levels of acceptable compliance should be agreed upon. Chayes, Handler Chayes and Mitchell propose that under "most circumstances, strict and immediate compliance with every provision of an agreement is neither necessary nor feasible."70.

However, such a strategy would involve a number of drawbacks. The conclusion that implementation will never be perfect is inadequate, since a number of possible solutions to improve the situation have not been evaluated yet, or even tried out. Regulators have a duty to strive for the best solutions in implementing public policies. Deciding upon acceptable levels of compliance would also be in contravention of the case-law of the ECJ which requires "correct and detailed implementation". And what constitutes acceptable levels of compliance? Such an agreement is hard to make and would open doors for endless discussions. Finally, it would legitimate infringements and - consequently - not so much improve the situation, as worsen it.

Whatever is the right approach, Community legislation will be effective only if it is transposed into national legislation (and the Member States comply with the law), applied and enforced.71 If EU environmental law is not, or only partly, applied, environmental protection objectives cannot be achieved. In addition, the "credibility of the European Union itself rests in part, on its ability to implement and enforce legislation".72.

62 "The belonging of nationhood is both like and unlike the bonds of blood in family and tribe and in both this likeness and unlikeness we may find a clue to some of its underlying values. It is like the bonds of blood in family and tribe in that those who are of the nation have their place, are accepted, belong, independently of their achievements, by just being - and herein lies the powerful appeal (and terrible danger) of belonging of this type: it is a shield against existential aloneness" Weiler, J.H.H., The Constitution of Europe, Cambridge, MA, 1999, p. 247. "The supranational project recognizes that at an intergroup level nationalism is an expression of cultural (political and/or other) specificity underscoring commonality, the `sharedness' of the group vis-à-vis itself, calling for loyalty and justifying the elimation of intra-group boundaries". Weiler, 1999, p. 251. "Or to put it more philosophical (religious)...the alien is to be protected, not because he was a member of one's family, clan, religious community or people, but because he is a human being. In the alien, therefore, man discovered the idea of humanity", Weiler, 1999, p. 34;.see also p. 340.

63 See Weiler (1999, n. 55).

64 Fukuyama, The Great Disruption, (1999, n. 41).

65 See Governance, No. 2/2000, A Special Symposium: The End of the Big State?, pp. 233-278.

66 Thomas, E. Mann, "Is The Era of Big Government Over?" The Public Perspective, Vol. 9, No. 2, 1998, pp. 27-29.

67 Breyer, S.G., Stewart, R.B, Sunstein, C.R. and Spitzer, M.L., Administrative Law and Regulatory Policy, 4th edn., Aspen, 1999, pp. 4 -12. The authors add a number of additional reasons for regulation. We will mention only those which are directly relevant to environmental policy.

68 Tedlow, S.R., "The Making of the Modern Society", Business Week, Special Issue, 21-27 August 2000, p. 99.

69 Breyer, S., Regulation and its Reform, Cambridge, MA, 1982, p. 185.

70 Chayes, A., Handler Chayes, A. and Mitchell, R.B., "Managing Compliance: A Comparative Perspective", in: Brown, Weiss and Jacobsen, Engaging Countries, Cambridge, MA, 1999, p. 51.

71 There is still an enormous confusion as regards exact definition. The English expressions differ a lot from the translations made in French and in German. While the French generally speaks of "la mise en oeuvre" (implementation, compliance and execution), "transposition" (transposition) and "l'application" (application and enforcement), the German language uses "Umsetzung" (Implementation, Transposition), "Durchfuehrung" (execution and compliance), and "Anwendung" or "Vollzug" (application and enforcement). In this study Implementation is defined as the overall expression for the process in which methods and practices are used to ensure compliance with the legal obligations and in order to attain the objectives of the programme. Transposition defines the legal integration of Community law into national law. The process in which the national authorities have taken all (technical and legal) measures to arrive at conformity with the law is called Compliance. Transposition and Compliance is only a formal legal procedure, whereas the protection of the environment begins when emissions are reduced, substances no longer put on the market or into the environment, etc. This process is defined as the application of Community law.
Enforcement activities are seen to include investigations of alleged violations, imposition of corrective measures, administrative responses to compel compliance and prosecution. Deterrence is to prevent or discourage an agent from acting, as by means of fear or uncertainty.

72 K. Collins, Former Chairman of the European Parliament's Environment Committee in the Communication of the European Commission (see n. 6).



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