The Jean Monnet Program

Professor J.H.H. Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 5/01

Christoph Demmke

Towards Effective Environmental Regulation: Innovative Approaches in Implementing and Enforcing European Environmental Law and Policy

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The Jean Monnet Working Papers are published under the auspices of the
 Jean Monnet Program 
hosted at Harvard Law School from 1995 to 2001
and now based at New York University School of Law

ISSN 1087-2221
 Christoph Demmke 

Towards Effective Environmental Regulation: Innovative Approaches in Implementing and Enforcing European Environmental Law and Policy

Christoph Demmke

European Institute of Public Administration 

1.	SHORTCOMINGS IN IMPLEMENTING ENVIRONMENTAL LAW

In the field of environmental law at present, ineffective application and enforcement remains a major problem and ranks higher than in any other policy (with the exception of the much bigger internal market sector). In the environmental sector hardly one directive (be it in water, waste, soil or other sectors) has been implemented and enforced by all Member States. 
Despite this situation (which is giving great cause for concern), the field of implementation of European law seems to have been well researched. Whereas national research on this topic started in the 1970s, it took until 1988 when Siedentopf and Ziller published their study Making European Policies Work, which still constitutes the most comprehensive interdisciplinary study on the issue on the European level. In the environmental sector, scientists started research in the 1980s but considerable political interest in the question of implementation of environmental law did not occur until the mid-1990s. In 1996, the European Commission (together with the European Parliament, EP) published a Communication on Implementation of Environmental Law which contained a number of suggestions for remedying the present situation. Shortly afterwards the other Institutions followed, applying in their documents a similar approach to the European Commission (e.g. focusing on the formulation of policy-making and the transposition process).
Interestingly, the discussions on the shortcomings in implementation of European environmental law and proposals how to improve the situation have been – so far – almost entirely dominated by lawyers and partly by political and administrative scientists. This is understandable insofar as the topic requires a deep knowledge of the (different) legal system(s) and the case-law of the European Court of Justice (ECJ).
Because of the dominance of lawyers and administrative scientists researching in this area, only a small part of the proposals touched application and enforcement issues. It took until 1999 when Vervaele published Compliance and Enforcement of European Community Law, which included a collection of papers on compliance and enforcement issues. This publication does not address specifically environmental issues, however, and approached the issue more from a legal perspective.
In recent years, the focus of analysis centred clearly on the drafting process and the transposition of Community law into national law (including the role of national parliaments). Very little work has been done on the application and enforcement phase. This can be explained by the fact that the whole implementation process (including application and enforcement of Community law) is the task of the Member States. The enforcement of Community law in particular involves a number of technical steps (How to measure enforcement and its impact on the environment? What is needed for having effective inspection?) which are generally of less interest for lawyers or administrative or political scientists. In addition, comparing environmental enforcement activities across jurisdictions is an extremely difficult task. Ministries and agencies each monitor different laws operating within different legal systems, address different actors, apply different administrative and criminal enforcement styles and have different resources. As a result, simple comparisons based on numbers of enforcement actions, total penalties assessed and effluents discharged may not themselves indicate enforcement agencies’ effectiveness and diligence. In addition, “everybody talks but nobody knows”. 
One of the few existing national empirical studies from the criminological institute of the University Bonn in Germany came to the conclusion that the national enforcement practice is very deficient. Not because of any unwillingness or ignorance but because of structural problems!! In addition, most violations do not become known to the public authorities. In the case of violations that do become known, most inspection authorities choose a cooperative behaviour with the violators since they depend very much on the cooperation (“good will”), the technical expertise and the data provided by those to be enforced. Furthermore, local politicians often have no interest in pursuing important local enterprises for environmental infringements. Moreover, it seems that, the more the inspection authorities are dependent on the ones to be enforced the more the authorities seek a cooperative behaviour and the less likely they are to propose (administrative or criminal) sanctions.  
Thus, despite all the technological progress in recent years, there is surprisingly little knowledge about the real dimensions of the problem. A number of Member States still do not have environmental reporting systems in place that can statistically measure the number of shortcomings. The organisation which is – at least theoretically – the least able to report on the state of implementation in the Member States, the European Commission, reports every year in its reports on the control of application of Community law. Only improved reporting and data management systems will reveal the exact dimensions of the problem.
On the theory of effective implementation, two schools of thought and practice have developed since the 1970s regarding the design of implementation strategies. 
The first has sought to identify variables that account for shortcomings in implementation - for example, the ambiguity and lack of clarity in policy objectives, the participation of too many actors and overlapping authorities, the lack of motivation from implementers and the resistance or inefficiencies which have been cited as prominent reasons for implementation problems. To ameliorate ambiguity, proponents of this theory suggest more specific, detailed and consistent objectives in legal texts and a “top-down” approach to be followed by lower-level organisations and personnel. As regards the excessive number of actors, the consequences are identified in overlapping responsibilities and a potential veto power over implementation by too many actors. This inevitably leads to increased possibilities for those who have to implement a programme to circumvent the process. Suggestions for improving the situation propose clear lines of responsibility, minimising the number of participants in the policy process, centralisation and better coordination mechanisms.  To summarise, supporters of this diagnosis would produce a well-specified plan that has clear and detailed objectives, clean lines of responsibility and limited participation in policy-making and require minimum discretion for all levels of implementers, particular policy deliverers..As regards European environmental policy this would require “top-down capacities” and a high level of trust in European environmental policy. Both preconditions are currently rather diminishing than developing.
The second school of thought argues that ambiguity, participation, and discretion in fact contribute to effective implementation. It is argued that implementation problems arise because of overspecification and rigidity of goals, the failure to engage relevant actors in decision-making and the excessive control of policy deliverers through command-and-control approaches. The ideal “is the establishment of a process that allows policy to be modified, specified, and revised – in a word, adapted – according to the unfolding interaction of the policy with its institutional setting. Its outcomes would be neither automatic nor assured, and it would look more like a disorderly learning process than a predictable procedure”. This school would call for the active participation of relevant actors which would enhance problem-solving during implementation; because diverse participants are assumed to bring more information and more points to view to bear, such diversity could ameliorate serious problems such as lack of communication. In addition, one can assume that when people participate they are motivated to do a good job. This policy style would require extreme capacities in cooperation and coordination, communication between the different government levels. 
In European environmental policy and law, methods and instruments used until the 1990s (such as detailed directives combined with little flexibility given to the Member States to reach the objectives, little openness to participants and to the public) followed clearly the first school of thought. Unfortunately, Member States often transposed (or copied) European environmental regulations but did not enforce them owing to problems in the enforcement process, lack of information and management skills at the subnational level, reluctance of decentralised authorities and the private sector, general lack of inter- and intra-ministerial cooperation and coordination and too little involvement of stakeholders and public authorities in the policy process. The beginning of the 1990s was marked rather by a policy of deregulation, criticism of any “top-down” approach and command-and-control instruments, more openness and a new flexibility. The culmination of this phase was 1992-3 when the discussions on the principle of subsidiarity threatened the very existence of European environmental policy and even the survival of the control unit within the DG Environment. This policy style fitted into the second school of thought. Member States often transposed environmental regulation into national law, but did not enforce it. Again, the reasons were various, but one important one was the growing flexibility of the “environmental acquis”, too broad derogation clauses, the poor quality of the legal texts, misinterpretations of definitions, the growing “compromise nature” of the legal acts owing to the growing influence of national administrations in the formulation of Community law (and the  enlargement of the European Union to 15 Member States) and the emergence of networks and partnership approaches which reduced the authority of the DG Environment in environmental matters. 
So far, neither the first nor the second approaches have proved more effective: both have produced rather insufficient results. Because of this, recent developments in the environmental policies of the Member States and the European Commission have shown a tendency to combine the two school of thought. On the national level in particular, one can observe strategies to mix repressive policies with so-called “assistance and incentive policies”. Enforcement by the government is no longer purely associated with duress, repressive force and punishment (the sanction approach) but with a mix of “command-and-control approaches” and voluntary (incentive) instruments. As so often the Commission is following this development in the Member States and pursuing a strong enforcement policy, while at the same time proposing new models of partnership, more but limited flexibility, a mix of instruments, openness and new models for adaptation of policies. Political concepts such as deregulation, flexibility, openness, adaptation, etc. are being combined with a strong enforcement policy, including public supervision and sanctioning powers. 
Although the implementation of European environmental law is no more deficient than the implementation of national environmental law, one important difference between the European and the national or even the US-American model is striking. “The unique characteristics of the Community present particular problems for understanding the notion of compliance because although the EC depends heavily on a notion of ‘obedience’, it does not have at its disposal something like a police force”. Because of this the Commission is forced more than national governments to look for effective models which are not entirely based on punitive measures. Effectively implementing environmental law depends upon cooperation because the European Commission does not have the means to operate through authoritative commands. The search for new instruments in the European Commission reflects this insight. 
The state of compliance is continuously changing. New companies are created and others go out of business, new technology or industries are introduced, markets shift, operational practices change and regulatory provisions are amended or updated. The bulk of the information necessary to assess conformity with a regulation is obtained through the compliance "verification" processes, including communication and coordination, and as a result of constant inspections, monitoring, self-reporting and investigations. For practical purposes it is impossible to verify compliance with every provision of every regulation by every regulated party including factors such as compliance history, age of regulations, complexity of regulations and public interest, 
We will argue in this study that implementation is not a static concept. A context-free theory of implementation is likely to produce only inadequate results. Implementation always takes place in a changing context and researchers should thus accept that there is no immutable and perfect theory of implementation. 
Because of the ongoing changes of our modern society, classical models of implementation are coming to seem more and more “old-fashioned”; new approaches to implementing public policies need to be developed that take the changing developments of society into account. The concept of implementation is now seen more and more in a context which encompasses a number of factors. Implementation of a legal act is neither a pure legal process nor is it only about money and resources. Rather, it involves a complex set of factors that needs to be addressed. If policy objectives are to be achieved a number of interrelated preconditions must be fulfilled: 
•	Motivation (implementation will be deficient if those who need to implement the policy have no incentives to comply with it).
•	Information (effective implementation depends on the quality of information about community law and information provided to citizens, the public and the private sector).
•	Knowledge of the law (lawyers and both regulatees and regulators need to have detailed knowledge of Community law.
•	Deterrence and threats (violators must be aware that violations will be sanctioned).
•	Resources (sufficient technical, personal and financial resources are crucial for sustained success).
•	Skills (officials, managers, inspectors, etc. need to be trained and must have sufficient knowledge to fulfil their tasks).
•	Efficient management and coordination structures (correct implementation depends on the ability of the various actors and organisations to communicate, cooperate, integrate and coordinate policy objectives).

Unfortunately, very little attention has been paid by the political and scientific community to the changing patterns and new developments in the public sector (for example, the introduction of new information technologies, measures to decentralise industry, the further internationalisation of policy and law, etc.) and their impact on implementing public policies. Little has been done to evaluate innovative and new methods (and instruments) carried out in the private and public sector that could improve the implementation of environmental law, especially as regards its application and enforcement. Analysts should now go beyond cataloguing seemingly inexhaustible suggestions and shift their attention to designing strategies to improve compliance, application and enforcement. We shall argue in this study that strategies to improve implementation need to take into consideration the innovations and changes taking place in the public and private sector. Public policies must remain flexible and able to adapt to new circumstances (adaptive implementation).

2. THE STATE OF IMPLEMENTATION OF ENVIRONMENTAL LAW 

If a law is not respected then the intended regulatory effects will not occur. Shortcomings in implementing parts of environmental legal acts (rules, definitions, annexes, monitoring requirements) will not necessarily mean that the environmental quality will deteriorate. If people cross streets (but ought not to since the traffic lights are red) then this will not mean necessarily that an accident will occur.
On the other hand, serious shortcomings in implementation may lead to increased pollution, degradation of environmental quality, increase of diseases, economic distortions, etc. 
Problems, in implementation occur in all areas of Community law. Therefore, the realistic objective should not be to achieve a situation where no shortcomings occur. What should be achieved is a situation where shortcomings will be reduced to a minimum. It must be borne in mind that the Commission's monitoring activity is not confined to actions in the Court nor even to the final pre-litigation stage – the transmission of reasoned opinions and the scrutiny of Member States' responses to them. These are but the final stages of the infringement procedure, and many cases are settled without reaching these stages. This phenomenon is particularly common in the environmental field, where a large number of situations to which the Commission's attention is drawn by complaints, parliamentary questions and petitions turn out not to be infringement situations as there is no legal basis in Community law or the allegation by the complainants or petitioners is unfounded in fact or in law. The national administrations engage in extensive correspondence and regular contacts (package and ad hoc meetings) with the Commission, which thus exercises its function of watchdog of Community environmental law.
The Commission's monitoring of the application of Community law takes account of three aspects: monitoring the notification of national transposition of measures, scrutinising measures for conformity with the directives they transpose and monitoring the practical application of directives and regulations.
Following the Commission report issued in 2000 on the control of application of community environmental law (XVIIth Report on monitoring the application of Community law COM(2000)92 final) the environmental sector represents the policy field with the most cases reaching the reasoned opinion phase, the most cases referred to the Court of Justice and the most Art. 228 cases. Only the number of the so-called Art. 226 letters are slightly below the number of infringements in the field of the Internal Market. However, the figures presented in the annual reports of the Commission (and also the newly published survey) should be read with considerable caution as reporting systems are not in place yet which could give concrete figures.
The European Commission publishes these reports on the basis of the information received from the Member States. The information transmitted generally contains legal texts and documents. Notwithstanding the question whether these texts are complete or not, they enable the Commission to get a rough picture of the state of compliance in the Member States. The state of compliance is an important indicator to see whether the Member States have fully implemented and applied community legislation. However, these data on the rate of implementation are not very useful indicators of whether those directives actually influence behaviour inside EU Member States’. Evidence on the actual state of application and enforcement is thus still very poor. 
The Member States nevertheless have the responsibility to enforce community environmental legislation. This should be done with the same effectiveness as under national law. Since the national, regional and local administrations are often not yet able to give a complete picture on the state of compliance and enforcement they cannot render this information to the Commission. Definitions on the notion of “enforcement” differ between the Member States and the Commission. The result is that all proposals made with the objective of improving the implementation of environmental law (undertaken either by practitioners or by academics) all face the dilemma that their assumptions are based on inaccurate data. 
One possibility in identifying the situation as regards the implementation of environmental law can be made in analysing the Case-Law of the Court of Justice. We have chosen the water sector. We will examine how the individual legal acts in water legislation have been implemented by Member States and what problems arose.

3.	THE CASE OF COMMUNITY WATER LAW

The stringent demands made by the European Court of Justice for the implementation and enforcement of Community law have not been met by the Member States in numerous cases. In the field of water, it can be stated that there is hardly a single Water Directive which has been or is being implemented and enforced in the required form and to the required deadline (Table 1).

Table 1: Number of Judgements of the ECJ in the field of water (until Summer 2000)

	Directives affected by
judgements	Number of
directives	Total number of judgements
(including dual proceedings)	
B	75/440; 79/869; 76/160;
80/778; 80/68, 76/464; 91/271	7	9	
D	76/464; 78/659; 79/923;
91/271; 82/176; 83/513;
84/156; 86/280; 75/440;
79/869; 80/778; 80/68	13	7	
GR	76/464; 91/271	2	3	
E	76/160; 91/676	2	3	
L	76/464	1	1	
NL	75/440; 76/160; 80/68	3	4	
I	75/439; 75/440; 75/442;
76/402; 78/659; 76/464;
83/513; 80/778; 80/68;
79/923
	10	9	
P	75/440; 84/156; 79/869;
80/68;76/464	5	4	
UK	76/160; 80/778	2	2	
IRL		0	0	
S		0	0	
A		0	0	
DK		0	0	
F		0	0	
FIN		0	0	

The causes of these shortcomings, however, are of a political nature only in exceptional cases. Community water law is particularly highly differentiated, in some cases contradictory, and the relatively high number of individual directives in specific sectors (surface water, drinking water, groundwater), which are only poorly integrated with one another, clash with highly complex national administrative systems in the Member States. The causes of the implementation deficits are, as is be expected, very different from one Member State and one directive to another. Essentially, the deficits can be listed as follows (see Table 2):
•	Programmes not set up or programmes which are set up are too general
•	Directives implemented by administrative regulations, programmes and circulars
•	The required limits not set
•	No permits or insufficient permits
•	Failure to transform into national law
•	Failure to implement in regions
•	Incorrect interpretation of concepts
•	No legally binding regulations for the enforcing authorities
•	Lengthy parliamentary legislative procedures
•	Internal reforms
•	Social change
•	Climatic situation
•	Deadlines not met
•	Reference to other directives (with longer implementation deadlines)
•	Non-compliance with directives because of their integration into the Water Framework Directive (WFD)
•	Lack of financial resources
•	Protection areas not precisely defined
•	Too broad interpretation of variation terms
•	Lack of monitoring activity.

Table 2: Causes of implementation deficits

	UK	B	D	GR	E	NL	I	L	P	DK	
1)	non-implementation/ref. to existing national laws	+		+		+	+	+		+		
2)	implementation by admin. regulations or programmes of guidelines			+			+	+				
3)	lack of concretisation		+		+			+		+		
4)	financial problems		+									
5)	competences/implementation in regions	+	+	+		+		+				
6)	ref. to directive draft/other directives	+				+						
7)	political reasons		+		+			+		+		
8)	deadlines	+				+		+				
9)	notification	+		+		+		+	*			
10)	lack of specific action (programmes)			+
*	+
*	+
			+
*	+		
11)	procedural /technical legal problems	*	+	+	+			+			+	
12)	actual problems (limits/ drought/technical difficulties	+	+	+		+		+		+		
13)	differences of interpretation	+		+				+				
14)	no monitoring				*			+		+		
	UK	B	D	GR	E	NL	I	L	P	DK	
NOTES: + 	Denotes judgement; * Denotes action pending; - No judgements against France, Finland, Ireland, Austria or Sweden. Judgements analysed until July 2000. 

A particularly striking point here is the high number of actions for treaty breaches and judgements of the European Court relating to Directives 76/464/EEC and 80/68/EEC. With regard to these directives there were judgements against six of the 15 Member States; there are also numerous proceedings still pending. There were five judgements against Member States relating to the implementation of the Bathing Waters Directive 76/160/EEC.
In the implementation of Directive 76/464/EEC and its successors the main deficits lay in the fact that the Member States had not given notification of any specific programme for the directive or had given insufficient detail. It is also notable that there was mostly a lack of information on the quality objectives required by the Directive. Finally, there is often a lack of proper implementation of the obligation regarding authorisation. Directive 80/68/EEC was not transformed sufficiently precisely into national law by most Member States. There were also differences in interpretation, and references to existing legislation which do not constitute implementation in line with the directive.
In the case of Directive 76/160/EEC the implementation deficits differed. In some cases it was simply that too few locations were identified as bathing waters. Spain argued in Case C-92/96 that social changes now underway meant that traditional bathing areas were no longer being used as such. It was also argued that the water pollution was a result of local sewage and that the deadlines of the Directive on Urban Waste Water should therefore be those complied with (these deadlines would give Spain a considerable amount of extra time). Finally, it was claimed that the occurrence of an extraordinary drought was responsible for the limits under Art. 5 (2) having been exceeded. However, the Court ruled that Spain was unable to prove the cause. Spain also pointed out that the directive was to be integrated into the new Water Framework Directive and that therefore the old deadlines were no longer applicable. The European Court rejected this argument and argued that all the deadlines in the directives which were to be integrated in future into the Framework Directive remained valid.
In the case of the Drinking Water Directive 80/778/EEC there were problems regarding, above all, with the interpretation of directive regulations, particularly the deadlines in Art. 19 and the definition of “emergency” in Art. 9. In Case C-42/89 against Belgium, financial difficulties also played a part. The limits were also not complied with by several Member States. In Case C-340/96 the Court criticised the fact that non-binding agreements between state authorities and the water authorities did not represent implementation conforming to the directive, since these agreements (“undertakings”) permit exceptions and variations from its provisions. The United Kingdom argued, in addition - as Spain had previously done in Case C-92/96 - that the implementation of the directive was unnecessary, since it was to be integrated into the new Water Framework Directive. The proceedings on the Urban Waste Water Directive are still continuing. Experiences so far (in Cases C-302/95, C-297/95 and C-161/95) lead to the conclusion that the implementation of the directive, above all at subnational level, constitutes a serious problem.
Directive 78/659/EEC was in most cases transformed too late into national law, and the necessary special programmes for improvement of the water quality were not set up. The same problems were found with regard to the implementation of the Mussel Waters Directive 79/923/EEC.
In the case of Directive 75/440/EEC the causes of the implementation deficits are also various, and result from institutional reforms, implementation by means of administrative regulations, financial and technical problems, etc.
The proceedings against the implementation of the Nitrate Directive 91/676/EEC - like those regarding Directive 91/271/EEC - are still ongoing at the time this study was being written. Initial information also leads to the conclusion that the necessary programmes are not being set up and the limits for nitrates are not being met. In the case of the Nitrate Directive the integration of environmental requirements into agricultural practice has also not yet been achieved. 
Proceeding for treaty breaches have been started against 13 Member States in the case of the Nitrate Directive 91/676/EEC. So far (up to the beginning of 1999) judgements against two states have been given. Similar problems to those regarding the Nitrate Directive have been encountered in the case of the Urban Waste Water Directive 91/271/EEC. Further judgements concerning these two directives are expected shortly.
In a study on the implementation of the Nitrate Directive, Urban Waste Water Directive and Sewage Sludge Directive, the European Court of Auditors found that, in particular, the implementation reports on the Directives in question were not being submitted by some Member States. The Court of Auditors found large deficits in enforcement of the Urban Waste Water Directive, particularly in the southern Member States, while the deficits in the Nitrate Directive (especially by pollution of waters owing to nitrates) were discussed predominantly as problems in Belgium, Denmark, parts of Germany, France, the United Kingdom and the Netherlands. Problems in the application of the Sewage Sludge Directive were diagnosed particularly in France, parts of Germany, Ireland and Italy.

4. ARE IMPLEMENTATION DEFICITS ALSO ENFORCEMENT DEFICITS? ANALYSING IMPLEMENTATION IN VARIOUS MEMBER STATES

The importance of the above-mentioned treaty breaches are obvious. The implementation of Water Directives in the Member States shows that Italy, Belgium, Germany and in some cases the United Kingdom have the most implementation deficits.
In German EC environmental discussions the claim made in 1991 by Salzwedel and Reinhardt gained some notoriety when it was stated that national law was being subjected to “interference into norm structures which are .... constituting an abuse of the law and similar to the action of an occupying power”, and that “a stop” must be put to this. The discussion became enflamed as the result of a series of Decisions by the European Court of Justice on the implementation of EC Directives by administrative circulars. This criticism of the case law by the European Court of Justice continued in subsequent years.
It is striking that in recent years the Federal Republic of Germany has been the first Member State to be hit by several simultaneous threats of sanctions under Art. 228 EC for treaty breaches. The question thus arises as to whether the rethinking of the choice of instrument at European level results in massive implementation deficits. It seems reasonable to agree with this hypothesis. Such a simple answer, however, is not really possible. For example, in the case of the United Kingdom, it is clear that in the 1970s, particularly, the incompatibility between European environmental policy, which was still predominantly characterised by a regulatory approach, and the deregulation and privatisation policies of the Thatcher administration - clearly in contradiction to this - did not lead to a serious rise in proceedings against the United Kingdom for treaty breaches.
It is essentially impossible to find implementation differences in the Member States between emission directives (such as 91/271/EEC, 91/676/EEC, 76/464/EEC and 80/68/EEC) and immission directives. In both cases it can be said that the implementation is in deficit. However, there are no significant differences in the case of states (such as the United Kingdom) which are known to be critical of the emission approach. These states do not apply the emission directives less well than the immission directives (Tables 3 and 4).

Table 3: Case-law of the EC J - emission directives

	76/464/EEC and daughter directives	91/271/
EEC	80/68/ EEC	91/676/EEC	Number of judgements	
B	C-207/97	C-236/99	C-1/86
C-174/91		4	
D	C 262/95
C-184/97*	C-297/95	C-131/88		3
1*	
GR	C-232/95
C-233/95
C-384/97*	C-161/95			3
1*	
E	C-92/96			C-71/97	2	
L	C-206/96				1	
NL	C-96/81
C-231/97*
C-232/97*		C-291/84		2
2*	
I	C-168/95
C-285/96	C-302/95	C-360/87		4	
P	C-213/97
C-208/97
C-261/98		183/97		4	
UK					0	
IRL					0	
S					0	
NOTE: * Denotes that an action is pending.

Table 4: Case-law of the ECJ - emission directives

	79/923	75/440
79/869	76/160	80/778	78/659	Number of Judgements	
B		C-290/89
C-73/81	C-72/81	C-42/89		4	
D	C-298/95	C-58/89		C-237/90	C-298/95	4	
GR						0	
E		C-71/97	C-92/96			2	
L						0	
NL		C-97/81	C-96/81			2	
I	C-225/96	C-30-34/81	C-30-34/81	C-228/87	C-291/93
C-322/86	6	
P		C-214/97 
C-229/97	C-229/97			3	
UK			C-56/90	C-337/89
C-340/96*		2
1*	
IRL						0	
S						0	
A						0	
DK						0	
F						0	
L						0	
NOTE: * Denotes that an action is pending.

The causes of implementation deficits are obviously much too complex for them to be reducible a priori by means of the enforcement of national regulatory concepts at European level. If a Member State imposes certain (preferred) instruments, this does not mean that the later implementation and enforcement will follow without any problems. On the other hand, instruments from outside the system can certainly be implemented without problems in some cases.
It has been shown by Knill and Lenschow that the implementation of national concepts of regulation in Brussels does not necessarily lead to later implementation deficits being avoided. The authors use the Eco-Audit Regulation, for example, to demonstrate that the Federal Republic of Germany, above all, was particularly successful in implementing and enforcing the regulation, but that the United Kingdom, the initiator, was not. On the other hand the example of the Drinking Water Directive 80/778/EEC, of which Germany was one of the most important initiators, shows that even detailed legal acts of a regulatory character produce serious adaptation problems in the Federal Republic. Apart from this, Pehle’s investigation of the German Ministry of the Environment indicates that it is particularly EC legal acts such as the Environmental Impact Assessment Directive and the Directive 90/313/EEC, i.e. instruments which were not initiated by the Federal Republic (and which later brought especially serious implementation problems), that are seen as instruments regarded as very positive by the competent Ministry officials.
The achievement of national interests at EC level is thus a precondition, but not a guarantee, for compatibility between European and national law. In addition, in the case of the Federal Republic it is not possible to say in principle whether the number of implementation deficits has increased in recent years. Rather, the proposals of the Commission regarding sanctions for treaty breaches, especially (but not only) against the Federal Republic, have directed (public) attention to the subject of implementation of EC environmental legislation. The implementation of EC environmental legislation in Germany, however, has not deteriorated in recent years. The Federal Republic has in fact stabilised in a lower-middle position - as a rule ahead of Belgium, Greece, Spain and Italy. It is a critical EU state such as Denmark which has been in first place for years when it comes to implementation of Community law.
Implementation deficits only occasionally have political causes; organisational, legal, technical and financial causes are more likely. Also, the smaller number of implementation deficits in some Member States does not tell us whether the law is being better enforced there. In some cases, effectiveness has been negative even when formal compliance with rules has been high. In other cases effectiveness is high when formal compliance has been low.  
Recent studies in fact indicate that the Federal Republic, i.e. a state with numerous implementation deficits, is a leader in the actual enforcement of Community environmental requirements. This applies above all to the field of water. Germany has made great progress in recent years in the protection of waters: the investments in sewage plants are the highest in Europe; the network of controls and monitoring is extensive; the cost recovery is high (in view of the relatively efficient German sewage charge system); the rate of connections to biological sewage plants is the highest in Europe, etc. At the same time, water consumption is stable (or going down).
It can be stated with regard to this analysis that the costs for implementation and  enforcement are differently distributed, depending on the Member State (see Table 5). In the case of the Federal Republic of Germany, the formal transformation of European water law is “expensive”, but its application less so.

Table 5: The Water Framework Directive - costs and benefits of implementation

	Experience so far in implementation of EC water law	Administrative compatibility with Water Framework Directive	Legal complexity in transformation into national law	Administrative costs in implementation (including coordination costs)	
D	--	0	--	--	
F	++	++	++	++	
NL	0	+	0	0	
I	--	0	--	--	
B	--	-	--	--	
E	--	0	--	--	

5. NEW APPROACHES IN IMPLEMENTING AND ENFORCING ENVIRONMENTAL POLICY AND LAW - ADMINISTRATIVE REFORM AND INNOVATION IN ENVIRONMENTAL LAW AND POLICY

“Ten years from now, the environmental policy community may wake up and realise that they missed the Information revolution.” 

A study by Borins on innovation reveals that innovation does not occur primarily in response to crisis or external factors, but to internal problems in organisations, administrations, etc. Politicians, scientists, interest groups or agency heads are not the initiators of innovations, but mainly public servants (middle managers). These findings suggest that the traditional model of public sector bureaucracy may be inappropriate, and that research on innovative approaches to implementation should start in public administration.
Indeed, in recent years, public administration bodies such as the European Commission, the national environment ministries, the national environmental agencies or the  US Environmental Protection Agency (EPA) have all been active in finding and testing innovative approaches to implementation and enforcement of environmental law. 
All these administrations have - as a consequence of the growing legal activity at all governmental levels, encompassing an ever-larger number of firms and targets for regulation – started to modify implementation and enforcement styles from formalistic actions to impose sanctions for environmental violations to a perspective that views enforcement as only one item on an ever-enlarging menu of governmental actions to achieve compliance. 
Five conceptual explanations can be offered for this change..
1.	Expansion of regulatory activity and growing complexity
2.	Growing environmental awareness
3.	Growing impact of environmental law
4.	Changing environmental problems
5.	Changing patterns of public administration

5.1	Expansion in regulatory activity and growing complexity

Regulation in the field of European environmental law has grown enormously since the late 1960s. In the academic field, much confusion reigned as to the exact number of environmental legal acts and the right method to calculate the “environmental acquis” (Should executive acts also be included?, should only legal acts based on Art. 175 be counted? What about amended acts?). Most observers estimate the “environmental acquis” at approximately 250 legal acts, but estimations can reach more than 500 directives in effect and new ones being imposed at a rate of about 100 per year (the latter figure probably being much too high). 
Whatever is the right figure; regulation has grown, and so has concern about regulatory failure and criticism concerning the inefficiencies of regulatory and command-and-control approaches:
a)	Environmental regulations are among the most burdensome regulations for state authorities to implement and for the private sector to apply.
b)	The regulatory process itself has become too cumbersome, unresponsive, and inefficient.
c)	Environmental regulations do not offer enough flexibility or motivation to comply, and do not reflect technological progress.
d)	Environmental regulations are badly implemented since they are too numerous, contradict each other and not readily comprehensible 

Another critical factor that affects compliance is the government’s administrative capacity. Regulatory bodies need to have sufficient administrative, scientific and legal resources to issue rules and regulations and to monitor their enforcement but as the number of environmental laws has grown, the capacity of public administrations to administer them has often lagged behind.
Another structural explanation for shortcomings in implementation derives its analysis from the explosive expansion in the scope of environmental oversight in the late 1980s. Pollution laws, for instance, have imposed obligations upon hundreds of thousands of car owners and on thousands of small businesses. Thousands of communities and literally millions of people were made subject to recycling requirements intended to reduce the flow of garbage to landfills. Thousands of municipalities facilities were brought into a system of setting up, maintaining, improving and operating requirements for urban waste water systems. Agricultural operations were made subject to regulations to improve nutrient management. Construction sites, facilities without piped wastewater effluent discharges and many other locations became responsible for dealing with requirements for non-point-source discharges. 
The original view that environmental degradation could be solved by changing the behaviour of a few, easily identified and large-volume polluters has given way to a new perception that the environmental universe is more diffuse and atomistic. More importantly, this universe is not inhabited solely (or even primarily) by organisations with the ability to comprehend complex regulatory requirements or absorb huge costs in complying with them. Small businesses, without benefit of engineering or other expert skills, struggle to understand hundreds of regulations and thousands of pages of technical requirements. Permit applications must often be prepared by teams of costly experts. Popular - and judicial - support for any fines may be scarce, for example, for small businesses that could better invest the resources for compliance efforts. 
Environmental regulators have thus become increasingly aware that numerous structural reasons may account for one or more members of a regulated community failing to comply with relevant requirements. There is a growing recognition that enforcement responses may be effective in some cases but not by far in all. Enforcement may be absolutely appropriate - and necessary - to respond to sophisticated entities that are knowingly violating the law, but it may be counterproductive in encouraging compliance by persons being brought into a regulated system for the first time. The movement away from exclusive reliance on such command-and-control solutions reflects a conscious effort by regulators to enlarge their toolbox by adding other mechanisms to respond to the varied causes of non-compliance. 

5.2	Growing environmental awareness (!?)

The second commonly offered explanation for preferring other measures in addition to traditional enforcement responses stems from a belief that societal norms and values have undergone a fundamental transformation. The public is demonstrating constant support for environmental protection, and business leaders increasingly see environmental protection as an important value. Today’s business leaders grew up during decades when their culture supported protection of the environment as an inherently positive goal. Accordingly, the argument goes, they bring a fundamentally different attitude to environmental regulations, and their obligation to meet them, than their predecessors who made decisions and ran facilities at the dawn of the environmental age.
The normative rationale commonly offered for a broader compliance approach to environmental regulation is thus ultimately based on the belief that regulators and regulatees now share - perhaps for the first time - the same goals and value systems. Non-compliance today, one may argue, should more appropriately be regarded as a breakdown in communication or understanding and not an implicit challenge to the underlying regulatory philosophy. A number of business leaders today are said to want to do the right things for the right reasons, and should be given every opportunity (and aid) to demonstrate this. The logical consequence of this view is that: enforcement responses are no longer necessary in all instances; they should be reserved for intentional wrongdoing, or repeated wrongdoing by those who are in fact capable of compliance. 
Clearly, this second explanation has some drawbacks: is a high level of environmental awareness a constant variable? In the 1990s, environmental protection seemed to rank less high in government’s priorities than it had in the 1980s. Environmental awareness among citizens even dropped in the later 1990s. In the United States, for example, environmental protection became a mid-level political issue and ranked below education, health care, crime, social security and roughly equal with gun control and tax reduction. It is not clear why business should not change its behaviour, too, so a return to strong enforcement policies cannot be excluded.

5.3	Growing Impact of environmental law on public management

Environmental policy and law is changing public management.. The very nature of environmental protection creates challenges which are particular to environmental as distinct from other legal fields. It changes purchase practices, the operation of public and private organisations, wastewater collection and treatment, the operation of hospital, land use planning, road maintenance, water supply and delivery, the operation of airports, daily consumption patterns, etc. 
Just as environmental law is actively changing, environmental management is undergoing alteration. Environmental protection has to take account of complex inter-dependencies and inter-relationships between the environmental media (air, water, soil) and biodiversity: unless care is taken, action to protect one medium will adversely affect another. Climatic, seasonal and geographical variations in environmental conditions have to be borne in mind (an approach which may be sound in one part of the Community may not be sound in another). Constantly changing states of knowledge and scientific evidence have to be taken on board (often implying a need for significant and urgent innovations, adaptations and changes of approach). Because of the potentially very serious consequences of a lack of foresight, environmental law has to an important extent to be based, both in formulation and interpretation, on preventive and precautionary principles rather than on a curative approach. Because it touches everyone, it has to involve a comprehensive set of actors, from government, industry and enterprise to the general public, often implying a very difficult balancing exercise. Because it relates to general interests in which there is often not a proprietary stake (clean air and water, a healthy biodiversity), it has to envisage methods of ensuring its effectiveness other than those which are adequate in other fields of law. 
In Contemporary Regulatory Policy Eisner, Worsham and Ringquist mention environmental regulation as the most technically complex area of regulatory policy. Consider for example the task of setting safe exposure levels for various water pollutants; assessing (positive or negative?) human health effects of pesticides; designing techniques to safely treat and dispose of hazardous chemicals; monitoring emissions from hundreds of thousands of pollution sources; and projecting the global atmospheric consequences of increased emissions of chlorofluorocarbons, etc. Each of these tasks requires knowledge at the forefront of law, politics, chemistry, physics, epidemiology, etc. “Furthermore, these environmental problems must be addressed without seriously disrupting the existing system of private property rights or compromising economic performance, which requires considerable economic and legal skills. Finally, the reliance of environmental regulation upon scientific knowledge and technical expertise is increasing as targeted environmental problem themselves become more complex.”
The above-mentioned changing external factors and an unstable environment require new solutions and new instruments, in both the field of environmental policy and law. 

 5.4	Environmental problems at the beginning of the twenty-first century

Since the 1970s only the easy victories have been won. Environmental pollution problems were obvious, and by implementing technical solutions and regulatory mandates and by focusing on “end-of-the-pipe” pollution from large industrial and municipal sources, some improvements were achieved. The public is mainly interested in public-health issues. Questions of loss of biodiversity, etc. do not rank high on political agendas, since they do not directly affect human survival. Since we have learned that life in an artificial surrounding (is nature in the Netherlands “nature” or “artificial and cultivated nature”, or both?) is possible to some extent, the fact that our population is living longer and healthier gives the false impression that things are not as bad as dramatic scenarios occasionally tell us.
Environmental debates have lost a lot of the ideological character which they had even 10 years ago. This is a positive development since rational discussion can only serve the objective of developing a rational policy.
Many environmental problems are invisible, not clearly predictable and show their effects only in the long run. New problems (such as climate change and urban environmental problems) are emerging and old problems (such as nature protection) have not yet been solved. Overall, the state of the environment (despite some improvements) is still deteriorating (especially in the field of soil, waste and water policy). It is no longer sufficient to focus only on controlling pollution. We face new problems arising from non-point sources, the loss of biological diversity, the management of computer trash and the fight against global climate change which are much more difficult to monitor and to manage. Genetic engineering, global trade and e-commerce are revolutionising the ways we live and work. The rapid development of new information technologies also present new opportunities and challenges.
Despite the fact that the regulatory state has been successful in tackling a number of environmental problems (especially in the area of air pollution – not CO2!!) a very complex problem now concerns the fight against climate change, for which the classical regulatory instruments seem insufficient. This problem needs concentrated efforts since it touches questions of air pollution, energy consumption, transport policy and life-style. Climate change requires efforts to integrate environmental policy considerations into the definition and implementation of other policies (Art. 6 of the EC Treaty), representing a major challenge for policy-makers and regulators.
The role and tasks of public administration in the field of environmental policy still remain unclear, and confusion reigns as to the most effective policy style and distribution of competences. What tasks should be decentralised, what delegated to other (public or semi-public) bodies and what privatised? Because of the lack of clear concepts probably no administration is more fragmented than in the environmental sector, where regulatory approaches range from hierarchical to decentralised. The different instruments applied for the same problems range from detailed and legally binding regulatory instruments in one country (or region) to flexible non-binding convenants in others.

5.5	Changing patterns of public administration in the twenty-first century 

Besides the above-mentioned preconditions and changes inherent in the environmental field, a number of other, external factors contribute to the changing climate in implementing and enforcing environmental policies. The 1990s revealed four important developments which directly affect the nature, efficiency and effectiveness of environmental policy and law:
•	The internationalisation of public administration
•	Administrative reform and New Public Management (NPM)
•	Measures to decentralise and deconcentrate public authorities
•	The introduction of new technologies.

(a)	The internationalisation of public administration
As regards the internationalisation of environmental policy and law we can differentiate between: 
•	the growing importance of international treaties and the emergence of networks dealing with enforcement issues, and 
•	the growing impact and consequent internationalisation of internal structures in ministries, agencies, etc. 

Since the beginning of the 1990s the European Union (and with it the Member States) has increasingly been involved in the negotiation and ratification of  international treaties. The implementation of European environmental law no longer concerns difficulties in implementing European directives but more often the implementation of international treaties and mixed agreements. The implementation of international treaties adds another complexity to the already existing problems of environmental directives. By 1992, when countries gathered to deal with the global environment at the United Nation Conference in Rio, there already more than 900 international legal instruments (mostly binding) that were either fully directed to environmental protection or had more than one important provision addressing the issue. Since 1992 the number of international agreements has further increased, and with it the question of compatibility between environmental and free-trade agreements (mostly under the –World Trade Organisation, WTO). We have also witnessed an extraordinary emergency of new networks dealing with implementation and enforcement issues. On the European level, INTERPOL and its Working Party on Environmental Crime were founded in 1992. The Environmental Network on Implementation and Enforcement (IMPEL) was created in the same period, followed by the Accession States IMPEL (AC-IMPEL). These networks are themselves a part of a global network (the International Network for Environmental Compliance and Enforcement, INECE). In the “Americas” a network was created between Canada, Mexico and the United States (the North American Commission for Environmental Cooperation, NACEC). The G-8 group also started to work on enforcement issues after 1997. 
The internationalisation of enforcement issues and the emergence of networks is so important because the growing international trade poses new challenges to classical enforcement methods. One example in the shipment sector may illustrate this: in the shipment sector, 

increasing global trade, mechanized transport with containerized shipping, and a high priority assigned to keeping shipments moving, make it more difficult than ever to have meaningful inspections of material intended for export or import.  To the extent that Customs Services focused on illegal trade, most resources and technology were devoted to investigating incoming shipments, not those intended for export. Even then, only a small percentage of incoming traffic is actually inspected at the border. In the modern era, it is not uncommon for shipments to be loaded in a container in the middle of America, sent by trucks or rail to ports in California, and then packed on ships which are underway without the container being opened or its contents inspected.  Many of these containers are never opened until they reach their final destination, perhaps in the middle of China. With more international trade, and relatively fewer opportunities for meaningful inspection, the potential for those to abuse the system by sending illegal substances increases. Thus, it is more important than ever that all levels of government work effectively together to detect and respond to suspect shipments. These different law enforcement agencies must integrate or at least coordinate their data, intelligence and technology, and build capacity by developing routine mechanisms for cooperative operations. Moreover, these domestic agencies must establish a network with their law enforcement counterparts in other nations, particularly their most frequent trading partners, to facilitate international investigations.  Otherwise, there is small deterrent to those who would export waste illegally to avoid the costs associated with disposing of it in an environmentally sound manner at home.

From a national perspective, “Internationalisation” was for a long time identified with “Europeanisation” – e.g. the growing importance of the European “acquis”. Member States had to adapt their administrations to the requirements of European law, and European policies were more and more perceived as internal rather than foreign affairs. 
Being a member of the European Union thus meant continuously building capacities for the changing “acquis” which involved substantial investments in human resources and organisational development within the line ministries that had EU-related responsibilities for different policy sectors. This assumption is underlined by Schout’s findings in his analysis of the Dutch Ministry of Economic Affairs: “the intensification of European Integration has led to more than a temporary increase in workload and has in fact resulted in a change in environment affecting all parts of the Ministry.” Equally important – according to Metcalfe – was the development of organisational capacities and the development of interorganisational capacities. “European policies are often interdependent ... Taking account of interdependence requires coordination. Ministries must work together in the process of formulating national interests on a regular basis.”
The capacities needed in different policies are of various kinds. “Managing European affairs requires the development of an increasingly complex network of links extending outwards to the EU institutions and inwards to the domestic administration.” Although public administrations in the EU states are old structures, they have continuously responded to new conditions including membership of the Union, which is itself evolving. 
The growing importance of the Union thus imposed a severe burden on the administrations of the new Member States, and it is more and likely that the growing importance of other international organisations (especially the WTO) will impose further burdens. It is, therefore likely that national administrations will increasingly “feel” the organisational, human, political and financial impact of this development. Are these administrations ready to face these fundamental changes? And what changes will actually be required? Are major organisational changes to be demanded within ministries? 
According to Schout: “Change – or the need for change – is difficult to identify and structures may be slow to adapt due to the stabilizing forces of institutions”. The ongoing process of European integration, and in particular the major developments of the 1990s, have raised important questions for academics and for those responsible for Europeanisation activities. Questions which have to be faced include: Has the momentum of European integration really created major changes in the environments in which ministries operate? Is the assumption correct that the new Member States will be ready to adapt their administrative and political structures and mechanisms after joining the Union? Hanf and Soetendorp remind us that – in the past – “governmental adjustments were made in an incremental way, building upon traditions and arrangements that were already in place”. In handling the new requirements of EU membership, “governmental adaptation was a series of ad hoc responses to emerging problems and demands. Also in the case of Ireland and Denmark, Europeanisation was more a process of gradual adaptation instead of a dramatic break with the past.” Or as Metcalfe puts it: “Reform in government often starts with high expectations and ends in disarray and disappointment. One reason, often quoted, is bureaucratic resistance to change.”
Having the capacities to effectively implement and enforce Community environmental law depends last but not least on the capability of public administrations to cope with the changing patterns of the modern world. Managing the implementation of European law means the ability to manage on a national level the growing impact of international environmental law on national legal, organisational and administrative systems.

(b)	Administrative reform and New Public Management
The second development is the changing nature of the state, public administration and regulation. The classical Weberian-type of public administration is often perceived as being outmoded since it is seen as being too inflexible, too hierarchical, too intransparent, not cost-efficient and not citizen-oriented. Financial pressures, political deficits and demographic changes in particular put pressure on governments to come up with reforms. Since the mid-1990s the New Public Management (NPM) approach offered an alternative managerial paradigm for the public sector. In the EU Member States this led to attempts to reform the state and the public administration (or in US terms, to “reinvent the state”) according to private sector management styles. Whether or not countries willing and eager to subscribe to NPM ideas, public administration is everywhere seen more and more as a field of management than of law. It is sometimes astonishing how much optimism is invested in the potential of management and administrative reform measures. This does not mean that reform measures are everywhere the same nor do they produce everywhere the expected outcomes. However, in some states values such as efficiency, economy and effectiveness rank as high as the rule of law. This new understanding of the role of public administration could more and more challenge the role (and the case-law) of the ECJ, since the Court naturally has a very formalistic understanding of the duties of the Member States. Trends towards more flexibility might thus conflict with legal requirements to implement in time, completely, correctly and precisely. At the heart of NPM is the belief that governments should be result- rather than process-oriented. Legislative oversight should therefore focus on performance rather than procedural regularity. To achieve results, NPM advocates argue, public administration should make better use of market-like competition in the provision of goods and services. This may be accomplished through privatisation, reorganised agencies, the development and implementation of new incentives, market-based instruments and deregulation. More flexibility and efficiency should colour the response to changing situations, new technologies and customer demands. NPM also opposes hierarchy and embraces employee “empowerment”. NPM is probably so popular because it promises to create governments that “work better and cost less”. It responds citizens’ growing distrust in the public sector and promises better services and more transparency.
The impact of NPM measures on environmental policy and law is an area which has not yet been well researched. First results show that privatisation may have positive or negative effects. The introduction of market-based instruments – if accomplished at all - show mixed results. The effect of the reorganisation of ministries and environmental authorities and the setting up of agencies in some Member States have not yet been analysed fully.

(c)	Decentralisation and deconcentration
In recent years, political scientists, business school professors, management consultants and technology gurus have all stressed the virtues of decentralisation and delegation, in both the private and public sector. The main reason for criticism of hierarchical forms of organisation was that authoritarian and hierarchical states and firms have failed: according to Fukuyama “they cannot deal with the informational requirements of the increasingly complex world they inhabit. It is no accident that hierarchies have gotten into troubles at the time that societies around the world have been making the transition from industrial to high-tech, information-based forms of production.” On the European level, strong resistance against the (feared) emergence of a European super-state started at the European Summit in Edinburgh in 1992 and the outcome was the introduction of the  principle of subsidiarity in the Treaty of Maastricht. On the national level, the process started earlier: when the European Economic Community (EEC) was created in 1957, Germany was the only federal state and Italy had just started reforms to regionalise the state structure. The Netherlands, France, Belgium and Luxembourg were centralised states. With the beginning of the new millennium virtually no Member State can any longer be characterised as centralised. Even former centralised states like Greece, Ireland and the United Kingdom have accomplished or are in the process of decentralising or deconcentrating important powers that formerly belonged to the central government. 
Decentralisation and delegation has many advantages but entails new problems as well: coordinating the activities of all the players in a decentralised landscape and producing accountability and legitimacy of decentralised and delegated actors. Another difficulty is to define the limits of decentralisation, since any form of organisation requires at least a minimum of hierarchy as well. The process of decentralisation and deconcentration in the Member States has without any doubt brought new complexities to the transposition of Community environmental law. Evidence is as yet lacking as to whether the application and the enforcement of Community environmental law can be improved through these measures. In the past very little research was done to explore the question whether there was a trade-off between increased legal complexities and improved compliance on the local level. 
One solution might be to coordinate highly decentralised structures in networks, a form of order that emerges as the “result of the interactions of decentralised actors, without being created by any centralised authority”. However, networks also have some major disadvantages. First, there is a striking lack of precision in the use of the term “network” among the experts. Second, the term is a fashionable buzzword way and it is not immediately clear what is so new about it (since networks have always existed). Third, networks are commonly understood to be different from hierarchies, but it is often not clear how they differ from markets. Fourth, “it is highly doubtful that formal hierarchies are about to go away anytime soon. To the extent that networks become important, they will exist in conjunction with formal hierarchies.” In the European environmental policy, new networks have emerged (for example the IMPEL Network) in cooperation with the DG-Environment. Despite initial difficulties, the process of coordination has improved over the years.
On the national level, things are much more complicated since centralisation, decentralisation, deconcentration, agency-building and the emergence of new networks differ from Member State to Member State. One of the most difficult issues in the field of environmental policy and law is to define the right mix of centralisation, decentralisation, network-building and privatisation. Solutions have to be defined in a cultural context and differ from country to country. 

(d)	The introduction of new technologies
The fourth development is the development of information technologies and developments to forms of electronic governance. Technological progress is and has always been ambivalent. But “Over the next three decades computer power will grow astonishingly, by a factor of about a million. Computers will become so powerful, easy to use, and ubiquitous that they will change our lives utterly. In this era of amazing change we will face a huge challenge of design:” how to make the digital revolution serve our needs. The computerisation of offices together with the development of the Internet and e-mail, the installation of more sophisticated satellites, and the installation of faster and cheaper data systems have made it possible for more information to be accessed and evaluated even more quickly and cheaply. This ongoing process of “computerisation” is changing the role and structure of public administrations as well as communication structures and behaviour patterns. The rapid flow of information will permeate organisations: more regulation, information and reporting requirements will be transported electronically. Satellites will assume more and more functions in monitoring and controlling environmental pollution and environmental crime. Computer technologies and further digitalisation presage enormous progress in environmental forecasting, environmental reporting, data management, benchmarking, environmental information and communication. Industries and companies will probably become smaller (despite the present trend towards to conglomeration) and social and economic relationships will change (in the United States in 2005, “the percentage of workers employed in industry will fall below 20 per cent, the lowest level since 1850”).
The current paradox is that – while we have new technology to hand – we do not yet have the design skills to apply it more effectively in the environmental sector. Or, to put it differently: “What’s scarce are the good ideas” like that from the Environmental Crime Prevention Programme (ECPP), an intergovernmental organisation devoted to environmental security, high-tech monitoring and earth observation based in Naples. “This organisation analyses historical satellite images from Telespazio’s Fucino Space Center. The satellite pictures showed a small lake outside of Naples disappearing over time. Subsequent investigation established that the lake had been illegally filled with waste by organized crime.”
Very few experts in the field of environmental policy and law have developed expertise in information technologies. The knowledge “barrier” between lawyers and political scientists and “IT-experts” is astonishing and communication rather poor. Even fewer experts have explores the potential of the Internet for environmental policy. In the waste sector, for example, the ports of Rotterdam and Hong Kong have agreed to exploit the Internet for international environmental crime, including the transmission of pictures of suspect containers with their ID numbers. Both cities have encouraged the expanded use of this model in all of the G-8 and other nations that were able to implement this type of communication between ports. They have agreed further to pursue common analysis of compliance data and law-enforcement information nationally and begun to build options for shared access and link internationally linked analysis, such as the system being developed by the Carabinieri’s specialised unit in a governmental initiative funded with the support of the European Commission.
If environmental administration and law is in constant flux and needs to adapt to new circumstances and changing patterns, how does this affect the implementation of environmental policies? 
Comparing enforcement styles is difficult. Both, the states in the United States and the Member States in the Union function as laboratories for reform, but a clear overview of tendencies, successes and failures is lacking. The fact that the European Commission - compared with the EPA in Washington – appears to be much more reluctant to implement new implementation methods and instruments should be interpreted structurally. The first reason is the size of the DG-Environment (the DG-Environment has approximately 450 employees whereas the EPA has approximately 18,000 of whom 6,000 work in the headquarter in Washington). The second reason is that the competences of the European Commission are more restricted to monitoring the implementation of environmental law in the Member States from headquarter in Brussels. Direct interventions in national permitting, inspection, reporting or information systems are prohibited, since these tasks fall within the responsibilities of the national administrations. 
An innovative approach towards environmental law and policy has been undertaken by the US Environmental Protection Agency (EPA). Since 1995, the EPA has launched, under the so-called “Reinvention Strategy” 59 reinvention initiatives. All these efforts concentrate on five principles: 
1.	Better environmental information: the EPA committed itself to improve information, facilitate information, offer citizens the right to know on industrial pollution, facilitate reporting requirements and improve data systems. The overall objective of this policy is to place almost all environmental quality data on the Internet in a format easy accessible by the public.
2.	Stronger partnerships: this approach aims at including all stakeholders in the early formulation of programmes and policies. The hope is to build cooperative rather than adversarial relationships with stakeholders.
3.	Flexibility for better results: here, the EPA waives many of the technical production standards imposed upon industry and allows the private sector to reduce pollution however they see fit, as long as the objectives and goals are achieved (as would be attained under traditional regulations)
4.	Getting to compliance – and beyond: the EPA has initiated a number of compliance assistance and compliance incentive projects which aim at motivating the private sector to implement environmental regulations more efficiently.
5.	Less regulatory burden: here, the general goal is to consolidate regulations, improve the quality of the regulations and reduce paperwork

While a number of the so-called “reinvention principles” have been tested in the United States, others have also been used by the EU Member States and the European Commission for a number of years (for example the principle of partnership). Among a number of innovations one may differentiate between voluntary and binding approaches. On the voluntary end of the continuum are methods such as trying to “create a culture of compliance” among the regulated community by offering rewards for particular progressive companies, providing compliance help-desk centres for companies and technical support (to help regulated parties learn what they need to do to comply, and how to do it) or involving the public in enforcement issues through new information policies. At the legally binding end of the continuum the European Commission has significantly increased its enforcement programme by threatening the Member States with financial fines in case of non-compliance (Table 1).

Table 1: The compliance continuum

Innovation areas 	Individual projects	
Improving the quality of regulations
	•	Consolidate and simplify requirements 
•	Write regulations in “plain English.”
•	Regulatory impact assessments	
Facilitating permitting
	•	Streamline approval processes
•	Harmonise requirements across programmes
•	Develop multimedia and facility-wide permits
•	Environmental permitting Clearinghouses
•	Multi-media permitting	
Increasing Flexibility
	•	Testing innovative approaches with the private sector 
•	Rewarding leaders 	
Offering compliance assistance and incentives
	•	Use market-based incentives to encourage pollution prevention and increase operational flexibility. 
•	Compliance incentives for small business (incentives for auditing, disclosure and correction)
•	Incentives as a consequence of on-site visit assistance 
•	Establishment of small business compliance assistance centres
•	environmental leadership programme
•	guidebooks, hot-lines, training	
Improving environmental information
	•	Right to access to environmental information  
•	Improving environmental information
•	Environmental forecasting
•	Public electronic access
•	Easier information access
•	Environmental accounting 	
Strengthening partnerships
	•	Stakeholder involvement  
•	Partnership programmes
•	Regulatory negotiation and consensus-based rulemaking 	
Environmental management systems (EMS)	•	Promoting the use of EMS
•	Training of firms and public authorities
•	Sponsoring training on EMS	
Benchmarking and Performance Measurement	•	Comparing experiences
•	Exchanging information
•	Introduction of quality competition
•	Development of performance and enforcement indicators	
Reducing formal (reporting and paperwork) requirements
	•	Improving reporting
•	Reduction of paperwork burden 
•	Electronic data transfer 	

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.” 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. 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. 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. “Government will likely neither expand nor contract a great deal but it will certainly change.” 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.. 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. 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. 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.”. 
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. 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”..