II SECONDARY LAW

Instruments, Approaches, and Trends in EU Secondary Environmental Law

As seen in the discussion about the so far seven environmental action programmes (see Chapter 2), the first of which was adopted in 1973, EU environmental policy has evolved over more than four decades. Starting with a rather narrow focus, it has come to encompass a large number of increasingly complex problems. Although it took until 1987 for a formal legal basis for environmental measures to be included in the EC Treaty, the EEC legislator had at that time already adopted numerous legal acts concerned with protection of the environment. The measures adopted to deal with environmental challenges were originally focused primarily on hazardous characteristics of products, notably chemicals, and on emissions of polluting substances into water and, eventually, air. Initially attention was given mostly to substances posing health risks.¹ However, already the first action programme holds the seeds of what today are known as internalisation of environmental costs, environmental impact assessment (EIA), and access to environmental information, that is, mechanisms that are central to ‘modern’ environmental policy. It did, however, take some time to turn these into concrete measures. It was, for example, only in 1990 that a right to environmental information actually became part of EU law.2 A directive on EIA was adopted somewhat earlier, in 1985.³ In the 1980s, increasing awareness of the limitations of existing policies led to more attention to implementation and transsectoral challenges, such as how to avoid regulatory measures resulting in shifting of pollution between natural media, rather than actual abatement. It took, however, until the mid-1990s before a directive on ‘integrated pollution prevention and control’ was adopted to achieve a high level of protection for the environment as a whole.⁴ Another example of an ‘integrating’ directive from about the same time is the directive on ambient air quality assessment and management.5 The realisation that environmental policy is of little significance if it does not permeate other policy areas, such as industry, transport, energy, and agriculture, also led, in the mid-1980s, to the inclusion in the then EC Treaty of what is now known as the integration principle. Achieving effective integration and deciding

• 1 I von Homeyer ‘The Evolution of EU Environmental Governance’ in J Scott (ed) Environmental Protection: European Law and Governance (Oxford University Press, 2009) 8.
• 2 See section 7.5.1. 3 See section 7.1. 4 [1996] OJ L 257/26.
• 5 [1996] OJ L 296/55.

EU Environmental Law and Policy. David Langlet and Said Mahmoudi. © David Langlet and Said Mahmoudi 2016. Published 2016 by Oxford University Press.

how environmental objectives are to be reconciled with other policy objectives is, however, still very much an on-going process. (See Chapter 2.)

With the advent of first ozone depletion and, soon after, climate change as major environmental issues, EU policy became increasingly global in focus. The EU is today party to the vast majority of global and relevant regional multilateral environmental agreements, and generally transposes its international obligations into secondary law acts (see Chapter 4). The scale of environmental policy has also increased, in the sense that the ecological limits of the planet as a whole now constitute a main guiding principle under a vision set for 2050.6 At the same time, it is fairly obvious that the Union is still very much struggling to cut the link between the lifestyle of many Europeans and the huge pressure that puts on global and local ecosystems, often far outside the Union itself.

In the 1990s, and reflective of the emergence of ‘sustainable development’ as a core point of reference for environmental policy, EU policy became increasingly preoccupied with the effects not only of production but also of consumption and resource management. However, the first environmental action programme already talked about the need for rational use of natural resources. Some forty years later this has evolved into the notion of a ‘circular economy’ emphasising reuse, recycling, and general resource efficiency not only for their environmental benefits but also in order to become more self-sufficient with respect to potentially scarce resources. (See Chapter 12.)

In parallel with the ambition of EU environmental policy to cover ever more problems has been a partial shift in what kind of regulatory mechanisms are being employed. The 1990s and early 2000s saw an increasing use of ‘alternative’ regulatory instruments, that is, alternatives to direct regulation. Among these are market- based instruments such as emissions trading, eco-labelling, eco-management and audit, and voluntary agreements of various kinds. This is reflective both of an ideological shift, putting increasing weight on the role of non-state actors and market forces in the pursuit of sustainable development, and of increased focus on the potential implications of environmental policy on competition in a globalised economy. It is also, however, an adaptation to the fact that EU law addresses more complex and diffuse problems involving ever more stakeholders. Perhaps most significant, and most discussed, is the emergence of the framework directive as a choice of preference in areas not directly linked to product standards and the functioning of the internal market.^{[1] [2]}

Directives are in a sense always frame-like by nature, since they are binding as to the result to be achieved but shall leave to the national authorities the choice of form and methods. However, the result, expressed for example in terms of environmental quality standards or emission limit values, can be set out in much detail. And directives may also, in fact, be quite prescriptive about how results are to be achieved. Framework directives, however, typically grant the individual Member State significant leeway for devising the measures required to achieve common objectives. Even the ultimate aims may be partly defined by the Member States, at least in the sense of defining the specific meaning of these aims or objectives in relation to, for example, a body of water. This should make framework directives, such as the Water Framework Directive (WFD),^[3] well suited for accommodating variations in the natural environment and the intensity and nature of human activities at regional or even local levels. Such directives also tend to emphasise generation of data and the continuous adaptation of policy measures in the light of increased understanding of the ecosystems and of the effects of legislative and other measures.^[4] The involvement of many stakeholders in these processes is also characteristic of framework directives. Ideally, this should increase the quality of decisions, as well as make the measures actually implemented more legitimate in the eyes of those affected.^{[5] [6] [7] [8]}

When addressing very complex problems, often displaying strong geographical variations, the setting of more general objectives which are to be gradually defined, fine-tuned, and translated into measures at national or regional level is in many ways a sensible and even necessary approach. But it does have its drawbacks. The more that is left to individual Member States to determine, for example in terms of (intermediate) objectives and weighing up of potentially competing interests, the greater the risk for inconsistent policies and diverging levels of protection. This is not necessarily a problem as long as an acceptable minimum level is guaranteed throughout the Union. However, that may also be hard to achieve when more is determined by the policy choices and level of ambition among numerous national authorities. A common critique is also that increasingly vague standards make it hard to assess the effects of EU measures and undermine accountability.!! With respect to transboundary resources, vague standards put increased emphasis on the need for effective cooperation and coordination. Directives such as the WFD, the Marine Strategy Framework Directive/² and the directive on maritime spatial planning!³ all emphasise cooperation, but they tend to be less clear about how it is to be carried out (see Chapter 10). Desired policy coordination and calibration tend, in what has been called the ‘new governance’ model, to be pursued by means of nonbinding documents and sometimes rather informal processes.^{[9] [10] [11] [12] [13] [14] [15]} Environmental quality standards (EQS), which define the desired state of a certain environmental media (recipient) while more or less leaving it to national authorities to decide what measures are needed to achieve those standards, are also often seen as part of this model.15

However, although there has, at least since the 1990s, been a significant focus on alternatives to ‘end of pipe’ or direct regulation, the detailed picture is rather mixed, and sharp distinctions between ‘new’ and ‘old’ measures are hard to maked⁶ Environmental quality objectives were central to EU environmental policy from the beginning, I⁷ and EQS are normally combined with emission limit values (ELVs),i⁸ meaning that when EQS are not kept, that should trigger a revision of the conditions for individual polluters.^w Although that feedback mechanism is not always smooth or very effective in practice, there has been no abandoning of emission limits in favour of quality standards, but rather an increased combination of both approaches. And as for the vagueness of the objectives set out in, inter alia, the WFD, it must be noted that the Court of Justice has not hesitated to interpret also quite complex ecological standards so as to give them potentially far-reaching effects in individual permit procedures^⁰ Another example which does not fit the schematic model of going from old to new forms of environmental governance is the adoption of binding CO₂ emission standards for cars to replace voluntarily, and largely ineffective, commitments by industry. The scandals surrounding car emissions also illustrate the fact that the form of regulation—binding or voluntary, technical or goal-oriented—may have limited significance if there is a lack of proper monitoring and enforcement.

The most important market-based mechanism, the EU ETS, has also become more traditional in the sense that since 2013 an overall cap on CO₂ emissions from all the covered industries has been set at EU level. The trade elements of the mechanism are about allocating emission volumes between operators and thereby hopefully achieving increased economic efficiency. It does not in itself affect the total volume that is emitted. (See Chapter 11.)

A more obvious trend towards de-centralisation can be seen in relation to genetically modified organisms. In this area, the EU legislator has recently handed back to the Member States decision-making authority which had been firmly, although largely ineffectively, vested with the Union for some time (see Chapter 14). While EU law has come to cover, more or less extensively, most conceivable areas of environmental policy—with soil protection the most conspicuous exception—it has at the same time given the Member States more influence in many areas. But this trend also has clear exceptions, most notably the increased importance placed on so-called best available techniques reference documents, decided by the EU, to get more uniform environmental standards for industry (see Chapter 8).

Despite often being discussed in connection to increased efficiency and the cutting of regulatory ‘red tape’, it should be emphasised that novel and more flexible forms of regulation do not at all need to equal de-regulation, nor are they necessarily less costly or less demanding for public authorities. As has been pointedly noted, ‘there is no escape from the need for public resources, in terms of money, expertise and information’, whichever form of environmental regulation is chosen.2¹

The fact that there is such a large volume of EU environmental law but still significant environmental challenges and even overall trends that point in the wrong direction indicates that the effectiveness and effective implementation of environmental legislation remains a serious challenge.22

After this brief introduction to major trends and approaches in EU environmental regulation, we now turn to the substantive part of the second part of this book in which we look more closely at secondary EU environmental law through the prism of nine thematic areas: crosscutting measures; industrial emissions; air; water; climate; waste; chemicals; genetically modified organisms; and biological diversity.

Further Reading

European Environment Agency The European environment—state and outlook 2015: synthesis report (European Environment Agency, 2015)

I von Homeyer ‘The Evolution of EU Environmental Governance’ in J Scott (ed) Environmental Protection: European Law and Governance (Oxford University Press, 2009) M Lee EU Environmental Law, Governance and Decision-Making (2nd edn, Hart Publishing, 2014)

M Peeters and R Uylenburg (eds) EU Environmental Legislation—Legal Perspectives on Regulatory Strategies (Edward Elgar Publishing, 2014)

N de Sadeleer EU Environmental Law and the Internal Market (Oxford University Press, 2014) Chap 4

J Scott ‘Flexibility in the Implementation of EC Environmental Law’ (2000) 1 Yearbook of European Environmental Law 36—60 ^{[16] [17]}

• [1] See Seventh Environment Action Programme, ‘Living well, within the limits of our planet’ [2013] OJ L 354/171.
• [2] See, eg, Directive 2000/60/EC of the European Parliament and of the Council establishing aframework for Community action in the field of water policy [2000] OJ L 327/1 (‘Water FrameworkDirective’, WFD) and Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy (Marine StrategyFramework Directive) [2008] OJ L 164/19 (‘MSFD’) as discussed in Chapter 10.
• [3] Dir 2000/60/EC (n 7). 9 See, eg, Dir 2008/56/EC (n 7), preambular para 23.
• [4] 10 However, the ‘governance approach’, of which framework directives are typical, has been criti
• [5] cised for a lack of empirical underpinning. S van Holten and M van Rijswick ‘The Consequencesof a Governance Approach in European Environmental Directives for Flexibility, Effectiveness andLegitimacy’ in M Peeters and R Uylenburg (eds) EU Environmental Legislation—Legal Perspectives onRegulatory Strategies (Edward Elgar Publishing, 2014) 13—47, 14.
• [6] See, eg, Peeters and Uylenburg (eds) EU Environmental Legislation (n 10) 15.
• [7] Dir 2008/56/EC (n 7).
• [8] Directive 2014/89/EU establishing a framework for maritime spatial planning (MSPFD) [2014]OJ L 257/135.
• [9] A pertinent example is the so-called Common Implementation Strategy for the WFD. See moreon this in section 10.2.2.
• [10] For an overview of such standards, see F Groothuijse and R Uylenburg ‘Everything Accordingto Plan? Achieving Environmental Quality Standards by a Programmatic Approach’ in M Peeters andR Uylenburg (eds) EU Environmental Legislation—Legal Perspectives on Regulatory Strategies (EdwardElgar Publishing, 2014) 116-45.
• [11] M Lee EU Environmental Law, Governance and Decision-Making (2nd edn, Hart Publishing,2014) 106.
• [12] Homeyer ‘The Evolution of EU Environmental Governance’ (n 1) 10.
• [13] ELVs are levels of an emission which may not be exceeded during a specified period of time.
• [14] See Dir 2000/60/EC (n 7) Art 10 and Directive 2010/75/EU of the European Parliament andof the Council on industrial emissions (integrated pollution prevention and control) (‘IED’) [2010]OJ L 334/17, Art 18.
• [15] See, in particular, Case C-461/13 Bund fur Umwelt und Naturschutz Deutschland ECLI:EU:C:2015:433.
• [16] Lee EU Environmental Law (n 16) 107.
• [17] On environmental trends, see European Environment Agency The European environment—stateand outlook 2015: synthesis report (European Environment Agency, 2015).