Transcript Experiences with evaluation of environmental legislation: lessons for

Experiences with evaluation of
environmental legislation:
lessons for implementation?
Icos conference 2010
Marjan Peeters
Maastricht University
Experiences with evaluation of
environmental legislation:
STEM Project 2005-2010
• Assessment of environmental legislation
• Conducted for the Dutch ministry of the
environment
• Research partners: University of Amsterdam, Free
University of Amsterdam, Maastricht University,
and Arcadis (secretariat)
What did we do in the “STEM” project?
What did we learn?
Substantive perspective
• STEM focused at providing insight into the functioning of
Dutch environmental legislation
• 28 reports, 3 yet to be concluded
• Many topics have been covered, a broad patchwork of
research results
Methodological perspective
• Constraints?
• Did we really get a proper understanding into environmental
law?
• How to move forward?
The incomprehensability of environmental
law
• Agonizing legislation
“Harcélement textuelle” “Teisterende wetgeving”,
(Guillot, Leroy)
“Vechten tegen wetgeving” (Schueler)
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Many different topics to be regulated
Technical / science dimension
Many different regulatory instruments
Highly dynamic
Different levels of regulation
STEM: Implementation of EU directives
Randomly researched:
• Quality of the European directive
• Quality of the national implementation approach
(legislation, execution, enforcement)
CLOSER LOOK
1. IPPC (IED)
2. ENVIRONMENTAL LIABILITY DIRECTIVE
-------------------------------------------------------------3. ENVIRONMENTAL MANAGEMENT ACT
a. Dynamic referral
b. Overall assessment
(1) IPPC
Two reports:
- Integrated decision-making: overall approach,
BREFs (2007)
- Integrated decision-making: Dutch permit
practice (2010)
(1) IPPC: findings
-
Wrong translation of the IPPC-directive (Dutch version)
Wrong implementation of the IPPC-directive into the Dutch law
(“take account of”)
-
(Intended?) further going implementation of the IPPC-directive into
Dutch law (BBT)
-
Wrong perception of the IPPC-directive into the Dutch legal
discourse? Too much emphasis on “integration” ànd on (the value
of) BBT?
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Still learning how to interpret and implement:
- integrative assessments with regard to energy use and greenhouse
gas emissions
- additional measures with regard to greenhouse gas emissions in
view of art. 193 TFEU?
(1) IPPC
Points of interest in view of better
implementation:
• Technical quality – proper language (translation) of
the directive itself
• Substantive quality of the directive it self:
- “is integration really doable?”
- “is prescribing “bat” (though BREFs) the right
approach”?
• National perception of the intention of the directive
• Exploring the real content: new insights emerge
(1) IPCC
Methodological observation
• Time, knowledge constraints for doing an empirical
study: how to get proper insight into the need of
integration, the usefulness of integration, and the
current practice?
• There is not yet any full ex post assessment study
on the way how integration functions in the IPPC
practice
(2) Environmental liability directive (ELD)
• First STEM project
• Short time basis, small budget, limited focus:
• How to implement the ELD, in which act?
• Who should be the competent authority?
(2) Environmental liability directive
findings
• No fit between environmental liability structure and Dutch
legislative structure
• No time / willingness on the national level for fundamental
legislative reform to do a proper implementation
• No time / willingness to consider a fundamental approach
towards improvement of environmental liability provisions
• Simple introduction into Dutch law: an extra layer in addition
to existing provisions
• Leading to “complification”
(2) Environmental liability directive
Points of interest in view of better
implementation:
• Environmental directive was meant as an horizontal approach,
adding teeth to existing directives like the IPPC directive
• Difficult implementation given existing national (horizontal)
enforcement and liability approaches
• If a directive introduces general provisions, it requires a
fundamental consideration on the national level :
consideration of existing national provisions in order to see
how they should be further elaborated in view of the ELD?
• A simple approach through adding an additional chapter /
layers complicates the national legal framework: no
integration, no coherence, further “complification”, and
frustration at the side of competent authorities?
Cross-cutting project:
The Environmental Management Act as
framework instrument to implement
European environmental law
(3a) Dynamic referral
• Dutch national legislator uses it a lot
in the EMA (Environmental Mamagement Act)
• But European legislator uses it as well
• Technique is bad for transparency of law
• And (possibly) frustrates legal certainty
Methodological observation
• Lack of an open debate with the Ministry: sensitive
point, no critical debate
• Very short, first overview, not much literature yet
• Moreover, how to solve the problem of
“integration” of new directives into your national
legislation?
(4b) The EMA as core implementation
instrument: framework
Recommendation:
 hard to uphold the national approach (integrated structure of
environmental legislation)
 national legislation should follow the different, more
fragmented structure of EU law
 scope of EMA should be broadened,
 EMA should offer more differentiation with regard to plans and
quality standards
 EMA should follow the terms and definitions of EU law
(4b) The EMA as core implementation
instrument
• Conclusion is very pragmatic from a national
perspective
• Need for a coherent approach at EU level
Methodological observation
• Study provides “best reasoning”, pragmatic
approch
• Fundamental question about division of
competence, structure of the whole body of
environmental legislation and choice of regulatory
instruments not discussed:
- is the EU regulating too less or too much?
- quality of EU legislation, structure of EU
legislation, choice of instruments
How to assess environmental law?
Piecemeal approaches
(a certain case, a certain directive)
Cross-cutting themes (implementation
requirements, procedural rights, enforcement
competences, legal certainty)
Overall assessment on the quality of
environmental law
Assessment of EU environmental law
Lack of overall policy about the development of the
structure of EU environmental law
Lack of common opinion in literature about the
structure of EU environmental law
The Commission intends to complement
evaluation of individual pieces of
legislation with more comprehensive policy
evaluations:
to identify “overlaps, gaps,
inconsistencies and obsolete
measures”
Quote from:
Integrated Industrial Policy 2010
Are we serving the need with our research?
1. Piecemeal approaches (important and
valuable, most easy to conduct)
2. Cross-cutting approaches
3. Overall assessment towards better
regulation?
The unmanageability of environmental law is an often
raised and pressing problem
Need for better regulation, but how to research that? Is the
full body of environmental law anyway comprehensible?