How can we harmonize environmental policy in the European Union (EU)?

1. How can we harmonize environmental policy in the European Union (EU)? Dr. Bettina Lange, Centre for Socio-Legal Studies, Oxford University

2. Aims of the lecture • To discuss the potential and limits of law as a tool for harmonizing environmental policy in the EU • To provide an insight into the actual state of harmonization of environmental policy in two substantive policy fields: pollution control and trade in transgenic agricultural products • To question the idea that harmonisation of environmental policy promotes environmental protection

3. Argument of the lecture (1) • Formal law is limited in its capacity to harmonize environmental policy, e.g. of the different Member States in the EUpolitical reasons: • difficulties of negotiating compromises that still have the capacity to harmonize, different cultures of public administration, different philosophies of environmental protection • legal reasons: different legal systems (common law, civil law), different legal cultures (discretion vs. binding rules)sociological reasons: - contrast ‘law in the books’ with ‘law in action’

4. Argument of the lecture (2) • Harmonization, in terms of uniformity of environmental laws, is no longer a key aim of the European Commission in the field of environmental policy • But a ‘unity in diversity’ approach is flawed because it can mask severe implementation deficits of EU environmental law in some Member States and it glosses over the continuing political tensions between EU supranational governance and the Member States’ wish to retain sovereignty over their environmental policies.

5. Structure of the lecture • 1. Brainstorming the question • 2. An analysis of two EU environmental harmonization projects: - Integrated Pollution Prevention and Control (IPPC) - trade in transgenic agricultural products • 3. Exercise

6. 1. Brainstorming the question • What constitutes ‘harmonisation’ of environmental policy in the EU? • - degrees of harmonisation: uniformity, Framework Directives, soft law(e.g. technical guidance documents) • - harmonisation as an aspect of integration • - variation in perspective among Member States: imposition or active development of acquis communautaire

7. 1. Brainstorming the question How to define environmental policy? - not a distinct policy field ? Art. 11 Treaty on the Functioning of the EU What is the relationship between environmental policy and environmental law? -transmission belt -broken chain, complex interactions - sidelining law

8. 1. Brainstorming the question • Why harmonize environmental policy in the EU?

9. 2. EU attempts to harmonize environmental policy • 2 case studies: • - Integrated Pollution Prevention and Control • - legal regulation oftrade in transgenic agricultural products Why do these two policy fields matter? • 1st generation, core pollution control • International trade dimension • Interesting research puzzles

10. 2.1. Integrated Pollution Prevention and Control • Previously EU Directive on Integrated Pollution Prevention and Control (2008/1/EC) • Now EU Directive on Industrial Emissions (2010/75/EC)

11. The policy idea of integrated pollution prevention and control • from fragmentation to integration? Media specific, reactive environmental legislation at national and EU level. Reflects also bureaucratic environmental administration but: ecosystems rely on all three environmental media: air, water and land media-specific, and in particular end-of-pipe legal regulation can lead to the shifting around of pollution between different environmental media

12. Art. 1 of the Directive on Industrial Emissions • Purpose/Scope: ‘This Directive lays down rules on integrated prevention and control of pollution arising from industrial activities. It also lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole’.

13. How does the Directive on Industrial Emissions seek to reduce fragmentation? • Art. 5 (2)Directive on Industrial Emissions:‘Member States shall take the measures necessary to ensure that the conditions of, and the procedures for the granting of the permit are fully coordinated where more than one competent authority or more than one operator is involved or more than one permit is granted, in order to guarantee an effective integrated approach by all authorities competent for this procedure.’

14. Two key mechanisms for generating integrated pollution prevention and control • 1) Unified permitting procedure for releases • emissions into air, water and land from an installation • 2) Conditions in IPPC permits have to consider cross-media effects, integration not just of procedure but of substantive standards • But: the Directive on Industrial Emissions does not provide for a methodology on how cross-media effects can be considered in the setting of permit conditions

15. Through what legal obligations does the Directive on Industrial Emissions implement the policy idea of integrated pollution prevention and control? • Art. 11: ‘Member States shall take the necessary measures to provide that installations are operated in accordance with the following principles:a) all the appropriate preventive measures are taken against pollution • b) the best available techniques are applied.

16. More detail on the definition of BAT • 1) The legal definition of BAT in the text of the Directive itself: Art. 3 (10):‘best available techniques’ means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing in principle the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole:‘techniques’ shall include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned,‘available techniques’ means those developed on a scale which allows implementation in the relevant industrial sector, under economicallyand technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator,‘best’ shall mean most effective in achieving a high general level of protection of the environment as a whole. • Art. 3 (11) and (12) define the terms ‘BAT reference document’ and ‘BAT conclusion’

17. How is BAT defined? • Art. 13 (1) Directive on Industrial Emissions: Commission has a duty to organize an exchange of information between Member States, industries concerned and env. NGOs, leading to BAT reference documents – minimum standards

18. Implementation of Integrated Pollution Prevention and Control in the Member States • Considerable variation in implementation among Member States (MS) Limited harmonisation of ‘integration’ approach: - UK, Ireland: integrated regulator, single permit, UK Environmental Permitting (England and Wales) Regulations 2010 - but Germany: separate permits for air/land and water Why? • Directive requires single permitting procedure, but no requirement for just one regulator or single permit • Different structures of public administration in MS

19. Implementation • Considerable variation among MS in applying ‘the best available techniques (BAT)’: - variation in level of standard • - variation in procedure for applying the technology standard • Why? - no clear definition and limits to consideration of cost factors in the definition of BAT. • - technical guidance documents only one factor to consider, now ‘the reference point’ • - different ages of technical installations in the different MS

20. 2.2. The legal regulation of trade in transgenic agricultural products in the EU • Regulation 1829/2003/EC: The Food and Feed RegulationDirective 2001/18/EC: The Deliberate Release Directive • Lawful trade requires prior authorisation for an importer/trader /producer within the EU

21. The legal regulation of trade in transgenic agricultural products in the EU • Purpose of this regulatory regime: Art. 1 (a) Dir. 1829/2003/EC: a) ‘provide the basis for ensuring a high level of protection of • human life and health, animal health and welfare, environment and consumer interests in relation to genetically modified food and feed, whilst ensuring the effective functioning of the internal market.’

22. The legal regulation of trade in transgenic agricultural products • Risk assessments carried out by the European Food Safety Authority at the heart of the authorisation procedure. • But limits to science as theunifying language.

23. Implementation - in practice fragmentation of the EU GM food and feed market along national lines: - defiance in particular in relation to cultivation of GM crops in Austria, Poland, France- turning the clock back on EU environmental policy harmonisation: proposal proposal for a Regulation amending Directive 2001/18/EC

24. Implementation • Why? - strong national traditions in relation to farming/food security - variation in farming structure between different Member States - relationship between EU and national politics: MS ministers unwilling to expressly openly a view on GM authorisations

25. Conclusion • Law as a key tool for harmonizing environmental policy in the EU, but limits to its capacity to do so. • In relation to IPPC: attempts to further increase harmonisation, trade in transgenic agricultural products: greater powers now for MS in relation to cultivation • Future developments: decline in traditional state public bureaucracies administering ‘command and control’ regulation over private companies, instead law facilitating a restructuring of economies in order to decarbonise them.