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To more concretely illustrate the differences between the American and Community systems of rulemaking and the implications of adopting the American model, I take an example from the environmental field. I selected the regulatory area based on the closeness of policy approaches. Where the substantive policy choices made by Congress and the Community legislature are similar, the differences in the implementation process should be more readily apparent.
The United States and the Community take similar approaches to the problem of how to safely dispose of the "mountains of garbage"95 generated by modern-day society. Both attempt to ensure that waste is handled safely -- for the environment and human health -- from cradle to grave through a system of rules and permits. Once waste is classified as hazardous it becomes subject to a series of rules on safe storage, transportation, treatment, and disposal. Non-hazardous waste is also regulated but less carefully. Three classes of individuals are caught by the regulatory net: generators, transporters, and owners or operators of treatment or disposal facilities.96 A government-run permit scheme is the primary means of ensuring that those who dispose, treat, and transport comply with the rules.
The Resource Conservation and Recovery Act of 1976 (RCRA), significantly amended by the Hazardous and Solid Waste Amendments of 1984, is the environmental statute that governs the handling of waste in the United States.97 Under the RCRA, the Environmental Protection Agency (EPA) has primary responsibility for regulating hazardous waste while the states are delegated responsibility for non-hazardous waste.98
The RCRA gives primary responsibility for drawing up rules on hazardous waste to the EPA. For instance, it is required to develop criteria for identifying and listing hazardous waste, and to identify, list, and de-list hazardous waste.99 A state may assume responsibility for hazardous waste regulation but it must first satisfy the EPA that its regulations are "substantially equivalent" to the federal ones.100 The states are given primary responsibility for developing solid (non-hazardous) waste disposal plans, but even so the EPA is charged with issuing guidelines for such plans and reviewing and approving them.101
The RCRA provisions directing the EPA and the states to adopt various types of rules all require that such regulations be promulgated "after notice and opportunity for public hearing."102 The statute also contains a catch-all provision on public participation in regulatory action:
Public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish minimum guidelines for public participation in such processes.103
Judicial review of EPA rules is expressly guaranteed under the RCRA. Courts are directed to follow the standards set out in the Administrative Procedure Act, namely arbitrary and capricious review, subject to certain exceptions that are irrelevant here.104 Before a plaintiff may challenge an EPA regulation, a number of conditions applicable in administrative litigation generally must be satisfied. The litigant must have exhausted her administrative remedies or else risk a finding that she has waived her rights. Further, the party must demonstrate that she satisfies constitutional and prudential standing requirements. More specifically, to fulfill the constitutional part of the test she must show concrete injury, that such injury is traceable to the complained of event, and that it is redressable through judicial action ;105 to satisfy the prudential part, she must show that she falls within the "zone of interests" that Congress intended to regulate or protect with the RCRA.106 Lastly, even though rules may be challenged prior to enforcement, the suit must still be "ripe," a two-part inquiry that takes into account the "fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."107 Whereas exhaustion, and to a lesser extent, standing, can operate as barriers to judicial review in rulemaking cases, ripeness very rarely is an obstacle.
On the other side of the Atlantic, the first Community waste legislation was adopted in the 1970s. Following the Basle Convention on the control of transboundary movements of hazardous wastes and their disposal, signed by the Community in 1989, the existing legislation was radically transformed with a series of new directives.108
Under these directives, the Commission is charged with drawing up and revising lists of (non-hazardous) waste109 and hazardous waste110 through a regulatory committee filet procedure. In doing so, however, the Commission must follow the detailed criteria set out in the directives themselves. All other rules relating to waste (i.e., storage, transportation, treatment, disposal) are to be promulgated by the member states.111 They are under a duty to notify the Commission of the measures taken pursuant to the directive, although they do not need to obtain Commission authorization as do the states (from the EPA) under the RCRA.
If the Community were to adopt notice and comment, the provisions delegating responsibility for waste and hazardous waste listing to a comitology procedure would include a condition obliging the Commission to publish its proposed measure in the Official Journal, solicit comments, and perhaps hold a public hearing. Thus the Commission would have to take into account scientific evidence on, say, waste toxicity submitted by businesses, environmental protection groups, and other interested parties, in addition to evidence and advice already solicited from the Commission's expert group in the area (the Waste Committee) and the regulatory committee.112 (Because comitology committees very rarely give unfavorable opinions it is highly likely that the Commission consults with national representatives on the committees before submitting its proposed implementing rule for a formal vote.113) The same would be the case for the Council should the regulatory committee issue an unfavorable opinion and the Council be called upon to decide the matter.
Delegation of power and federalism operate in the Community to significantly limit the reach of notice and comment and any impact it might have on administrative accountability, positive or negative. First, Community administration in no way has powers comparable to American agencies. Community legislation does not contain the far-reaching agency mandates that are characteristic of American statutes.114 A prime example in waste legislation is the criteria for classifying waste as hazardous: they are set down in legislation in the Community, but in EPA rules in the United States. Furthermore, in the European Community, national governments shoulder the bulk of the responsibility for developing and enforcing regulation. For instance, rules on hazardous waste treatment are issued by member states in the Community and by the EPA in the United States. Thus if comitology were to be reformed to include notice and comment, interest groups and the Court would still participate far less than in the United States for the simple reason that there is relatively little rulemaking.
Second, even though member states administer a Community regulatory scheme, their role is far more independent than that of American states that administer federal programs. In the waste regulation example, states may develop and administer their own hazardous waste programs but they must first be authorized by the EPA and they are obliged to proceed through notice and comment. Under the Community scheme, member states are obliged to inform the Commission of their national waste programs but need not obtain authorization from the Commission nor follow any particular procedure in developing such programs. Consequently, the Commission is poorly placed to ensure uniform implementation of hazardous waste legislation and cannot require national governments to allow for public participation in rulemaking. In sum, due to narrow delegations of power to the Commission and member state autonomy, the import of notice and comment would be limited.
In 1991, pursuant to its RCRA mandate, the EPA promulgated the Burning of Hazardous Waste in Boilers and Industrial Furnaces Rule (BIF Rule). Existing regulation had already placed controls on incinerators that burned hazardous waste for purposes of waste treatment and disposal. The BIF Rule added to the pre-existing framework by extending the regulatory net to industrial boilers and furnaces that used hazardous waste for fuel recovery purposes. Facilities treating hazardous waste in this fashion were among the last to be regulated because of the obvious benefits from using hazardous waste as fuel. Hazardous waste is cheap compared to fossil fuels. In addition, combustion can destroy waste's dangerous chemical compounds, thus treating it and using it for its fuel value at one and the same time. Yet there exists a significant risk that dangerous chemical compounds will not be fully destroyed and that, when they react with other fuels used in the process, even more toxic substances will result. The rule eventually promulgated attempted to strike a balance between these two sets of competing considerations.
In May 1987, the EPA published notice of a proposed rule and request for comment.115 Although it is common to give warning with an advanced notice of proposed rulemaking, the EPA had already issued a regulation imposing notification requirements on hazardous waste burners116 and had indicated almost two years earlier that it planned to introduce a permitting system,117 so the proposed rule came as no surprise to the regulated community. The notice contained several parts. First it laid out the EPA's statutory authority to promulgate the rule and described the environmental and safety hazards caused by the burning of hazardous waste in boilers and industrial furnaces, making a case for the need for regulation. Then the notice discussed and justified a number of critical policy choices made by the Agency in drafting the rule, among which figured the decision to base controls on national performance standards rather than on case-by-case risk assessments. It also set out in detail the controls that the EPA proposed for emission of toxic organic compounds, toxic metals, and hydrogen chloride as well as the risk assessment methodology the Agency had used to calculate the controls, including the decision to set limits so as to ensure that the increased lifetime risk of developing cancer from direct inhalation of carcinogenic stack emissions would not exceed one in 100,000. Throughout this discussion and in a separate section at the end of the proposal, the EPA estimated what it thought would be the costs of compliance, the economic impact of such costs on the profitability of the industry as a whole and on individual plants, and the reduction in the risk of cancer to exposed individuals. Although this information was mandated by an executive order on regulatory impact statements118 and a Congressional statute concerning small businesses,119 it is safe to assume that even in their absence, agencies would need to develop some of the same information when explaining and justifying the regulatory approach chosen.
The public was given two months to submit comments. On top of soliciting comments generally, at various points during the discussion of the proposed rule the EPA asked for comments on specific issues such as the approach to take to toxic organic compound emissions standards. It also announced that three public hearings would be held in different spots around the country. Further, after notice was issued, the EPA conducted negotiations with various industry representatives.
Two years later, in October 1989, the EPA published a supplement to the proposed rule.120 It contemplated several revisions to the proposed rule, many of which were provoked by comments. First, it had received numerous comments suggesting the need for a control on particulate emissions. This was based on the fear that toxic metals and organic compounds might be absorbed onto particulate matter, which might itself pose a health risk because of the ease with which particulate matter is inhaled and absorbed by the lungs. Therefore, even though the EPA thought that this risk was already covered by another regulatory scheme, it proposed to apply the particulate standard currently in use for hazardous waste incinerators to boilers and industrial furnaces. Second, the Agency responded to comments from boiler and cement kiln operators claiming that it would be impossible to comply with the control set for toxic organic compounds. It proposed an alternative standard to "avoid major economic impacts on the regulated community."
Again the EPA issued a general call for comments on the changes and, in addition, at specific points in the discussion, asked for the public's reaction. As before, the public had two months to respond and the Agency conducted negotiations with industry and trade groups.121 In April 1990, the EPA published a second and minor supplement to the proposed rule122 and in February 1991, almost four years after the initial proposal, the final rule was promulgated.123 The final rule included a few modifications but most of the significant changes had already been made between the proposed rule and first supplement.
In Horsehead Resource Development Co. v. Browner,124 a number of firms, industry associations, and environmental groups challenged the rule.125 Among other things, they claimed that the EPA had given inadequate notice of a portion of the rule and that the rule was arbitrary and capricious in parts.
Operators of wet process kilns (a type of cement kiln) brought a procedural challenge based on their right to notice under the APA. In the BIF Rule, carbon monoxide (CO) emission levels and total hydrocarbon (THC) emission levels are used to gauge how fully hazardous waste is destroyed in the combustion process.126 High CO and THC emissions indicate that the principal hazardous organic constituents in the waste fuel were only partially broken down in combustion. Left over are products of incomplete combustion, some of which are known carcinogens, others of which may be. In the rulemaking proceeding, wet kiln operators had complained that they could not comply, for reasons unrelated to environmental safety, with either the CO or the alternative THC standard, and, in response, the EPA had added a third emissions standard that combined CO and THC limits and would be formulated on a case-by-case basis.
According to the wet kiln petitioners, they had not received adequate notice of and opportunity to comment on the third standard. The court agreed. It found that although the EPA had given notice that it was considering a site-specific standard for wet kilns, it had not suggested -- in the proposed rule, the first supplement, or the second supplement -- that it was contemplating a combined CO and THC baseline. The court explained that the adequacy of notice and opportunity for comment rests on the relationship between the proposed and the final rule: even though the "EPA undoubtedly has authority to promulgate a final rule that differs in some particulars from its proposed rule" the final rule must be "a `logical outgrowth' of the one proposed."127 This, the court elaborated, entails a description of the subjects and issues that is sufficiently detailed to allow interested parties an opportunity for meaningful participation. Here the standards using CO and THC separately could be expected to operate differently from a standard that combined the two, and therefore without notice of the dual baseline, wet-kiln operators were not afforded an adequate opportunity for comment.
An arbitrary and capricious challenge to the substance of the third standard tailored specifically for wet kilns was also brought. Wet kilns had proven troublesome because of their design. A wet kiln is a slightly inclined cylinder that rotates on its own axis. The raw material (e.g. clay, shale, limestone) is poured into the top end and, as it slides down the kiln, is heated to very high temperatures. The kiln is powered by a furnace at the bottom end that can use powdered coal, other fossil fuel, or hazardous waste. Since carbon monoxide and hydrocarbons are generated by the raw materials poured into the top end and the furnace at the bottom end and since, due to wet kiln design, it is impossible to tell which of the emissions comes from the raw material and which from the furnace, wet kilns that burned negligible quantities of hazardous waste still ran the risk of exceeding the Rule's CO and THC controls. Recognizing this problem, the EPA added a site-specific, combined CO/THC emissions standard that it maintained would not pose compliance difficulties for environmentally sound wet kilns.
Petitioners contended that there was no rational basis for this conclusion. The issue turned on whether it was possible to calculate site-specific "non-hazardous" fuel emissions baselines that operators could be required to adhere to when they burned hazardous fuel. The EPA pointed to two pieces of the record in support of its position. First, it argued that the results of test runs on a single wet kiln in Hannibal, Missouri showed that THC emissions were quantifiable and indeed decreased when hazardous waste was burned. The court examined the test burn results and found that, rather, they showed that combustion emissions depended entirely on the raw material used and thus rendered a reliable baseline impossible. Indeed, at oral argument, EPA counsel admitted that the Hannibal test runs had been conducted for a different purpose and could not be used to support the wet kiln standard. Second, the EPA pointed to comments saying that, when hazardous waste was burned, hydrocarbon levels did not increase, thus making a "non-hazardous" THC baseline feasible. The court held that such evidence was inadequate because it did not deal with the CO component of the baseline. The court concluded:
The agency thus had no information on this issue and was relying on pure speculation when it decided that a standard of no increase of CO and THC over quantifiable CO and THC baselines was achievable. Such speculation is an inadequate replacement for the agency's duty to undertake an examination of the relevant data and reasoned analysis; thus the EPA's action in promulgating the . . . standard was arbitrary and capricious.128
It is impossible to undertake the same exercise for an implementing rule passed pursuant to the Community waste and hazardous waste directives. Symptomatic of the differences between the European Community and the United States, none of the implementing rules passed since the framework directives were adopted in 1991 were challenged in court. In the neighboring field of pesticide regulation, however, the Court has reviewed and struck down a Council implementing rule.129 That rule is the subject of the following section and serves to illustrate how Community rulemaking operates currently and how it might change with notice and comment.
In 1991, pesticides were regulated by the Community for the first time. The legislation recognizes that pesticides are critical commercially for farmers and the chemical industry but that they also pose a threat to human safety and the environment through the contamination of drinking water, direct human contact, and other mechanisms.130 Brussels was to set down the standards for pesticide authorization and national administrations were to carry out the case-by-case evaluation of pesticide applications. Under the directive, the Community executive (in this case the Council acting by qualified majority on a proposal from the Commission, not a comitology procedure) was to draw up an implementing rule containing the water contamination and other criteria to be used in making authorization decisions.
The implementing rule adopted in 1994 contained a statement of legal basis (the Treaty and the portion of the basic measure delegating authority to the Council acting upon a proposal of the Commission), a statement of the procedure followed in adopting the rule (consideration of the Commission's proposal), and a brief description of the rule's purpose and content Otherwise, as is the rule in the Community, none of the process or deliberation that led to the adoption of the measure was published.
Although very little information on the rule was made available officially, the policy debate has been described by a few close observers in Brussels. The story, albeit impressionistic and based in large part on educated guesses, goes as follows.131 A separate series of Community environmental directives regulating drinking water132 had been a long-standing source of dissatisfaction for several member states.133 The limits on permissible chemical concentrations in surface water and groundwater, especially those relating to pesticides, were considered too stringent because of their impact on farmers and the chemical industry. Two member states, the UK and France, met secretly in 1993 to target a number of directives for repeal or amendment and, when the press learned of it, drew heavy criticism from Greenpeace and the Greens in Parliament. The Commission has been working on proposals for a new water framework directive for over four years now, but as of yet it has not been passed;134 after many years of negotiations, a new drinking water directive was finally passed in December 1998.135 Thus the effort to address the perceived over-regulation of pesticides in drinking water through Community legislation has encountered many obstacles and has been only partly successful.
Onto this stage steps the implementing rule on pesticides. One of the most important criteria in authorizing a pesticide is that it not contaminate drinking water when absorbed into the water supply. One group of member states, led by Germany, Denmark and the Netherlands wished to retain the water directive parameters, a move that according to some would have resulted in a ban on a large number of pesticides currently in use in the Community.136 Another group (and it does not take much to suspect that Britain and France were part of it) supported a different method for setting maximum groundwater concentrations, one based on the eco-toxicological properties of individual pesticides.137 The final result, reached in 1994, was a compromise in which the more stringent standard was adopted but opt-outs were permitted if certain conditions were satisfied.138 This compromise was the object of the court challenge.
Parliament took the Council to court on three grounds. It claimed that the implementing rule unlawfully modified the obligations imposed on the member states by the basic directive, unlawfully modified the obligations imposed on the member states by one of the earlier drinking water directives, and was inadequately or incorrectly reasoned, thus violating the duty to give reasons under Article 253 of the Treaty. The Court held in favor of Parliament on the basis of the first argument and annulled the implementing measure. It found that the Community executive (Council acting upon a proposal from the Commission) had failed to respect the terms of the law it had been charged with implementing and thus exceeded its powers, intruding upon those of the legislature.
The entire case was an exercise in statutory interpretation. First, the Court examined the preamble of the basic directive, a short section that introduces each Community act and sets out the legal basis for the act and the rationale that led to its adoption. It found that the basic directive aimed to promote improvements in agriculture while at the same time protecting human health and the environment, and indeed prohibited that advances in one objective should come at the expense of the other two.139
The Court then turned to the provision in the framework directive specifically governing pesticide authorization by member state authorities. It pointed out that, under Article 4(1)(b), members state were not to authorize pesticides unless "it is established that that product has no harmful effect on human or animal health, either directly or indirectly, or on groundwater and has no unacceptable influence on the environment, particularly in relation to the contamination of water."140 Based on the language of Article 4(1)(b), it held that effects on drinking water and groundwater had to be considered.141 Since the implementing directive only required national authorities to take into account the effect on groundwater if it bore a relationship to drinking water quality, it "specifically failed to observe one of the essential elements of the matter expressly laid down in the basic directive."142
The Court held that the implementing rule violated the terms of the enabling legislation in yet another way. It found that "harmful effect" (on human health) and "unacceptable influence" (on drinking water) in Article 4(1)(b) had to be defined solely by reference to the Community legislation on drinking water.143 That legislation, as has already been discussed, established upper limits on chemical residues in groundwater but because of a compromise reached in the Council, the pesticides implementing rule did not adopt those limits one hundred percent. Instead, it permitted conditional authorizations for pesticides not meeting the groundwater criteria provided that they were handled under certain conditions.144 The Court found that this opt-out unlawfully changed the meaning of "harmful effect" and "unacceptable influence" in the basic directive.
If the Community were to adopt notice and comment, the pesticides case would be different in several respects.145 The Commission would be required to publish its proposal in the Official Journal a few months before submitting it to the Council to allow time for the comment procedure. Thus the regulated community together with the Parliament would have notice of the implementing rule well before it was adopted. Not only would they know that a rule was in progress but they would know of the different regulatory approaches being considered. Here that entailed the intergovernmental dispute over groundwater concentration limits and thus Greenpeace and Parliament, as well as other interested parties, would have found out in advance of the backdoor route to revised drinking water standards. Instead of being presented with a fait accompli which could only be challenged, with very little chance of success, in a formal legal proceeding, they could have used the advance warning to shape public opinion and put pressure on the Commission and national governments, making it more difficult to pass the lower standard. Further, the same parties would have had an opportunity to submit comments and therefore could have shaped the debate in the Commission and Council with their knowledge of national conditions and their views on the possible consequences for the drinking water supply, the chemical industry, and farmers.
Notice and comment would also significantly change the nature of judicial review. The Court would be called upon to enforce a wider array of procedural rights. Litigants could have the implementing rule annulled if the Commission had failed to give adequate notice (remember Horsehead Resource Development Co. v. Browner) or had not given the public enough time to submit comments. Second, when conducting substantive review, the Court would be under more pressure to carefully consider the scientific and technical judgment calls made by the implementing body, e.g., the decision that groundwater contamination above drinking water directive levels was not necessarily harmful to the environment and human health. An administrative record of the type compiled in the hazardous waste case would give the parties stronger grounds for challenging scientific decisions and put the Court in a better position to evaluate such decisions. The litigants would be fully informed as to the policy calls made by the Commission and would already have had one shot, before the Commission, to develop their positions. They would only need to fine tune their arguments for the Court. The Court, with a record in hand, would know what the Commission's reasons were at the time it formulated the rule and would not be swayed by ex post, ad hoc policy arguments. Such arguments tend to be poorly substantiated and miss the point, since the issue is not whether the Community administrator acted reasonably in retrospect but at the time the rule was adopted.
Lastly, if locus standi rules were liberalized as part of notice and comment reform, more parties would have access to the Court of Justice. In the pesticides case, Parliament had standing to sue under Article 230 of the Treaty because it was seeking to protect its right to be consulted on agricultural policy matters.146 Other interested parties such as pesticides producers and environmental groups, however, would have had a very difficult time making the case that they were "directly and individually concerned" as required under Article 230. The only route available to them would have been their national courts and, in most cases, only after a national authority had approved or denied a pesticide registration application. Even then it is unclear whether, say, a neighborhood association representing those who live in an area where the pesticide is used would have locus standi in all the member states. Standing rules similar to American ones would allow interest groups direct access to the Court of Justice.
95 Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994) (Stevens, J., dissenting).
96 In this section I primarily rely on Vicki R. Patton-Hulce, Environment and the Law: A Dictionary 264 (1995) and Christopher Harris et al., Hazardous Waste: Confronting the Challenge (1987).
9742 U.S.C. §§ 6901 et seq.
98 The EPA is a federal executive agency, meaning among other things that the administrator (agency head) is appointed and removed at will by the President. Most of the policymaking occurs at its headquarters in Washington, D.C. whereas enforcement is carried out by its ten regional offices, which work closely with the states.
99 See 42 U.S.C. § 6921 ("Identification and listing of hazardous waste"); 42 U.S.C. § 6922 ("Standards applicable to generators of hazardous waste"); 42 U.S.C. § 6923 ("Standards applicable to transporters of hazardous waste"); 42 U.S.C. § 6924 ("Standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities"); 42 U.S.C. § 6925 ("Permits for treatment, storage, or disposal of hazardous waste").
100 See 42 U.S.C. § 6926 ("Authorized State hazardous waste programs"); Christopher Harris et al., Hazardous Waste: Confronting the Challenge 195-97 (1987); Michael M. Meloy, "PK-4--New and Controversial Amendments to Pa.'s Hazardous Waste Regulations," The Legal Intelligencer, March 4, 1993, at 4.
101 See 42 U.S.C. Subchapter IV ("State or regional solid waste plans").
102 42 U.S.C. § 6921 (b).
103 42 U.S.C. § 6974 (b) (1).
104 See 42 U.S.C. § 6976 (a).
105 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
106 Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 922 (D.C. Cir. 1989).
107 Abbott Laboratories v. Gardner, 386 U.S. 136, 149 (1967). Fitness for review includes consideration of whether the issues can be classified as legal or factual, the former lending themselves more easily to pre-enforcement review than the latter. See id. at 149.
108 See generally Cases C-304/94, C-330/94, C-342/94 & C-224/95, Tombesi et al., 1997 E.C.R. I-3563 (Advocate General's opinion reviewing history of waste regulation).
109 Council Directive 91/156, 1991 O.J. (L 78) 32, amending Council Directive 75/442, 1975 O.J. (L 194) 39.
110 Council Directive 91/689, 1991 O.J. (L 377) 20.
111 See Council Directive 91/156, 1991 O.J. (L 78) 32, art. 3, 4, 5, 6, 7.
112 See Christoph Demmke, "The Europeanization of Civil Services and the Role of National Civil Servants in the Decision-Making Process," in Managing European Environmental Policy: The Role of the Member States in the Policy Process 3, 7 (Christoph Demmke ed., 1997) (listing expert and comitology committees in the environmental sector).
113 Figures on favorable and unfavorable opinions in the environmental area are not available, but those for agricultural management and regulatory committees are available. Between 1962 and 1995, out of a total of 48,516 opinions, only 13 were unfavorable. See Josef Falke, "Comitology and Other Committees: A Preliminary Empirical Assessment," in Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process 117, 142 (Robin H. Pedler & Guenther F. Schaefer eds., 1996). For a success rate of this order, the Commission must regularly ensure that it has the support of a qualified majority of experts on the relevant comitology committee before submitting its measure for a formal vote.
114 Many American regulatory statutes are more detailed than the RCRA and therefore the balance between legislative and agency influence is more decidedly tipped toward the legislature. On the whole, however, American administrative agencies dispose of greater discretion in rulemaking than the Commission and comitology committees.
115 Burning of Hazardous Waste in Boilers and Industrial Furnaces, 52 Fed. Reg. 16,982 (May 6, 1987).
116 Burning of Hazardous Waste Fuels and of Fuels Derived from Used Oil, 50 Fed. Reg. 49,164 (November 29, 1985).
117 50 Fed. Reg. 49,192 (November 29, 1985).
118 Executive Order 12,291, reprinted in 5 U.S.C. § 601 note (1988).
119 Regulatory Flexibility Act, 5 U.S.C. §§ 601-612.
120 Burning of Hazardous Waste in Boilers and Industrial Furnaces, 54 Fed. Reg. 43,718 (October 26, 1989).
121 See, e.g., Peggy Abrahamson, "EPA-Proposed Changes Cause Concern at AMC," American Metal Market, November 16, 1989, at 2.
122 Standards for Owners and Operators of Hazardous Waste Incinerators and Burning of Hazardous Wastes in Boilers and Industrial Furnaces, 55 Fed. Reg. 17862 (April 27, 1990).
123 Burning of Hazardous Waste in Boilers and Industrial Furnaces, 56 Fed. Reg. 7,134 (1991) (codified as amended by subsequent corrections and technical amendments at 40 C.F.R pt. 260, 261, 264, 265, 266, 270, 271 (1992)).
124 16 F.3d 1246 (D.C. Cir. 1994).
125 Burning of Hazardous Waste in Boilers and Industrial Furnaces, 56 Fed. Reg. 7,134 (1991) (codified as amended by subsequent corrections and technical amendments at 40 C.F.R pt. 260, 261, 264, 265, 266, 270, 271 (1992)).
126 The THC emissions standard was added after the first round of comments.
127 Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1991).
128 16 F. 3d at 1269.
129 Case C-303/94, European Parliament v. Council of the European Union, 1996 E.C.R. I-2943.
130 Council Directive 91/414, art. 10, 1991 O.J. (L 230) 1.
131 This section is pieced together from academic and trade press accounts.
132 Council Directive 75/440/EEC, 1975 O.J. (L 194) 26; Council Directive 80/68/EEC, 1980 O.J. (L 20) 43; Council Directive 80/778/EEC, 1980 O.J. (L 229) 11.
133 See Christoph Demmke, "The Europeanization of Civil Services and the Role of National Civil Servants in the Decision-Making Process," in Managing European Environmental Policy: The Role of the Member States in the Policy Process 3, 14-17 (Christoph Demmke ed., 1997) (narrating this series of events).
134 COM (97) 49 final; COM (97) 614 (amendments); COM (98) 76 (amendments).
135 Council Directive 98/83/EC, 1998 O.J. (L 330) 32.
136 See Pascal Cardonnel, "The Annulment of the EU Uniform Principles for Evaluation and Authorization of Pesticide Products by the European Court of Justice," European Environmental Law Review, October 1996, p. 271, 272.
137 Id.
138 Council Directive 94/43, 1994 O.J. (L 227) 31.
139 Case C-303/94, European Parliament v. Council of the European Union, 1996 E.C.R. I-2943, para 25.
140 Id. para. 27.
141
Id. at 27. The relevant portions of Article 4(1)(b) read as follows:
Member States shall ensure that a plant protection
product is not authorized unless . . . it is established . . . that . . . (iv)
it has no harmful effect on human or animal health, directly or indirectly
(e.g. through drinking water, food or feed) or on ground water; (v) it has no
unacceptable influence on the environment, having particular regard to the
following considerations: -- its fate and distribution in the environment,
particularly contamination of water including drinking water and groundwater .
. . .
142 Id. para. 31.
143 Id. at I-2960, para. 20 (Advocate General's opinion), I-2972, para. 32 (Court's opinion).
144 Council Directive 94/43, annex C 2.5.1.2 (b) & (c), 1994 O.J. (L 227). The maximum concentration of various substances in water intended for human consumption is set down in Council Directive 80/778, 1980 O.J. (L 229) 11.
145 Because the implementing rule was passed by the Council on a proposal from the Commission, and not following a comitology procedure, the Comitology Decision of June 28, 1999 would not apply. Even if the implementing rule were the product of a comitology procedure, as the administrative process most likely would be structured if the enabling legislation were written today, since the enabling legislation was passed by the Council acting upon a Commission proposal and with the advice of the Parliament, and not by co-decision with Parliament, the most significant improvements made in the Comitology Decision would not apply.
146 Under Article 37, the Treaty provision that served as the legal basis for the basic directive, the Parliament has the right to be consulted.
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