Environmental Policy in the EU: Actors, Institutions and Processes [4 ed.] 9781138392144, 9781138392168, 9780429402333

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“This book is so valuable. The next generation of politicians, business leaders and environmentalists need to understand the role of environmental policy, how it is made, and why it is so important for the future of humanity.” — Virginijus Sinkevičius, European Commissioner for Environment, Oceans and Fisheries “This volume is a true classic and one of the few ‘go to’ references on EU environmental policy. The editors mix perspectives in such way that the historical trajectory of EU policy making is connected to new challenges. This is a book that should be on everybody’s desk who has an interest in the topic.” — Hans Bruyninckx, Executive Director, European Environment Agency “This rich and insightful volume should be considered essential reading by lawyers and political scientists alike. With contributions by leading experts… it provides a one-stop shop for exploring the complex and evolving dynamics of EU environmental policy. Highly recommended!” — Joanne Scott, Professor of European Law, European University Institute “An indispensable resource to anyone interested in understanding how environmental policy in Europe is now being made and implemented.” — David Vogel, University of California “This new edition is a must-read for students of EU environmental policy. It contains a wealth of new material as well as concrete illustrations of some of Europe’s fagship policy initiatives.” — Céline Charveriat, Executive Director, Institute for European Environmental Policy

Environmental Policy in the EU

The European Union (EU) has a hugely important effect on the way in which environmental policies are framed, designed and implemented in many parts of the world, but especially Europe. The new edition of this leading textbook provides a state-of-the-art analysis of the EU’s environmental policies. Comprising fve parts, Environmental Policy in the EU covers the rapidly changing context in which EU environmental policies are made, the key actors who interact to co-produce them and the most salient dynamics of policy making, ranging from agenda setting and decision making, through to implementation and evaluation. Written by leading international experts, individual chapters examine how the EU is responding to a multitude of different challenges, including biodiversity loss, climate change, energy insecurity, and water and air pollution. They tease out the different ways in which the EU’s policies on these topics co-evolve with national and international environmental policies. In this systematically updated fourth edition, a wider array of learning features are employed to ensure that readers fully understand how EU environmental policies have developed over the last 50 years and how they are currently adapting to the rapidly evolving challenges of the twenty-frst century, including the COVID-19 pandemic. It is an essential resource for undergraduate and postgraduate students studying environmental policy and politics, climate change, environmental law and EU politics more broadly. Andrew Jordan is Professor of Environmental Policy in the Tyndall Centre for Climate Change Research at the University of East Anglia, UK. Viviane Gravey is Lecturer in European Politics in the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast, UK.

Environmental Policy in the EU Actors, Institutions and Processes Fourth edition

Edited by Andrew Jordan and Viviane Gravey

LONDON AND NEW YORK

Fourth edition published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Andrew Jordan and Viviane Gravey; individual chapters, the contributors The right of Andrew Jordan and Viviane Gravey to be identifed as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. With the exception of chapters 19 and 20, no part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Chapters 19 and 20 of this book are available for free in PDF format as Open Access from the individual product page at www.routledge.com. They have been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. First edition published by Earthscan 2002 Third edition published by Routledge 2013 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Jordan, Andrew, 1968– editor, author. | Gravey, Viviane, editor, author. Title: Environmental policy in the EU: actors, institutions and processes / edited by Andrew Jordan, Viviane Gravey. Description: Fourth edition. | Milton Park, Abingdon, Oxon; New York, NY: Routledge, 2021. | Includes bibliographical references and index. Identifers: LCCN 2020053311 (print) | LCCN 2020053312 (ebook) | ISBN 9781138392144 (hardback) | ISBN 9781138392168 (paperback) | ISBN 9780429402333 (ebook) Subjects: LCSH: Environmental policy—European Union countries—Case studies. | Environmental policy—International cooperation—Case studies. Classifcation: LCC GE190.E85 E575 2021 (print) | LCC GE190.E85 (ebook) | DDC 363.7/0561094—dc23 LC record available at https://lccn.loc.gov/2020053311 LC ebook record available at https://lccn.loc.gov/2020053312 ISBN: 978-1-138-39214-4 (hbk) ISBN: 978-1-138-39216-8 (pbk) ISBN: 978-0-429-40233-3 (ebk) DOI: 10.4324/9780429402333 Typeset in Times New Roman by codeMantra

Contents

List of boxes List of fgures List of tables List of contributors Foreword Preface Acknowledgements List of abbreviations 1 EU environmental policy: contexts, actors and policy dynamics

x xii xiii xiv xvi xviii xx xxi 1

A N DR E W JOR DA N , V I V I A N E G R AV E Y A N D CA M I L L A A DE L L E

PART 1

Contexts 2 The establishment of EU environmental policy

11 13

C H R I S T OPH K N I L L A N D DU NCA N L I E F F E R I N K

3 External EU environmental policy

33

K ATJA BI E DE N KOPF A N D L I SA N N E G ROE N

4 Studying EU environmental policy

51

A N DR E A L E N S C HOW

PART 2

Actors 5 The Council, European Council and member states

73 75

RÜ DIGE R K .W. W U R Z E L

6 The European Commission A L E X A N DE R BÜ RGI N

93

viii

Contents

7 The Court of Justice of the European Union

110

LU DW IG K R Ä M E R

8 The European Parliament

128

C H A R L O T T E BU R N S

9 Interest groups

147

NAT H A L I E BE R N Y A N D BR E N DA N MO OR E

PART 3

Policy dynamics

167

10 Agenda setting

169

SE BA S T I A A N PR I NC E N

11 Policy making

186

H E N N I NG DE T E R S

12 Policy integration

203

C L A I R E DU P ON T A N D A N DR E W JOR DA N

13 Policy implementation

220

A S YA Z H E LYA Z KOVA A N D E VA T HOM A N N

14 Policy evaluation

241

PE R M IC KW I T Z

15 The EU in international environmental negotiations

259

T OM DE L R EU X

PART 4

New challenges

277

16 Is the EU still committed to developing more sustainably?

279

REI N H A RD STEURER

17 Governing with multiple policy instruments?

299

BR E N DA N MO OR E , DAV I D BE N S ON , A N DR E W JOR DA N , RÜ DIGE R K .W. W U R Z E L A N D A N T HON Y Z I T O

18 Making EU environmental policy more legitimate? A N DR E A S HOF M A N N

317

Contents ix 19 New policy dynamics in more uncertain times?

334

V I V I A N E G R AV E Y A N D A N DR E W JOR DA N

PART 5

Conclusion

355

20 EU environmental policy at 50: retrospect and prospect

357

A N DR E W JOR DA N , V I V I A N E G R AV E Y A N D CA M I L L A A DE L L E

Index

375

Boxes

1.1 1.2 1.3 2.1 2.2

The founding treaties What is ‘the EU’? The formal aims, objectives and principles of EU environmental policy The 1972 United Nations Conference on the Human Environment Examples of environmental directives adopted before the Single European Act 3.1 EU biofuels policy: a generator of unintended external effects? 3.2 European Neighbourhood Policy: using multiple tools 4.1 Representing environmental interests in the EU’s multi-level polity 4.2 The competition to shape EU environmental policy 4.3 Dismantling: a new feature of the policy process? 5.1 Council formations since 2002 5.2 Contents page of the press release for the Environment Council on 19 December 2019 5.3 Voting in the Council after the Lisbon Treaty 5.4 The European Council’s role in the adoption of the 2020 climate and energy package 5.5 The European Council’s role in the EU’s proposals for the 2015 Paris Conference 6.1 The contested benefts of impact assessment 6.2 Working with EU agencies: the use of the EEA’s expertise 6.3 Improving air quality: a work in progress? 6.4 The Secretariat General’s flter function 7.1 What is the Court of Justice of the European Union? 8.1 The Greens in the European Parliament 8.2 Dieselgate and the Parliamentary Committee of Inquiry into Emission Measurements in the Automotive Sector 8.3 The isoglucose ruling 8.4 Visegrad MEPs and climate change and energy policies 8.5 The European Parliament and climate change 9.1 The transparency of lobbying practices: a timeline 9.2 Naming and shaming lobbying practices: some examples 10.1 Framing the issue of disposable plastics 11.1 A race to the top in car emissions policy? 11.2 The Just Transition Fund: compensating the losers from EU climate policy?

2 3 8 15 18 36 40 55 58 60 77 78 81 85 86 97 98 100 103 110 130 132 135 139 141 150 160 176 188 190

Boxes xi 11.3 EU policy: from a patchwork to a common policy style? 11.4 The Climate Law proposal: contested delegation in EU climate policy 11.5 Transnational policy making by stealth: lights out for incandescent bulbs? 12.1 What is the aim of policy integration? 12.2 Different instruments of environmental policy integration 12.3 The European Green Deal: a new opportunity to advance policy integration? 12.4 Defning and measuring the political commitment to policy integration 13.1 The Dieselgate saga 13.2 The customisation of EU policies: two examples 13.3 EU policies that directly address implementation challenges 14.1 Evaluating integrated pollution control 14.2 Which actors evaluate policies in the EU? 14.3 Which evaluation criteria are most commonly used? 14.4 More than one evaluation method is often used, but there is room for improvement 14.5 To what extent does the public participate in policy evaluation? 15.1 The EU in international negotiations: ‘on the spot’ coordination 15.2 International climate negotiations: from failure in Copenhagen to success in Paris? 16.1 Sustainable growth and other similar concepts 16.2 The circular economy: an old idea rediscovered by the EU? 16.3 What is the bioeconomy? 16.4 The various integrative environmental principles and concepts employed by the EU 17.1 The main categories of policy instruments 17.2 To what extent is the EU a regulatory state? 18.1 European integration: from ‘permissive consensus’ to ‘constraining dissensus’? 18.2 The challenge of allocating the costs of climate change mitigation 18.3 Three core conceptions of democracy 18.4 Public access to information: the Aarhus Convention 18.5 Public participation in practice: the Water Framework Directive 18.6 The European citizens’ initiative 19.1 Where next for EU air quality policy? 19.2 Where next? Five possible EU futures 19.3 Brexit and the environment: the 2019 Political Declaration

192 196 197 205 206 210 212 226 230 234 244 249 250 251 252 266 269 285 288 291 293 300 304 319 320 321 324 325 326 339 340 349

Figures

2.1 9.1 11.1 13.1 13.2 13.3 13.4 13.5 16.1 16.2 17.1 19.1 19.2 19.3

EU environmental legislation 1970–1987: the reliance on Articles 100 and 235 of the Treaty of Rome Interest groups in the EU’s Transparency Register EU environmental policy: administrative and legislative measures adopted per year, 1970–2020 Policy outputs, outcomes and impacts: emission limits for vehicles Member states: conformity with the requirements of environmental directives, 2007–2013 Member state compliance in three policy areas The customisation of EU environmental policy requirements in old and new member states Environmental infringements per member state, 2019 Environmental policies within ‘Europe 2020’ Climate policy integration at EU level: three target periods EU climate change policy instruments in force, 1990–2019 EU environmental policy in 2020 – legal types and responsible institutions The density of EU air quality policy, 1980–2020 EU environmental policy: the fall in legislative output, 1999–2020

17 153 195 222 227 229 230 231 285 286 307 337 338 343

Tables

1.1 3.1 5.1 6.1 7.1 8.1 8.2 8.3 8.4 9.1 9.2 10.1 13.1 15.1 16.1 16.2 16.3 17.1 17.2 19.1 19.2 19.3 19.4

Signifcant treaty changes affecting EU environmental policy The EU’s external environmental policy toolbox Six-monthly Council Presidencies, 2015–2025 Staff numbers in a selection of Commission DGs (as of 2019): a comparison The duration of CJEU procedures in environmental cases initiated in the years 2016–2019 (in months, fgures rounded) The composition of the European Parliament, April 2020 Greens/EFA in the European Parliament, July 2020 Membership of the Environment Committee by political group, April 2020 The ordinary legislative procedure EU business groups that seek to infuence EU environmental policy (by staff size) Brussels-based environmental interest groups ranked (by staff size) A sample of COM documents from DG Environment (published between 1 January and 30 June 2019) EU policy implementation: actors, processes and criteria Major multilateral environmental agreements to which the EU is a party Key events in the EU’s pursuit of sustainable development Overview of Climate Policy Integration, circular economy and bioeconomy as guiding concepts of EU environmental policy-making Overview of climate policy integration, circular economy and bioeconomy as guiding concepts of EU environmental policy making Instrument types in EU climate change policy (1990–2019) EU climate change policy: major policy instruments, 1990–2019 The contents of the EU’s environment enlargement chapter Four typical criticisms of EU environmental policy Four policy dismantling strategies The dynamics of EU environmental policy making: three competing characterisations

4 40 82 96 113 129 131 134 137 154 155 182 223 261 282 283 290 308 310 338 340 342 343

Contributors

Camilla Adelle is Senior Fellow at the Centre for the Study of Governance Innovation, University of Pretoria, South Africa. David Benson is Associate Professor in Politics at the Environment and Sustainability Institute, University of Exeter, Penryn, UK. Nathalie Berny is Professor of Environmental Politics at Sciences Po, Rennes, France. Katja Biedenkopf  is Associate Professor of Sustainability Politics, LINES – Leuven International and European Studies institute, KU Leuven, Belgium. Alexander Bürgin  is Associate Professor in the Department of Political Science and International Relations, Izmir University of Economics, Turkey. Charlotte Burns  is Professor of Politics and Director of the White Rose Doctoral Training Partnership, University of Sheffeld, UK. Tom Delreux  is Professor of Political Science, Institut de Sciences Politiques Louvain-Europe, UC Louvain, Belgium. Henning Deters  is a university assistant at the Centre for European Integration Research, Universität Wien, Austria. Claire Dupont is Assistant Professor of European and International Governance, University of Ghent, Belgium. Viviane Gravey  is Lecturer in European Politics in the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast, UK. Lisanne Groen is a postdoctoral researcher at the Open University of the Netherlands, Heerlen, Netherlands. Andreas Hofmann  is a researcher at the Center for European Integration, Otto Suhr Institute for Political Science, Free University of Berlin, Germany. Andrew Jordan is Professor of Environmental Policy in the Tyndall Centre for Climate Change Research at the University of East Anglia, UK. Christoph Knill is Professor of Empirical Theories of Politics, Department of Political Science, Ludwig-Maximilians University, Munich, Germany.

Contributors xv Ludwig Krämer  was, for more than 30 years, a judge in Germany and an offcial in the environmental department of the European Commission. He now works as an environmental legal consultant. Andrea Lenschow is Professor of European Integration and Policy in the Department of Social Science, University of Osnabruck, Germany. Duncan Liefferink is Assistant Professor in Environmental Policy at the Radboud University Nijmegen, Netherlands. Per Mickwitz is Head of Department at the International Institute for Industrial Environmental Economics, University of Lund, Sweden. Brendan Moore is Senior Research Associate in the ESRC Centre for Climate Change and Social Transformations (CAST), University of East Anglia, Norwich, UK. Sebastiaan Princen is Associate Professor in the feld of governance and policy making in the European Union, University of Utrecht, Netherlands. Reinhard Steurer  is Associate Professor at INFER, the Institute of Forest, Environmental and Natural Resource Policies at BOKU Vienna, Austria. Eva Thomann  is Senior Lecturer in Public Policy and Public Administration at the Department of Politics, University of Exeter, UK. Rüdiger K.W. Wurzel is Professor of Comparative European Politics and Jean Monnet Chair in EU Studies, University of Hull, UK. Asya Zhelyazkova  is Assistant Professor in the Department of Public Administration and Sociology, Erasmus University Rotterdam, Netherlands. Anthony Zito  is Professor of European Public Policy in the Department of Politics, University of Newcastle, UK.

Foreword

We live in interesting times. Our generation faces a new convergence of environmental crises. Our world is warming at a speed which raises the risk of a global catastrophe. Our consumption of fnite resources is constantly expanding. The ecosystems on which we depend are being degraded. And many species are threatened with extinction. Few people are unaware of at least some of these issues. There has been no shortage of warnings, newspaper articles, documentaries or protests. The public largely agrees that something needs to be done. And yet we are not doing enough to tackle these issues. Why could this be? For the answers, we can look to two elements in particular: individual behaviour and governance. Many individuals believe that their actions can change the world, and if humankind did take collective action, there is no doubt that signifcant change would ensue. But spontaneous change on the scale required is unlikely in the extreme. By 2045 we will be 9 billion on this planet, with all the demand that places on land, water, food, feed, fbres and energy, and the emissions, pollution and waste generated by that demand. The implications for resource use, climate change and biodiversity are extremely serious. While education is important, and it is reasonable to hope that many individuals will take responsibility for the environmental consequences of their actions, and corporate responsibility will grow, it is diffcult to overcome human nature. It may be naive to assume that 9 billion people will make signifcant changes to their behaviour on a voluntary basis. Hence the importance of governance. Our planet demands signifcant modifcations in the behaviour of companies and citizens. That new path needs to be traced at a governmental level, with enabling conditions to facilitate the change. Governments have the power to shape market forces and remove subsidies that harm the environment. They are in a position to develop taxonomy. They can use their massive purchasing power to green public spending, and they can act to change the quality of investments. The public sector can catalyse investments and establish the appropriate regulatory conditions. It can set out the conditions that defne sustainable economic activities, prioritising those that make a substantial contribution to climate and environmental policy objectives, without harming other goals, making everything more transparent for investors and easing the fow of private fnance. There is reason for hope. The path to economic well-being and environmental sustainability is one and the same. Mankind has an astonishing capacity for creativity and innovation. The

Foreword xvii challenge for our time is repurposing these capabilities, ensuring that they include sustainability and rolling out the benefts for a global population while using fewer resources and lowering environmental pressure and damage. It will take more than technological development and innovation. It will also require new business models that decrease impacts across the whole life cycle of products. It means learning to share, re-use, update, repair and recycle. And above all, it means moving from a linear economic model, where we extract, produce, use and throw away, to a more circular model, where waste from one stream becomes the raw materials for another. Our current model locks us in to resource-intensive ways, to old industrial patterns of production and consumption. We need change on many fronts – from our infrastructure to our fnancial systems, from our consumer habits to the business models we inherited from the industrial revolution. In the EU, this starts with the European Green Deal, our blueprint for transformative change. The European Green Deal has the potential to deliver systemic change across the economy, society and industry. It encompasses everything from hazardous chemicals to deforestation and pollution to emissions trading. It’s a deal to boost renewable energy, improve energy effciency and reform energy taxation. And we are attempting to persuade the rest of the world to follow suit. We have to address the prevailing short-term logic which is built into our systems. We cannot manage the world of the twenty-frst century without taking into account the longer-term picture and consequences. That is why this book is so valuable. The next generation of politicians, business leaders and environmentalists needs to understand the role of environmental policy, how it is made and why it is so important for the future of humanity. These policies are our only future. Virginijus Sinkevičius European Commissioner for Environment, Oceans and Fisheries Brussels, October 2020

Preface

If ‘a week is’, to use former UK Prime Minister Harold Wilson’s well-known phrase, ‘a long time in politics’, then the eight years which have elapsed since the publication of the third edition of this book, in 2013, seem like an eternity. A huge amount has changed in the European Union (EU). It weathered the post-2008 fnancial crisis, absorbed millions of new immigrants from the South and the East, adapted to the new procedural requirements embedded in the 2009 Lisbon Treaty and, for the frst time, unexpectedly lost a member country – the United Kingdom – as a result of Brexit. What about the EU’s environmental policy? Does it exhibit the same sense of crisis-driven change? On the face of it, no. In many ways, it is no longer the energetic and slightly unpredictable policy sector that it once was. In fact, many chapters in this new edition confrm that it has settled even more deeply into a predictable pattern of development, underpinned by institutional norms, taken for granted procedures and, of course, lots and lots of detailed rules. Mature and more settled, yes, but entirely static? Almost certainly not. The EU has continued to produce new environmental policies and engage with new political dynamics that have sometimes interacted in unforeseen and unexpected ways. A raft of climate and energy policies emerged in the mid- to late 2010s. A massive framework of new policies – christened a ‘European Green Deal’ – was launched by a new Commission President, Ursula von der Leyen, which may re-set the terms of the political debate in Brussels for years to come. Existing policies are being systematically evaluated and, where necessary, updated to refect new scientifc understandings and technological possibilities. And the Parliament has further extended its infuence over more aspects of national and EU-level policy development. But what has really changed since the publication of the third edition is the wider political and economic context in which the EU processes all its policies, including those addressing the environment. Politically, the EU remains in a period of great uncertainty. Populist parties and populist issues are still on the rise, and the steady grip enjoyed by the largest political parties over the activities of the European Parliament has loosened even more. Green parties unexpectedly enjoyed unprecedented gains in the 2019 European elections, followed by a series of school strikes which pushed climate change even further up the EU’s political agenda. Nevertheless, the public as a whole remains sceptical of the EU, even willing to challenge its very existence, typifed by the shock 2016 referendum vote which led to the UK departing the EU in 2020. Until that point, the EU had only ever expanded; for the frst time in its history, it shrank. In the mid-2010s, the EU found itself in the eye of an intense storm, trying desperately to mediate between catastrophically indebted member state economies

Preface

xix

and international fnancial markets. For the very frst time, the very existence of the Euro – and with it the EU itself – was openly questioned. Until then, this issue was strictly taboo. Finally, in 2020, after a ten-year period of economic austerity in Europe which strained the bonds of European integration almost to breaking point, the EU was hit by the COVID-19 global pandemic, which triggered another sudden economic contraction within the Eurozone and resulted in a surge in unemployment. Together, these changes in the wider context have rudely confrmed some basic facts about the EU that had hitherto been hidden: that it is, au fond, an elite project; that its popularity is ultimately sustained not by strong environmental policies but by continuing economic growth and prosperity; and that there are hard political limits to an ‘ever closer Union’. On the face of it – and despite the mounting evidence that many aspects of the natural environment is in crisis – these are still hard times for those pushing for stronger environmental protection measures. Many of the chapters in this new edition reveal that some of the hard-won policy gains of the past are under unprecedented pressure as, once again, economic issues become more politically salient. However, they also identify some unexpected opportunities for those who are willing and able to exploit them. For example, the adoption of the 2015 Paris Agreement has given those advocating complete decarbonisation (‘net zero’) greater political leverage, as has the public’s support for much stronger climate and energy policies. Post-COVID, those who can show that environmental protection has an immediate economic payoff may prosper. The new bilateral trade deals that the EU is trying to negotiate with its trading partners, including, of course, the UK, are providing an opportunity for member states to re-commit themselves to pursue high environmental standards internally as well as externally, perhaps delivered via radically different types of policy instruments, such as border adjustment taxes. One way or another, these are very interesting times for those pursuing and/or wishing to understand EU environmental policy. Putting together the fourth edition of this book has proved to be both hugely stimulating and challenging. Nine of the 20 chapters are either completely new or have been systematically re-written by new author teams. All 20 employ a wider array of pedagogical devices such as summary guides, lists of key learning points, guides to further reading, fgures, tables, boxes and specimen exam questions. Together, we think they offer a uniquely systematic treatment of the most relevant contexts (Part 1), actors (Part 2) and policy dynamics (Part 3) of EU environmental policy.

Acknowledgements

We have incurred a number of debts in producing this textbook. Anabelle Harris, our Editor at Taylor & Francis, originally encouraged us to embark upon a fourth edition. Her colleagues, Hannah Ferguson and Matt Showbrook, greatly assisted us in bringing the book to fruition. Virginijus Sinkevičius, European Commissioner for Environment, Oceans and Fisheries, very kindly agreed to write the Foreword. We would also like to acknowledge the support of the ESRC CAST Centre and the GOVTRAN network of excellence for supporting Andrew’s contribution. GOVTRAN, which is an an Erasmus+ network funded by the EU, also kindly provided the funding to make parts of the book open access. This is an entirely new edition of this book. Around a third of the chapters did not appear in the third edition, and the rest have been systematically updated to cover the period through to the end of 2020. There are roughly twice as many boxes, fgures and tables as there were in the third edition. The other pedagogical features – such as the summary points and student questions – have been revised and updated. We are immensely grateful to all the contributors who responded promptly and cheerfully to our numerous and extensive comments and requests, even during the COVID-19 crisis, when many of the chapters were still in draft form. We hope you learn as much from reading their chapters as we have. Without them, this new edition would simply never have come to fruition. Andrew Jordan, Norwich Viviane Gravey, Belfast November 2020

Abbreviations

ACEA European Car Manufacturers Association ACEI Alliance for a Competitive European Industry CAN Europe Climate Action Network Europe CAP Common Agricultural Policy CBD Convention on Biological Diversity CEE Central and Eastern European countries CEO Corporate Europe Observatory CFP Common Fisheries Policy CJEU Court of Justice of the European Union COP Conference of the Parties COPA-COGECA Comité des organisations professionnelles agricoles-Comité général de la coopération agricole de l'Union européenne (Committee of Professional Agricultural Organisations-General Confederation of Agricultural Cooperatives) COREPER Comité des représentants permanents (Committee of Permanent Representatives) DG Directorate General DG CLIMA Directorate General Climate Action DG ENTR Directorate General Enterprise DG ENV Directorate General for the Environment (formerly ‘DG XI’) EAP Environmental Action Programme EC European Community ECR European Conservatives and Reformists Group EEA European Environment Agency EEAS European External Action Service EEB European Environmental Bureau EEC European Economic Community EENF Environmental Evaluators Networking Forum ENDS Environmental Data Services ENVI Committee of Environment, Public Health and Food Safety EPI Environmental policy integration ETS Emissions Trading System EU European Union FOEE Friends of the Earth Europe GDP Gross domestic product Greens/EFA Group of the Greens and European Free Alliance

xxii Abbreviations HEAL IA IEEP IMPEL IPCC LCD MEP MFF NEPI NGO OECD OLP QMV REACH REIO S&D SDG SDS SEA TEU TFEU UK UN UNCED UNEP UNFCCC US WPE WPIEI WWF

Health and Environment Alliance Impact Assessment Institute for European Environmental Policy Network for the Implementation and Enforcement of Environmental Law Intergovernmental Panel on Climate Change Lowest Common Denominator Member of the European Parliament Multiannual Financial Framework ‘New’ Environmental Policy Instrument Non-governmental organisation Organisation for Economic Co-operation and Development Ordinary legislative procedure Qualifed majority voting Registration, Evaluation, Authorisation and restriction of Chemicals Regional Economic Integration Organisation Group of the Progressive Alliance of Socialists and Democrats Sustainable Development Goal Sustainable development strategy Single European Act Treaty on European Union Treaty on the Functioning of the European Union United Kingdom United Nations UN Conference on Environment and Development United Nations Environment Programme United Nations Framework Convention on Climate Change United States Working Party on the Environment Working Party on International Environmental Issues World Wide Fund for Nature

1

EU environmental policy Contexts, actors and policy dynamics Andrew Jordan, Viviane Gravey and Camilla Adelle

Summary guide At its founding in 1957, the European Union (EU) had no environmental policy, no environmental administration and no environmental laws. Today, the EU has some of the most ambitious environmental policies in the world. The central aim of this book is to provide an introduction to the history and constituent institutions of EU environmental policy, to explain how it makes and implements different types of environmental policy and to introduce some of the most salient academic debates about its past, present and future role. This chapter introduces the rest of the book. It explains how Part 1 describes the emergence of policy over the past 50 years and Part 2 introduces the main actors. The manner in which these actors interact to shape specifc items of EU policy is summarised in Part 3. Part 4 explores a number of problems that are likely to challenge the EU as it moves forward. Finally, Part 5 refects on how the aims and processes of EU environmental policy have changed over the course of the past 50 years and looks forward to the next phase in its development.

Introduction At its founding in 1957, the European Union (EU) had no environmental policy, no environmental administration and no environmental laws. The European Economic Community (EEC), as it then was, was essentially an intergovernmental agreement between six like-minded states to boost economic prosperity and restore political relations in a Europe ravaged by two world wars. Most of the environmental policies of the EU have emerged only in the past 50 years or so. Today, the EU has some of the most ambitious environmental policies of any state in the world, although, curiously, it does not possess many of the formal attributes of a state, such as an army, a common system of taxation or a written constitution. The central aim of this book is to provide an introduction to the history and constituent institutions of EU environmental policy, to explain how the EU makes and implements different types of environmental policy and to introduce some of the most salient academic debates about the past, present and future role of environmental policy in Europe and the wider world. Understanding how the EU acts on the environment is important as EU environmental policy heavily shapes, and is signifcantly shaped by, international environmental policies such as those on climate change and DOI: 10.4324/9780429402333-1

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Andrew Jordan et al.

biodiversity conservation. Furthermore, not only is the EU an active disseminator of high environmental standards globally, it also heavily affects – or Europeanises  – those in its own member states. Arguably, it is impossible to explain environmental policy within Europe or internationally without a solid understanding of the aims, objectives, processes and outcomes of EU environmental policy. This book aims to help you to better understand and appreciate its role: frst, by examining the wider context in which the EU makes policy (the historical background, the formal rules and legal procedures, etc.); second, by summarising the main actors that interact with one another to shape and implement it; and third, by examining the policy dynamics through which different ideas and political interests are translated frst into concrete policies and then, perhaps eventually, tangible improvements in environmental quality. The chapters of this book view these issues from a range of different perspectives. Thus, Part 1 (‘Contexts’) describes the emergence of this particular policy area over the past 50 years, how the EU’s environmental action developed in a complex international operating environment and the underlying institutional structures and rules governing its operation, as elaborated in the founding treaties (see Box 1.1). A myriad of different actors (some state-based, some non-state-based) work within these rules and procedures to secure their preferred policy objectives. These actors are summarised in Part 2 (‘Actors’). They are shown to have different goals (or interests), different resources and to operate at different levels of governance. The manner in which they interact on a day-by-day basis to shape specifc items of EU policy is summarised in Part 3 (‘Policy dynamics’). Part 4 (‘New challenges’) explores a number of problems (some relatively new, others that frst emerged many years ago) that are likely to challenge the EU as it moves forward. Finally, Part 5 (‘Conclusions’) refects on what has been learnt about the functioning of EU environmental policy in the past 50 years and looks forward to the next phase in its development.

Box 1.1 The founding treaties ‘The founding treaties’ is a term often heard in debates about the EU. They are the legal agreements that created the EU and which, crucially, formally establish its powers and procedures. There is not a single treaty but a series of treaties which build upon one another. They include the Treaty of Paris (establishing the Economic and Steel Community) and the two Treaties of Rome: one establishing the European Atomic Energy Community (Euratom), the other the European Economic Community (EEC). The 1957 Treaty of Rome that established the EEC has been revised several times by, inter alia, the Single European Act (SEA), the Amsterdam Treaty and the Lisbon Treaty (signed in 1986, 1997 and 2009, respectively). In 2009, the Treaty of Rome was re-named the Treaty on Functioning of the European Union, and is one of two Treaties framing the EU’s work today (alongside the Treaty on European Union [TEU], frst signed in Maastricht in 1992 and amply revised since). These treaties establish, in very broad terms, the roles of the various actors in the EU. This is extremely important to understand because the EU is not a sovereign state: it is only allowed to discharge policy powers that have been expressly allocated to it by its member states via the founding treaties. The text of particular environmental directives and regulations will always, for example, note which article of the treaties permits the EU to act.

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The whole question of the EU’s competences is deeply political. Many cases brought before the Court of Justice of the EU turn on the precise legal base (or power) of the EU to act in a given area (see Chapter 7). But these powers are not set in stone; they change subtly over time in the period between treaty amendments, as different actors jockey for infuence. Environmental policy provides a perfect case study of how policy powers can initially develop outside the formal treaty framework and then be gradually drawn into them.

This book assumes no prior knowledge of the EU, but those who are entirely new to the subject or who require a more detailed review of its history, law and institutions, may wish to consult some of the items listed in the Guide to Further Reading section at the end of this chapter. Before moving on, it is important to pause and refect a little on what the term ‘EU’ actually denotes, as it can cause confusion. This is the subject of Box 1.2.

Box 1.2 What is ‘the EU’? The EU has been variously described as a system of multi-level governance, a political system and a federal state in the making, and a union that is ‘always in the process of becoming’ (Laffan et al., 2000: 193). ‘What is the EU?’ is therefore a somewhat existential question. But what does the term ‘the EU’ refer to? Until the ratifcation of the Single European Act (SEA, the EU was offcially known as the European Economic Community (EEC). The SEA offcially re-christened this entity the European Community (EC), a term which remained in popular use until 1992 when the Maastricht Treaty created the European Union with a new, three-pillar structure: one comprising the EC; another covering foreign and security matters; and a third dealing with justice and home affairs. Strictly speaking, the term ‘EU’ only applies to events after 1992. However, most people now use the acronym ‘EU’ to describe its entire history and all its policy responsibilities. For the sake of convenience, in this book, the term is used to cover all the activities before and after 1992, unless otherwise specifed. In general, and unless otherwise specifed, the text of this book also refers to the articles of the most recent treaty, the 2009 Lisbon Treaty.

The rest of this chapter introduces the remaining chapters of the book and begins to identify some analytical questions and puzzles that resonate throughout the text; ones that we shall eventually return to in the concluding chapter.

Part 1: Contexts Chapter 2, by Christoph Knill and Duncan Liefferink, seeks underlying explanations for the startling transformation of this policy area from what were termed a series of ‘incidental measures’ (Hildebrand, 2005) to a sophisticated, multi-level governance system in which policy-making powers are shared between supranational, national

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and subnational actors. One of the questions that they dwell on is how such a transformation occurred, given the unfavourable legal and institutional pre-conditions which existed in the late 1960s. It does seem remarkable today, but the word ‘environment’ was not even mentioned in the Treaty of Rome. Their analysis reveals that policy makers, acting without any legislative authority, cleverly defned environmental policy as a sub-element of trade policy. In time, EU environmental policy did not simply emancipate itself from the economic and market integration policies of the EU, but began to affect the functioning of the internal market (Weale, 2005). Since 1957, there have been numerous treaty changes which have substantially strengthened the EU’s environmental powers (see Table 1.1). In effect, Knill and Liefferink show why the formal wording of the EU’s founding treaties offers an important but incomplete insight into EU policy making dynamics in a given area.

Table 1.1 Signifcant treaty changes affecting EU environmental policy Year signed

Year in force

Treaty

Changes affecting environmental policy

1957 1986

1958 1987

Rome Single European Act

1992

1993

Maastricht

1997

1999

Amsterdam

2001

2003

Nice

2007

2009

Lisbon

No mention of environment Environmental Title added Article on environmental policy integration added Qualifed Majority Voting (QMV) for the internal market ‘Sustainable growth respecting the Environment’ becomes one of the tasks of the Community (Article 2) Environment Title strengthened to include mention of ‘precautionary principle’ Integration Article (Article 130r) was reinforced. The number of policy areas where the Council could adopt environmental legislation using QMV was extended. Co-decision strengthened the role of the European Parliament in developing environment policy. Article 2 strengthened so that ‘Sustainable development of economic activities’ made an explicit objective of the EU. Integration Article given more prominence (Article 6). Co-decision becomes the normal process for agreeing environment policy. QMV changed to establish a double majority of member states and votes cast. Environment Title (174–176, TEC) substantively unchanged but numbering changed (now Articles 191–193, TFEU). Integration Article now Article 11. Article 2 strengthened so that the EU shall work for the ‘sustainable development of Europe’ and the ‘sustainable development of the Earth’ (now Article 3, TEU).

Source: Based on Farmer (2011).

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Chapter 3, by Katja Biedenkopf and Lisanne Groen, offers a different perspective on the historical evolution of EU environmental policy, showing how, over time, it has also sought to mitigate some of the environmental effects generated outside the EU’s borders. They reveal that over the course of the last 50 years, the EU has actively engaged in multilateral negotiations (chiefy within the UN) and developed a suite of tools to shape its bilateral and plurilateral relationship with other parts of the world. By drawing on examples from contemporary areas of policy making such as climate change and biodiversity protection, they reveal the progress that the EU has made and the numerous challenges that lie ahead. In Chapter 4, Andrea Lenschow completes this contextual overview of the evolution of the EU’s intern al and external environmental policies by exploring how both have been studied by academics over the last 50 years. This proves to be a highly illuminating exercise. She shows how academics have addressed a number of very salient questions: how and why this particular sector frst developed as a policy area; why the EU selects certain kinds of governing instruments but not others; and why we know surprisingly little about the performance of the EU’s policies in ameliorating policy problems.

Part 2: Actors Throughout the 1970s and early 1980s, items of EU environmental policy were agreed by the Council of Environment Ministers on the basis of proposals submitted by the Commission. In the 1980s, this bilateral arrangement gradually gave way to a more diffuse web of activities centred on a set of trilateral links between the Council, the Commission and the European Parliament. Matters which had been successfully contained in discrete intergovernmental committees of national bureaucrats and state-sponsored scientists began to leak out, energising national and international pressure groups, disrupting national practices and exciting public interest and the attention of Heads of State and Government in the European Council. What had been a relatively short cast list of actors over time became steadily longer and longer as the political importance of ‘Brussels’ began to grow. The chapters in Part 2 focus on some of the most important actors who, together, ‘make’ EU policy. These include, frst and foremost, the member states, which of course originally established the EU. In Chapter 5, Rüdiger Wurzel describes the central role they perform in the various councils which exist to determine policies. He shows that in the past, EU environmental policy was heavily shaped by greener (or ‘leader’) states such as Germany, the Netherlands and Denmark, pushing the EU to adopt standards that were as high if not higher than their own, national standards. Having already adopted high standards in their own territories for domestic reasons, these states had an obvious incentive to share the political and economic pain (as well as reap ‘frst mover’ advantages) by ‘exporting’ them to other, less environmentally ambitious (or ‘laggard’ states). But he questions whether the division between ‘leaders’ and ‘laggards’ is as stark as it used to be, given, for example, the tendency for states to adapt their preferences and bargaining tactics as a result of their membership of the EU (‘Europeanisation’). The next three chapters in Part 2 introduce the other main institutions of the EU, namely: the European Commission (Chapter 6, by Alexander Bürgin); the European Court of Justice (Chapter 7, by Ludwig Krämer); and the European Parliament

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(Chapter 8, by Charlotte Burns). Part 2 also extends the analytical focus of the book to include the most important civil society actors, namely interest groups (Chapter 9, by Nathalie Berny and Brendan Moore).

Part 3: Policy dynamics Putting these different actors alongside the rules and institutions described in Part 1 produces an extremely complicated picture, which does not neatly correspond to any commonly accepted plan of national policy systems. The main aim of Part 3 is to make greater sense of the whole by looking at each stage of the policy process in turn, running from agenda setting through to policy evaluation. In Chapter 10, Sebastiaan Princen begins by investigating the frst of these stages – the one in which problems ‘out there’ are perceived and made sense of, and political agendas to act are ‘set’. After discussing the different types of agenda that can be discerned at EU level, he presents a framework for understanding agenda-setting processes. One of the many puzzles he tries to unpick is why issues come onto the EU agenda at the time they do, and what kinds of challenges and opportunities actors face when they try to bring an issue to the EU agenda. Next, Chapter 11 (by Henning Deters) explores the stage at which policies are formally discussed and eventually adopted. The existing literature suggests that this process is too densely populated with veto players (i.e., actors whose views have to be taken into account) for any single actor or group of actors (including, it should be said, member states) to consistently dictate the direction of policy making. More often than not, EU policies are ‘the aggregated and transformed standards of their original champions modifed under the need to secure political accommodation from … powerful veto players’ (Weale, 2005: 136), i.e., the resulting picture resembles less a grand master plan imposed from the top down and more a blend of many different elements  – in short, a complicated ‘policy patchwork’ (Héritier, 2002). The mismatch between this patchwork and the pre-existing policies of the 27 member states creates the ideal conditions for Europeanisation – the process through which EU-level policies affect domestic systems. The picture that has emerged from academic studies (summarised in Chapter 4) is one of differential Europeanisation. In other words, every state appears to have been affected by EU membership, even the so-called leader states that constructed EU policy in the frst place. In spite of what we may sometimes read about in the press, more multi-levelled forms of environmental governance in the EU have not created more uniform environmental governance (Jordan and Liefferink, 2004; Weale et al., 2000: 468). Thus, a greater role for ‘Brussels’ in everyday policy making has not yet produced a single model of policy at the national level. One perennial challenge that typically emerges at this particular stage of the policy process is how to ensure that policies in different sectors pull in the same direction. In Chapter 12, Claire Dupont and Andrew Jordan show that the EU has made significant efforts to achieve more effective policy coordination, that is, to integrate environmental thinking into the operation of all policy sectors. The puzzle that they try to understand is why the EU has adopted such an ambitious position in relation to environmental policy integration, when its implementing capacities remain very limited. In doing so, they highlight another paradoxical feature of the EU – that its fragmented institutional and political structure, on the one hand, facilitates the adoption of visionary policy objectives, but, on the other, actively undermines their implementation. In a sense, the same paradox re-appears in the next stage – policy implementation.

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In Chapter 13, Asya Zhelyazkova and Eva Thomann explain how and why the full implementation of policy in the EU remains not just problematic, but impossible to achieve. A whole host of solutions have been offered at one time or another, some of which could, if deployed, end up compounding the problem. But in many respects, the causes of poor (or at least imperfect) implementation reside in the very structure of the EU. Consequently, there are, they conclude, likely to be no panaceas. This takes us to the hoary debate about policy evaluation – the focus of Chapter 14. The importance of subjecting all policies to a full post-adoption (‘ex post’) evaluation is an intuitively simple and appealing one. But in practice, Per Mickwitz reveals that this ideal proves to be a lot more complicated to live up to when policy powers are divided vertically and horizontally. There are a whole host of technical reasons why attributing impacts to specifc policies is challenging; there are also many political reasons why the EU lacks a well-established culture of policy evaluation: states, for example, do not take kindly to having their policy failings aired in public. Our discussion thus far may have given the false impression that EU policy has been mostly unaffected by external events. In fact, a far larger proportion of EU policy derives from international-level discussions than is commonly thought (a point also made in Chapter 3). What does this entail? First and foremost, it involves EU-level actors (chiefy the Commission and the Presidency of the Council) working alongside the member states in international discussions. Chapter 15 by Tom Delreux gives an overview of the EU’s status as a partner in international environmental negotiations. In seeking to understand how the EU functions internally when it acts externally in international environmental negotiations, he reveals how the internal division of competences directly affects both the nature of external representation and the internal coordination processes within the EU. He also notes that the drive to give the EU an international environmental face has, in turn, boomeranged back into the EU and affected its internal policies via a process which is rather analogous to the internal process of Europeanisation (see above). This ‘outside–inside’ dynamic adds another dimension of complexity to the dynamic, patchwork nature of EU environmental policy.

Part 4: Future challenges The chapters in Part 4 examine some of the most salient policy challenges that are likely to arise in the future. The frst challenge is a rather fundamental one – identifying and agreeing upon the underlying purpose and strategic direction of the EU. The immediate aims of EU environmental policy may be clearly and succinctly stated in the Lisbon Treaty (see Box 1.3). But the ultimate, long-term purpose of the EU has always been left tantalisingly ill defned. In the founding treaties, the purpose is to achieve ‘an ever-closer Union amongst the people of Europe’. What kind of union that should be has never been defnitively determined (hence the continuing political debate about whether it is or may eventually evolve into a federal state). In fact, the ultimate purpose of European economic and political integration – the end point of Laffan et al.’s ‘process of becoming’ (2000: 193) – has not been fully decided upon either. In Chapter 16, Reinhard Steurer explores the extent to which the UN-backed principle of sustainable development – that is, economic development that is socially inclusive and within environmental limits – offers a suitable objective for the EU to aim at, both internally and in its interactions with other parts of the world.

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Box 1.3 The formal aims, objectives and principles of EU environmental policy Article 3.3 TEU: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. …’ Article 21.2 TEU: ‘The Union shall defne and pursue common policies and actions, and shall work for a high degree of cooperation in all felds of international relations, in order to: (…); (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (…) (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (…)’ Article 11 TFEU: ‘Environmental protection requirements must be integrated into the defnition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. Article 191 TFEU: ‘1. Union policy on the environment shall contribute to pursuit of the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; prudent and rational utilisation of natural resources; promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change’. Article 191 TFEU: ‘2. (…) shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectifed at source and that the polluter should pay (…)’.

The second challenge relates to the main policy instruments that the EU should employ to achieve its objectives. The EU’s signifcant role in shaping the overall goals of national environmental policy in Europe should by now be rather obvious. In contrast, its role in determining the choice of implementing instruments used at EU level – be that regulation or taxation – is not nearly as well understood; an omission which Brendan Moore and his colleagues address in Chapter 17. They show that the EU mainly pursues its environmental policy objectives by using regulatory instruments, in part because the founding treaties constrain its ability to engage in policy instrument innovation. Although it has broken free of some of these constraints and adopted a number of ‘New’ Environmental Policy Instruments (NEPIs) such as emissions trading, policy makers are more likely to govern with a wider range of instruments at national than EU level. There is also an even more daunting challenge – that of ensuring that the EU itself remains democratically legitimate. No system of governance – let alone a young,

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multi-levelled one such as the EU – can possibly hope to endure unless it is seen as legitimate by its citizens. In Chapter 18, Andreas Hofmann interrogates some of these highly pertinent themes. He examines how the main institutions of the EU are actively seeking to enhance their legitimacy by structuring their interactions with the public and other key stakeholders. In Chapter 19, Viviane Gravey and Andrew Jordan offer a refection on how and why the dynamics of policy making in the environmental sector have changed over the last 50 years. They note that the 2000s and 2010s witnessed a marked decline in the number of new policy proposals and a wider questioning of both the means and the ends of EU environmental policy. They investigate whether these changed dynamics are a symptom of the growing maturity and resilience of the policy area, or an indication that it has entered a new and more uncertain period, characterised by policy retrenchment and possibly even policy dismantling.

Part 5: Conclusion Finally, Chapter 20 (by Andrew Jordan, Viviane Gravey and Camilla Adelle) draws together the main themes of the whole book and explores the next phase in the very dynamic and important development of EU environmental policy.

Guide to further reading •

• • •

There are many textbooks on the history and inner workings of the EU. Of these, Wallace et al. (2020), Bache et al. (2014) and Cini and Pérez-Solórzano Borragán (2021) are notable in that they include chapters devoted wholly or partly to environmental policy. Bomberg et al. (2011) and Cini and Pérez-Solórzano Borragán (2019) are notable in that they focus on the policies of the EU. The third edition of Hix and Høyland (2011) offers a novel attempt to understand the EU as a ‘normal’, as opposed to a special, political system, an approach which is also adopted in this book. Haigh (2016) offers a practitioner’s perspective on the development of EU environmental policy over the last 50 years

References Bache, I., Bulmer, S., George, S. and Parker, O. (2014) Politics in the EU, 4th edition, Oxford University Press, Oxford. Bomberg, E., Peterson, J. and Corbett, R. (2011) The European Union: How Does It Work? 3rd edition, Oxford University Press, Oxford. Cini, M. and Pérez-Solórzano Borragán, N. (2021) European Union Politics, 7th edition, Oxford University Press, Oxford. Farmer, A. (ed.) (2012) Manual of EU Environmental Policy, Institute for European Environmental Policy, London accessible at https://ieep.eu/understanding-the-eu/manual-of-europeanenvironmental-policy Haigh, N. (2016) EU Environmental Policy: Its Journey to Centre Stage, Routledge, London.

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Héritier, A. (2002) ‘The accommodation of diversity in European policy-making and its outcomes: Regulatory policy as a patchwork’, in A. Jordan (ed.) Environmental Policy in the European Union, Earthscan, London, pp. 180–197. Hildebrand, P. (2005) ‘The EC’s environmental policy, 1957–1992’, in A. Jordan (ed.) Environmental Policy in the European Union, 2nd edition, Earthscan, London, pp. 19–41. Hix, S. and Høyland, B. (2011) The Political System of the European Union, 3rd edition, Palgrave, Basingstoke. Jordan, A. and Liefferink, D. (eds) (2004) Environmental Policy in Europe: The Europeanization of National Environmental Policy, Routledge, London. Laffan, B., O’Donnell, R. and Smith, M. (2000) Europe’s Experimental Union, Routledge, London. Wallace, H., Pollack, M., Roederer-Rynning, C. and Young, A. (eds) (2020) Policy Making in the EU, Eighth Edition, Oxford University Press, Oxford. Weale, A. (2005) ‘Environmental rules and rulemaking in the EU’, in A. Jordan (ed.) Environmental Policy in the European Union, 2nd edition, Earthscan, London, pp. 125–140. Weale, A., Pridham, G., Cini, M., Konstadakopulos, D., Porter, M. and Flynn, B. (2000) Environmental Governance in Europe, Oxford University Press, Oxford.

Part 1

Contexts

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The establishment of EU environmental policy Christoph Knill and Duncan Liefferink

Summary guide The environmental policy of the EU has developed in a remarkable fashion in the past fve decades. An increasingly dense network of legislation has emerged, which extends to all areas of environmental protection. The environment is now a core area of EU policy and politics. Such dynamic developments could hardly have been expected given the legal and institutional conditions which existed in the late 1960s. This chapter describes the establishment of EU environmental policy in three phases. It illustrates how policy makers, acting without any legislative authority, initially made a clever move to increase the EU’s capacity to act by defning environmental policy as a trade problem. In the course of time, EU environmental policy emerged as a formal policy area, with its own policy actors, policy principles and procedures.

Introduction The Paris Summit meeting of Heads of State and Government of the EEC in October 1972 can be viewed as marking the beginning of an independent EU environmental policy. Just a few weeks before the enlargement of the Community to include Denmark, the UK and Ireland (on 1 January 1973), a declaration on environmental and consumer policy was adopted at that summit. The declaration granted the European Commission the task of drawing up an action programme for environmental protection. To that end, a task force was created in the Commission, out of which today’s Directorate General (DG) for the Environment gradually emerged. The very First Environmental Action Programme was adopted by national government representatives in July 1973 at the frst meeting of the Council of Environmental Ministers and formally enacted a few months later. Thus, for the frst time, the governments of the member states formally granted the Union an environmental policy mandate (Haigh, 2016; Hildebrand, 1993; Liefferink et al., 1993: 2ff). This chapter describes the establishment of EU policy in three phases. It illustrates how policy makers, acting without any legislative authority, initially made a clever move to increase the EU’s problem-solving capacity by defning environmental policy as a trade problem. Over the course of time, EU environmental policy emerged as a formal policy area, with its own actors, policy principles and policy procedures. These actors, principles and procedures are discussed in the remainder of this chapter. DOI: 10.4324/9780429402333-2

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The concluding section summarises the three phases and asks whether the more recent rise to prominence of climate change heralds the beginning of a fourth phase.

Summary points • • •

The Paris Summit meeting of Heads of State and Government of the EEC in October 1972 can be viewed as marking the beginning of EU environmental policy. This First Environmental Action Programme, subsequently adopted by national government representatives in July 1973, outlined a list of key policy priorities. EU environmental policy has since emerged as a formal policy area, with its own policy actors, policy principles and policy procedures.

The beginnings: environmental policy as trade policy The reasons for policy action at EU level The most important reason for the introduction of a common environmental policy was the fear that trade barriers and competitive distortions in the Common Market could emerge if member states established different environmental standards (Knill and Liefferink, 2007). Diverse national standards for certain products, such as limitations on automobile emissions for the lead content of petrol, threatened to pose formidable obstacles to the free trade of these products within the Common Market. In establishing the EEC, the member states had in fact agreed on a general ban on so-called non-tariff trade barriers (Articles 35 and 36 TFEU).1 In Article 36, however, certain exceptions to this general ban were specifed. Thus, amongst other things, such trade restrictions which are justifed for the ‘protection of the health and life of humans, animals, or plants’ are exempted. Although Article 36 stipulates that such trade restrictions may not constitute random discrimination, thus allowing the member states to a large extent to design their own environmental policy, even if it leads to trade obstacles (Holzinger, 1994: 68; Rehbinder and Stewart, 1985: 29ff). Against this background, EU environmental policy was primarily a policy fanking the Common Market. This is also evidenced by the fact that even before the formal beginning of EU environmental policy, individual environmentally relevant measures were passed in the area of chemicals control and the regulation of automobile emissions. However, these measures were not part of a coordinated and goal-oriented European environmental policy (Jordan, 1999: 3). They were motivated instead by competition policy, or to be more precise, the desire to realise a Common Market by harmonising national legal and administrative regulations. Besides these trade and competition policy motives, an additional factor in the establishment of EU policy was the fact that since the middle of the 1960s, numerous environmental catastrophes not only led to the increased international politicisation of environmental problems, but also underlined the cross-border nature of certain forms of environmental pollution (Liefferink et al., 1993: 1). The growing international perception of environmental problems was highlighted at the United Nations (UN) Conference on the Human Environment, which took place in Stockholm in 1972

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(see  Box 2.1). Within the framework of that conference, the member states of the EU increasingly began to deal with the environmental policy consequences of the broader European integration process (Jordan, 1999: 3).

Box 2.1 The 1972 United Nations Conference on the Human Environment The Conference on the Human Environment (also known as the Stockholm Conference) was the UN’s frst major conference on international environmental issues. It marked a signifcant turning point in the development of international and EU environmental action. The Stockholm Declaration which was signed there included the following proclamations: 1

2

6

7

‘Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet, a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale…. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments. (...) A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference, we can do massive and irreversible harm to the earthly environment. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts.’

This Declaration was subsequently cited in the EU’s First Environmental Action Programme and can be considered to have had a formative infuence on the scope and direction of EU environmental policy. Interestingly, the UN subsequently organised a series of follow-up conferences held at Rio in 2002 and 2012 (‘Rio+20’), which also informed (and were informed by) EU thinking and practice (see Chapter 16).

The main focus of international policy at the time was cross-border air pollution, that became an international issue for the frst time when the acidifcation of Scandinavian lakes came to light. It had become evident that the cause of the acidifcation and the resulting decline in fsh stocks could not be solely attributed to Swedish emissions. The cause of the acid rain was instead traced back to air pollution from other countries – in particular, the UK but also the industrial areas of Central and Eastern Europe (Boehmer-Christiansen and Skea, 1991). Thus, from the beginning of the 1970s, the problem of acid rain increasingly led to the realisation that environmental

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pollution did not stop at national borders, but had to be addressed by cross-border measures (European Commission, 1984: 11). Along with these ecological motives, a third factor facilitated the initial development of EU environmental policy: the goal of improving the living conditions in the EU, as emphasised in particular in the Preamble of the Treaty of Rome. According to the Commission, this entailed continuous attempts to improve the state of the environment (Krämer, 2015; Rehbinder and Stewart, 1985: 20ff). The explicit orientation to these objectives is not only evident in the Introduction to the First Environmental Action Programme. In justifying its environmental policy activities, the Commission also retrospectively pointed out that this aspect – along with economic and environment policy motives – was of great signifcance: ‘[i]n 1972 it has become clear that we had to act because … [t]he development of completely different living conditions in the member states would not be politically justifable’ (European Commission, 1984: 11). In other words, right from the start, political factors were at work even though not all actors were willing to openly acknowledge it. The lack of an explicit legal basis In political and legal terms, the environmental policy of the EU particularly distinguishes itself from other policy areas such as trade, agricultural or transportation policy in that it was not mentioned in the Treaty of Rome. Due to these circumstances, the request made by the Heads of State and Government at the Paris Summit in 1972 to push forward with the development of a European environmental policy provoked challenging questions, not least for legal experts. As there was no treaty basis, it was totally uncertain at that point in time what could serve as the legal foundation for the fulflment of the EU’s environmental objectives. Although legal experts, backed by rulings made by the Court of Justice of the EU recognised environmental protection as an essential goal of the Community and supported the pursuit of environmental policy goals, a suffciently solid legal basis still had to be found (Rehbinder and Stewart, 1985: 20ff). It eventually turned out that the stipulations in Articles 115 and 352 (formerly, Articles 100 and 235 of the Rome Treaty), which were usually drawn on together as a basis of authority, could provide suffciently robust legal opportunities for fresh environmental policy action. Article 115 TFEU (formerly Article 100 of the Rome Treaty) contained a general authorisation for the Community to harmonise legal and administrative regulation in the member states which had direct ramifcations for the establishment or the functioning of the Common Market. Accordingly, the adoption of environmental policy regulations could be substantiated by the fact that different environmental requirements in the member states constitute non-tariff trade barriers in economic terms. Above all, product-related environmental regulations (product standards) – i.e., the regulation of the environmentally relevant features of goods – were affected by this provision. For example, the defnition of limits for car exhaust emissions or the specifcation of standards with regard to the lead content of petrol fell under this provision. Here, it was evident that deviant national product norms could constitute non-tariff trade barriers which upset the functioning of the Common Market. However, supported by the case law of the Court of Justice of the EU, Article 115 TFEU was used as an additional legal basis for the harmonisation of process-related environmental regulations. These entail technical specifcations, which must be taken into account

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when designing production sites and the production process, such as the defnition of dioxin limits for waste incineration facilities (Rehbinder and Stewart, 1985: 25). However, several restrictions were associated with the use of Article 115 as a basis for environmental policy action. First, these resulted from its economic policy objectives, namely that they should serve the purpose of completing the Common Market. A second restriction resulted from the fact that Article 115 required the existence of legal or administrative provisions in at least one member state. European harmonisation was neither, in other words, necessary nor possible until at least one member state had acted (Holzinger, 1994: 68). Third, from the standpoint of environmental protection, it was ultimately problematic as the authority for harmonisation in Article 115 did not refer to what level (or stringency) of environmental policy to aim for (Knill and Liefferink, 2007). Yet, in the areas in which Article 115 was not applicable, Article 352 TFEU (i.e., Article 235 of the Rome Treaty) could still be used as a subsidiary legal basis for EU environmental policy. Article 352 enabled the Community to pass suitable measures in such cases in which action on behalf of the EU appeared necessary to achieve its wider objectives, even if the treaty did not explicitly include the authority necessary for doing so. As the objectives mentioned in Article 352 have to be achieved ‘within the framework of the Common Market’, however, it was generally assumed that the legal acts based on Article 352 must in some way be related to the economic objectives of the Community (Rehbinder and Stewart, 1985: 26). Over time, both Articles 100 and 235 were used as a basis for EU action (see Figure 2.1). As a consequence, the two decisive foundations for EU environmental policy activity were to a great extent pegged to the realisation of economic objectives. This does not mean that ecological motives can be completely neglected. However, between ecological objectives and the overarching goal of creating a Common Market, there has

12 10 8 6 4 2 0 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 Art 100

Art 235

Both

Figure 2.1 EU environmental legislation 1970–1987: the reliance on Articles 100 and 235 of the Treaty of Rome. Source: EurLex.

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always been a disparity in favour of market integration, which has resulted in a kind of ‘economic bias’ in EU environmental policy (Holzinger, 1994: 70). It was not until the middle of the 1980s and the signing of the SEA in 1986 that economic and ecological objectives were put on a more equal footing. Growing policy output despite unfavourable legal conditions In light of this constellation of factors, there was no reason to assume that the EU would adopt many far-reaching environmental measures. Acting only on the legal foundations for trade policy, how was it supposed to achieve the bold environmental objectives expressed in the First Environmental Action Programme? An additional complicating factor was the fact that both Articles 115 and 352 TFEU required a unanimous vote by all the member states. Although there existed at least a basic consensus amongst the member states about the necessity of a common environmental policy, any member states who believed themselves to be at a disadvantage due to a proposed measure (for example, because they feared economic harm for their industries) could block decisions in the Council of Ministers. Considering these relatively unfavourable starting conditions, the result of this frst phase of European environmental policy can be regarded, by any measure, to have been an unexpected success (see Box 2.2). Within about a decade, a very substantial set of European environmental laws had emerged, with many important areas of environmental policy being regulated at EU level (Knill and Liefferink, 2007). By the middle of the 1980s, not only had three additional environmental action programmes been passed, each characterised by a steady broadening of environmental objectives and activities, but also around 200 binding legal acts had been adopted, primarily in the form of directives and regulations (Knill and Liefferink, 2007; Liefferink et al., 1993: 2ff; Weale, 1996: 597).

Box 2.2 Examples of environmental directives adopted before the Single European Act • • • • • • •

Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the member states Council Directive 75/442/EEC of 15 July 1975 on waste Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fsh life Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds

Establishment of EU environmental policy • • • • • • •

19

Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfsh waters Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants Council Directive 84/631/EEC of 6 December 1984 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment

A comprehensive programme for EU environmental policy has thus emerged from an initial series of more or less coincidental and non-coordinated activities. In legal terms, the EU’s programme still relied on its trade policy foundations, but with regard to its political aims, it increasingly freed itself from purely economic motives. Although formally it could only be substantiated as trade policy, environmental policy gradually developed into an independent policy domain, without having an uncontested legal basis (Knill and Liefferink, 2007; Lenschow, 2014). For instance, in the 1970s, relatively strict limits with regard to water pollution control were passed, which went far beyond what would have been necessary for mere market harmonisation. These entailed minimum requirements for the quality of surface water, bathing water, fshing water, shellfsh water and drinking water. Some very far-reaching measures were also passed by the EU in the areas of waste law and chemical control. The same held for air pollution control, for which important quality thresholds on individual pollutants were passed. From the beginning of the 1980s, these were supplemented by various and sometimes very extensive directives to combat air pollution by industrial plants (Jordan, 1999: 10). Many of these measures entailed great costs for some member states and the industries within their territories. For instance, complying with the strict quality thresholds for drinking water required the installation of expensive flter and purifcation technology by some national water supply companies. These policies also led to additional costs for the administrative and institutional adaptation of the member states in order to ensure the compatibility of national regulations with EU specifcations (Knill, 2001; Knill and Lenschow, 1998). There is an array of reasons for the unexpectedly formidable development of EU environmental policy in diffcult legal and institutional preconditions. Some observers point out that the member states were confronted with growing domestic pressure due to environmental issues, which strengthened their willingness to cooperate at EU level. In particular, at the beginning of the 1980s, environmental problems were increasingly politicised in several member states. One might note here forest dieback

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(Waldsterben) due to acid rain (see above), which triggered extensive environmental policy activities in Germany, above all. The transnational nature of acidifcation, but also the expected damage to the competitiveness of industries confronted with strict national environmental regulations, pushed Germany to play a more active role at EU level. Together with other member states such as the Netherlands and Denmark, the Germans attempted to enhance the level of protection and the regulatory requirements for common policies. Despite the reservations of other member states, German action triggered new dynamics at EU level, leading to the adoption of European standards which in part went signifcantly beyond the existing provisions in the individual member states (Héritier et al., 1996; Lenschow, 2014). Furthermore, there are also indications that during negotiations at EU level, the representatives of the member states were frequently not able to properly assess the full implications of the measures under discussion. Or to put it more bluntly: some of the member states were not fully aware of what they were signing up to during EU negotiations. Thus, some member states accepted extremely strict quality standards for drinking water proposed by the Commission, whose implementation at the national level turned out to be highly problematic and only feasible at great cost. Individual member states also had false notions about the binding legal character of European directives. For example, the UK accepted some European directives, assuming that the specifed limits were to be interpreted merely as non-binding recommendations instead of legally binding requirements (Knill and Liefferink, 2007). In individual cases, a lack of foresight may also have played a signifcant role. However, it does not suffce to adequately capture and explain all the dynamics of EU policy making. As we will demonstrate, there are several structural aspects as well, which infuenced the preferences and the patterns of interaction between individual actors.

Summary points • • •

There was no formal legal basis for EU environmental policy in the original Treaty of Rome; EU environmental policy had to be framed as trade and competition policy. Despite these unfavourable starting conditions, a very substantive set of policies gradually emerged over time. The more innovative policy measures to curb environmental pollution eventually proved to be expensive to implement.

The Single European Act: environmental protection becomes an offcial policy task With the SEA, environmental policy was explicitly declared to be a task of the EU. The legal uncertainty with regard to environmental policy was thus eliminated. The necessary legitimation for environmental policy activities, which had previously been based on economic rationales, was replaced by legitimation on the basis of environmental

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policy goals. The background to and concrete ramifcations of this development will be examined more closely in the following sections. The political background The decisive motivation for the adoption of the SEA was rooted less in environmental than economic policy motives. The foremost goal of the SEA was to accelerate economic integration within the Community in order to complete the Common Market. The explicit establishment of environmental policy as an offcial domain of the EU occurred to a certain extent as a by-product of economically motivated reforms. In the middle of the 1980s and despite certain advances, the Community had still not realised the overarching goal of the Common Market as formulated in the Treaty of Rome. Above all, it was feared that the process of economic integration would stagnate after the accession of Spain and Portugal in 1986. As it was diffcult enough to bring about unanimous resolutions in the Council of Ministers with ten states (Greece had joined the EU in 1981), the situation was anticipated to further deteriorate with the accession of additional member states. These concerns were compounded by economic developments. Stagnating growth, high unemployment rates, as well as fears that the EU could lose ground economically against the US and Japan, increased the willingness of the member states to endorse the institutional reforms aimed at completing the Common Market more quickly (Young, 2014). With this constellation in mind, it seemed surprising at frst glance that the SEA actually strengthened the EU’s basis for action in environmental affairs. Nevertheless, at the conference of Heads of State and Government which led to the SEA, there emerged a consensus that environmental policy should henceforth be a legitimate area of Community action (Lenschow, 2014). This development can be explained on the basis of three factors. First, previous policy developments had made it clear that a Common Market could not be achieved if member states did not share any of their regulatory authority with the EU. Market and trade obstacles also resulted from different conceptions of national environmental policy in a more general sense. Second, the explicit mention of EU environmental policy in the new treaty ultimately only confrmed in legal terms what had already been accomplished de facto in the preceding years. The basic legitimacy of the joint environmental policy had already been acknowledged. It seemed only reasonable to use the opportunity of the SEA to anchor it in the treaty (Holzinger and Knill, 2002; Richardson, 2015). Finally, the Commission and the European Parliament in particular played a very active role in promoting the establishment of environmental policy authority in the treaty. Both hoped to secure new methods of political infuence for themselves by enhancing the EU’s authority (Wonka, 2015). This overall constellation of diverse interests and motives facilitated the emergence of relatively far-reaching legal and institutional reforms. An explicit legal basis for environmental policy With the adoption of the SEA, the goals and principles of EU environmental policy were defned for the frst time in the treaty. Moreover, this resulted in important changes in the decision rules governing environmental policy. The concrete changes here were twofold: frst, a new title – ‘environment’ – was added to the treaty, comprising Articles

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191–193 (Articles 174–176 TEU; Articles 130r-130t of the Rome Treaty as amended by the SEA). Second, the introduction of new rules to accelerate economic integration had ramifcations for the design of European environmental policy. These legal changes were based, in particular, on Article 114 (Article 95 TEU; Article 100a of the Rome Treaty as amended by the SEA). Guiding policy principles Articles 191–193 are to be regarded as the actual environmental articles of the treaty. They included not only provisions on the general signifcance and the goals of EU policy, but also defned the basic principles and decision-making procedures by which these goals were to be achieved. Furthermore, general conditions with regard to the allocation of European and national environmental policy responsibilities and possibilities for action were specifed. Article 191 (1) offered a relatively sparse defnition of the objectives of EU environmental policy, including: • • • •

Preserving, protecting and improving the quality of the environment; Protecting human health; Ensuring a prudent and rational utilisation of natural resources; Promoting measures at international level to deal with regional or worldwide environmental problems and, in particular, combating climate change.

Article 191 (2) codifed several main guidelines which served as the basis for achieving environmental policy aims. Interestingly, these principles for the most part had already been formulated in the First Environmental Action Programme. Prominent amongst them was the precautionary approach, stating that policy action should not only be taken when there is concrete damage, but should also be directed at preventing dangers and risks in advance of scientifc proof of harm. Moreover, preventive action should be taken, environmental damage should as a priority be rectifed at source and the polluter should pay. Or in other words: who pollutes the environment or creates a risk to it should bear the costs for the prevention, removal of and compensations for any environmental damage. Article 191 (3) specifed criteria and restrictions which were to be considered during the development of environmental action programmes and individual measures. Hence, the common environmental policy was henceforth supposed to consider the current state of science and technology as well as the economic and social development of the Community and the regions. At the same time, the foundations were laid for the introduction of regionally differentiated environmental standards by establishing that the respective environmental conditions in the individual regions of the Community must be taken into account. Previously, the Community was under a certain pressure to set uniform standards, because environmental protection measures usually had to be based on the harmonisation stipulation of Article 115. Moreover, the ‘subsidiarity principle for environmental policy’, which had already essentially been formulated in the First Environmental Action Programme, was formally added to the treaty (Jordan, 1999). According to this principle, the Community could only become active in the area of the environment, when the ‘objectives [could] be better reached at the Community level than at the level of the individual member states’ (Article 191 [4]).

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Article 193 authorised the member states to maintain or introduce stricter environmental rules than those of the Community. However, the member states were only granted this possibility to the extent that national specifcations exceeding those of the European provisions were in accordance with the goals of the treaty. The result of this change was that unilateral national policies were not allowed when they stood in the way of the goal of completing the Common Market. This kind of Common Market relevance comes into play, in particular, when tradable products are affected by political demands for greater environmental protection. Legal arrangements and decision rules The SEA served not only to explicitly anchor the basic features of EU environmental policy. It also offered a concrete basis for new action at EU level. In this regard, two articles should be particularly emphasised: the general basis of Article 192 and the special authorisation for action for trade-related environmental measures of Article 114 (TFEU). These two articles differed above all in terms of their stipulations with regard to the decision-making procedure in the Council of Ministers. The general authorisation for the Community to decide on the necessary measures to fulfl the environmental policy objectives specifed in the treaty can be found in Article 192. As for the decision-making rule, the article stipulated that as a rule, the decisions in the Council of Ministers should be reached unanimously. Thus, as far as this section of the treaty was involved, the SEA did not bring about any change with respect to the decision-making procedure for environmental policy matters. As had been the case with the environmental measure on the basis of Articles 115 and 352 TFEU, each member retained a power of veto and could block political decisions, if necessary. However, Article 192 was only cited in cases where there was no other treaty basis for common action. Such a basis existed, in particular, for environmental regulations which had an impact on the realisation of the Common Market, i.e., all rules which previously had to be based on the harmonisation provision of Article 115. The SEA introduced a new legal basis for such measures. This new legal basis (Article 114 TFEU, Article 100a of the Rome Treaty as amended by the SEA) facilitated the harmonisation of national legal and administrative regulations in the course of the completion of the Common Market. Like Article 115, Article 114 was also mainly motivated by trade policy objectives (Thatcher, 2015). Yet, whether European environmental regulations are of relevance for the Common Market – and thus to be decided on according to Article 114 – had signifcant implications for the decision-making process in the Council of Ministers. While under Article 192 the principle of unanimity applied, Article 114 provided for a new decisionmaking procedure, the so-called cooperation procedure, for all decisions on regulations concerning the completion of the Common Market. To accelerate the process of European market integration, future decisions were to be taken by qualifed majority voting (QMV), meaning that individual member states could no longer block new policy proposals. At the same time, the cooperation procedure enhanced the European Parliament’s right to participate in the legislative process. This was a signifcant change because it had traditionally been a progressive driving force for stronger environmental protection (see also Chapter 8). Under the new procedure, the Parliament became directly involved in legislative decisions of the Council and received a right to trigger a suspensory veto.

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The political effects: new opportunities for policy action? What were the concrete effects of the SEA for the structure and development of EU environmental policy? On the one hand, the changes initiated by the SEA: helped to entrench and formalize the EU’s involvement by placing environmental protection on a frm legal footing and enunciating a set of guiding principles. In some respect, they merely formalized ideas and rules that were already an integral feature of day-to-day policy-making in the EU. (Jordan, 1999: 11) On the other hand, the SEA also opened up new possibilities for environmental policy action at EU level. Particularly noteworthy in this regard were the new articles on the environment which generally authorised the EU to act on environmental policy matters independent of trade policy motives. Thus, the Commission was no longer required to link its environmental proposals to the completion of the Common Market. This enabled the Commission to intrude into new areas of environmental policy and develop measures which hardly would have been justifed on the basis of previous legal foundations (Articles 115 and 352 TFEU). An important example of this was the directive passed in 1990 on the free access to environmental information. This measure, which entails extensive access rights for the public to environmentally relevant data from national authorities, could hardly have been legitimised by trade policy goals (Lenschow, 2014). A second aspect concerned the introduction of majority decision making on environmental measures relevant to the Common Market. It was generally expected that decisions by a qualifed majority would enable more innovative environmental policy making which went beyond the lowest common denominator. Under QMV, the states with the least interest in environmental protection can be outvoted, thus preventing them from determining the pace and stringency of European environmental policies. Hence, the political dynamics also changed: searching for coalition partners to enforce national interests suddenly became a more promising tactic than blocking negotiations. However, the extent to which QMV produced more stringent environmental standards depended on the majority conditions and coalition possibilities in the Council of Ministers. It was quite possible that more environmentally ambitious states in the Council of Ministers would not produce a suffcient majority to enforce stricter environmental norms. There was even the potential danger of these countries being outvoted by the countries which are interested in less strict standards. From this theoretical standpoint, the policy adopted could therefore be determined by the specifc constellation of national voting positions in the Council of Ministers. In practice, signifcant shifts in the balance of power also took place after subsequent EU enlargements. For example, in 1995, the accession of environmentally ambitious states such as Sweden, Finland and Austria made the environmental policy ‘forerunners’ more infuential. The accession of ten Central and Eastern European countries in 2004, by contrast, partially resulted in a reversal of this trend, given the fact that the new members placed a stronger interest on economic rather than ecological development (Lenschow, 2014). However, it has proven diffcult to test these theoretical expectations against empirical developments in EU environmental policy (see Chapter 4). The often extremely

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complicated nature of environmental policy measures adopted by the EU cannot simply be reduced to binary concepts such as high and low standards, or the highest and lowest common denominator. Thus, it is not possible to draw frm conclusions on the impact of different decision-making rules in the Council of Ministers on EU environmental policy. An additional complicating factor in this regard is that we have witnessed a fundamental transformation in the patterns of environmental policy regulations since the beginning of the 1990s. This change was triggered in particular by the Fifth Environmental Action Programme. Published in 1993, it sought to move the EU away from specifying strict legal limits, but instead to user alternative instruments, which prioritise economic incentives and the self-regulation of industry as well as greater participation rights for the public (see also Chapter 17). These divergent regulatory concepts cannot easily be compared and contrasted with regard to their concrete ramifcations for the stringency of European environmental protection. Regardless of that, the SEA did establish the legal foundations for the subsequent expansion of the EU’s capacity to act in environmental policy. This triggered a development which was subsequently enhanced by further legal and institutional reforms.

Summary points • • •

With the adoption of the SEA, an explicit legal basis for EU environmental policy was for the frst time established; it defned the overarching goals and principles guiding the policy activities of the EU. The SEA also changed decision rules for environmental policy making, partially shifting from unanimity to QMV in the Council. The SEA strongly enhanced the EU’s internal and external capacity for action in environmental policy.

Institutional and political changes after 2000: gradual shifts? Compared to the reforms initiated by the SEA, subsequent legal and institutional reforms have resulted in relatively small changes to EU policy (see Chapter 1). However, a pronounced weakening of and even temporary stagnation in environmental policy dynamics have also become apparent in terms of the political activities. We are confronted with the paradoxical situation that the increasing legal and institutional anchoring of EU environmental policy has coincided with the slowing down of its political dynamics. The economic crisis of 2008 reinforced but did not of itself cause this trend. This scenario is in stark contrast with the initial phase of EU environmental policy in which a strong environmental policy programme was gradually drawn up despite a weak legal and institutional basis. Legal and institutional changes As for the increased institutional and legal underpinnings of EU environmental policy, one should in particular emphasise the salience of developments resulting from the Treaties of Maastricht and Amsterdam. The creation of the European Environment

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Agency (EEA) in 1994 marked the further institutionalisation and strengthening of EU policy. The Maastricht TEU, which has been in effect since 1993, was a continuation of the developments introduced by the SEA. The centrepiece of that treaty was the creation of the EU, which since then has provided the overall institutional framework for the entire European integration process. Besides the introduction of European economic and monetary union and the concretisation of European civil rights, the treaty provided new and expanded authority and individual policy areas. These entailed not only consumer protection, health, research, technology, education and culture, but also environmental protection. While the Treaty of Maastricht defned the basic parameters for further European integration, the Treaty of Amsterdam (ratifed in 1999) introduced relatively few new innovations. Most importantly, the Heads of State could not agree on the necessary institutional reforms to facilitate the 2004 accession of new member states. Nevertheless, as a whole, the Treaties of Maastricht and Amsterdam provided a series of new legal and institutional specifcations for EU environmental policy, which essentially concerned decision-making procedures, goals and principles. The increased signifcance of environmental policy became apparent in the changes in the decision-making procedure which the Maastricht Treaty provided. Environmental policy measures on the basis of Article 192 TFEU were henceforth to be decided by QMV, as was already the case for measures relevant to the Common Market on the basis of Article 114. These changes in decision-making procedure were followed by a further strengthening of the Parliament by the Amsterdam Treaty (Rittberger and Winzen, 2015). However, the development of new regulatory concepts cannot be viewed exclusively against the background of the stagnating environmental policy dynamics at EU level. They were also a reaction to the ineffective implementation of harmonisation measures at the national level (Knill, 2015; see also Knill and Lenschow, 2000). Moreover, the Treaty of Maastricht expanded the tasks of the Community, emphasising that it should promote environmentally sustainable growth. This wording was once again modifed in the Amsterdam Treaty to ‘achieve a balanced and sustainable development’ (see Chapter 19). It thus is applicable as a guideline for policy making in all policy areas of the EU (Jordan, 1999; Steinebach and Knill, 2017). The Treaty of Amsterdam additionally served to reinforce the further integration of environmental policy goals into other policy areas as a principle of common environmental policy (see Chapter 12). This was primarily achieved by no longer hiding the transversal character of environmental protection in the environmental articles and linking it directly to the description of the spectrum of tasks of the Community (Article 8) (Lenschow, 1999). The reference to environmental policy integration promised to strengthen environmental policy concerns vis-à-vis other policy areas of the Community. This held in particular for the position of DG Environment as compared to other DGs within the Commission (Haigh, 2016) (see also Chapter 6). An initial task of the EEA was to establish an overarching Environmental Information and Observation Network (EIONET). On the basis of the information gathered through the existing environmental information systems of the member states, an improved exchange of environmental data was supposed to emerge, thus ensuring a better foundation for the formulation and implementation of new EU environmental policies (Martens, 2010). It should be noted, however, that membership of the EEA now encompasses not only the 27 EU member states but also fve non-member states and six cooperating countries.

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Following the Treaties of Maastricht and Amsterdam, a further revision was adopted in Nice in 2000. The consequences of that revision for environmental policy were very limited, however. Following Nice, an attempt was made to replace the existing treaties by a new, comprehensive Constitution. However, the Constitutional Treaty was rejected in referenda in France and the Netherlands in 2005 and never came into force. It was replaced by the Lisbon Treaty in 2009. The impact of the Lisbon Treaty on EU environmental policy can generally be considered as rather minimal. This can be traced to the fact that QMV and the involvement of the Parliament via co-decision (now called the ordinary legislative procedure) had already been established under the Maastricht Treaty. Moreover, unanimity is still required for eco-taxation and environmental policies affecting energy sources (see Benson and Adelle, 2013). The political effects: weaker policy dynamics? If we look back at the dynamics of EU environmental policy since the beginning of the 1990s, we fnd two partially opposing trends. On the one hand, the past decades have seen a continual legal and institutional expansion and reinforcement of the basis for environmental policy action. On the other hand, we also observe a gradual reduction in the environmental policy boom at EU level, especially when compared to the rate of activity during the 1980s and early 1990s. From around the turn of the century, in particular, both the number and the ambition of environmental policy acts adopted by the EU started to decline (Wurzel et al., 2019; Zito et al., 2019a), although shortterm fuctuations have nevertheless occurred between successive Commissions and/ or Council Presidencies (see Chapters 5 and 6). From the mid-2010s, however, the political salience of environmental and particularly climate issues seemed to rise again. Several factors explain this development. Some of them are closely related to the ups and downs of European integration at large. Others are more specifc to the environmental feld. In 2004, eight former socialist states as well as Cyprus and Malta entered the Union, followed by Bulgaria and Romania in 2007 and Croatia in 2013. Most of these countries were, for understandable reasons, more strongly focused on economic development; their national environmental policies were generally less developed than those of the existing member states. Therefore, the massive enlargement of this period was expected to have a negative impact on both the level and the speed of adoption of EU environmental policy. Studies show a mixed picture, however, with considerable impact in some areas, including climate, but less clear-cut in others (e.g., Braun, 2014; Skjærseth and Wettestad, 2007; Steinebach and Knill, 2017; Wurzel et al., 2019). The economic crisis that hit the world and the EU in the late 2000s has probably had a larger effect on environmental policy dynamics. Particularly between 2010 and 2013, the development of EU environmental policy almost came to a halt (Burns et al., 2019; Steinebach and Knill, 2017). The parallel rise of Euro-sceptical parties in several member states may well also have contributed to lower political support for strong EU environmental policies (see also Chapter 19). A number of trends in the environmental feld itself may further help to explain fuctuations in the dynamic of EU environmental policy. It is sometimes argued that EU environmental policy has now passed the ‘construction phase’ and should be regarded as a mature policy feld with an increased focus on maintenance, implementation and enforcement of existing policies (e.g., Burns et al., 2019). Perhaps related to this is the observation that many member states have struggled to implement especially the more ambitious pieces of existing EU environmental legislation. For instance, the ‘fading’

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environmental leadership ambitions of the Netherlands has been explained as a consequence of continuing setbacks in the domestic implementation of EU policies relating to air, water and nature (Wiering et al., 2018). Furthermore, and again related to recurrent implementation problems, we can observe a certain shift in the character of environmental regulation at EU level. In contrast to developments in the 1980s, the adoption of uniform legally binding limits is no longer the main approach. Instead, the Commission is increasingly focusing on more fexible and less harmonisation-oriented regulatory concepts, which allow the member states greater room to manoeuvre with regard to the implementation of policies. These new instruments (see Chapter 17) are generally less legally demanding for the member states than previous measures. They concentrate less on specifying detailed standards, which all member states must comply with, and more on stimulating and enhancing national environmental policy reforms (see Knill and Lenschow, 2000; Wurzel et al., 2013). Examples are legislation on eco-labelling and the greater number of framework directives adopted over the past two decades, for instance covering water and air quality. Particularly the latter group, however, shows that shifting from uniform legally binding limits to the obligatory development of encompassing policy programmes does not necessarily make implementation any easier for the member states to achieve (e.g., Voulvoulis et al., 2017). As a whole, the consequence of these developments is that European environmental policy has partially lost its function as a driving force behind the constant increase in the level of environmental protection in the EU. However, an important exception to this overall picture is the rapidly increasing salience of the issue of climate change. From the early 1990s, and with renewed energy since the Paris Agreement of 2015, the EU has attempted to play a leadership role in global climate politics, albeit with variable success (see Wurzel et al., 2017). Over the years, this has led to the adoption of a number of key internal policies in the area, including the establishment and regular revision of EU-wide, binding CO2 reduction targets and a common, EU-wide Emissions Trading Scheme (see Chapter 17 for details). On a few occasions (for details, see Chapter 5), the European Council has acted as supreme arbiter on unresolved climate issues, thus elevating them to the EU’s highest political level (Wurzel et al., 2019). In late 2019, the newly appointed Commission led by Ursula von der Leyen pointedly put climate at the very top of its agenda. Right at the beginning of its fve-year term, her Commission embarked upon a ‘European Green Deal’ (see Chapters 16 and 20) which has a broader focus than just climate and may eventually herald a whole new era of EU environmental policy more generally.

Summary points • • •

Since the 1990s, environmental policy was legally and institutionally anchored as a specifc EU policy area, in particular through the adoption of the Treaties of Maastricht and Amsterdam. This development led to the further expansion of QMV in the Council and the co-decision procedure involving the Parliament. Paradoxically, this consolidation coincided with reduced political dynamics, which may however, regain momentum in light of the rise to prominence of problems specifcally associated with climate change.

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Conclusions: towards a new phase of environmental policy? We have distinguished three phases of EU environmental policy. In the frst phase (1972–1987), environmental measures were legally justifed primarily by trade policy motives. Initially, the main goal was harmonising different national environmental regulations, which might stand in the way of the completion of the Common Market. As a consequence of increasing cross-border environmental problems and the pioneering role of individual member states (Anderson and Liefferink, 1997), a respectable programme comprising many individually ambitious measures and activities emerged despite a weak legal and institutional basis. This was accompanied by the gradual emancipation of environmental policy from the dynamic of economic integration, to form an independent policy domain even though its corresponding legal foundations were still not fully formed. The second phase (1987–1992) was primarily characterised by the legal and institutional consolidation and further development of EU environmental policy. Although the SEA largely codifed what was already an everyday reality, it helped to anchor environmental policy even more frmly in the treaty as an offcial feld of EU activity. A new treaty title in the SEA also served to specify the aims, principles and decision-making procedures for environmental policy. This, in turn, resulted in a considerable expansion in the EU’s environmental policy authority. On the one hand, environmental measures no longer necessarily had to be substantiated by trade policy goals. On the other hand, qualifed majority decisions in the Council of Ministers were permitted. Thus, it was generally expected (although only partly confrmed in practice) that stricter environmental standards would be passed that went beyond the lowest common denominator of member state preferences. The third phase (post 1992) was characterised by two largely opposing trends: from an institutional and legal standpoint, the developments triggered by the SEA were gradually revised and updated, in particular, in the Treaties of Maastricht and Amsterdam and through the creation of the EEA. Contrary to this trend, however, we have witnessed how environmental policy dynamic has weakened to a certain extent. EU environmental policy dropped down the political agenda as opposed to other policy areas (see also Chapter 10). However, one aspect of environmental policy – climate change – has gained political salience over the past three decades and this has given rise to a number of ambitious policy initiatives at EU level. The von der Leyen Commission, which took offce in late 2019, even made it its top priority. It remains to be seen if this marks the start of a new phase in EU environmental policy making.

Summary points •

•

There was no legal basis for environmental policy in the treaty establishing the EU. EU environmental policy had to be framed as trade and competition policy. Nevertheless, a substantive set of policies emerged in the 1970s and early 1980s. With the adoption of the SEA in 1986, an explicit legal basis for EU environmental policy was established; it defned the overarching goals and

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•

principles guiding the policy activities of the EU and changed decision rules. This was subsequently revised by Maastricht and Amsterdam. However, institutional and legal consolidation coincided with reduced political dynamics in EU environmental policy making. The problem of climate change may, however, lead to renewed momentum and possibly a fourth phase of policy making.

Key questions 1 2 3 4 5 6 7

Why did EU environmental policy develop in the late 1960s? How did actors supportive of deeper integration establish a greater role for the EU? Why did EU environmental policy suddenly expand in the 1980s? Describe the main principles of EU environmental policy. To what extent do these differ from the principles of national environmental policy? Describe the main phases of policy development since the 1960s. Did environmental policy emerge in a similar fashion to other EU policy areas, or did it follow its own unique trajectory? To what extent will the political focus on climate change alter the underlying dynamics of EU environmental policy making and eventually usher in a new phase of policy making?

Guide to further reading • • •

For other accounts, see Benson, Gravey and Jordan (2019) and Jordan (1999). See Knill and Liefferink (2007), Haigh (2016) and Delreux and Happaerts (2016) for general assessments of the development of EU environmental policy. A rich exploration of the current state of affairs and future prospects of EU environmental policy can be found in a 2019 special issue of the journal Environmental Politics (Zito et al., 2019b). For the EU’s role in climate change politics, see Wurzel et al. (2017).

Online resources • • •

The European Environment Agency: https://www.eea.europa.eu/ The European Commission – DG Environment: https://ec.europa.eu/environment/ index_en.htm Manual of EU Environmental Policy (IEEP): https://ieep.eu/news/accessieep-s-defnitive-guide-to-european-environmental-policy

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Note 1 Throughout this chapter, we use the current numbering of treaty articles as introduced by the Treaty on the Functioning of the European Union (TFEU or Treaty of Lisbon), in force since 2009. For important articles, we additionally provide the respective numbering in the original treaties in parentheses.

References Benson, D. and Adelle, C. (2013) ‘EU environmental policy after the Lisbon Treaty’, in A. Jordan and C. Adelle (eds) Environmental Policy in the EU, Earthscan, London, pp. 32–48. Benson, D., Gravey, V. and Jordan, A.J. (2019) ‘Environmental policy’, in M. Cini and N. PérezSolórzano Borragán (eds) European Union Politics, 6th edition, Oxford University Press, Oxford, pp. 373–386. Boehmer Christiansen, S. and Skea, J. (1991) Acid Politics, Belhaven Press, London. Braun, M. (2014) ‘EU Climate Norms in East‐Central Europe’, Journal of Common Market Studies, vol. 52, no. 3, pp. 445–460. Burns, C., Eckersley, P. and Tobin, P. (2019) ‘EU environmental policy in times of crisis’, Journal of European Public Policy, doi:10.1080/13501763.2018.1561741 Delreux, T. and Happaerts, S. (2016) Environmental Policy and Politics in the European Union, Palgrave, London. European Commission (1984) 10 Jahre Umweltpolitik, European Commission, Brussels. Haigh, N. (2016) EU Environmental Policy: Its Journey to Centre Stage, Earthscan, Abingdon. Héritier, A., Knill, C. and Mingers, S. (1996) Ringing the Changes in Europe, De Gruyter, Berlin. Hildebrand, P.M. (1993) ‘The European Community’s environmental policy, 1957 to “1992”’, in D. Judge (ed.) A Green Dimension for the European Community, Frank Cass, London, pp. 13–44. Holzinger, K. (1994) Politik des kleinsten Gemeinsamen Nenners? Edition Sigma, Berlin. Holzinger, K. and Knill, C. (2002) ‘Path dependencies in European integration’, Public Administration, vol. 80, no. 1, pp. 125–152. Jordan, A.J. (1999) ‘The construction of a multi-level environmental governance system’, Environment and Planning C, vol. 17, no. 1, pp. 1–17. Knill, C. (2001) The Europeanization of National Administrations, Cambridge University Press, Cambridge. Knill, C. (2015) ‘Implementation’, in S. Mazey and J. Richardson (eds) The European Union: Power and Policy-making, 4th edition, Routledge, London, pp. 371–396. Knill, C. and Lenschow, A. (1998) ‘Coping with Europe’, Journal of European Public Policy, vol. 5, no. 4, pp. 595–614. Knill, C. and Lenschow, A. (eds) (2000) Implementing EU Environmental Policies, Manchester University Press, Manchester. Knill, C. and Liefferink, D. (2007) Environmental Politics in the European Union. Policymaking, Implementation and Patterns of Multi-level Governance, Manchester University Press, Manchester. Krämer, W. (2015) EU Environmental Law, 8th edition, Sweet & Maxwell, London. Lenschow, A. (1999) ‘Transformation in European environmental governance’, in B. Kohler-Koch and R. Eising (eds) The Transformation of Governance in the European Union, Routledge, London, pp. 39–61. Lenschow, A. (2014). ‘Environmental policy: Contending dynamics of policy change’, in H. Wallace, M.A. Pollack, and A. Young (eds) Policy-making in the European Union, Oxford University Press, Oxford, pp. 319–343. Liefferink, D., Lowe, P. and Mol, A. (eds) (1993) European Integration and Environmental Policy, Belhaven, London.

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Martens, M. (2010) ‘Voice or loyalty? The evolution of the European Environment Agency’, Journal of Common Market Studies, vol. 48, no. 4, pp. 881–901. Rehbinder, E. and Stewart, R. (1985) Environmental Protection Policy: Vol. 2, De Gruyter, Berlin. Richardson, J. (2015) ‘The EU as a policy-making state: A policy system like any other?’, in S. Mazey and J. Richardson (eds) The European Union: Power and Policy-making, 4th edition, Routledge, London, pp. 3–32. Rittberger, B. and Winzen, T. (2015) ‘The EU’s multilevel parliamentary system’, in S. Mazey and J. Richardson (eds) The European Union: Power and Policy-making, Routledge, London, pp. 107–134. Skjærseth, J.B. and Wettestad, J. (2007) ‘Is EU enlargement bad for environmental policy? Confronting gloomy expectations with evidence’, International Environmental Agreements, vol. 7, no. 3, pp. 263–280. Steinebach, Y. and Knill, C. (2017) ‘Still an entrepreneur? The EU Commission’s role in environmental policy-making’, Journal of European Public Policy, vol. 24, no. 3, pp. 429–446. Thatcher, M. (2015) ‘European regulation’, in S. Mazey and J. Richardson (eds) The European Union: Power and Policy-making, Routledge, London, pp. 307–326. Voulvoulis, N., Arpon, K.D., and Giakoumis, T. (2017) ‘The EU Water Framework Directive: From great expectations to problems with implementation’, Science of the Total Environment, vol. 575, pp. 358–366. Weale, A. (1996) ‘Environmental rules and rule-making in the European Union’, Journal of European Public Policy, vol. 3, no. 4, pp. 594–611. Wiering, M., Liefferink, D. and Beijen, B. (2018) ‘The internal and external face of Dutch environmental policy: A case of fading environmental leadership?’ Environmental Science & Policy, vol. 81, pp. 18–25. Wonka, A. (2015) ‘The European Commission’, in S. Mazey and J. Richardson (eds) The European Union: Power and Policy-making, Routledge, London, pp. 83–106. Wurzel, R.K.W., Connelly, J. and Liefferink, D. (eds) (2017) The European Union in International Climate Change Politics, Routledge, London. Wurzel, R.K.W., Liefferink, D. and Di Lullo, M. (2019) ‘The European Council, the Council and the Member States: Changing environmental leadership dynamics in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 248–270. Wurzel, R.K.W., Zito, A.R. and Jordan, A.J. (2013) Environmental Governance in Europe: A Comparative Analysis of the Use of New Environmental Policy Instruments, Edward Elgar, Cheltenham. Young, A. (2014) ‘The single market: From stagnation to renewal?’, in H. Wallace, M.A. Pollack, and A. Young (eds) Policy-making in the European Union, Oxford University Press, Oxford, pp. 115–140. Zito, A.R., Burns, C. and Lenschow, A. (2019a) ‘Is the trajectory of European Union environmental policy less certain?’, Environmental Politics, vol. 28, no. 2, pp. 187–207. Zito, A.R., Burns, C. and Lenschow, A. (eds) (2019b) The Future of European Union Politics and Policy, Environmental Politics, vol. 28, no. 2, pp. 187–384 (special issue).

3

External EU environmental policy Katja Biedenkopf and Lisanne Groen

Summary guide The global environment is deteriorating rapidly as a direct result of human activities. The EU has signifcantly contributed to environmental deterioration within Europe, but also well beyond its borders. It has attempted to mitigate its external impacts by actively engaging in multilateral environmental negotiations and developing a variety of tools for bilateral, plurilateral and inter-regional interaction. These tools fall into two main groups: (a) incentives and disincentives, and (b) dialogue and persuasion. By drawing on examples from climate change and biodiversity protection, this chapter explains how the EU has used these tools in pursuit of its external environmental policy goals. It concludes that reconciling what are often divergent external policy objectives has been immensely challenging, leaving substantial room for improvement in the EU’s ability to promote and deliver environmental protection in a rapidly changing world order.

Introduction The global environment rapidly deteriorates as a result of human activities (Steffen et al., 2015). Humans have arguably become a new geological force, irreversibly changing parts of the earth system (Waters et al., 2016). The EU has signifcantly contributed to this problem. EU policies, consumption and production practices are responsible not only for environmental deterioration within Europe but also for signifcant environmental damage outside its borders. While traditionally EU environmental policy has sought to improve environmental conditions within Europe (see Chapter 2), in recent decades external EU environmental action has grown as part of the EU’s emergence as an international actor (Bretherton and Vogler 2006). This chapter provides an overview of the EU’s external environmental effects and policies. External environmental policy describes the EU’s intentional efforts to shape environmental policies, practices and conditions in non-EU countries. However, it also notes that external effects can occur unintentionally. In parallel with its internal environmental competences the EU has also expanded its external powers. It has developed a suite of tools for bilateral, plurilateral and inter-regional policy settings (Biedenkopf and Dupont, 2013, Adelle et al., 2018b), and has concluded multilateral agreements with non-EU countries (Oberthür and Groen, 2018, Groen, 2019). This chapter focuses on activities outside the framework DOI: 10.4324/9780429402333-3

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of multilateral negotiations (which are covered in Chapter 15) and differentiates two main groups of tools: (a) incentives and disincentives; and (b) dialogue and persuasion. Of course, not all external effects have been intentional and/or environmentally benefcial; some internal EU policies have also had unintended effects—some benefcial, others detrimental—on non-EU countries’ environment, policies and practices. In this chapter, we explore the different types of impact that the EU has generated, and the intentional efforts that the EU has made to alter them. In the next section, we begin by discussing the impact of internal EU policy, consumption and production practices on external environmental conditions and policies by differentiating between unintended and detrimental effects and intentional and benefcial effects. We then sketch out the history of external EU environmental policy before conceptualising the available tools of external EU environmental action. The EU’s use of its external policy toolbox and the interaction among different tools is illustrated in two specifc sub-areas: climate change and biodiversity. We show that the EU has been more active in the area of climate change, intensively using most external policy tools, while biodiversity has received less political attention but nonetheless the EU uses numerous tools, albeit less intensively. We discuss the effectiveness of external EU environmental policy in these two sub-areas before concluding with some refections on the EU’s changing role in what is a rapidly changing global world order.

Summary points • • •

External EU environmental policy can be defned as an intended effort by the EU to shape environmental policies, practices and conditions in non-EU countries. External EU environmental policy includes but is not restricted to the negotiation of multilateral agreements. The EU uses a multifaceted policy toolbox in pursuit of its external environmental objectives.

The EU in a global context The EU is one of the major economic players in the world today. Its economic activities contribute to detrimental environmental effects in non-EU countries while at the same time providing the EU with leverage to incentivise positive environmental change abroad. Most of its detrimental and benefcial effects were not intended but are instead the unintended by-product of economic and regulatory activity (Burlyuk, 2017). For example, international trade traditionally serves economic objectives but can have unintended environmental effects on land use, air pollution and human health in non-EU countries. Conversely, through trade relationships, EU environmental standards can benefcially affect a range of countries by incentivising them to align their environmental ambitions with the EU’s. While nowadays environmental provisions are intentionally included in free trade agreements, many other trade-related effects remain unintended. This section focuses on unintended effects, while subsequent sections discuss intended external environmental action.

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In 2015, the EU accounted for 7% of the world population, down from 13% in 1965. Its share of the global economy exceeds the EU’s population share. In 2016, the EU accounted for 22% of global GDP, second only to the United States of America with 25%. In 2016, the EU also accounted for more than 16% of global exports – very similar to China – and 15% of global imports. The EU imports more than 50% of the energy it uses, with 63% of those imports consisting of petroleum products and 23% gas in 2015. EU total domestic energy consumption accounted for 12% of the 2015 world energy total (Eurostat, 2018). The EU’s share of global trade is, however, in long-term decline and while the EU economy grew between 2006 and 2016 at an average rate of 2%, it remained behind the entire world’s average growth rate of 2.4%. Nonetheless, the EU remains a significant consumer of resources from outside its borders, resulting in a sizeable carbon/ ecological footprint (EEA 2019) but also endowing it with signifcant market power to incentivise external environmental improvements. Benefcial external effects Internal EU environmental policies (see Chapter 2) have had numerous benefcial external effects by creating incentives for non-EU public and private actors to adopt EU-inspired rules and practices. In a number of environmental policy areas, the EU has adopted more ambitious policies than most other countries. Thereby, the EU attempts to lead by example (Torney, 2019), which in a number of cases has attracted followers, for example, in chemicals policy where companies took over certain EUinitiated practices and some countries learned from the EU’s experience. External effects can be transmitted through trade links and international supply chains. A process known as trading up (Vogel, 1997) or the Brussels Effect (Bradford, 2020) involves a chain of actions, initiated when the EU sets high environmental standards in a sector marked by global supply chains and economic interdependence. Companies that sell their products into the EU need to comply with EU requirements to maintain access to the single market, sometimes by changing production processes and supply chains spanning multiple non-EU countries. Once they have altered their production processes, they may fnd it easier to produce all goods according to EU standards, rather than work to divergent rules. An illustrative example of such a process is the EU Restriction of Certain Hazardous Substances in Electrical and Electronic Equipment Directive (2011/65/EU). Since the electronics industry is highly globalised, manufacturers have adjusted a large share of their products to comply with high EU standards even for sales in non-EU countries. This, in turn, has led to the adoption of similar rules in a number of non-EU countries (Biedenkopf, 2011; Vogel, 2012). External effects can also be transmitted via policy learning and emulation. Non-EU countries that face similar environmental problems as the EU can draw lessons from the EU’s good and bad practices. In most cases, this does not lead to a literal copypaste of the EU law but rather to inspiration and adaptation of the EU experience to the non-EU context. One example is the South Korean chemicals law that has strong similarities to the EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (EC 1907/2006), but is attuned to South Korea’s administrative capacity, policy traditions and economic structures (Biedenkopf, 2018). While initially the unintended benefcial external environmental effects were not anticipated, the EU has taken note of its market power and, since the early 2000s, has

36 Katja Biedenkopf and Lisanne Groen increasingly tried to make greater use of it. External effects of internal policies are not those policies’ primary objective but that does not prevent the EU from harnessing them. In its external action, the EU promotes policy lessons and offers capacity building to non-EU countries that are interested in adopting similar policies. The EU Greenhouse Gas Emissions Trading Directive (2003/87/EC) is an example of EU capacity building in support of policy diffusion. The EU has fnanced large projects in China, South Korea and Kazakhstan, among others (Biedenkopf et al., 2017). When it intentionally produces external effects, the line demarcating internal and external environmental policy is crossed. Detrimental external effects A number of internal EU activities cause unintended detrimental environmental effects in non-EU countries. They partly arise from environmental and non-environmental policies that the EU has adopted to achieve policy goals in one area, without taking full account of other areas. For example, trade policy that encourages the shipment of ever more products can be detrimental to climate mitigation objectives. Another illustrative example is EU biofuels policy (see Box 3.1).

Box 3.1 EU biofuels policy: a generator of unintended external effects? Adopted to mitigate climate change by reducing greenhouse gas emissions from transportation, the EU’s 2003 target of 2% biofuel penetration by the end of 2005 and the 2009 target of 10% of fnal energy consumption in transport from renewable sources quickly raised concerns due to a host of unintended effects, many of which occur outside the EU. In the early years, biofuel feedstocks were produced from edible plant parts (so-called frst-generation biofuels). Biofuel production thereby competed with food production, which allegedly increased food insecurity and endangered biodiversity in exporting countries. Moreover, when taking biofuels’ entire lifecycle into account, their climate-friendliness is not a given since during their production signifcant amounts of greenhouse gases can be emitted. Many such detrimental unintended effects only became evident (to policy makers) after the adoption of the frst tranche of EU biofuel policies. Over time, internal EU policies have been repeatedly updated and refned to encourage the production of so-called second- and third-generation biofuels that have a smaller environmental footprint (Fargione et al., 2010; EASAC 2012). EU consumption also causes environmental impacts outside Europe through the import of products and services. EU imports generate a signifcantly higher environmental impact outside the EU than EU exports generate inside the EU (EEA, 2019). The EU’s ecological footprint per capita is larger than that of many other countries and regions and has increased over time (ibid.). The environmental impact of producing products and services for EU consumption can be measured in terms of higher greenhouse gas emissions, greater land and resource use and human exposure to toxic chemicals, among many others. For example, 55% of the land used to satisfy

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EU household and government consumption in 2008 (EEA, 2015) and 75% of the greenhouse gas emissions caused by producing the clothes, footwear and household textiles consumed in the EU in 2017 (EEA, 2020) were located outside Europe. EU consumption causes about 10% of global deforestation, almost all of which takes place outside the EU, and contributes to climate change and biodiversity loss (European Commission, 2013). EU food imports are the prime cause of external land and water use impacts, with meat products generating the largest effect of all. Imported metals (mostly iron and steel), intermediate products (especially rubber and plastic products) and manufactured products also cause substantial external harm through particulate matter, ozone and greenhouse gas emissions (Beylot et al., 2019). These are only a few examples of the vast range of product categories consumed in Europe that generate signifcant external environmental impacts. While the types of external effects described above are unintended, they nonetheless are known and therefore place on the EU a moral responsibility to act. In pursuing environmental objectives in non-EU countries and regions through external environmental action, the EU is in effect bearing moral responsibility for the consequences of some of its policies, consumption and production practices. NGOs and other stakeholders often remind the EU of this when advocating for more ambitious external environmental policies.

Summary points • • •

EU policy, consumption and production practices can have detrimental unintended effects on environmental conditions in non-EU countries. At the same time, EU internal environmental policy can produce benefcial unintended effects on environmental conditions, policies and practices outside the EU. NGOs and other stakeholders often try to push the EU to adapt its policies so as to reduce their detrimental effects and/or maximise their benefcial effects outside Europe.

The evolution of external environmental policy Three factors help explain the evolution of external environmental policy over time. The frst way has been via treaty changes. External EU environmental policy is still a shared legal competence between the EU and its member states; nevertheless, the EU has gradually expanded its role over time (see also Chapter 15). Important changes resulted from the Single European Act (1987) and the Treaty on European Union (2009). The Single European Act mentioned, for the frst time in EU history, the external dimension of EU environmental policy (Article 130r). With the 2009 Lisbon Treaty, this became Article 191 of the Treaty on the Functioning of the European Union (TFEU). The TEU added sustainable development to the list of areas of external relations (TEU Article 3(5) and TEU Article 21(2f)). Moreover, it added a new objective of EU environmental policy to Article 191 TFEU: the fght against climate change at the international level. This was the frst time that climate change was explicitly mentioned in an EU treaty (Delreux and Happaerts, 2016). These developments did not, however,

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unfold without a signifcant struggle. While the European Commission has generally been in favour of enlarging the EU’s external environmental policy powers, EU member states have often been reluctant to cede control (Bretherton and Vogler, 2006; see also Chapters 5, 6 and 15). The second way in which the EU’s external environmental competences grew is via European Court of Justice rulings. In the 1970s, the European Road Transport Agreement (ERTA) case that the European Commission brought against the Council of the EU (case 22/70) resulted in the doctrine of parallelism. This means that the EU has the competences to act externally in all areas in which it has internal competences (see also Chapter 15). The ERTA case strengthened the legal basis upon which the European Commission has asserted its right to be involved in international environmental negotiations. Third, the EU (European Community at the time) received recognition as a negotiation party in the Long-Range Transboundary Air Pollution Convention in 1979 as a Regional Economic Integration Organisation (REIO), alongside the member states. Some non-EU parties – the Soviet Union in particular – initially opposed this, but agreed when they were promised that their organisations (Comecon, in the case of the Soviet Union) would receive the same treatment. Once this precedent had been set, the EU was recognised as a REIO in other multilateral environmental agreements, such as the 1992 United Nations Framework Convention on Climate Change and the 1992 Convention on Biological Diversity (Bretherton and Vogler, 2006).

Summary points • • •

The EU’s external environmental competences have grown steadily over time via EU Treaty changes. European Court of Justice rulings spurred the expansion of EU’s competences in external environmental policy through the doctrine of parallelism (among others). In 1979, the EU was recognised as a REIO, strengthening its international role.

The tools of external environmental policy External policy tools can be divided into those that create incentives and disincentives for external actors, and those that are based on dialogue and persuasion. Incentives and disincentives can be used in situations in which the EU has some leverage over other countries and actors. Leverage can be achieved via the provision of new fnancial and technical resources or the granting of preferential access to the EU’s single market. By contrast, dialogue and persuasion are based on the use of rhetoric, argument and the identifcation of joint interests. With this group of tools, the EU and its partners interact more or less as equal partners. These two logics of external action are helpful in explaining when and why external EU environmental action does (not) work in specifc situations. This section describes the main differences, before applying them to two sub-areas of external EU environmental action: climate change and biodiversity.

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Incentives and disincentives The EU uses incentives and disincentives to change external actors’ behaviour. The main tools that fall into this category are trade and investment agreements, product bans, development cooperation, capacity building and technology transfer. As such, those tools are non-environmental external policies, but they can nevertheless pursue or include environmental objectives (but also be detrimental to them, as discussed above). The full integration of environmental objectives into all internal and external policy areas has been recognised as something that still needs to be tackled (Adelle et al., 2018c; Buzogány, 2018; see also Chapter 12). For example, EU trade agreements have steadily moved beyond the removal of tariffs to address so-called non-tariff barriers to trade (see also Chapter 2). In this regard, the Sustainability Chapters that the EU has included in its recent Free Trade Agreements with countries such as Canada and South Korea aim at guaranteeing that both parties adhere to certain minimum environmental and social standards. If these requirements are not fulflled, the EU may reduce their privileged access to its single market. For a number of developing countries, trading with the EU is an important income generator. In such cases, the relationship is more hierarchical and hence the EU’s leverage is greater (Postnikov, 2018). Product regulation or bans can also serve external environmental purposes. For example, the 1983 law prohibiting the import of seal pup products (Council Directive 83/129/EEC) led to Canada ceasing commercial seal pup hunting. These tools come close to the benefcial unintended effects of internal EU policy and they work based on the same market logic. The key difference is that their main objective is external environmental change. Finally, capacity building and technology transfer are often used as external policy tools when a non-EU country already agrees with the pursuit of certain environmental objectives promoted by the EU. In this case, the EU supports the country or certain actor groups to achieve their environmental objectives.

Dialogue and persuasion Dialogue and persuasion entail the establishment of good relationships and argumentation to encourage external actors’ behaviour change. The main tools are diplomatic outreach by EU institutions and external EU delegations, regulatory cooperation and other types of policy dialogues. While the hierarchical relationship of incentives and disincentives creates a coercive dynamic, dialogue and persuasion are based on an argumentative logic without coercion. Those policy tools are widely used and not confned to the environmental realm, yet they have increasingly been used in the pursuit of external environmental objectives. With the creation of the European External Action Service (EEAS) and the EU delegations, the EU has ramped up its climate and environmental diplomacy. A prime example of this is the EU Climate Diplomacy Action Plan, described below (Torney and Cross, 2018). Various kinds of dialogue with non-EU countries and regions have burgeoned. For example, the EU–China 2020 Strategic Agenda for Cooperation, which was adopted in 2013, includes environmental protection and climate change. Both parties commit themselves to ‘complementary initiatives, with a view to reducing global greenhouse gas emissions below 2 degrees Celsius above pre-industrial levels’ (EEAS 2013; Torney and Gippner, 2018). Climate change has also been included in bilateral and plurilateral

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meetings such as the G7 and G20 summits. The EU is an active party to most, if not all, multilateral environmental negotiations, which is an important tool in the category of dialogue and persuasion.

Box 3.2 European Neighbourhood Policy: using multiple tools The European Neighbourhood Policy (ENP) started in 2003–2004 as a means to cooperate with the EU’s Eastern and Southern neighbours, such as Algeria, Armenia, Moldova and Tunisia. Its overarching objective is to generate prosperity and stability in those regions. The environment is one among a range of policy areas on which the ENP focuses. In 2007–2008, the European Commission published a series of short guides that aimed to encourage ENP countries to converge with EU environmental policies. The guides focused on several policy areas – nature protection, water, waste, EU air pollution, Integrated Pollution Prevention and Control – plus horizontal topics such as environmental impact assessment and access to information. They presented the benefts of convergence as well as the priority tasks the EU recommends that ENP countries tackle and for which they will receive EU funding. The guides were a form of dialogue and persuasion, but they were underpinned by some strong incentives in the form of fnancial support and benefcial access to the EU market. The ENP thus demonstrates how the EU combines different tools to achieve its external environmental objectives.

Table 3.1 summarises the EU toolbox. Rarely does the EU use a single tool in isolation. Its external environmental action often involves a combination of mutually interacting tools. The interaction can be unintended and includes both negative effects, Table 3.1 The EU’s external environmental policy toolbox Tools (non-exhaustive list) (Dis)incentives

Dialogue and persuasion

Examples

• Sustainability chapters in EU Free Trade Agreements • EU law prohibiting the import of seal pup products • Greenhouse gas emissions trading capacity building in China, South Korea and Kazakhstan • Integrating environmental objectives in development cooperation such as a renewable energy project • Diplomatic outreach • EU Delegation’s outreach to their host • Policy dialogues governments • Multilateral negotiations • EU–China Strategic Agenda for Cooperation • EU as an actor in the Convention on Biological Diversity (CBD) negotiations • Trade and investment agreements • Product regulation and bans • Capacity building • Development cooperation

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in which one tool undermines another, and benefcial effects, in which one tool supports another. Over time, the EU has become aware of those interaction effects and has aimed to produce better policy designs. The next sections illustrate the use of the external environmental toolbox in two policy areas: climate change and biodiversity.

Summary points • • • •

The EU uses incentives and disincentives to infuence external actors’ behaviour and policy when it has some leverage over them. Dialogue and persuasion tools involve the use of argumentation to encourage external actors to change their behaviour. In many areas, the EU uses a combination of tools to achieve its external environmental objectives. The interaction among tools can (unintentionally) produce negative effects but also be (intentionally) mutually supportive.

External policy tools in action: climate change Of all external environmental policies, climate change has taken centre stage. The EU uses a wide range of external policy tools from both groups—incentives and disincentives as well as dialogue and persuasion (Torney and Cross, 2018). In early 2015— about a year before the Paris Agreement on climate change was adopted—the EEAS and the European Commission’s Directorate General for Climate Action developed a Climate Diplomacy Action Plan (European Commission and EEAS, 2015). This was a central element of the EU’s activities in the run-up to the Paris Conference and has remained important since (Council of the EU, 2016). It underlined the importance of communicating a common EU narrative to external countries, integrating climate change in development cooperation, and developed a strategic approach to establishing dialogues with the EU’s partners. It contained many dialogue and persuasion policy tools and combined them with some incentives. In the 2019 European Green Deal Communication, the European Commission (2019) made clear that, together with the High Representative, it would work closely with EU member states on mobilising as many diplomatic channels as possible, including the UN, the G7 and the G20, to increase the ambition of climate action worldwide. Building on the Climate Diplomacy Action Plan’s success, the Foreign Affairs Council called for a more strategic approach to climate diplomacy to support the new, more ambitious, climate targets proposed by the von der Leyen Commission. It emphasised the need for tailor-made approaches when engaging in outreach towards third countries, focusing on a just and socially balanced transition. It also highlighted various bilateral summits at which the EU would engage in dialogue about climate action such as the EU–China summits (Council of the EU, 2020). In addition to dialogue and persuasion, incentives and disincentives have also played an important role in external EU climate policy. Since the Juncker Commission (2014–2019), climate mitigation and adaptation have been part of EU development assistance. Already, the 2011 Commission Agenda for Change on EU development policy linked aid activities in sustainable agriculture and energy to the improvement

42 Katja Biedenkopf and Lisanne Groen of climate resilience in non-EU countries (European Commission, 2011a). Climate policy integration (see Chapter 12) has been expanded. For example, in the 2014–2020 Multiannual Financial Framework (MFF), 20% of all EU spending was earmarked for climate-related action, a fgure which also applied to EU development cooperation (De Roeck et al., 2018). Capacity building has also been an element of many climate-related development projects, such as the EU4Climate programme (2018–2022) that assists Eastern Partnership countries with climate mitigation and adaptation policy development and the development of a ‘green agenda for the Western Balkans’ (European Commission, 2019: 20). Representing 20% of the total 2014–2020 MFF, the relative impact of this climate action as a part of all external EU action has risen compared to previous MFFs. Yet a comprehensive assessment of the measure’s impact has not been conducted thus far. The requirement of ‘climate-related’ spending is rather vague and does not necessarily imply that either climate mitigation or adaptation is the main objective. The Commission proposed to increase the climate target to 25% in the 2021–2027 MFF. With respect to trade, since around 2010, the EU has routinely inserted sustainability commitments into its free trade agreements, including obligations for partner countries to make a positive contribution to the decarbonisation transition (for example, the 2018 EU–Japan Economic Partnership Agreement, Article 16.4, paragraph 4). Since 2016, a binding commitment for trading partners to ratify and ‘effectively implement’ the Paris Agreement has also been included. However, such commitments are relatively vague and unsupported by a sanction-based mechanism, thus may not result in an increase in climate policy action. Moreover, older free trade agreements do not include any such commitments (Hradilová and Svoboda, 2018). Finally, the 2019 European Green Deal Communication announced the development of a carbon border adjustment mechanism, which was considered to be a rather bold proposal. This mechanism aims to level the playing feld between European producers who comply with EU climate rules and non-EU producers who are not subject to similar requirements. Such a measure uses the attractiveness of the single market to incentivise non-EU countries into higher climate ambitions. Yet it can potentially come at a high political cost, especially if non-EU countries perceive it to be a disguised constraint on trade. Whether this mechanism will even be adopted is discussed in Chapter 20. It also remains to be seen to what extent COVID-19 affects external climate policy by, for example, setting other fnancing priorities. Moreover, the EU-level strategies may sound impressive, but their success depends on coordination among various actors, including member states. Some Central and Eastern European member states, in particular, are reluctant to commit to ambitious goals. Persistent differences among the interests of various European Commission’s Directorate Generals also make policy coordination diffcult.

Summary points •

The EU Climate Diplomacy Action Plan emphasised the development and use of a number of policy tools, based on dialogue and persuasion as well as incentives and disincentives.

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Twenty per cent of the EU budget and 20% of its development assistance were spent on climate-relevant action in 2014–2020. For the 2021–2027 EU budget, 25% has been proposed. By including climate-related commitments in EU free trade agreements and by proposing a new carbon border adjustment mechanism, the EU seeks to harness its market power. Successful EU climate diplomacy is reliant on the support of many powerful European actors, including member states and their embassies.

External policy tools in action: biodiversity In 2019, only small percentages of habitats (16%) and protected species (23%) in Europe had a positive conservation status. The EU was well off track in reaching its target of halting biodiversity loss by 2020 (EEA, 2019). Target six of the EU’s 2020 Biodiversity Strategy relates to the management of global biodiversity loss (European Commission, 2011b). This target as well as many others have not been reached and the strategy as a whole is widely considered to have failed. The EU’s 2030 Biodiversity Strategy aims to put the EU in a leading position to address the global biodiversity crisis. It states that the European Commission will mobilise its external action tools and partnerships to realise ‘an ambitious new UN Global Biodiversity Framework’ at the ffteenth Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) in 2021 (European Commission, 2020). Dialogue and persuasion tools are used intensively in the EU’s external biodiversity policy (Kettunen, 2018). The EU discusses global biodiversity governance at most bilateral and multilateral summits and in dialogues with non-EU countries. One of the EU’s aims is to reduce the potentially negative impacts of trade on biodiversity, including wildlife traffcking (European Commission, 2015). In addition, ahead of important UN negotiations, the EU reaches out to key countries to exchange ideas and shape alliances. The EU has been building alliances rather successfully over time, which has been facilitated by the fact that the United States is not a party to the CBD (Groen, 2019). Similar to climate change, the EU engages in policy dialogues on biodiversity, which are often one of many agenda items at diplomatic meetings and in partnerships. Some policy dialogues result from the biodiversity obligations inserted into EU free trade agreements to tackle biodiversity loss. The EU and its non-EU partners then exchange experiences on how to comply with obligations. This demonstrates the close interaction between the two groups of external policy tools. But in contrast to climate change, there is no EU Biodiversity Diplomacy Action Plan, which points to a lower priority and less overarching coordination across initiatives for biodiversity in external environmental policy. Finally, as regards incentives and disincentives, the 2014–2020 MFF included funding to natural resources as part of the European Development Fund and the Thematic Programme on Global Public Goods and Challenges under the Development Cooperation Instruments. These activities are part of the EU’s Biodiversity for Life initiative, which aims to improve the coherence and coordination of external action on biodiversity, ecosystems and natural resources (European Commission, 2015). There

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is, however, no biodiversity spending target expressed as a certain percentage in the MFF, as there is for climate-related action. This again indicates that the EU considers climate change to be a more important challenge than biodiversity loss. Nevertheless, all EU free trade agreements adopted since 2012 contain specifc articles on biodiversity. Their main aim is to push the partner country to ensure the conservation and sustainable use of biodiversity, including by means of establishing measures on monitoring and enforcement. The implementation of them is, however, still at an early stage. The EU has appointed a Chief Trade Enforcement Offcer to accelerate policy implementation (European Commission, 2019: 21), but by mid-2020, no one had been formally appointed to that role. The EU has also adopted a set of Wildlife Trade Regulations to introduce targeted trade restrictions on endangered animal and plant species such as the red panda or the Mongolian oak. In general, though, Commission offcials try to encourage implementation via regular dialogues rather than using trade sanctions. Specifc capacity building projects in partner countries seek to help trading partners establish more effective national policies to halt wildlife traffcking in their own territories. Some of those projects arise from the biodiversity obligations in the EU’s free trade agreements (European Commission, 2015).

Summary points • • • •

The EU has built alliances with non-EU countries in the CBD but these have not translated into suffcient international policy action to avert global biodiversity loss. There is no Biodiversity Diplomacy Action Plan and in general biodiversity receives less high-level attention than climate change. The 2014–2020 MFF included funding to increase external biodiversity action but there was no specifc biodiversity spending target. Recent EU free trade agreements have included specifc articles on biodiversity, the implementation of which is still at a relatively early stage.

The effectiveness of tool mixes Evidently, the EU does not rely on a single tool or even group of tools to achieve its external policy objectives. Rather, it uses a mix of tools that, often but not always, are intentionally designed to mutually support one another. The free trade agreements are a good illustration of how the two tool groups are combined. Trade agreements use the leverage of the EU market to coerce non-EU partners into certain environmental change but often also establish dialogues and capacity building to enable and support non-EU countries to comply with their obligations. Capacity building and dialogues are often used together (Biedenkopf et al., 2018). The EU Climate Diplomacy Action Plan is another conscious effort to use external policy tools in a concerted manner. It was hailed as a great success in the run-up to the adoption of the Paris Agreement and the lessons learnt informed external energy policy. For other environmental areas such as biodiversity, such diplomacy action plans do not exist yet.

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However, the EU does not always succeed in reconciling its policy objectives and some conficts persist. For example, in external forest policy, particular trade provisions have encouraged the planting of fast-growing, monocultural tree species to the detriment of local biodiversity preservation and sustainable management priorities (Pirlot et al., 2018). One of the reasons for these self-undermining effects is that integrating environmental objectives in, for example, external trade policy requires collaboration among different Directorate Generals of the European Commission and different Council formations. In practice, this is as hard to achieve in relation to external policy objectives as it is in internal policy matters (see also Chapters 6 and 12). More fundamentally, specifc external policy objectives may be inherently more diffcult to reconcile than internal policy objectives. For example, the objective of using trade policy to increase trade fows may clash with the climate policy objective of reducing greenhouse gas emissions from transportation, i.e., many traded products have to be physically transported in ships and planes. Internal fnancial constraints also curtail the EU’s ability to use fnancial incentives to achieve its external environmental policy objectives. When internal EU environmental policy is complex and/or contested, it is often especially diffcult to export to non-EU countries. Finally, policy effectiveness is in large part reliant on factors that are outside the EU’s control and/or cannot entirely be infuenced by using (dis)incentives. For example, not all countries wish to engage with the EU on water issues; those that encounter severe water problems are more likely to want to work with the EU to further the principles set out in the EU Water Framework Directive (Adelle et al., 2018a). Sudden external political changes, such as the election of President Trump in the USA, can also alter the effectiveness of specifc tools, especially those based on dialogue and persuasion.

Summary points • •

•

The EU seeks to employ a mix of external policy tools in a mutually supportive manner. Yet the complexity of EU decision making and clashing interests explain that some policies undermine others. The EU does not always succeed in attaining all of its external environmental policy ambitions. Internal fnancial constraints, the lack of internal political unity and policy complexity infuence the effectiveness of its external environmental policies. Factors external to the EU also shape the effectiveness of external environmental policy, such as the extent to which a particular country is economically dependent on the EU and/or is receptive to its policy ideas.

Conclusions Ambitious internal EU policy lends credibility to the EU’s attempts to be an international environmental champion. This makes the alignment of its internal and external policy ambitions even more important. The EU uses a multifaceted policy toolbox to improve environmental conditions beyond its borders. These tools can be divided into two types: incentives and disincentives; and dialogue and persuasion. The use of these

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tools depends, on the one hand, on factors that are internal to the EU, in particular the level of political ambition, fnancial resources, internal unity and policy complexity. It also depends on external factors, in particular the receptiveness of other countries to the EU’s ideas. Many environmental policy areas were covered in the 2019 European Green Deal but climate change received the most attention. The EU considers climate policy to be the key global environmental problem to tackle. Its Climate Diplomacy Action Plan is a strategic approach to unite EU diplomatic outreach efforts towards non-EU countries to persuade and incentivise them to do more to reduce greenhouse gas emissions. By contrast, in biodiversity, the EU has adopted fewer internal policies and has repeatedly failed to fulfl its headline internal policy objective – to halt the loss of European biodiversity by 2020. Moreover, it has not invested as much in external (diplomatic) outreach as it has in the area of climate change. The EU now has the opportunity to use the overall positive experiences in relation to external climate policy to inform other areas of external environmental and sustainability policy such as biodiversity. This thinking could be taken forward via the European Green Deal which includes, among others, an attempt to tackle interlinked global environmental problems such as climate change and biodiversity and calls for the development of Green Deal diplomacy. To conclude, the world is marked by an ever-worsening global environmental crisis and there is growing contestation among some of the largest and most powerful global players over the guiding norms of international action such as precautionary action and common but differentiated responsibility. US President Trump and Brazilian President Bolsonaro have openly questioned the legitimacy of existing international environmental agreements and, in stark contrast to the EU (see Chapter 19), have dismantled parts of their domestic environmental policy. External EU environmental policy is thus faced with the double challenge of worsening environmental problems and fragmenting international politics. The EU is trying to respond to a conglomerate of interconnected environmental, economic and political crises through a twin strategy of leading by example and using diplomacy. However, it is also increasingly weighing up the use of much more coercive approaches such as border adjustment measures, drawing on the full suite of external policy tools to push and prod non-EU countries to act. However, as much as it would like to help, the EU cannot solve all the world’s crises on its own.

Summary points •

• •

The world is marked by an ever-worsening global environmental crisis and growing political contestation among some of the largest and most powerful global players over the guiding norms and ambition of international environmental action. Ambitious internal policy lends credibility to the EU’s attempts to be an international environmental champion. This makes aligning internal and external policy ambitions even more important to achieve in practice. The EU is trying to draw on the full suite of external policy tools to push and prod non-EU countries to act but cannot solve all the world’s crises on its own.

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Key questions 1

2 3 4

To what extent can external environmental action be effective if other major players do not adopt similar measures? How does global contestation of ambitious environmental protection policy impact on external environmental action? Can the EU reconcile its environmental objectives with the growing number of free trade agreements it strikes? Is greater trade with the EU a driver of or a solution to environmental problems in non-EU countries? How can the EU use its diplomatic network in combination with the EU member state embassies to effectively improve its environmental diplomacy? How can the EU better harness the unintended benefcial external effects of its internal environmental policy?

Guide to further reading • • •

Adelle, Camilla, Katja Biedenkopf and Diarmuid Torney (eds.). (2018) European Union External Environmental Policy: Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan. Corrado, S., et al. (2020) Out of Sight Out of Mind? A Life Cycle-based Environmental Assessment of Goods Traded by the European Union. Journal of Cleaner Production, 246, 118954. Torney, Diarmuid. (2015). European Climate Leadership in Question: Policies toward China and India. Cambridge: The MIT Press.

Online resources • • •

European Environmental Agency, Data and Maps: https://www.eea.europa.eu/ data-and-maps European External Action Service: https://eeas.europa.eu/topics/climateenvironment-energy_en Eurostat, Key Figures on Europe: https://ec.europa.eu/eurostat/cache/digpub/ keyfgures/

References Adelle, C., Benson, D. and Agnew, K., 2018a. ‘Water: Promoting EU Policy through Dialogue and Capacity Building’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, pp. 125–146. Adelle, C., Biedenkopf, K. and Torney, D., 2018b. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan. Adelle, C., Adelle, C., Delputte, S., de Roeck, F. and Nicholson, S., 2018c. ‘Environmental Instruments in Development Cooperation: Promoting Better Development and Environmental

48 Katja Biedenkopf and Lisanne Groen Outcomes?’ In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders Cham: Palgrave Macmillan, pp. 81–102. Beylot, A., Corrado, S. and Sala, S., 2019. Environmental Impacts of European Trade: Interpreting Results of Process-based LCA and Environmentally Extended Input–output Analysis towards Hotspot Identifcation. The International Journal of Life Cycle Assessment, online frst, 25, 2432–2450. Biedenkopf, K., 2011. Policy Recycling? The External Effects of EU Environmental Legislation on the United States. Brussels: PhD dissertation defended at the Vrije Universiteit Brussel. Biedenkopf, K., 2018. ‘Chemicals: Pioneering Ambitions with External Effects’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, 189–208. Biedenkopf, K. and Dupont, C., 2013. ‘A Toolbox Approach to the EU’s External Climate Governance’. In: Boening, A., Kremer, J.-F. and van Loon, A. eds. Global Power Europe. Heidelberg: Springer, 181–199. Biedenkopf, K., Torney, D. and Adelle, C., 2018. ‘Conclusions’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, pp. 337–58. Biedenkopf, K., Van Eynde, S. and Walker, H. 2017. Policy Infusion through Capacity Building and Project Interaction: Greenhouse Gas Emissions Trading in China. Global Environmental Politics, 17(3), 91–114. Bradford, A., 2020. The Brussels Effect. How the European Union Rules the World. Oxford: Oxford University Press. Bretherton, C. and Vogler, J., 2006. The European Union as a Global Actor. London: Routledge. Burlyuk, O. 2017. The ‘Oops!’ of EU Engagement Abroad: Analyzing Unintended Consequences of EU External Action. Journal of Common Market Studies, 55(5), 1009–1025. Buzogány, A., 2018. ‘Neighbourhood Policy: Promoting Environmental Protection Close to Home’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, 233–252. Council of the EU, 2016. Council Conclusions on European Climate Diplomacy after COP21. Foreign Affairs Council meeting, Brussels, 15 February 2016. Council of the EU, 2020. Council Conclusions on Climate Diplomacy. Foreign Affairs Council meeting, Brussels, 20 January 2020. Delreux, T. and Happaerts, S., 2016. Environmental Policy and Politics in the European Union. London: Palgrave Macmillan. De Roeck, F., Orbie, J. and Delputte, S., 2018. Mainstreaming Climate Change Adaptation into the European Union’s Development Assistance. Environmental Science and Policy, 81, 36–45. EASAC, 2012. The Current Status of Biofuels in the European Union, Their Environmental Impacts and Future Prospects. Halle: European Academies Science Advisory Council. EEA, 2015. Share of the EU-27’s Environmental Footprint Exerted Outside EU Borders. Available at: https://www.eea.europa.eu/data-and-maps/daviz/share-of-the-eu-272019s (accessed on 4 February 2020). EEA, 2019. The European Environment: State and Outlook 2020. Copenhagen: EEA. EEA, 2020. Textiles in Europe's Circular Economy. Available at: https://www.eea.europa. eu/themes/waste/resource-effciency/textiles-in-europe-s-circular-economy (accessed on 4 February 2020). EEAS, 2013. EU-China 2020 Strategic Agenda for Cooperation. Brussels: European External Action Service. European Commission, 2011a. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the

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Regions. Increasing the Impact of EU Development Policy: An Agenda for Change. Brussels, 13 October 2011: COM(2011) 637 fnal. European Commission, 2011b. The EU Biodiversity Strategy to 2020. Luxembourg: Publications Offce of the European Union. European Commission, 2013. The Impact of EU Consumption on Deforestation: Comprehensive Analysis of the Impact of EU Consumption on Deforestation. Final Report. Luxembourg: Publications Offce of the European Union. European Commission, 2015. The Mid-Term Review of the EU Biodiversity Strategy to 2020. Brussels, 2 October 2015, SWD(2015) 187 fnal. European Commission, 2019. Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions. The European Green Deal. Brussels, 11 December 2019: COM(2019) 640 fnal. European Commission, 2020. EU Biodiversity Strategy for 2030. Bringing Nature Back into Our Lives. Brussels, 20 May 2020: COM(2020) 380 fnal. European Commission and EEAS, 2015. Action Plan for Climate Diplomacy. Brussels, January 2015. Eurostat, 2018. The EU in the World. Luxembourg: Publications Offce of the European Union. Fargione, J. E., Plevin, R. J. and Hill, J. D. 2010. The Ecological Impact of Biofuels. Annual Review of Ecology, Evolution, and Systematics, 41, 351–377. Groen, L. 2019. Explaining European Union Effectiveness (Goal Achievement) in the Convention on Biological Diversity: The Importance of Diplomatic Engagement. International Environmental Agreements: Politics, Law and Economics, 19(1), 69–87. Hradilová, K. & Svoboda, O. (2018). Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness. Journal of World Trade, 52(6), 1019–1042. Kettunen, M., 2018. ‘Biodiversity: Strong Policy Objectives Challenged by Sectoral Integration.’ In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, pp. 147–166. Oberthür, S. and Groen, L. 2018. Explaining Goal Achievement in International Negotiations: The EU and the Paris Agreement on Climate Change. Journal of European Public Policy, 25(5), 708–727. Pirlot, P., Delreux, T. and Farcy, C., 2018. ‘Forests: A Multi-sectoral and Multi-level Approach to Sustainable Forest Management’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, pp. 167–188. Postnikov, E., 2018. ‘Environmental Instruments in Trade Agreements: Pushing the Limits of the Dialogue Approach’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, 59–79. Steffen, W., et al. 2015. Planetary Boundaries Guiding Human Development on a Changing Planet. Science, 347(6223), 736–746. Torney, D. 2019. Follow the Leader? Conceptualising the Relationship between Leaders and Followers in Polycentric Climate Governance. Environmental Politics, 28(1), 167–186. Torney, D. and Cross, M. a. K. D., 2018. ‘Environmental and Climate Diplomacy: Building Coalitions through Persuasion’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan. Torney, D. and Gippner, O., 2018. ‘China: Deepening Cooperation on Climate and Environmental Governance’. In: Adelle, C., Biedenkopf, K. and Torney, D. eds. European Union External Environmental Policy. Rules, Regulation and Governance Beyond Borders. Cham: Palgrave Macmillan, 275–295.

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4

Studying EU environmental policy Andrea Lenschow

Summary guide Environmental policy has received tremendous attention from scholars, considering its relatively recent appearance at EU level. As well as being an important subject in its own right, EU environmental policy analysis also speaks to several big debates in EU studies, such as on the dynamics of policymaking and even the very nature of the EU as a new polity. These include understanding how environment developed as a policy area, the kind of instruments used to govern policy problems and their performance in ameliorating policy problems. In this chapter, the existing literature is divided into three analytical phases: the frst deriving from an International Relations perspective, the second drawing on public policy approaches and the third focusing on the ‘bigger picture’ of European governance. It concludes that scholarship on EU environmental policy has not only contributed to more fundamental discussions in EU policy analysis but, on occasion, has driven them.

Introduction Environmental policy has received tremendous attention from EU scholars. Considering its relatively recent appearance in the list of EU competences and its comparatively marginal political status in the economy-dominated policy repertoire, this is notable. Numerous environmental crises and accidents exciting citizens and scholars alike since the 1970s, and the emergence of environmental social movements in several European countries, may all be part of the explanation. Yet, even after green politics in Europe was institutionalised, and environmental policy gained a ‘normal’ status in the acquis communautaire, the level of political attention never entirely subsided. This chapter argues that the study of environmental policy has contributed – and in future could further contribute – to several larger debates on the dynamics of EU policymaking and even the very nature of the EU polity. For policy analysts, three questions are of particular interest: (1) how did the environment emerge and develop as a policy area?, (2) what kind of policy decisions has the EU made? and (3) how have the resulting policies performed? From a polity perspective, EU scholars refect on the structure of formal and informal governance patterns that are held to be characteristic of the environmental policy feld. Analyses focus on: (1) governance constellations at EU level, (2) dynamics in the EU’s multi-levelled system and (3) the EU’s expanding role in global governance. Also, normative questions, linking the characteristics of policymaking and the scope of the policy to concerns DOI: 10.4324/9780429402333-4

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related to the polity’s legitimacy, have always been critical in the historical development and consolidation of the acquis. With regard to EU environmental policy per se, we note: (1) its rapid expansion and institutionalisation, (2) the agreement of regulatory standards that often exceed the so-called lowest common denominator (LCD) among decision makers and (3) increasing concern about the effectiveness of policy that has undermined its legitimacy and raised the prospect of policy dismantling. In tackling these questions, the rest of this chapter divides the existing literature into three analytical phases. First, research on environmental policy began from an international relations perspective, as was true for most EU-related analyses. The grand debate between intergovernmental and neo-functional approaches framed initial investigations of the emergence and spread of EU environmental policy. Once the institutional and legal foundations of policy had been established by the SEA, analysts began to look at the politics surrounding the development of specifc policies. In this second phase, authors borrowed terms and concepts from public policy scholars (see Peterson, 2001: 300ff). Methodologically, individual or comparative case studies dominated these frst two phases. The initial bias towards piecemeal and rather microscopic investigations of single policy items began to change during the third phase, as attention turned towards the ‘bigger picture’ of European governance, understood as a particular rule-making structure consisting of multiple layers and characterised by policy fragmentation. Inspired by more fundamental questions around policy performance and democratic legitimacy, analysts began to pinpoint close connections between policy reforms and polity features and dynamics. Analyses of the process of policymaking and the choice of particular policy instruments began to reveal novel features in the EU polity, namely, the rise of less hierarchical relations and shifts in the balance of power between public and private actors. Notably, these governance implications are not limited to Brussels, but reach upward to the international level as well as downward to the national and regional levels. Very recent work has refected on the mutual effects of crises at both the policy and the polity level in the EU, and hypothesised about future trajectories (Zito et al., 2019a). The remainder of this chapter proceeds in three parts. Part 1 reviews the literature on the emergence of the policy and highlights the turn from integration to domestic theories. Part 2 examines the question of environmental policy performance. The fnal part discusses the link between environmental policymaking and the wider process of developing the European polity. It concludes that scholarship on EU environmental policy has not only picked up on and informed general discussions of EU policymaking and integration, but has also been a driver of new debates within EU studies.

Summary points • •

•

Environmental policy has received a disproportionate amount of attention among EU scholars. Studies in this feld have evolved in three phases starting with policy expansion, then focusing on specifc characteristics of policymaking and then zooming out to examine environmental policy and governance from a much larger, polity-based perspective. Environmental may be a relatively new area of EU activity (dating from the early 1970s), but the scholarship on EU environmental policy has often been a driver of new debates within EU studies.

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Emergence and expansion: moving from niches to centre stage Environmental policy was not among the range of competences that the Treaty of Rome originally attributed to the European Communities (see Chapters 1 and 2). Nevertheless, EU policy slowly emerged in the 1960s when directives targeted dangerous substances, noise and exhaust emissions from motor vehicles. The literature has identifed several periods in the process of environmental policy expansion and institutionalisation. During the ‘founding period’ from 1957 to 1972 (Zito, 1999: 24) ‘incidental measures’ were passed (Hildebrand, 1993: 17). A second period featured the frst (non-obligatory) environmental action programme (EAP) in 1972 and the scope of legislative measures spread to cover all environmental media (air, water, soil) and major problem areas (such as waste, dangerous substances/chemicals and nature protection). The year 1987 marked the start of a third period; it was a watershed in the evolution of the policy feld as the SEA formally included environmental policy in the range of EU competences. It ended ambiguities regarding the judicial status of environmental measures and allowed the number of newly adopted pieces of legislation to rise signifcantly (see also Chapter 2). The academic notion of the EU as a ‘regulatory state’ was a reaction to this growth of regulatory policy competence (Majone, 1996). Arguably, the 1992 Fifth EAP marked the ‘high-water mark’ (Zito, 1999: 28) of the passage of truly major new items. It identifed priority areas (such as climate change or biodiversity), sought to streamline or improve existing policies (e.g., in the feld of water protection) and to mainstream environmental objectives into all EU policymaking sectors (see also Chapter 12). European integration theories In academic accounts tracing this process of expansion and institutionalisation of European environmental policy, we can see a shift from integration to domestic politics theories. While early scholarship on EU environmental policy in the 1980s was mostly devoted to the description of the emerging policy feld and its ambiguous legal basis (Rehbinder and Stewart, 1985), the expansion of EU environmental policy constituted the frst big theoretical puzzle for scholars. It was frst approached from an integration theory perspective, following either (liberal) intergovernmentalist or neofunctionalist lines of argument. Jonathan Golub most strongly took the intergovernmentalist position. Analysing the process of adopting the packaging waste directive (Golub, 1996a), he found that attempts by supranational and societal actors to infuence the policymaking process did not translate into real power, capable of moving member states to change their policy positions. Rather, intergovernmental bargaining in the Council resulted in a directive refecting the LCD. In his work on the UK, Golub maintained that concerns for the protection of national interests and state sovereignty determined UK behaviour in EU environmental policy negotiations (Golub, 1996b) and, presumably, the behaviour of other member states as well. The intergovernmentalist paradigm did not achieve much traction in explaining environmental policymaking in the EU, however, not least because the rather remarkable expansion of the feld usually did not correspond with LCD decisions. Yet other state-centred analyses sought to resolve this puzzle in pointing to the interesting pattern of ‘pioneering’ or ‘green’ member states (Andersen and Liefferink, 1997; Liefferink and Andersen, 1998) successfully pushing for the adoption of strict regulation. An infuential study by Adrienne Héritier and her associates (1996) on the adoption of several environmental directives and regulations showed how frst moves by member states set

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the policy agenda and thus predetermined the EU regulatory style and legislative standards. Subsequent literature refned the terminology and developed more fne-grained typologies, distinguishing between direct and indirect, internal and external strategies, and various forms and styles of leadership (Liefferink and Andersen, 1998; Liefferink and Wurzel, 2017). Recent contributions have pointed to the emergence of new political dynamics that have caused earlier pioneers to retreat (Wiering et al., 2018). Neofunctionalism informed alternative accounts of the development of EU environmental policy. Scholars explained the peak of environmental policy adoptions after 1987 by pointing to the functional link between market integration and the harmonisation of national environmental (or other regulatory) policy (e.g., Weale, 1999). Most authors writing in this tradition took functional pressure as a given, however, and concentrated on actor-centred push factors. Relevant studies pointed to the Court of Justice of the EU, which had interpreted the treaty framework in an expansionist fashion and allowed environmental policy to enter the Community acquis by way of reference to functional linkages with already established competences of the Community (see Chapter 7). Similarly, the Environmental Directorate General of the European Commission had been building a role for itself by searching for new policy niches, exploiting windows of opportunity for policy expansion and forming ‘green’ alliances (e.g., Weale and Williams, 1993: 61) (see also Chapter 6). Similarly, the European Parliament received attention for its own increasingly entrepreneurial role, insisting on progressive environmental regulation (and full implementation) (Judge et al., 1994; Bomberg and Burns, 1999) (see also Chapter 8). Together, these studies shared a theoretical interest in establishing a link between functional expansion and the more general European integration project. The slowdown of policy expansion in the 1990s and indeed fears of outright policy dismantling (see below and also Chapter 19) heaped more criticism on the neofunctionalist paradigm as exaggerating the linearity of task expansion. However, even during the period of signifcant policy consolidation, analytical attention was shifting from macroscopic views of the whole policy area to more detailed studies of particular EU institutions and levels of governance. Interest groups, policy networks and epistemic communities EU scholars widely neglected party politics and rather highlighted the role of environmental interest groups as having been surprisingly infuential (Mazey and Richardson, 1993; Webster, 1998) (see also Chapter 9). In part, the literature on lobbying was framed as a critique of state-centric accounts. Environmental groups were shown to shape the policy agenda in Brussels and infuence the decision-making process, using a mix of strategies, ranging from political pressure and campaigns to the provision of policy advice and information. Typically based on case studies, authors highlighted how environmental groups managed to mobilise member states sympathetic to their concerns, raise awareness of environmental problems inside the Commission and the shifting balance of interests inside the Parliament. The emergence of so-called Eurogroups in Brussels (see Chapter 9), bypassing national policymaking avenues, could, of course, also be read as evidence for neofunctionalist community building. Organisationally, they have adapted to the framework of interest intermediation in the EU by forming a grand coalition and coordinating their activities in order to handle workloads and appear as cohesive as possible (Long and Lörinczi, 2009). Recent analyses of environmental groups pursuing judicial

Studying EU environmental policy 55 avenues to hold member states accountable for EU rule violations (Hofmann, 2019) (see also Chapter 18) have added to that picture. Increasingly, attention has shifted towards the structure of interest intermediation in the EU, however, and with it to forms of comparative politics. Environmental policy scholars also raised the issue of the relative infuence of diffuse interests, vis-à-vis more privileged and better-organised business interests. Mollifying normative concerns about biased representation, scholars emphasised the existence of multiple access points in the EU system (Pollack, 1997), sympathetic EU institutional actors (Marks and McAdam, 1996) and the ample opportunities to make use of often instable interest constellations within the EU institutions and even the business community (Long and Lörinczi, 2009). It was in this context that the analysis of interest intermediation in the EU coincided with refections on the role of ideas and discourses. Novel discourses such as ‘ecological modernisation’ (Hajer, 1995; Manchin, 2019), ‘sustainable development’ (Lenschow, 1999) and even more recently ‘green growth’ and the ‘low carbon economy’ (Lenschow and Zito, 1998; Klüver et al., 2015; Pollex and Lenschow, 2018) (see Chapter 16 for more examples) have facilitated agreement in what is otherwise a rather fragmented policy area (see Box 4.1).

Box 4.1 Representing environmental interests in the EU’s multi-level polity The differences in public representation between the EU and national political systems are striking, both in reality and in scholarship. Looking at parliamentary structures frst, it is notable that the activities of the Parliament’s Environment Committee have received much more attention than the contributions of the green party group (but see Bomberg, 2005). The relatively strong representation of the Green group in the Parliament and its infuence in policymaking have received surprisingly little attention – in part, of course, due to a history of great-coalitional politics in the Parliament (see also Chapter 8). In contrast, national green political parties, which have heavily impacted national environmental policy processes, have attracted a good deal of attention (see, for example, the regular ‘profles’ of national green parties in the journal Environmental Politics). Second, there is only partial evidence of a (green) social movement emerging transnationally in the EU (Imig and Tarrow, 2000; Rucht, 2001). Rather, the multi-level system seems characterised by a division of labour, with environmental groups in Brussels following the more technocratic traits of policymaking and national groups being more strongly grounded in society (Eising et al., 2015) (see also Chapter 9). Networks of self-declared policy advocates are often what push policy forwards at EU levels. These networks are based either on issue-specifc relations between particular actors (which, if rooted in scientifc understandings, constitute epistemic communities (Zito, 2001)) or they refect deeper, core beliefs that actors share (Sabatier, 1998). Finally, the mobilisation of green voters and environmental movements has been even more subdued since the 2008 economic crisis (Della Porta and Parks, 2015), albeit with some contrary evidence, however, on the issue of climate change. Future research will tell us whether the 2019 Parliamentary election, at which the green parties secured big gains (see also Chapter 8), was a turning point.

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Institutional perspectives In light of the dramatic expansion of EU policy, the emphasis on functional pull–push dynamics was not surprising. Nevertheless, there have been good reasons to investigate the impact of institutional structures as well. The environmental policy feld has been an interesting case to use in investigating new research questions, given the gradual institutional co-evolution described above. For example, did it make a difference to establish a de jure status for a de facto policy? Did majority voting ease negotiations in the Council, contributing to more and faster decision making? What has been the impact of the expanded legislative competencies of the Parliament? These may appear quite technical questions, but they remain very politically salient. For example, in the period between the introduction of the environment title into the treaty in 1987 and the extension of QMV to environmental policy, treaty games were a feature of policymaking, with the Commission avoiding the procedurally less favourable environmental Articles (ex) 130 r–t and continuing the market route to environmental policy (via ex Article 100a) (Hovden, 2002) (see also Chapter 2). This institutional mess was resolved in subsequent treaty reforms, assisted by Court rulings supporting the pro-integrationist strategies of the Commission and the Parliament (see Chapter 7). Crucially, the effects of the changes were long running: most authors who refected on the increasing embeddedness of environmental policy detected signifcant institutional lock-in effects. A more complex picture emerges with regard to the impact of institutional changes on the effciency of decision making and the empowerment of the Parliament. Refecting on post-Maastricht expectations that decision making in environmental policy would ease due to the spread of QMV and the introduction of co-decision making, Jordan and Liefferink (2004) detected no uniform pattern or trend in the effciency of decision making across policy sub-areas. Burns and Carter (2010) showed that since 1999 the Parliament has become more pragmatic by striving for agreement with the Council in frst reading. Post 2004, the effects of Eastern enlargement were felt more in environmental policymaking than in other policy felds, with decreasing ambitions and slower decision-making processes (Toshkov, 2017). As the system characteristics of the EU stabilised, it fed back on policymaking. A literature emerged on the EU’s effects on actors’ identities, interests and values, and their political strategies and policy choices. Here, environmental policy studies served as illustrations of broader arguments. For instance, we have learnt about the differentiated leadership roles of the European Council, the Council of the EU and the member states. The European Council possesses structural leadership capacities for instance in international settings. The Council, most notably due to a capable General Secretariat and active rotating Presidencies, offers entrepreneurial leadership, while especially pioneering member states contribute cognitive and exemplary leadership (Wurzel et al., 2019). Furthermore, we fnd refections on the EU ‘system of concurrent majorities’ (Weale, 1996: 594) where agreement is needed by a high proportion of participants extending from the Commission, Council and Parliament to functional constituencies. Arguably, the need for majorities in environmental policy facilitated market-friendly policy decisions that were linked to the normative core of the European integration project. However, the market bias and the institutionally fragmented structure of the EU have also constrained the policy coordination between environmental agendas and other policy felds, such as transport, industry and agriculture (Lenschow, 2002a;

Studying EU environmental policy 57 Jordan and Lenschow, 2010; see also Chapter 12). Héritier (1997), however, identifed limits to complete sectoral policy lock-in and attributes them to ‘strategies of subterfuge’ that actors favouring greater-policy coordination employ via informal political means (see Chapter 11). Overall, the puzzle of what has been termed task expansion in the environmental policy feld has been tackled using a range of existing theoretical approaches, but closer inspections of environmental policymaking have also helped to advance broader and more fundamental theoretical debates.

Summary points • • •

Early scholarship analysed EU environmental policy using classical European integration theories. With the legal and organisational institutionalisation of environmental policy, scholarship gradually shifted towards alternative approaches drawing on the tools and methods of comparative politics and public policy analysis. Both actor-centred and institutionalist analyses were employed to explain the dynamic evolution of EU environmental policy and the continuing biases in its policy outputs.

Policy performance: implementation gaps and policy dismantling Public policy derives much of its legitimacy from solving problems (see Chapter 18), although in practice, the assessment of problem-solving capacity and effectiveness may be a complex matter (see Chapter 14). The effectiveness of EU policy has been analysed from four perspectives: (1) investigating the level of environmental standards adopted by EU decision makers; (2) analysing policy compliance and implementation; and (3) questioning the merits of traditional regulatory instruments. Most recently, studies have widened out and looked at (4) the impact of the economic and legitimacy crises of the EU on the scope and stringency of policy. Regulatory standards and regulatory competition Task expansion in the feld of European environmental policy is only meaningful if the agreements reached in Brussels are capable of protecting the environment. Two strands in the literature, both refecting on the forms and strictness of EU environmental regulation, have emphasised different competitive dynamics among member states. One point of departure has been the economic theory of regulatory competition (e.g., van Long and Siebert, 1991), which predicts a race to the bottom in cases where national barriers to trade are removed. National producers encounter international competitors who may beneft from less rigid – and hence less costly – regulatory conditions at home. In the name of international competitiveness, high regulating states are expected to reduce the regulatory burden on their home industry. EU environmental policy serves to lower such competitive pressure and corresponding transaction costs

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among member states. Assuming that the competitive logic now applies to the process of setting EU standards, the theory expects LCD decisions. Neither internationally (Vogel, 1995; Drezner, 2001) nor in the EU (Jörgens et al., 2014) does the literature fnd much empirical support for races to the bottom, however. Staying within the rationalist and state-centric paradigm, Fritz Scharpf (1997) advanced the theory of regulatory competition by systematically modelling negotiation situations with respect to the distinction between product and production (or process) standards. His theory predicted high(er) environmental product standards in the EU because previously low regulating states face the credible threat of trade barriers if they insist on their low standards. The option of restricting market entry does not exist in the EU with respect to non-product standards, however, and hence his theory predicts either low minimum standards or the failure to reach any agreement. Empirical tests of this idea have ended inconclusively, however. We see a clear dominance of product over production standards in EU environmental policy, and EU product standards typically exceed the LCD level. But, running counter to these expectations are the fair number of nonproduct directives on matters such as environmental impact assessment, public access to information, ecological auditing or the protection of fora, fauna and natural habitats that have proven challenging for some member states to implement (Héritier et al., 1996; Knill and Lenschow, 1998). Hence, there is still a puzzle to explain. We fnd general and EU-specifc attempts to elucidate these patterns. For example, Holzinger (2002) and Bernauer with Caduff (2004) have alerted us to the need to investigate the real cost of regulation and the social context in which it may be imposed. The assumption that the preferences of cost-bearing producers determine the negotiation position of governments certainly ignores the tendency for environmental regulation to create benefts (in the former of cleaner air and rivers for example) as well as costs (pollution, habitat loss, etc.) for society. Moreover, the business community may be too heterogeneous and interest group politics too infuential to generalise state positions simply based on the regulatory status quo and the competitive situation of the country. Furthermore, the EU is not easily comparable to other international cooperative settings such as the World Trade Organization (WTO), due not only to (even) deeper institutionalisation and policy preparation by technocrats, but also the availability of wider opportunities for package dealing and side payments (see Chapter 11). Not least, the availability of QMV and the greater legislative role of the Parliament tend to operate against LCD dynamics. In fact, many scholars have argued that member states compete over many more things than the stringency and scope of policy standards (see Box 4.2).

Box 4.2 The competition to shape EU environmental policy A novel observation made by some EU environmental policy scholars is that member states do not only compete over standards, but also over wider regulatory styles and approaches. Hence, the traditional dominance of a legalistic policy style and technology-based policy solutions in the EU has been attributed to Germany winning the (implicit) competition to set the policy agenda in Brussels (see Chapter 10), whereas the emergence of procedural standards in the EU’s repertoire has been credited to the UK waking up to the new possibilities

Studying EU environmental policy 59 created by EU-level policymaking (Héritier et al., 1996; Jordan, 2002). In short, member states follow a second logic of regulatory competition, namely to keep legal and administrative adaptation costs related to implementing EU regulation at a minimum. They may pursue a frst-mover strategy by inserting national policy makers into infuential positions inside the Commission, in order to push (or ‘upload’) national models onto the EU agenda. Consequently, we fnd types of regulatory policy (such as production and process standards) and levels of standards in the EU’s repertoire that are at odds with narrow, economically focused explanations of policymaking that regard it as a competition to set regulatory standards at EU level (see also Chapter 11). Héritier et al. (1996) have referred to this as a policy patchwork effect.

Finally, there may be another reason for high and wide-ranging regulatory standards in the EU: patterns of lax implementation explain why member states have so readily acquiesced in the regulatory competition to adopt ever more costly regulation at EU level (Jordan, 1999). Policy compliance and implementation Policy implementation has long attracted academic attention (for more details, see Chapter 13). Some authors have usefully compared the EU to a conventional international regime (Skjærseth and Wettestad, 2002). Although the EU clearly differs in being able to adopt legally binding directives and regulations, it also lacks the capacity to control practical implementation using strong sanctioning mechanisms. Hence, similar to regimes, it relies on softer social practices, beneftting from the particularly close and iterative decision-making context in the EU. But such social practices have a tendency to fail if either the problem structure or the interest constellation is malign. That is to say, the environmental problem at hand may be too complex, involving too many uncertainties or invoking too many contrasting opinions for decision makers to produce consistent and potentially effective negotiation results. Regime theorists would acknowledge the Council of Ministers to be vulnerable to such constellations like any other intergovernmental settings. They would expect the social capacity to overcome disagreement to be larger in the Council than in international regimes. Critical ‘insider’ observers of EU policymaking, by contrast, have gone so far as to argue that implementation failure is encoded in the decision-making practices of the EU (Weale et al., 2000: 296ff). Commission activism, symbolic politics in the Council and weak enforcement capacities have resulted in a historical neglect of this phase of the policy cycle (Collins and Earnshaw, 1993). Obligations formulated at EU level may simply not ‘ft’ into national legal and administrative systems and may overwhelm national capacities to adapt (Knill and Lenschow, 1998, 2000; Börzel, 2000). Thus, compliance gaps point to a fundamental dilemma in EU environmental governance! This dilemma has attracted signifcant scholarly attention (Bondarouk and Mastenbroek, 2018) leading, frst of all, to fner-grained typologies and signifcant qualitative and quantitative data collection efforts. Following a recent assessment, ‘[t]he implementation gap in EU environmental policy has narrowed over the past 25 years’

60 Andrea Lenschow despite the continuing rise of the environmental acquis and the rise in membership (Börzel and Buzogány, 2019: 334). Börzel and Buzogány (2019) suggest that this state of affairs is the result of the successful management strategy dealing in particular with weaker capacities in new member states on the one hand, and environmental policy becoming less demanding in recent years on the other. In other words, the present state of implementation and compliance re-opens the issue of the precise level or stringency of standard setting that is supposed to be closed at the point at which a particular policy is adopted (see above). New policy instruments and modes of governance Second, scholars have responded to implementation problems by analysing the shift towards alternative policy instruments that are supposed to be softer, more fexible and consequently more effective. Although EU environmental policy remains dominated by a regulatory model of governance (Holzinger et al., 2008; Lenschow, 2020), soft modes have spread widely; in fact, environmental policy was an early site for policy experimentation with alternative tools and instruments (see also Chapter 17). Implementation gaps and evidence of defcient effectiveness of EU policy have repeatedly raised concerns about the dominant hierarchical and legalistic style. Post-Maastricht debates about subsidiarity (Golub, 1996c), and the emergence of a global deregulatory trend, contributed to the reform agenda. Yet comparative studies reveal different patterns across states and the EU, both in terms of the number and type of new instruments adopted, with the EU standing out internationally for adopting a supranational scheme for trading in climate gases (Wurzel et al., 2013). Apart from this general trend, the most critical question concerns the effectiveness of these new instruments, which returns us to the vexed issue of implementation. This literature on alternative instruments shows that the widely assumed superiority of bottom-up or new approaches rests on very demanding assumptions concerning administrative capacities and adaptation (Knill and Lenschow, 2000). Furthermore, information and voluntary instruments rely strongly on the responsiveness of societal actors and a suffcient level of environmental mobilisation; these conditions cannot be built from scratch (Börzel, 2000). Moreover, national experience with softer modes of governance suggests the need for an underlying degree of government compulsion (‘shadow of hierarchy’) in order to bind all actors to the ultimate policy objectives (De Clercq, 2002). It also suggests a need for the Commission to play a supervisory role, hence develop new managerial capacities in Brussels. In the context of the myriad of crises that faced the EU during the past decade, scholarship has since turned to the question of whether the EU is in the process not of adopting alternative instruments, but of actually cutting (or dismantling) the environmental acquis (see Box 4.3).

Box 4.3 Dismantling: a new feature of the policy process? The economic crisis and calls to fght ‘red tape’ have re-shaped the Commission’s Better Regulation agenda into a fght against administrative and regulatory burdens. Although there is little evidence of outright ‘policy dismantling’ (i.e., the complete removal of rules from the statute book), the

Studying EU environmental policy 61 number of new environmental policy proposals has undoubtedly dropped in the past decade and the ambition of new proposals and policy amendments has gone down (Burns and Tobin, 2016; Gravey and Jordan, 2016; Pollex and Lenschow, 2020 and Chapter 19). Studies of these trends are often embedded in the public policy scholarship concerned with the conditions of policy dismantling (e.g., Bauer et al., 2012), often building on neo-institutionalist frameworks of policy change (Gravey and Jordan, 2019). Empirically, much of this scholarship takes welfare state entrenchment as a reference point, asking whether environmental policy constitutes a new case of dismantling. Academics have asked whether dismantling should be traced back to the leadership of the Commission adopting new policy priorities (Bürgin, 2018) or the whole organisation evolving slowly into a ‘normalised’ bureaucracy (Knill et al., 2018: 13) that is simply executing the political will of the member states (see Chapter 16). More generally, the academic discussion of policy dismantling is symptomatic of a wider feature of EU environmental policy scholarship, which not only advances wider conceptual debates in the feld of public policy, but also relates evidence from policymaking to the making of an EU polity.

Summary points • • •

While there has been little evidence that EU environmental policy has been determined by a regulatory competition between states, member states nonetheless continue to compete to set EU regulatory styles. Research on EU policy implementation and compliance is dominated by increasingly sophisticated, data rich studies of comparative policy performance across the entire EU 27. The diversifcation of EU policy instruments and the more recent ‘talk’ of policy dismantling are connected to both policy-specifc performance gaps and external crises hitting the EU polity.

Environmental policy: a new polity-in-the-making? With the consolidation of EU environmental policy, analysts began to ask more general questions about how policymaking interacts with the development of the EU polity. On this matter, the EU literature has tended to use the term ‘governance structure’, implying that we are not faced with a state, but a less formal and less hierarchical political structure. There have been three dimensions to this discussion. First, policymaking not only refects but also shapes governance structures in the EU. Second, EU policymaking and policies impact on the member states, both as actors involved in policy formulation and implementation and as political systems. Third, the EU has appeared as a new actor in international environmental politics which is changing international governance.

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The Brussels perspective The EU’s governance structure relies on specifc forms of coordination to bridge vertical levels and horizontal felds of governance, as well as between public and private actors. Especially in the continental European literature, policy networks have been regarded as especially important, connecting a multitude of actors in the EU (Peterson, 2004) and with respect to environmental policymaking in particular (Bomberg, 1998). However, distinct networks have arguably emerged in environmental policy. Informal and open networks characterise the early policy formulation phase (see Chapter 10), with a wide range of interested parties forming (temporary) alliances to shape the problem perception among policy makers in Brussels and propose suitable solutions. This network formation benefts from the open structure of the Commission, allowing easy access to policy advocates (see Chapter 9). The Commission’s dependence on external information on the one hand, and its power of policy initiative on the other hand, create an internal tension in such networks. Second, we see more narrow, technocratic and stable forms of elite networks and policy communities, which become involved in policy setting and implementation decisions. Most of them are orchestrated top-down by the Council and the Commission. We fnd policy-specifc working groups including Commission offcials and national administrators bridging the gap between EU law making and its local application. They have the double function of advising policy makers on what is feasible on the ground and in raising the level of acceptance among the policy implementers. Especially the comitology committees, which are composed of member states and Commission representatives and assist the Commission in the development of implementation regulation, act as bridges between the various levels of political authority (Töller, 2002). Yet innovative network structures have also emerged ‘bottom-up’, aiming at improving the effectiveness of policy interventions through mutual learning. For instance, the Covenant of Mayors aims to empower local authorities within the EU strategy for sustainable energy (Domorenok, 2019). Third, private stakeholder involvement has adopted new forms. Although especially informational instruments served to engage the general public, many new policy instruments explicitly target the business sector (Egan, 2001). Although they also operate in the ‘shadow of hierarchy’ (see Chapter 20), Eckert (2019) shows how corporations utilise power resources to proactively shape EU policy. The rather exclusive nature or corporate bias of such multi-level or public–private networks (and especially comitology) has raised democratic concerns. In the environmental feld, the Parliament, as well as the non-business NGO community, has mobilised against such networks, insisting on either greater parliamentary control or more inclusive network structures (see Chapter 18). When environmental policy is analysed as an area involving horizontal interdependencies, network governance assumes yet other characteristics. In this perspective, environmental policy depends on sectoral decision makers – for instance, in transport or energy policy – integrating environmental objectives into their respective policies. Environmental policy can thus only be effective if it is successfully mainstreamed into other sectors. However, such environmental policy integration (EPI) faces the same cognitive and institutional constraints as other forms of mainstreaming (Jordan and Lenschow, 2008) (see also Chapter 12). Attempts at macro-level EPI planning led by the European Council and the Commission, which led to many Directorate Generals

Studying EU environmental policy 63 in the Commission producing sectoral integration strategies, targets and timetables (cf. Lenschow, 2002b), have largely failed – possibly with the sole exception of integrating climate policy into other sectoral policy areas. Many of these initiatives relied too naïvely on the sectors to self-organise cross-sectoral networks (Jordan et al., 2008) and develop the skill of horizontal coordination. Actors in the ‘non’ environmental sectors showed little intrinsic motivation to adopt more environmentally focused practices and/or build bridges with actors in the environmental policy sector. In sum, the network metaphor has facilitated understanding of the various dynamics between policymaking and the building of an EU-wide governance system. While networks develop in light of the opportunities and constraints created by the institutional framework as well as the interests of central actors in the EU governance structure, they have also become characteristic elements of the EU polity in the making. While networks in the EU come with a strong elitist and technocratic accent, networks to overcome horizontal fragmentation are still in their infancy, inhibited by strong institutional and cognitive barriers. The member state perspective Since the turn of the century, there have been intense discussions on the impact of EU policies and polity structures on domestic structures and practices. Research on environmental policy has been a main contributor to what has become known as the ‘Europeanisation’ literature; arguably, it has been in the vanguard of it. There have been two sides to environmental Europeanisation research: on the one hand, authors have investigated how member state actors – mostly governments and executives – learn to play the European policy game (see also Chapter 5). These national adaptation processes help to better understand the policy patterns emerging in Brussels. The 1996 study by Héritier et al. (1996) was a pioneer in this respect, explaining the ‘patchwork’ nature of EU environmental policy by pointing to the competition between states to upload their preferred approaches (see also above). Historically, the most interesting case has been the UK, which moved from a passive to a pro-active role, implying that far-reaching learning processes had occurred inside the executive as a result of Europeanisation (Jordan, 2002). Brexit, of course, hints at the volatility of some of these processes. Recent research therefore reversed the perspective and asked, whether Brexit actually implies ‘de-Europeanising’ the UK or is merely a form of disengagement (Burns et al., 2019). A second, more dominant perspective has taken Europeanisation as the dependent variable, in order to understand transformations of national governance or policy. Predominantly, this literature has followed an institutional perspective emphasising the constraints to national adaptations. It has come in several distinct variants, the keywords being (mis)ftting institutional capacities and, increasingly, political will. The concepts of ft and misft have alerted us to the fact that EU policies may not pose the same legislative and administrative adaptation challenge in all member states. The argument is that legislators and administrators in some countries tend to resist high adaptation requirements from the EU (and hence extensive Europeanisation) if the core of their pre-existing and potentially affected policies and administrative procedures is deeply embedded and stable (Knill and Lenschow, 1998; Knill, 2001). Consequently, following the institutional notion of path-dependency, Europeanisation is unlikely to result in the convergence of national policy or governance structures towards a single EU model.

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The analysis of institutional (mis-)ft and of the differential impact of administrative capacities became particularly topical after the 2004 expansion of the EU (cf. Carmin and Vandeveer, 2004; Homeyer, 2004). However, recent experiences, especially in the Visegrad countries, have sought to move beyond largely institutional features and towards the role of politics. While the early phases of Europeanisation in Central and Eastern Europe were arguably characterised by processes of both normative and incentive-driven adaptation (Andonova, 2005), more recently the political will to adjust to (progressive) EU rules has faded, most notably in the context of climate, energy and ‘rule of law’ issues (Skjærseth, 2018; Wurzel et al., 2019). The international perspective Finally, the multi-level governance concept usefully covers the EU’s role in international environmental politics as well. As international conventions are usually formal agreements between sovereign states, and as the EU obviously is not a state, this process has involved the establishment of new procedures and routines both internationally and within the EU, challenging traditional multilateral practices (Sbragia and Damro, 1999; see also Chapter 15). International environmental policymaking is as much about procedures as about content – the literature has spoken directly to both aspects. The question of whether to accept the EU as a party to an international convention has been controversial for non-EU partners and within the EU itself. Over the years, so-called ‘mixed agreements’ co-signed by the EU and the member states have emerged as the normal pattern in the EU’s engagement in international environmental diplomacy (see Chapter 15). Despite some persistent ambiguities, EU member states have become increasingly willing to coordinate their positions and act collectively, while international partners have come to expect ‘the Union’ (in some form or other) to appear at the negotiation table. In the academic literature, the initial puzzle was how to explain the way in which the member states reached agreement on a common position to present to other negotiating partners. Studies alerted us to use of novel policy devices – like the reciprocity rule or internal burden sharing arrangements – to facilitate internal agreement (Skjærseth, 1994). In addition, institutional constellations, like the Commission mediating or the Presidency seeking a profle, were also shown to play a role (Jachtenfuchs, 1990; Delreux, 2012). The dual representation of EU and member states, which seemed a compromise solution at frst, has given the EU an intergovernmental as well as a ‘federal’ external personality at international environmental negotiations (Damro and Méndez, 2003). Member states played along with this process as their national interests seemed not only to be protected, but actually enhanced by it. In the next – empirical and analytical – phase, EU leadership in global environmental diplomacy became an issue. Comparing the international ozone and the climate negotiations, Sbragia and Damro argued that the EU evolved from a ‘Vienna laggard to a Kyoto leader’ (1999: 53). Arguably, environmental policy has evolved to become a showcase of the EU’s growing ‘normative power’ (Manners, 2002; for more critical accounts, see Lightfoot and Burchell, 2005; Falkner, 2007). Conceptually, environmental policy was used to elaborate different types and conditions for international leadership, as the EU’s performance in shaping international regimes seemed to vary over time as well as across different issue areas (e.g., Bretherton and Vogler, 2005; Groen et al., 2012).

Studying EU environmental policy 65

Summary points • •

•

The policy network concept has been used to understand the multifaceted multi-level politics that are characteristic of much EU environmental policymaking. Environmental policy scholars pioneered research on Europeanisation in the 1990s; Brexit and anti-environmental politics in parts of Central and Eastern Europe are now raising fresh questions about the mechanisms and extent of its opposite – ‘de-Europeanisation’. The gradual evolution of the EU’s international environmental policy role has stimulated conceptual advances in understanding the nature of EU leadership in global environmental policymaking.

Conclusion This chapter has reviewed the contributions of EU environmental policy research to our general understanding of EU policymaking and governance. The reader should have noted that environmental policy scholars have danced at many parties. In the early years, they entered into similar debates as most other EU scholars, analysing environmental policy using the two grand theories of EU integration. Later, most environmental policy analysts made the same turn towards public policy and domestic politics perspectives as other EU scholars. But their discussions produced a signifcant value added, as the analysis of the environment (then a very dynamic policy area) revealed much more multifaceted and fuid actor and institutional constellations than was assumed to be the case within the grand theories of the EU. With the consolidation of EU environmental policy, the focus widened even further towards performance assessments. Arguably, environmental policy research has been a frontrunner in theory-based performance or output studies. Interestingly, the issue of environmental standards has been tackled mostly from a state-centric/rationalist perspective, whereas policy compliance and implementation have been approached from an institutional angle, stimulating a good deal of comparative research. Performance matters also from a wider perspective. The myriad of crises affecting the EU have led to a politicisation of the expansionist paths of environmental policy and pushed policy dismantling up the academic research agenda. Furthermore, the performance question has contributed to widening the research perspective beyond EU-level policy, towards impacts on the member states and states outside Europe. Especially, the analysis of different policy instruments and of shifting actor constellations in environmental problem solving revealed not only a close, but also a very dynamic relationship between policy and polity making. In focusing on this interaction, the study of European environmental policy has made a turn from the policy level to the systems level, refecting on the EU’s highly differentiated and even somewhat messy nature. In short (environmental) policy research has made a notable and long-lasting contribution to understanding the complex processes and structures of governance in the EU.

66 Andrea Lenschow

Summary points • • •

Environmental policy scholars have made signifcant contributions to the understanding of environmental policy in Europe and the broader process of EU integration. Environmental policy scholars have arguably pioneered research on broader issues, such as Europeanisation and international leadership. Consequently, the scope of research has substantially broadened to include the EU’s two-way infuence on its member states as well as states well beyond Europe.

Key questions 1 2 3 4 5

Describe how the focus of EU environmental policy analysis has changed over time. Why has the focus of analysis changed over time? Do you think academic fashions have been the main driver or changes in the ‘real world’ of policymaking? To what extent are the grand theories of EU integration still relevant to the study of EU environmental policy? Identify three examples of research on EU environmental policy that have shaped wider debates in EU studies and three examples in which environmental policy scholars have followed such debates. What analytical topics are likely to appear in the next ten years, and why?

Guide to further reading • • •

For good overviews of the entire EU environmental policy feld, see Delreux and Happaerts (2016) or Lenschow (2020). A journal special Issue edited by Zito et al. (2019b) offers an excellent collection of pieces dealing with the contemporary dynamics of change in the context of several crises affecting the EU as a whole. The forms of policy dismantling and their wider implications for EU policymaking have received a lot of attention in the last decade. For good overviews, see Burns and Tobin (2016, 2020), Gravey and Jordan (2016, 2019) and Knill et al. (2018).

Studying EU environmental policy 67

Online resources • • •

The European Commission: https://ec.europa.eu/info/energy-climate-changeenvironment_en EU-level environmental NGOs: https://green10.org/ The European Environment Agency: https://europa.eu/european-union/about-eu/ agencies/eea_en

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Studying EU environmental policy 69 Hofmann, A. (2019) ‘Left to interest groups? On the prospects for enforcing environmental law in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 342–364. Holzinger, K. (2002) ‘The provision of transnational common goods’, in A. Héritier (ed.) Common Goods, Rowman and Littlefeld, Lanham, MD, pp. 57–79. Holzinger, K., Knill, C. and Lenschow, A. (2008) ‘Governance in EU Environmental Policy’, in I. Tömmel and A. Verdun (eds.) Innovative Governance in the European Union: The Politics of Multilevel Policymaking, Lynne Rienner, Boulder, CO, pp. 45–62. Homeyer, I.v. (2004) ‘Differential effects of enlargement on EU environmental governance’, Environmental Politics, vol. 13, no. 1, pp. 52–76. Hovden, E. (2002) ‘The legal basis of European Union policy: The case of environmental policy’, Environment and Planning C, vol. 20, no. 4, pp. 535–553. Imig, D. and Tarrow, S. (2000) ‘Political contention in a Europeanising polity’, West European Politics, vol. 23, pp. 73–93. Jachtenfuchs, M. (1990) ‘The European Community and the protection of the ozone layer’, Journal of Common Market Studies, vol. 18, no. 3, pp. 261–271. Jörgens, H., Lenschow, A., Liefferink, D. (eds.) (2014) Understanding Environmental Policy Convergence. The Power of Words, Rules and Money, Cambridge University Press, Cambridge. Jordan, A. (1999) ‘The implementation of EU environmental policy: A problem without a political solution?’ Environment and Planning C, vol. 17, no. 1, pp. 69–90. Jordan, A. (2002) The Europeanization of British Environmental Policy, Palgrave, Basingstoke. Jordan, A. and Lenschow, A. (2008) ‘Environmental policy integration: An innovation in environmental policy?’ in A. Jordan and A. Lenschow (eds.) Innovation in Environmental Policy? Integrating the Environment for Sustainability, Edward Elgar, Cheltenham, pp. 313–341. Jordan, A. and Lenschow, A. (2010) ‘Environmental Policy integration: A state of the art review’, Environmental Policy and Governance, vol. 20, no. 3, pp. 147–158. Jordan, A. and Liefferink, D. (2004) Environmental Policy in Europe: The Europeanization of National Environmental Policy, Routledge, London. Jordan, A., Schout, A. and Unfried, M. (2008) ‘The European Union’ in: A. Jordan and A. Lenschow (eds.) Innovation in Environmental Policy? Integrating the Environment for Sustainability, Edward Elgar, Cheltenham, pp. 159–179. Judge, D., Earnshaw, D. and Cowan, N. (1994) ‘Ripples or waves: The European Parliament in the European Community policy process’, Journal of European Public Policy, vol. 1, no. 1, pp. 27–52. Klüver, H., Mahoney, C. and Opper, M. (2015) ‘Framing in context: How interest groups employ framing to lobby the European Commission’, Journal of European Public Policy, vol. 22, no. 4, pp. 481–498. Knill, C. (2001) The Europeanisation of National Administrations, Cambridge University Press, Cambridge. Knill, C. and Lenschow, A. (1998) ‘Coping with Europe’, Journal of European Public Policy, vol. 5, no. 4, pp. 595–614. Knill, C. and Lenschow, A. (eds.) (2000) Implementing EU Environmental Policies, Manchester University Press, Manchester. Knill, C., Steinebach, Y. and Fernández-i-Marín, X. (2020) ‘Hypocrisy as a crisis response? Assessing changes in talk, decisions, and actions of the European EU environmental policy’, Public Administration,98, 2, 363–377. Lenschow, A. (1999) ‘Transformation in European environmental governance’, in B. KohlerKoch and R. Eising (eds.) The Transformation of Governance in the European Union, Routledge, London, pp. 39–61. Lenschow, A. (ed.) (2002a) Environmental Policy Integration, Earthscan, London. Lenschow, A. (2002b) ‘New regulatory approaches in “greening” EU policies’, European Law Journal, vol. 8, no. 1, pp. 19–37.

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Lenschow, A. (2020) ‘Environmental Policy. Contending dynamics of policy change’, in H. Wallace, M.A. Pollack, A.R. Young and C. Roederer-Ryning (eds.) Policy-Making in the European Union, 8th edn, Oxford University Press, Oxford, chapter 13, pp. 297–320. Lenschow, A. and Zito, A. (1998) ‘Blurring or shifting of policy frames?’, Governance, vol. 11, no. 4, pp. 415–441. Liefferink, D. and Andersen, M.S. (1998) ‘Strategies of the “green” member states in EU environmental policy-making’, Journal of European Public Policy, vol. 5, no. 2, pp. 254–270. Liefferink, D. and Wurzel, R.K.W. (2017) ‘Environmental leaders and pioneers: Agents of change?’ Journal of European Public Policy, vol. 24, no. 7, pp. 951–968. Lightfoot, S. and Burchell, J. (2005) ‘The European Union and the world summit on sustainable development’, Journal of Common Market Studies, vol. 43, no. 1, pp. 75–95. Long, T. and Lörinczi, L. (2009) ‘NGOs as gatekeepers: A green vision’, in D. Coen and J. Richardson (eds.) Lobbying the European Union: Institutions, Actors and Issues, Oxford University Press, Oxford, pp. 162–179. Majone, G. (1996) Regulating Europe, Routledge, London. Manchin, A. (2019) ‘Changing the story? The discourse of ecological modernization in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 208–227. Manners, I. (2002). ‘Normative power Europe: A contradiction in terms?’ Journal of Common Market Studies, vol. 40, no. 2, pp. 235–258. Marks, G. and McAdam, D. (1996) ‘Social movements and the changing structure of political opportunity in the European Union’, West European Politics, vol. 20, pp. 111–133. Mazey, S. and Richardson, J. (1993) ‘Environmental groups and the EC’, in D. Judge (ed.) A Green Dimension for the European Community? Frank Cass, London, pp. 109–128. Peterson, J. (2001) ‘The choice for EU theorists: Establishing a common framework for analysis’, European Journal of Political Research, vol. 39, pp. 289–318. Peterson, J. (2004) ‘Policy networks’, in A. Wiener and T. Diez (eds.) European Integration Theory, Oxford University Press, Oxford, pp. 105–124. Pollack, M.A. (1997) ‘Representing diffuse interests in EC policy-making’, Journal of European Public Policy, vol. 4, no. 4, pp. 572–590. Pollex, J. and Lenschow, A. (2018), ‘Surrendering to growth? The European Union's goals for research and technology in the Horizon 2020 framework’, Journal of Cleaner Production, vol. 197, pp. 1863–1871. Pollex, J. and Lenschow, A. (2020), ‘Many faces of dismantling: Hiding policy change in non-legislative acts in EU environmental policy’, Journal of European Public Policy, vol. 27, no. 1, pp. 20–40. Rehbinder, E. and Stewart, R. (1985) Environmental Protection Policy: Vol. 2, De Gruyter, Berlin. Rucht, D. (2001) ‘Lobbying or protest?’, in D. Imig and S. Tarrow (eds.) Contentious Europe, Rowman & Littlefeld, Lanham, MD, pp. 125–142. Sabatier, P.A. (1998) ‘The advocacy coalition framework’, Journal of European Public Policy, vol. 5, no. 1, pp. 98–130. Sbragia, A.M. and Damro, C. (1999) ‘The changing role of the European Union in international environmental politics’, Environment and Planning C, vol. 17, no. 1, pp. 53–68. Scharpf, F.W. (1997) ‘Introduction: The problem-solving capacity of multi-level governance’, Journal of European Public Policy, vol. 4, no. 4, pp. 520–538. Skjærseth, J.B. (1994) ‘The climate policy of the EC’, Journal of Common Market Studies, vol. 32, no. 1, pp. 25–42. Skjærseth, J.B. (2018) ‘Implementing EU climate and energy policy in Poland’, Environmental Politics, vol. 27, no. 3, pp. 498–518. Skjærseth, J.B. and Wettestad, J. (2002) ‘Understanding the effectiveness of EU environmental polity’, Environmental Politics, vol. 11, no. 3, pp. 99–120. Töller, A.E. (2002) Komitologie, Leske & Budrich, Opladen.

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Part 2

Actors

5

The Council, European Council and member states Rüdiger K.W. Wurzel1

Summary guide Member states shape EU policy by working within the Council of the European Union (or ‘Council’ for short). The Council is thus a central player in EU decision making. There are different Council formations (made up of ministers responsible for particular policy areas), one of which is the Environment Council. Over the years, the number of Environment Council meetings has increased signifcantly, although recently it has plateaued at around four formal meetings per year. The member governments’ top political leaders meet in a different forum – the European Council – which until recently had little direct engagement with environmental issues. Nowadays, the European Council plays an important role in EU climate change policy in particular. The well-known environmental leader/pioneer–laggard dimension among different member states goes a long way towards explaining the dynamics within the Environment Council and the European Council, and EU environmental policy making more generally.

Introduction The Council is ‘at the institutional heart of decision-making in the EU’ (Lewis, 2019: 158). Legally speaking, there is only one Council – or Council of the European Union, as it has been formally called since the 2009 Lisbon Treaty – although the ministers responsible for particular policy areas usually meet separately in different Council formations (e.g., the Environment Council or the Foreign Affairs Council). The inaugural Environment Council meeting took place in 1973 (although the Council had already been set up by the EU’s founding treaties in the 1950s) because the environment was not a salient issue on the EU’s political agenda before the 1970s (see Chapter 2). As will be explained below, the ministerial meetings associated with the Council are only the visible tip of a much larger administrative iceberg. Importantly, it is the Council together with the European Parliament which formally adopts all EU laws (see Chapters 8 and 11). The top political leaders of the member governments (e.g., the French President, the German Chancellor or the Polish Prime Minister) – usually referred to as Heads of State and Government in offcial EU documents – gather for summit meetings in the European Council which became institutionalised only in the early 1970s. The European Council does not adopt laws, but takes important strategic decisions such DOI: 10.4324/9780429402333-5

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as whether the EU’s treaties should be amended (to include, among others, new environmental provisions) (see Chapter 2), which applicant states should be allowed to join the EU or what strategy the EU should adopt in the Brexit negotiations with the UK (Burns et al., 2019). The Council and European Council both constitute European institutions in their own right and negotiating forums for member governments. They therefore exhibit both supranational and intergovernmental features, although the latter tend to be more distinctive for the European Council. Outside the Council and European Council meetings, member governments also exploit numerous bilateral and multilateral contacts on environmental issues. For example, the Finnish and Swedish governments frequently discuss environmental issues within the Nordic Council,2 the environmental ministers of France and Germany have held annual bilateral meetings since the 1980s and the Visegrad countries – Hungary, Poland, Czech Republic and Slovakia – have used their own highly institutionalised meetings to discuss environmental issues (Wurzel, Liefferink and Di Lullo, 2019). The Franco-German alliance, which in the past has been a major driving force for deeper European integration, no longer plays an important role in environmental policy because France and Germany often adopt different views on environmental issues (Wurzel, 2008). European environment ministers also participate in a large number of international environmental negotiations on, for example, climate change and biodiversity. As will be explained below, it is normally the six-monthly rotating Council Presidency which (often together with the Commission) represents the EU in international environmental negotiations (see also Chapter 15).

Summary points • • • •

The Council and the European Council are two distinct and very different EU institutions. The Council is attended by ministers responsible for a particular policy area such as the environment. Together with the European Parliament, it formally adopts new EU laws. The European Council is made up of the Heads of State and Government who take more strategic political decisions on things such as the enlargement of the EU or Brexit. Outside the Council meetings, member governments also exploit numerous bilateral and multilateral contacts on environmental issues with other member and non-member governments.

The Council Considering its importance, the literature on the Council is still relatively sparse (see Chapter 4), although it has grown recently (e.g., Hayes-Renshaw and Wallace, 2006; Puetter, 2014; Lewis, 2019; Wurzel, Liefferink and Di Lullo, 2019). One reason for this is that most of its meetings are held behind closed doors (Lewis, 2019). With the perceived need for greater transparency within the EU (see Chapter 18), some ministerial Council

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meetings are now held in public. The Council publishes a press release on each meeting, though this merely summarises the negotiating outcome not the preceding debate among ministers (see Box 5.2). Council press releases are wholly silent on the political differences which may have arisen between ministers during negotiations. This allows the ministers to present their own particular versions of events in post-Council press conferences, which are often aimed primarily at their domestic political audiences. Between the 1970s and the 1990s, there was a proliferation of Council formations as European integration deepened and the EU moved into new policy areas including the environment. Pinder’s (1991: 25) assertion that the legal fction of a single Council has given way to a ‘hydra-headed conglomerate of a dozen or more functional Councils’ is still essentially correct, although the number of Council formations was reduced to 16 in 1999 and then to 9 in 2002, before rising again to 10 in 2009 (Wurzel, Liefferink and Di Lullo, 2019; see Box 5.1).

Box 5.1 Council formations since 2002 Agriculture and Fisheries Council (AGRIFISH) Competitiveness Council (COMPET) Economic and Financial Affairs Council (ECOFIN) Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) Environment Council (ENVI) Education, Youth, Culture and Sport Council (EYCS) Foreign Affairs Council (FAC) General Affairs Council (GAC) Justice and Home Affairs Council (JHA) Transport, Telecommunications and Energy Council (TTE) Source: Adapted from Council of the European Union (2019a).

Although there is no formal distinction in terms of importance between different Council formations, the Foreign Affairs, General Affairs and the Economic and Financial Affairs Councils are widely seen as the most senior. The Environment Council has not reached a similar level of seniority, although it did survive the various mergers of the Council formations (see Box 5.1) unscathed. The General Affairs Council was meant to take on an overall coordination role for the different Council formations. However, it has largely failed to fulfl this task (Lewis, 2019). The Council was set up along functional lines to avoid zero sum games in which the winner seeks to take all. This has helped to depoliticise potentially highly divisive issues, facilitating agreement. However, functionally differentiated Council formations can lead to disjointed decision making which is unable to take account of the crosscutting requirements of environmental policy. In the early 1990s, attempts were made to coordinate EU policies through so-called joint Councils consisting of two different Council formations, which, however, have been largely unsuccessful (Hayes-Renshaw and Wallace, 2006: 63; Wurzel, 2008). The proliferation of different Council formations posed a particular challenge for environmental policy which according to the

78 Rüdiger K.W. Wurzel principle of environmental policy integration (see Chapter 12) ought to be integrated into all EU policies, and thus all Council formations. In the late 1990s, most Council formations published environmental integration reports. This became known as the Cardiff Process because it was instigated by the 1998 European Council meeting in Cardiff when the UK held the EU Presidency (Jordan et al., 2008). However, most of the integration reports amounted to symbolic politics and had little, if any, impact on the practical work of the ‘non-environmental’ Council formations. In the mid-2000s, the integration reports were discontinued (Wurzel, Liefferink and Di Lullo, 2019: 259). The functionally divided Council has, however, allowed the Environment Council to plough its own furrow while arguably granting some environment ministers more infuence at EU level than in their own countries. Box 5.2 reproduces contents pages of the press release for the Environment Council meeting on 25 June 2018. It is a fairly typical press release.

Box 5.2 Contents page of the press release for the Environment Council on 19 December 2019 ‘ITEMS DEBATED EU environment and climate policy in the new legislative term; Biodiversity ANY OTHER BUSINESS European Green Deal; Report on main recent international meetings; Report on the second EU clean air forum; Fitness check on air quality; EU action to address risks related to poly- and perfuorinated alkylated substances (PFAS); Management of large carnivores; EU action to protect and restore the world’s forests; Report on EU implementation of the Aarhus; Fitness check on water and the REFIT check on urban waste water treatments; Work programme of the incoming Presidency OTHER ITEMS APPROVED ENVIRONMENT Conclusions on Environmental Economic Accounts’. The press release also lists ‘other items approved’ across a wide range of EU competences, from Foreign Affairs (‘Commitments to tackle sexual exploitation and abuse in the international aid sector’), Justice and Home Affairs (‘Schengen evaluation recommendations’), Trade (‘Trade relations with Moldova’) or Energy (‘Conclusions on waste management in non-energy uses of nuclear and radiological technologies’). Source: Adapted from Council of the European Union (2019b). Importantly, the environment ministers did not actually discuss any of the nonenvironmental issues (e.g., foreign affairs, justice and home affairs) listed in Box 5.2. Instead, the Environmental Council merely adopted – without debate – the agreements on the non-environmental dossiers left over from other Council formations (i.e., that had reached agreement in principle without, however, offcials having had the time to draft a legally watertight text). The legal fction of one single Council does therefore have some practical relevance for the smooth running of the Council’s machinery.

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The Council: composition and structure Council meetings are normally attended by the most senior national politician in a country: namely a minister or senior replacement. Thus, agriculture ministers attend the Agricultural and Fisheries Council, environment ministers attend the Environment Council and so on. The ministerial meetings are, however, only ‘the tip of the iceberg’ (Lewis, 2019: 160) of the Council machinery, which also consists of the Committee of Permanent Representatives (Coreper), Council working groups and Council committees. The Council secretariat, which has a staff of approximately 2,800, has the task of servicing the entire Council machinery. However, only about 250 of its staff hold policy-related positions; there are also 1,000 translators and 200 offcials in the Council’s legal service. The Council secretariat is ‘responsible for the organisation of all Council meetings in Brussels, ensures that rules and procedures are followed and acts as a confdential advisor behind the scenes’ (Wurzel, Liefferink and Di Lullo, 2019: 257). In 2009, the environment DG of the Council secretariat was split into an environment DG and a climate DG. However, no dedicated ‘Climate Change Council’ was set up. Instead, the Environment Council continued to take the lead on most climate change dossiers, although it also began increasingly to cooperate closer with other climaterelated Council formations, particularly with the energy ministers represented in the Transport, Telecommunications and Energy Council. As will be explained below, in the early 2000s, climate change emerged as a ‘high politics’ issue in the EU and thus also began to attract the attention of the European Council which until that point had only issued the Environment Council with political guidelines on how to approach UN climate change negotiations (Jordan et al., 2010; Oberthür and Dupont, 2017; Wurzel, Liefferink and Di Lullo, 2019). The internal organisational structure of the Council is hierarchical. Thus, all legal dossiers negotiated at ministerial Council meetings will already have been discussed by Coreper and in Council working groups (Hayes-Renshaw and Wallace, 2006: 68–100; Nugent, 2017). Coreper meetings are attended by either the permanent representatives, that is the Brussels-based permanent representations which are staffed with offcials on secondment from member states’ core national ministries, or their deputies. Permanent representatives, who work and live in Brussels for several years, acquire a deep knowledge of the EU decision-making process and the views of their opposite numbers from other member states. They often sit directly beside their minister in Council meetings (Lewis, 2019). The Council working groups, which recruit their members from among national ministry offcials and permanent representation offcials, deal with ‘the bulk of dayto-day Council activity’ (Lewis, 2019: 166). Their main purpose is to resolve as many contentious issues as possible before policy dossiers are passed up to the Coreper. The Council environment working group is one of approximately 200 Council working groups which have emerged over the years. It has met on average three to four times a week since the creation of the Environment Council in 1973. Because of the increased importance of the international climate change negotiations, the Council decided to establish a separate working party on climate-related issues in 2001. Since then, there have been two working groups for the Environment Council, one on internal and one on international environmental issues (Wurzel, Liefferink and Di Lullo, 2019: 256).

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If agreement has already been reached at Council working group and Coreper levels, then the dossier is passed up to the ministers as an ‘A’ point. Dossiers on which Council working groups and Coreper have made good progress, but failed to fnd agreement on a number of contested issues, are passed up to the ministers as ‘B’ points. Importantly, ‘A’ points are usually adopted by the ministers in the Council without further negotiations (although they can be reopened as ‘B’ points by any minister present). Hayes-Renshaw and Wallace (2014: 52) have estimated that approximately 85–90% of Council dossiers are negotiated and agreed on in principle already at the working group or Coreper level, which means that they are adopted by ministers in the Council without further discussion. Relations between all levels of the Council and the Parliament have changed signifcantly over the years (see also Chapter 8). While the Council often failed to take the Parliament seriously in the early years of the EU (see Chapter 2), this is no longer the case (Wurzel, Liefferink and Di Lullo, 2019). In 1987, the co-decision procedure, which later became the ordinary legislative procedure (OLP), granted the Parliament with legislative powers that are equal to those of the Council. A conciliation committee has to be set up if agreement cannot be achieved between the Council and the Parliament. However, because of the large number of players involved, conciliation committee meetings have proved to be unwieldy affairs. Trilogues between the Council and Parliament typically involve small teams of negotiators for each institution, with the Commission playing a mediating role (see Chapter  8 for further details). In trilogues, the Council is represented by the permanent representative of the member state holding the Presidency, assisted by members of the Council secretariat, including its legal service. Wurzel, Liefferink and Di Lullo (2019: 255) have argued out that: the increasingly important practice of informal trilogues … which aim to speed up decision-making, may over time lead to a reduction in Environment Council meetings…. The 2017 Estonian Presidency was the first in many years to organise only one Environment Council meeting as informal trilogues dealt with many of its dossiers. The increased use of trilogues could be interpreted as evidence for the deepening of EU integration through the increased enmeshment of EU and member state offcials which has often been referred to as engrenage. It has, however, also triggered concerns about transparency and legitimacy because trilogues operate behind closed doors (see Chapter 18). Decision-making rules The Council takes decisions according to one of three different main decision rules: (1) unanimity; (2) qualifed majority; or (3) simple majority. Unanimity used to be the standard decision-making rule in the early years of European integration while simple majority voting was mainly applicable to procedural matters (Bache et al., 2015; Nugent, 2017; Lewis, 2019). These practices had a signifcant infuence on the dynamics of decision making (see also Chapters 2 and 11). The formal applicability of the use of qualifed majority voting (QMV) has increased since the late 1980s to the point where it is now the normal decision-making rule for most common policy areas, including

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the environment. However, there are exceptions. For example, the Commission’s proposal for a common carbon dioxide/energy tax was never adopted (see Chapter 17), because it was vetoed by the UK on sovereignty grounds (Jordan et al., 2010; Wurzel, Connelly, and Liefferink, 2017).

Box 5.3 Voting in the Council after the Lisbon Treaty The 2009 Lisbon Treaty stipulated that from 1 November 2014 a double majority was required for QMV under the ordinary legislative procedure. A double majority requires the support of a minimum of 55% of member states (comprising at least 15 of the [post-Brexit] 27 member states) which represent at least 65% of the EU’s population. For a blocking minority, at least four member states representing more than 35% of the EU population are required. The combination of a double majority and a blocking minority both prevents the smaller member states from being steamrollered by the large member states and a few large member states easily blocking proposals. Importantly, although QMV now formally applies to most EU environmental dossiers, the Council will nevertheless often adopt its decisions unanimously. Moreover, if no member state objects, it is possible for the rotating Presidency to conclude that a particular dossier has been adopted with a qualifed majority, although no formal vote ever took place. For policy areas for which one or several member states have an opt-out, a qualifed majority requires 55% of the participating member states which represent at least 6% of the population of the participating member states. For example, Denmark has an opt-out on Economic and Monetary Union (EMU). However, no opt-outs are in place for environmental policy.

In practice, the Council often strives to achieve unanimity even if QMV is formally applicable according to the EU treaties (Lewis, 2019; Wurzel, Liefferink and Di Lullo, 2019). There is, in other words, a powerful ‘consensus refex’ (Hayes-Renshaw and Wallace, 2006: 58) within the Council in which every possible effort is made to persuade reluctant member states to accept a compromise agreement. This explains why many EU laws contain exemptions, derogations, differentiated deadlines and vague phrases which allow for a wide interpretation of legal obligations during the implementation process (Wurzel, 2008; see also Chapter 13). The rotating Presidency The brokering of a compromise agreement is one of the most important tasks assigned to the Council Presidency which rotates among all member states every six months, covering the period from January to June and from July to December during each year. In addition to its mediator role, the Council Presidency has to act as an initiator, international representative and a frst point of contact (Wurzel, 1996; Lewis, 2019). The holder of the Presidency must juggle these, at times, conficting roles. Table 5.1 lists the six-monthly rotating Council Presidencies from 2014 to 2025.

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Member states

Time period

2025 2025 2024 2024 2023 2023 2022 2022 2021 2021 2020 2020 2019 2019 2018 2018 2017 2017 2016 2016 2015 2015

Denmark Poland Hungary Belgium Spain Sweden Czech Republic France Slovenia Portugal Germany Croatia Finland Romania Austria Bulgaria Estonia Malta Slovakia Netherlands Luxembourg Latvia

July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June July–December January–June

Source: Council of the European Union (2016).

Over time, the Presidency’s mediator role grew as the EU expanded from 6 to 28 member states, the number of Council formations proliferated, QMV increased and the OLP was introduced. Moreover, ‘[t]he tilting of power from the Commission to the Council began to make the management of Council business a more substantive task’ (Hayes-Renshaw and Wallace, 2006: 134). The Presidency (together with the Commission and the EEAS which was set up in 2011) also represents the EU at the international level (see also Chapter 15). Over the years, the EU has developed into an environmental leader in international climate change politics (Jordan et al., 2010; Wurzel, Connelly, and Liefferink, 2017). Rising international representation demands have, however, gradually exposed the rotating Presidency’s limitations. Thus, in some important international negotiations, such as the Copenhagen climate conference in 2009, the EU struggled to speak with one voice. Moreover, the rotating Presidency lacks continuity. For the international climate negotiations, so-called issue leaders and lead negotiators were created in the 2000s to facilitate greater continuity (Dupont and Oberthür, 2017). This reform has enhanced the Council’s external leadership capacities (Wurzel, Liefferink and Di Lullo, 2019: 257). The introduction in 2006 of the so-called trio Presidency with at least one large member state forming part of a team of three member states constituted an important reform. Wurzel, Liefferink and Di Lullo (2019: 257) have argued that ‘it is seen as benefcial for the EU’s interests that trio Presidencies are able to draw on the diplomatic resources and structural powers of large Member States in international negotiations’. Germany, Portugal and Slovenia were the frst three member states to submit a joint programme under the new procedure. There is, however, a danger that large ‘old’ member states may try to exert undue infuence on small ‘new’ member states.

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The  latter have signifcantly smaller administrative capacities and may lack experience in running the Presidency. The secondment of national environment ministry offcials to other member states has also increasingly taken place outside the Presidency. It shows that a considerable degree of trust has developed between member governments. Importantly, holding the Presidency Europeanises the incumbent to a considerable degree, thus, as was pointed out above, facilitating greater engrenage.

Summary points • • • • •

The Council is organised along functional lines, which means that there is a specifc part dealing with the environment. The Treaty-based commitment to integrate environmental concerns into all Council formations remains important but has been diffcult to implement in practice. The Council usually strives for consensus despite the fact that QMV is applicable for most environmental issues. The six-monthly rotating Presidency together with the Commission and the European External Action Service represents the EU externally. Trio Presidencies have been set up to achieve greater continuity. To handle international climate negotiations better, issue leaders and lead negotiators were created; these allow for continuity beyond the six-monthly rotating EU Presidencies.

The Environment Council The inaugural meeting of the Environment Council took place in 1973. Until 1977, only every second Presidency staged an Environment Council meeting. However, since then, all Presidencies have organised at least one Environment Council meeting. Over the years, the Environment Council has matured considerably. It used to be a relatively obscure junior Council formation, but now it carries signifcant political weight, although it cannot match the gravitas of the General Affairs Council and the Economic and Financial Affairs Council. The EU’s ambition to act as a leader in international environmental politics in general, and international climate change politics in particular, has also increased the political standing of the Environment Council within the EU. Since 1989, Presidencies have normally held two Environment Council meetings. The almost steady increase in the number of Environment Council meetings per Presidency was necessary because the Council had to adopt a growing number of environmental laws, although recently there has been a dip in the legislative output of the Environment Council (Wurzel, Liefferink and Di Lullo, 2019: 257–258). The growth of Environment Council meetings also refects the rising political salience of environmental issues in the EU (see Chapter 10). The number of Coreper meetings dealing with environmental dossiers and Environment Council Working Groups has also grown signifcantly. Since the 1980s, most Presidencies have also organised an informal Environmental Council meeting. Such meetings cannot agree legislation, have no formal agenda and are aimed at encouraging a frank exchange of views between ministers (Wurzel, 1996; Council of the European Union, 2015). Informal meetings normally take place

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in the country holding the Presidency; they are used to create an informal and relaxed atmosphere in which new ideas can be foated and ongoing disagreements resolved before they disrupt formal meetings (Wurzel, 1996). In 1988, the number of informal Council per Presidency was restricted to seven for budgetary reasons and to prevent too much decision making moving away from Brussels (Wurzel, 1996). However, in practice, this limit is often exceeded despite the fact that additional informal meetings have to be paid for by the holder of the Presidency. Joint Councils were originally championed by the UK (Jordan et al., 2008). They fourished in the early 1990s when 30 joint Councils were organised across all Council formations (Wurzel, 1996: 275). In theory, they tried to break down sectoral barriers, but they were ‘diffcult to orchestrate, tend to produce general policy statements rather than specifc environmental measures and often slow down decision-making’ (Wurzel, 1996: 275). In an EU of 27 member states, they have ceased to be a viable option for EU decision making because of the large number of ministers who would have to be involved. Since the early 2000s, no formal joint Councils have taken place – another practical illustration of the diffculties associated with implementing environmental policy integration (see Chapter 12). Finally, while the Environment Council formally shares legislative powers with the Parliament, it remains the single most important actor shaping the EU’s external environmental policy (see also Chapter 3). However, on environmental issues with a high level of political salience (such as climate change since the 2000s), the European Council often issues political guidelines and sometimes even detailed ‘instructions’ to the Environmental Council and very occasionally also to the Commission (Wurzel, Liefferink and Di Lullo, 2019). As Oberthür and Dupont (2017: 67) have argued ‘[e]xternally, the conclusions of the European Council may give signals on the political commitment and leadership of the EU to international partners’.

Summary points • • •

The frst Environment Council meeting took place in 1973. The steady increase in the number of meetings per year refects its greater workload and increased political standing. The Environment Council is the most important actor shaping external EU environmental policy but on international climate change issues, the European Council has recently taken on a more commanding role.

The European Council There is wide agreement that the European Council’s role has increased signifcantly in recent years (e.g., Puetter, 2014; Lewis, 2019). This is partly the result of major crises such as on refugees and Brexit in which the Heads of State and Government took a more leading role (Burns and Tobin, 2016). For Lewis (2019: 161), ‘no other EU body can match the political authority of the European Council’. Initially, the member governments’ top political leaders met only on an informal, ad hoc basis. Since the 1970s, their meetings have become more institutionalised. It was,

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however, the 2009 Lisbon Treaty that made it a formal EU institution. Importantly, that treaty created an elected President for the European Council (while, as was noted above, maintaining the rotating Presidency for the Council) and a High Representative of the Union for Foreign Affairs as well as the EEAS. These new posts have complicated the EU’s representation in international environmental negotiations (for details, see Chapter 15). Prior to 1990, the Heads of State and Government only occasionally dealt with environmental issues. For example, the Paris Summit in October 1972 initiated EU environmental policy by instructing the Commission to draft an Environmental Action Programme (see Chapter 2). This took place only a few months after the UN Stockholm conference on the human environment. Since the 1990s, environmental issues have been taken more seriously by the European Council (Oberthür and Dupont, 2017). However, the European Council initially failed to make the protection of the environment a core aim of the 2000 Lisbon Strategy which attempted to make the EU the most competitive knowledge-based economy by 2020. It was the 2001 Swedish Presidency which raised the profle of sustainable development at the Gothenburg European Council meeting. Overall, the European Council has provided relatively little leadership on international environmental policy issues, with climate change being the main exception (Jordan et al., 2010; Oberthür and Dupont, 2017; Wurzel, Liefferink and Di Lullo, 2019). Since about 2007, the European Council has become much more active, with notable peaks in 2007–2009 and 2014–2015 (Dupont and Oberthür, 2017). A good example is the adoption of the 2020 climate change and energy package which sought to position the EU as a leader in international climate change politics (Jordan et al., 2010; Oberthür and Dupont, 2017; Wurzel, Connelly and Liefferink, 2017) (see Box 5.4).

Box 5.4 The European Council’s role in the adoption of the 2020 climate and energy package In March 2007, the European Council agreed to the 2020 climate and energy package, the technical details of which had been negotiated by the Environment Council in close cooperation with the energy and fnance ministers. The package proposed a unilateral 20% reduction target for carbon dioxide emissions by 2020 (compared to 1990 levels) and a conditional 30% reduction target, subject to other developed countries undertaking equivalent actions. However, arduous negotiations on the ‘effort sharing agreement’, which translated the collective 20% EU reduction target into specifc national reduction goals, almost led to the unravelling of the entire package. The frm commitment by all member states under the effort sharing agreement was necessary to give credibility to the EU’s leadership ambitions in international climate change politics. A European Council meeting held under the 2009 Swedish Presidency adopted a fnancial assistance package to support climate adaptation measures in developing countries in order to increase the chances of striking a UN agreement on combatting climate change. The European Council was therefore instrumental in positioning the EU as a leader in international climate change politics and in establishing the EU’s long-term direction in climate change governance.

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However, the European Council’s growing involvement risks subverting the Commission’s formal right of initiative (see Chapter 6), although it may also facilitate more rapid policy adoption (see Box 5.5).

Box 5.5 The European Council’s role in the EU’s proposals for the 2015 Paris Conference For the 2015 Paris climate conference, all Parties had to submit Intended Nationally Determined Contributions (INDCs) – essentially voluntary national emission reduction plans – in 2014. Because these plans contained elements which affected several EU policy areas and the level of their ambition pitted the richer ‘old’ Western European member states with the poorer ‘new’ Central and Eastern European States, the European Council produced a detailed plan (with a 2030 time horizon) to be presented in Paris. The European Council’s plan contained elements which later formed the basis for a legislative proposal by the Commission, thus usurping the latter’s formal right of initiative which it usually jealously guards. However, in reality, it was a quid pro quo: accepting elements of the European Council’s plan enabled the Commission to submit formal proposals with greater confdence that the Council would accept them (Wurzel, Liefferink and Di Lullo, 2019: 253). It is, however, quite rare for the European Council to issue such detailed ‘instructions’ to the other EU institutions. The European Council cannot adopt EU laws, although it may launch new initiatives or try to break the political deadlock in particular Council formations. For example, on climate change, the European Council has repeatedly had to fnd compromise solutions between the richer Western European member states and the poorer Central and Eastern European member states (Wurzel, Liefferink and Di Lullo, 2019: 253). On the other hand, European Council meetings can also dampen the enthusiasm of environmental ministers or even block certain initiatives altogether. A good example was the European Council meeting in Edinburgh in 1992, which issued a detailed declaration on the correct interpretation of the principle of subsidiarity. This led to the publication of an Anglo-Franco hit list of laws to be scrapped, although in the end none of them was actually scrapped (see Chapter 19 for more details).

Summary points • • • •

The European Council issues guidelines and political instructions to the Council. The European Council only occasionally dealt directly with environmental issues prior to 1990. Since the 1990s, it has taken a more proactive role on international climate change issues. Very occasionally, the European Council produces detailed instructions to guide the Council. Unlike the Council, which meets in sectoral formations, the European Council has the political authority and oversight to strike cross-sectoral package deals.

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Member states: leaders, pioneers, laggards and followers In environmental policy, member states can be categorised as leaders, pioneers, laggards and followers. Leader states demand the adoption of ambitious environmental measures at the EU level (and often also the international level). Leaders can be sub-divided further into constructive pushers, which adopt unilaterally progressive environmental measures on the domestic level in the hope that this will attract followers, and conditional pusher states which will only adopt ambitious domestic environmental measures if other states undertake similar efforts (Liefferink and Wurzel, 2017; Wurzel, Liefferink and Torney, 2019). A leader state ‘has the explicit aim of leading others, and, if necessary, to push others into a follower position’ (Liefferink and Wurzel, 2017: 953). Pioneers on the other hand adopt ambitious environmental measures on the domestic level without intentionally wanting to attract followers. Other (member) states may nevertheless emulate pioneers. Germany is often characterised as an environmental leader state which for competitiveness reasons will frequently adopt the role of a conditional pusher. Denmark, on the other hand, has frequently acted as an environmental pioneer insisting on the EU Treaty’s ‘environmental guarantee’ which allows member states to adopt nationally more ambitious measures under certain circumstances. There is relatively wide agreement that the group of environmental leader states initially consisted of a green trio, made up of Denmark, Germany and the Netherlands, that subsequently expanded into a green sextet when Austria, Finland and Sweden joined in 1995 (Andersen and Liefferink, 1997). Although the green sextet still holds a blocking minority under QMV, its infuence has diminished since 2004 because most of the Central and Eastern European member states often give a higher priority to economic development (Wurzel, Liefferink and Di Lullo, 2019). Moreover, in recent years, some of the leader states (including Austria, Germany and the Netherlands) have exhibited a more mixed environmental record, thus rendering questionable whether they are really environmental leaders across all issues. For example, the huge economic cost of German unifcation has made Germany more cost-conscious about EU environmental policy while centre-right coalition governments in Austria and the Netherlands have given lower priority to environmental issues. Moreover, all environmental leaders have their blind spots (e.g., Germany still has a signifcant number of coal-fred power stations and its car industry has been slow to endorse electric cars following the dieselgate crisis). By contrast, laggards drag their feet and may try to veto the adoption of ambitious EU environmental policy measures or at least try to water them down. The reasons why member states act as environmental laggards are multifaceted and may include the low domestic political salience of environmental issues or concerns about the negative potential impact of EU policy measures on their domestic economies. The Central, Southern and Eastern European member states have often been labelled laggard states. The domestic environmental problems in these member states often differ from those in the more highly industrialised Northern European member states who historically have often set the agenda in EU environmental policy making (Weale et al., 2000) (see also Chapter 10). The Southern and Central and Eastern European member states typically have weaker domestic environmental groups and Green Parties and more pressing economic problems than the more affuent Northern European states. They often have weaker domestic environmental administrative capacities which makes EU agenda setting and the implementation of EU environmental policy diffcult (compare Chapters 10 and 13).

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Finally, followers often do not hold a strong and consistent national preference in environmental policy making. They can be swayed by environmental leaders or laggards through the offer of side payments (e.g., increased EU structural funding), package deals or simply the fow of argument in Environment Council and/or European Council negotiations (Wurzel, 2008). Importantly, all these classifcations have varied over time and even from one issue to the next. For much of the 1970s and 1980s, the UK, which joined the EU in 1973 and left in 2020, was widely seen as an environmental laggard – the ‘dirty man of Europe’ (Weale et al., 2000). However, between the 1990s and 2020, the UK acted as a climate leader (Rayner and Jordan, 2017). Brexit robbed the EU of one of its climate leaders which could weaken both the EU’s internal and external climate policies (Wurzel, Connelly and Liefferink, 2017; Wurzel, 2018; Burns et al., 2019). However, the UK’s departure is unlikely to produce radically different environmental policy preferences in the Council or European Council (Wurzel, 2018; Burns et al. 2019). But the emerging differences between the (now diminished) bloc of richer ‘old’ Western European member states and the poorer ‘newer’ ones from Eastern and Central European states will have a decisive infuence on climate and environmental policy dynamics throughout the 2020s. In the past, there was an unwritten rule that semi-permanent coalitions between either environmental leaders/pioneers or environmental laggards should be avoided because they made it more diffcult to come to agreements on specifc topics (Liefferink and Andersen, 1998; Liefferink and Wurzel, 2017). However, this may be about to change with, for example, the Visegrad countries frequently agreeing common positions before Environment Council or European Council meetings (Wurzel, Liefferink and Di Lullo, 2019).

Summary points • • • •

Denmark, Germany and the Netherlands as well as Austria, Finland and Sweden have traditionally been portrayed as environmental leader states. However, even environmental leader states behave laggardly on some issues. The environmental priorities of the less prosperous Southern and Eastern European states often differ from the more affuent Northern European states and consequently they tend to behave as laggards. Member states’ tendency to behave as leader, pioneer, laggard or follower may vary over time or even from issue to issue. The classifcation of states into leaders and laggards should therefore not be applied too strictly. Semi-permanent alliances between states have been taboo in the past. However, more recently the Visegrad countries have tried to coordinate their positions on climate change policies ahead of important meetings.

Conclusions The Council and European Council are absolutely central actors in EU environmental policy making. They constitute the main EU institutions and the main negotiating forums for member governments. Over time, the Environment Council’s political

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importance has grown signifcantly while the number of its meetings has expanded. Although QMV now applies to most policy dossiers, the Environment Council often adopts its decisions by unanimity. The Council negotiates and (together with the Parliament) adopts EU laws. The European Council adopts the political guidelines and occasionally also issues detailed ‘instructions’ to the Council. Prior to 1990, the European Council rarely dealt with environmental issues. However, since then, the European Council has become more strongly involved particularly in climate change issues. The six-monthly rotating Presidency has been retained for the Council while for the European Council an elected President was created by the Lisbon Treaty. The rotating Council Presidency acts as a mediator, initiator, representative and point of contact. Trio Presidencies have been established to provide greater continuity both internally and externally. For the climate change negotiations, lead issue leaders and lead negotiators were created in the 2000s to allow for continuity beyond the rotating EU Presidencies and the Trio Presidencies. Attempts to achieve better integration of environmental requirements into other Council formations have, however, not been very successful (see Chapter 12). The environmental leader/pioneer–laggard dimension goes a long way towards explaining the dynamics of environmental policy making (see Chapter 11). However, member states’ classifcation as environmental leaders or laggards may vary over time or even from issue to issue. Denmark, Germany and the Netherlands together with Austria, Finland and Sweden have often formed an informal green sextet. However, semi-permanent coalitions have not existed within the Council until recently. Since the 2010s, the Visegrad countries have formed a more highly institutionalised alliance which has frequently adopted common positions (especially on climate change dossiers) before Environment Council and/or European Council meetings.

Summary points • • •

The Council, European Council and member states are all central EU environmental policy actors. Over time the Environment Council has grown signifcantly in terms of political importance. It negotiates and (together with the Parliament) adopts EU environmental laws. The European Council issues the political guidelines. The environmental leader/pioneer–laggard dimension helps to explain the dynamics of EU environmental policy making.

Key questions 1 2

How are decisions arrived at in the Environment Council? In what ways has the European Council become an important actor for EU environmental policy, and why?

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What role does the Presidency play in EU environmental policy making? What roles do the Coreper and the working groups perform in the Environmental Council? Why has the integration of environmental concerns into all other Council formations proven so challenging? How easy is it to identify consistent environmental leader, pioneer, laggard and follower states?

5 6

Guide to further reading •

Most EU introductory text books (e.g., Bache et al., 2015; Nugent, 2017; Cini and Pérez-Solórzano Borragán, 2019) include chapters on the Council and the European Council. Hayes-Renshaw and Wallace (2006) and Puetter (2014) offer excellent accounts of the inner workings of the Council and the European Council. Oberthür and Dupont (2017) provide an outstanding analysis of the role which the Environment Council and European Council play in EU climate change politics. Wurzel, Liefferink and Di Lullo (2019) analyse the changing environmental leadership dynamics between the European Council, Council and member states. First-rate assessments of environmental leader/pioneer states can be found in Andersen and Liefferink (1997), Liefferink and Andersen (1998) and Liefferink and Wurzel (2017).

• • •

Online resources • • •

The Council of the European Union: https://www.consilium.europa.eu/en/ council-eu/ The European Council: https://www.consilium.europa.eu/en/european-council/ The Presidency of the Council of the European Union: https://www.consilium. europa.eu/en/council-eu/presidency-council-eu/

Notes 1 This chapter benefted from research funded by the British Academy (grant number SG46048). 2 Denmark, Finland, Iceland, Norway and Sweden and the three autonomous areas, the Faroe Islands, Greenland and the Åland Islands are members of the Nordic Council.

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References Andersen, M.S. and Liefferink, D. (eds) (1997) European Environmental Policy: The Pioneers, Manchester University Press, Manchester. Bache, I., Bulmer, S., George, S. and Parker, O. (2015) Politics in the European Union, Oxford University Press, Oxford. Burns, C. and Tobin, P. (2016) ‘The impact of the economic crises on European Union environmental policy’, Journal of Common Market Studies, vol. 54, no. 6, pp. 1485–1494. Burns, C., Gravey, V., Jordan, A. and Zito, A. (2019) ‘De-Europeanising or disengaging? EU environmental policy and Brexit’, Environmental Politics, vol. 28, no. 2, pp. 271–292. Cini, M. and Pérez-Solórzano Borragán, N. (eds) (2019) European Union Politics, 6th edition, Oxford University Press, Oxford. Council of the European Union (2015) Handbook of the Presidency of the Council of the European Union, General Secretariat of the Council of the EU, Luxembourg. Council of the European Union (2016) Council Decision (EU) 2016/1316 of 26.7.2016, Offcial Journal L208/42–44, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016D1316&from=EN (accessed 16.4.2020). Council of the European Union (2019a) ‘Council confgurations’, https://www.consilium.europa.eu/en/council-eu/confgurations/ (accessed 7.4.2020). Council of the European Union (2019b) Outcome of the Council meeting. 3741st meeting. Environment, Brussels, 19.12.2019. 15176/19 PRESSE 74, Brussels: Consilium https://www.consilium.europa.eu/media/42001/st15176-en19.pdf (accessed 15.4.2020). Dupont, C. and Oberthür, S. (2017) ‘The Council and the European Council’, in R. Wurzel, J. Connelly and D. Liefferink (eds) The European Union in International Climate Change Politics, Routledge, London, pp. 66–79. Hayes-Renshaw, F. and Wallace, H. (2006) The Council of Ministers, 2nd edition, Palgrave, Basingstoke. Jordan, A., Schout, A. and Unfried, M. (2008) ‘The European Union’, in A. Jordan and A. Lenschow (eds) Innovation in Environmental Policy? Integrating the Environment for Sustainability, Edward Elgar, Cheltenham, pp. 159–179. Jordan, A., Huitema, D., van Hasselt, H., Rayner, T. and Berkhout, F. (eds) (2010) Climate Change Policy in the European Union, Cambridge University Press, Cambridge. Lewis, J. (2019) ‘The European Council and the Council of European Union’, in M. Cini and N. Pérez-Solórzano Borragán (eds) European Union Politics, 6th edition, Oxford University Press, Oxford, pp. 157–175. Liefferink, D. and Andersen, M.A. (1998) ‘Strategies of the “green” member states in EU environmental policy-making’, Journal of European Public Policy, vol. 5, no. 2, pp. 24–70. Liefferink, D. and Wurzel, R.K.W. (2017) ‘Environmental leaders and pioneers: Agents of change?’ Journal of European Public Policy, vol. 24, no. 7, pp. 951–968. Nugent, N. (2017) The Government and Politics of the European Union, 8th edition, Palgrave Macmillan, Basingstoke. Oberthür, S. and Dupont, C. (2017) ‘The Council, the European Council and international climate policy’, in R. Wurzel, J. Connelly, and D. Liefferink (eds) The European Union as a Leader in International Climate Change Politics. Still Taking a Lead?, Routledge, London, pp. 66–79. Pinder, J. (1991) European Community: The Building of a Union, Oxford University Press, Oxford. Puetter, U. (2014) The Council and the European Council, Oxford University Press, Oxford. Rayner, T. and Jordan, A. (2017) ‘The United Kingdom: A paradoxical leader?’, in R.K.W. Wurzel, J. Connelly, and D. Liefferink (eds) The European Union as a Leader in International Climate Change Politics. Still Taking a Lead?, Routledge, London, pp. 173–188.

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Weale, A., Pridham, G., Cini, M., Konstadakopulos, D., Porter, M. and Flynn, B. (2000) Environmental Governance in Europe, Oxford University Press, Oxford. Wurzel, R.K.W. (1996) ‘The role of the EU Presidency in the environmental feld: Does it make a difference which member state runs the Presidency?’, Journal of European Public Policy, vol. 3, no. 2, pp. 272–291. Wurzel, R.K.W. (2008) ‘Environmental policy: EU actors, leader and laggard states’, in J. Hayward (ed.) Leaderless Europe, Oxford University Press, Oxford, pp. 66–88. Wurzel, R. (2018) ‘Germany and Brexit: How to preserve European integration while achieving a post-Brexit deal with the United Kingdom’, Marmara Journal of European Studies, vol. 26, no. 1, pp. 171–193. Wurzel, R.K.W., Connelly, J. and Liefferink, D. (eds) (2017) The European Union as a Leader in International Climate Change Politics. Still Taking a Lead?, Routledge, London. Wurzel, R., Liefferink, D. and Di Lullo, M. (2019) ‘The European Council, the Council and the member states: Changing environmental leadership dynamics in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 248–270. Wurzel, R., Liefferink, D. and Torney, D. (2019) ‘Pioneers, leaders and followers in multilevel and polycentric climate governance’, Environmental Politics, vol. 28, no. 2, pp. 1–21.

6

The European Commission Alexander Bürgin

Summary guide In the initial phases of EU environmental policy making, the Commission had to work hard to expand EU policy as it lacked an explicit legal basis in the Treaties. Later on, when the legal status had been affrmed, it used its superior technical expertise and emerging policy networks to exert a signifcant infuence on the scope and stringency of EU policies. In the 1990s, its infuence was increasingly constrained by the more assertive roles performed by the European Council and the European Parliament, the increasing diversity amongst EU member states and the rising tide of Euroscepticism. However, two recent developments have strengthened the Commission’s capacity to infuence EU policy. First, internal administrative reforms have successfully addressed its internal fragmentation. Second, recent changes in reporting and monitoring have improved its capacity to monitor compliance with EU rules. Nonetheless, a number of signifcant challenges remain, including the improvement of cross-sectoral coordination within the Commission and its limited capacity to enforce the implementation of EU law ‘on the ground’ in the member states.

Introduction The European Commission is a central actor in EU environmental policy. As the 1957 Rome Treaty included no legal basis for environmental policy, the Commission justifed its proposals for a harmonisation of environmental standards by referring to the functioning of the common market (see Chapters 1 and 2). Then, when the SEA introduced a concrete legal basis for environmental action at the EU level, the Commission used its exclusive right of initiative to propose new legislation that greatly expanded the scope of EU environmental policy. Beyond initiating new laws, the Commission’s core tasks also include the monitoring of the member states’ implementation of environmental rules and the external representation of the EU, including the negotiation of international environmental agreements (see Chapters 13 and 15). In order to fulfl these tasks, its organisational structure and internal coordination have been constantly adapted. Given the cross-sectoral nature of environmental policy, the Commission has been a forceful advocate of the integration of an environmental dimension into the work of all policy sectors (see Chapter 12), which involves constantly improving the coordination between different policy portfolios. Inter-institutional exchange DOI: 10.4324/9780429402333-6

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with the other two main legislators – the Council and the European Parliament – has similarly intensifed in the recent past. The remainder of this chapter is structured as follows. The frst section outlines the structure of the Commission and provides a brief overview of how its main environmental division – DG Environment (DG ENV) – carries out its everyday business in relation to other DGs, in particular DG Climate Action (DG CLIMA) and DG Energy. The second section describes the multiple, overlapping functions of the Commission. The fnal section refects on the ongoing debate on whether the environment remains amongst its main priorities, its internal coordination problems and its capacity to improve policy implementation ‘on the ground’ within the member states.

Summary points • • •

The European Commission is a key institutional actor, operating at the heart of EU environmental policy. It still enjoys an exclusive right to propose new environmental policy as well as a treaty-based responsibility to oversee the implementation of the EU’s rules. Major ongoing challenges include the cross-sectoral coordination of environmental issues and its limited capacity to enforce the implementation of EU law ‘on the ground’ in the member states.

Internal organisation Political: the College of Commissioners The Commission is both political and administrative. Each member state nominates one Commissioner after consultation with the President of the Commission. The Commission is headed by a College of Commissioners that functions on the principle of collegiality, implying that all members share responsibility for Commission decisions. Collective responsibility increases the legitimacy of Commission initiatives and contributes to upholding a European perspective. College decisions are usually taken by consensus, although a vote is in theory possible if one Commissioner insists (Nugent and Rhinard, 2015: 128). A cabinet of personal advisors assists each Commissioner. They prepare the College meetings and form the interface between him/her and the Commission’s administrative services (chiefy the Directorates General – see below), with the aim of improving coordination and communication. Crucially, for interest groups (see Chapter 9), other European and international institutions, as well as national governments, cabinets are the frst point of access to obtain information on a Commission’s upcoming proposal. The Commission President determines the political direction of the Commission and allocates the policy portfolios to her Commissioners (TEU Art. 17(6)). In mission letters, the President specifes the Commissioners’ mandate and expected activities. Refecting its increasing salience, Commission President Barroso, in his second term (2009–2014), outsourced climate policy from the environment portfolio to a new

European Commission 95 DG (CLIMA) headed by Connie Hedegaard. Juncker (2014–2019) then merged DG CLIMA with the energy portfolio, administered by Miguel Cañete, refecting the increased relevance of the EU energy policy to its sustainability and climate goals. On taking offce in December 2019, Ursula von der Leyen reversed this merger. She emphasised her commitment to addressing climate change by allocating the climate portfolio to executive Vice-President Frans Timmermans, who was also made responsible for the European Green Deal, which aims at achieving climate neutrality by 2050, i.e., emitting no greenhouse gases beyond a level that can be absorbed (see also Chapter 16). Administrative: the directorate generals Like the administrations of the 27 member states, the Commission’s services are divided into various sub-divisions. Most sub-units are called DGs and are responsible for the management of a specifc policy area. In addition, horizontal services either play a coordinating role, such as Secretariat General (SG), or provide support to the DGs, such as the Legal Service. The two DGs with the most prominent role in environmental policy are DG ENV and DG CLIMA. DG ENV was set up in 1973, initially as a tiny fve-person team within DG Industry, some 15 years after the European Economic Community was created. As the main focus at the time was economic integration (see Chapter 2), it remained relatively weak in comparison to older DGs that still retain strong economic interests, such as DG Transport or DG Enterprise (Cini, 2000; Schön-Quinlivan, 2011). In addition to having fairly limited human resources, DG ENV’s infuence was also weakened by its recruiting practice. Instead of hiring internally, the norm for new DGs, DG ENV hired external specialists with technical knowledge. The new recruits, who had an intimate understanding of their environmental mission but were not as steeped in the traditions of the EU, produced an enormous number of legislative initiatives in a very short period of time. Some have argued that these initial advances, although vital to get EU environmental policy up and running, were achieved at the cost of weak horizontal coordination with other DGs and external stakeholders (Cini, 2000: 79–80). However, over time, DG ENV professionalised like other DGs and settled into the Commission’s accepted ways of working, increasingly focusing on horizontal coordination with other DGs, rather than just on maximising the environmental ambition of its policy proposals. DG ENV’s new approach was also refected in its active advocacy of the EPI principle, implying the inclusion of environmental considerations into other policy areas with a view to achieving sustainable development (see Chapters 12 and 16), a greater receptiveness to market-based instruments (see Chapter 17) and a stronger engagement with external stakeholders (see Chapter 18), including industry and the public. Finally, DG CLIMA was established in February 2010. As well as leading the international negotiations on climate (see Chapters 3 and 15), it helps the EU to adapt to the consequences of climate change and to meet its emission reduction targets through to 2050 and is also chiefy responsible for overseeing the EU Emissions Trading System. Internal coordination When a new environmental proposal is drafted, either DG ENV or DG CLIMA is usually in the lead; i.e., responsible for drafting the policy proposal and chairing the

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Table 6.1 Staff numbers in a selection of Commission DGs (as of 2019): a comparison DG

Staff number (on 01/01/2019)

Climate action Environment Energy Trade Employment Competition Internal market, industry, entrepreneurship and SMEs Agriculture

185 442 581 686 708 804 869 887

Source: European Commission (2019a).

inter-service steering group that brings together offcials of the relevant services. The appointment of the lead DG is regularly disputed due to the agenda-setting power it implies (Hartlapp et al., 2013). In addition, if they are not in the lead, DG ENV and DG CLIMA are expected to keep an eye on the environmental aspects of proposals led by another DG. However, the cross-sectoral scope of environmental issues (which potentially address the work of all DGs) and the relatively limited size of DG ENV and DG CLIMA (see Table 6.1) constrain their ability to integrate environmental thinking into all the Commission’s policy formulation activities (see below and Delreux and Happaerts, 2016: 63). Another key feature of the inter-service coordination process is impact assessment for new initiatives (Jordan and Schout, 2006) and retrospective regulatory policy evaluations. The former are designed to map out alternative policy solutions to a given policy problem and to identify potential short- and long-term costs and benefts through an assessment of the economic, environmental and social impacts of each solution. The latter are used to assess whether existing EU laws, policies and funding programmes are delivering the intended results at minimum cost (see Chapter 14). Both instruments form a key part of the Commission’s better regulation agenda, which seeks to design and evaluate EU policies and laws, ensuring that their objectives are met in the most cost-effcient and effective way. The relative advantages and disadvantages of the better regulation agenda remain controversial. On the one hand, impact assessments and regulatory evaluations potentially contribute to a more transparent and evidence-based decision-making process, facilitating citizens’ and stakeholders’ involvement (see also Chapter 18). In addition, they require intensive inter-service coordination within the Commission, thus contributing to breaking the habit of thinking about proposals in departmental silos (Jordan and Schout, 2006; Radaelli and Meuwese, 2010: 148). On the other, the Commission may use impact assessments to cloak its political preferences in the language of evidence-based policy making (Elantonio and Spendzharova, 2015). From such a perspective, the better regulation agenda serves as a justifcation for deregulation, and thus championing business competitiveness at the expense of the workers and the environment (van den Abeele, 2019: 49). Furthermore, it is often diffcult to arrive at an objective measure of the quality and cost of EU regulation (Torriti and Löfstedt, 2012: 171).

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Box 6.1 The contested benefts of impact assessment The dubiousness of focusing on cost-effectiveness as the most important performance criteria was illustrated, for instance, by the Commission’s 2014 justifcation for the 27% renewable energy targets to be reached by 2030. The Commission argued that the associated impact assessment found that a 27% renewable energy share in the total energy mix represented the most cost-effective option for reaching the 40% greenhouse gas reduction target, and that a higher share would bring an unacceptable increase in costs. However, the impact assessment was actually more ambivalent, emphasising that any higher energy system costs also come with additional benefts, related, for instance, to energy security, health and air pollution reduction (Bürgin, 2015: 701).

Summary points •

• • •

The Commission is a hybrid institution composed of a political part (the College of Commissioners) and a hierarchically structured set of administrative services, staffed with administrative offcials from the 27 member states. The Commission President sets the political priorities of the organisation and allocates the portfolios to individual Commissioners. A cabinet of personal advisors assists each Commissioner, who are the main point of access (and thus lobbying) for interest groups seeking information and/or policy infuence. DG ENV’s and DG CLIMA’s staff numbers are relatively limited in comparison to other DGs, which constrains their ability to engage in inter-service coordination in pursuit of EPI.

The functions of the Commission Agenda setting The Commission’s exclusive right to draft legislative proposals (Article 17 TEU) grants it signifcant agenda-setting power (see also Chapter 10). In practice, this power largely depends on the Commission’s issue-specifc expertise. To this end, the Commission has developed networks with various stakeholders, such as business associations, NGOs and think tanks (see Chapter 9). Thus, it has access to information that is essential for the drafting of new legislation. In addition, the Commission’s expertise benefts from the cooperation with agencies such as the European Environment Agency (EEA; see Box 6.2).

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Box 6.2 Working with EU agencies: the use of the EEA’s expertise The Commission considers the EEA to be one of its most important partners for two reasons. First, the Commission, which often struggles with its limited administrative capacities, benefts from the Agency’s deep expertise in data collection and analysis when formulating policies or monitoring member states’ compliance. Consequently, the Commission continues to outsource many new data collection, data management and benchmarking tasks to the EEA. Second, being able to draw on expert knowledge has become central to the Commission in legitimising its decisions because it lends authority to policy positions, helping to substantiate specifc preferences in cases of pronounced political contestation (Jevnaker and Saerback, 2019: 65). The EEA’s performance is independently evaluated every fve years. According to the 2018 report, the EEA has achieved signifcant levels of EU added value, in particular through the provision of high quality data. This beneft is viewed as important, as it leads to the delivery of a number of other benefts including, for example, the ability to benchmark the performance of countries and the ability to share knowledge with member states, some of whom have weaker administrative capacities than others (European Commission, 2018a: 61).

However, the Commission’s agenda-setting powers are constrained in two ways. First, European Council Conclusions increasingly set out broad strategic lines of EU policy covering environmental, climate and energy targets (see Chapter 5). Second, in line with its strategy to more effectively impact the complete legislative cycle from agenda setting to legislation and scrutiny, the European Parliament has been successful in winning a greater role for itself at the policy formulation stage (Bürgin, 2019: 192). This was explicitly acknowledged by Commission President von der Leyen when she offered Members of the European Parliament (MEPs) a de facto right to initiate legislation (European Commission, 2019a). Her suggestion that the Commission will henceforth propose legislation on any policy issue within its legal competence if requested by a majority of MEPs went well beyond Article 225 of the TFEU, according to which the Commission is given the power to agree or refuse to submit any particular proposal. However, even if von der Leyen’s offer was faithfully implemented, the Commission would still be able to shape the detailed content of individual proposals. Legislative brokering As nowadays most legislative initiatives are decided by the ordinary procedure, requiring the approval of the Council of Ministers and the European Parliament (see Chapter 11), the Commission has to take ‘the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council’ (Article 294, TEU). Negotiations between the institutions on legislative proposals generally take the form of tripartite meetings (‘trilogues’) between the Parliament, the Council and the Commission. Their purpose is to reach a provisional agreement on a text which is acceptable

European Commission 99 to both the Council and the Parliament. During trilogues, the two institutions set out their respective positions; the Commission’s role is to acts as a mediator with a view to facilitating agreement, drawing on its issue-specifc expertise. A long-standing concern about trilogues is that they run the risk of short-circuiting debates inside the respective institutions, such as the Parliament’s committees (European Economic and Social Committee, 2017: 55–56). Legislative brokering has become better organised in recent years with the introduction of Strategic Planning and Programming (Nugent and Rhinard, 2015: 291). The process starts with the incoming Commission President’s multiannual policy objectives. These political guidelines provide the basis for annual policy prioritisation and budgeting decisions. In an inter-institutional agreement on better law making, adopted in 2016, the Commission, Parliament and Council agreed to issue a joint declaration each year on inter-institutional programming, identifying items of major political importance (Offcial Journal of the European Union, 2016). An Inter-institutional Coordination Group, composed of offcials from the Secretariat General of the Council, the Secretariat General of the Commission, the Secretariat of the Parliament and the delegation representing the Council Presidency collaborate to deliver on the common commitments expressed in the declaration. These monthly meetings, formerly characterised as ineffective, have transformed into detailed and arguably more effective discussions of the status of the commonly agreed priorities (Bürgin, 2019: 194). Nevertheless, legislative brokering remains a complex task, refected in particular, in the adoption of the annual budget. Generally, the Parliament aims at increasing the amount suggested by the Commission, while the Council aims for the exact opposite. After month-long negotiations, the reconciliation committee composed of delegations representing the Parliament and the Council generally reaches a compromise acceptable to all sides. Furthermore, the Commission has the right to draft the EU’s multiannual fnancial framework. For the 2021–2027 budgetary cycle, on 27 May 2020, the Commission proposed a revamped long-term EU budget in order to respond to the economic recession caused by the COVID-19 pandemic. The proposal includes a revised seven-year EU budget of €1,100 billion and an emergency recovery instrument, the Next Generation EU, that will allow the Commission to use its strong credit rating to borrow €750 billion on the fnancial markets. This additional funding will be channelled through EU programmes and repaid over a long period of time throughout future EU budgets – not before 2028 and not after 2058 (European Commission, 2020b). EU leaders struck a deal on the Commission’s proposal in July 2020. Policy implementation The implementation of EU rules is primarily a task for the member states themselves, but the Commission has the responsibility to oversee how well they apply EU rules (see Chapter 13). In order to support the member states, the Commission identifes possible diffculties for member states in implementing EU directives and, where relevant, suggests mitigation strategies that are written into formal transposition plans. In addition, the Commission also monitors how well member states comply with their obligations, in part based on reports submitted by them (Knill and Lenschow, 2000). The relatively recent reduction in the number of new legislative proposals has arguably allowed the Commission to devote more of its attention to these reports (Bürgin,

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2020b), but lacking the administrative capacity to oversee the implementation on the ground, it is still heavily reliant on member states’ good faith and willing cooperation in, for example, ensuring the accuracy of the more detailed claims made in the reports. The legal guardian of the treaties The Lisbon Treaty states that the Commission should act as a legal guardian of the EU treaties and any ensuing legislation. Therefore, it plays a supervisory role concerning implementation and possible infringements of EU primary and secondary legislation (for more details, see Chapter 13). With over 200 legal acts to monitor in 27 member states in the environmental feld, this is a major task. Since the Maastricht Treaty, the Commission has been able to take member states to court for breach of EU legislation (Article 258, TFEU). Ultimately, however, only the Court of Justice of the EU (CJEU) has the power to impose a fne on a particular state for not implementing EU rules (see Chapter 7).

Box 6.3 Improving air quality: a work in progress? Air quality is one of the oldest sub-areas of EU environmental policy. Two key pollutants have signifcant, ongoing health impacts: nitrogen dioxide and particulate matter. Nitrogen dioxide results mainly from road traffc and industry, and particulate matter mainly from emissions from industry, domestic heating, traffc and agriculture. Member states are required to respect limit values established by EU law (Directive 2008/50/EC); where this is not possible, member states are required to adopt air quality improvement plans to minimise the duration of the exceedance period (European Commission, 2018b). In order to address persistent exceedances of the limit values in Directive 2008/50/EC and the Cleaner Air for Europe package, the Commission has taken enforcement action against several EU member states. In May 2018, the European Commission stepped up enforcement and referred France, Germany, Hungary, Italy, Romania and the UK to the CJEU for repeatedly failing to respect agreed air quality limit values and for failing to take appropriate measures to minimise any exceedance periods. In 2019, the European Commission completed a ‘ftness check’ of the two Ambient Air Quality Directives (Directives 2008/50/EC and 2004/107/EC). This check concluded that the Directives have been instrumental in driving down the number and direction of exceedances and thus population exposures to key pollutants. It also noted the importance of the Commission’s ongoing enforcement actions in this area. However, the ftness check also stated that 20 member states still exceed EU limit values for at least one pollutant and often for several. The Commission argues that improvements in air quality critically depend on action taken in the transport, energy (including domestic heating) and agricultural sectors or by industry, and that at national, regional and local level, this has not translated into a suffcient level of commitment (European Commission, 2019b). Therefore, after 50 years, EU air pollution policy still remains a work in progress.

European Commission 101 External representation In the past 50 years, the EU has become a leading actor in international environmental and climate policy (see Chapter 15). As environmental policy is a shared competence, the Commission has become increasingly involved in the negotiations of multilateral environmental agreements (MEAs). For example, DG CLIMA leads the Commission task forces on the international negotiations in the areas of mitigating climate change and ozone depletion. It also coordinates bilateral and multilateral partnerships on climate change and energy with third countries. Such partnerships contribute to motivating third countries to join the EU’s preferred MEAs, to signal their compliance with EU environmental standards, and increasing their eligibility for various rewards, including development aid and assistance (Schulze and Tosun, 2013) (for details, see also Chapter 3). Finally, the Commission contributes to the assessment of a candidate country’s compliance with EU environmental standards – a critical step in the EU’s enlargement process.

Summary points • •

•

The Commission is a central actor in EU policy making because of its sole right of legislative initiative and its deep, issue-specifc expertise. The Commission is responsible for overseeing policy implementation. It can bring any member state that it believes may be in breach of EU legislation before the European Court of Justice, which has the option of imposing a fne. The Commission is also heavily involved in international environmental policy negotiations, in which it works alongside the Council to shape the EU’s common position.

Existing and emerging challenges The Commission: still an environmental policy entrepreneur? While in the past, the Commission had the reputation of being an environmental policy entrepreneur, more recent accounts have questioned whether the environment remains amongst its main priorities (Burns et al., 2020; Čavoški, 2015; Gravey and Jordan, 2016, 2019; Zito et al., 2019) (see also Chapter 19). Explanations for this alleged change have included the rise of Euroscepticism, exploited by member states as a justifcation for greater intergovernmental cooperation in the Council at the expense of the community method, the effect of the Euro-crisis, the increased diversity of EU members after the Eastern enlargement, the maturity of the environmental acquis communautaire and an emerging desire for deregulation within the Commission itself (Burns et al., 2020). In particular, two main reasons have been proposed to criticise the Juncker Commission’ neglect of environmental policy. First, after reviewing pending legislation, his Commission decided to withdraw and resubmit 80 of 450 pending legislative

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proposals remaining from the Barroso Commission, including several environmental ones (Gravey and Jordan, 2019: 8). Second, two mergers – the climate action portfolio with energy and fsheries, and maritime affairs with environment – were interpreted as a weakening of environmental and climate policies, illustrating that Juncker himself considered environmental policy to be only one element in his wider growth and job creation agenda, rather than the overriding priority (Čavoški, 2015: 504). As a response to this criticism, Juncker argued that a reduced number of legislative proposals would enable the Commission to shed its image as a bureaucracy responsible for overregulation and instead focus on issues where it could add value to national efforts (European Commission, 2016). In addition, he argued that Vella’s new portfolio refected the interlinkage between green and blue growth and claimed that the merger of the climate and energy portfolios refected the important role of renewable energy in the EU’s climate policy (Delreux and Happaerts, 2016: 62). Internal coordination: the presidentialisation of the Commission? Historically, the Commission was fragmented, with power widely dispersed within the College and between the services (Jordan and Schout, 2006; Kassim et al., 2013). Two main institutional factors constrain the Commission President’s authority. First, regarding the relations with the College of Commissioners, because the Commission President is not the head of a government, the power relationship between the President and other Commissioners is not marked by the same level of hierarchical authority that a prime minister enjoys over his ministerial colleagues within a particular member state. Despite the principle of collegiality, implying the need for a collective voice, the Commission’s increased competences, the more political nature of its work and its increased size after the Eastern enlargement have made it diffcult to avoid turf battles between individual Commissioners and between different DGs, with each pursuing their own sectoral policy agenda. A good illustration of this was the confict between Climate Commissioner Hedegaard and Energy Commissioner Oettinger during the Barroso II Commission over the level of the CO2 reduction goal for 2030 and whether it should be legally binding or just advisory (Bürgin, 2015). Second, regarding the relations with the Commission services, the President’s cabinet and the SG’s role in the coordination of the services has been limited. The SG has traditionally been the main guardian of collegiality, serving and supporting the College, rather than acting as a personal service of the President. Therefore, it has traditionally had limited involvement in the internal negotiation of policy within the DGs, leaving the President operating at some distance from interdepartmental affairs. This absence of centralised political authority has further contributed to the emergence of quasi-autonomous DGs who have been able to pursue their own agendas relatively free from political control exerted by the President. While these arrangements allowed DG ENV to rack up many new environmental directives in the early years of EU environmental policy, it negatively affected the development of a coherent, internally connected form of environmental policy. Indeed, with the 1997 Amsterdam Treaty, the EPI principle became a legal requirement for all EU policies and activities, something heavily advocated by DG ENV (Koch and Lindenthal, 2011: 15). However, the implementation of EPI has proven to be more diffcult than expected. Due to rival portfolio interests, DGs regularly tried to circumvent internal coordination, rather than to cooperate in the quest for more common policy solutions (Knill and Liefferink, 2007) (see Chapter 12).

European Commission 103 In response, the Commission President’s internal leadership has been strengthened by the successive treaty amendments that have her with a soft veto over national nominees and greater discretion over task allocation (Nugent and Rhinard, 2015: 78–79). In addition, organisational reforms within the Commission have aimed at directly strengthening the President through, for example, transforming the SG into an administrative command centre that can impose inter-service coordination on the DGs (Kassim et al., 2013: 186), thus reducing DG ENV’s ability to determine the Commission’s entire environmental policy strategy. These reforms were further developed by Juncker’s introduction of seven Vice-Presidents, each mandated to steer and coordinate the work of project teams composed of several Commissioners and working on a specifc priority project. A key function of the Vice-Presidents is to assess whether new initiatives proposed by Commissioners align with the President’s political guidelines (European Commission, 2014). In addition, Juncker further increased the SG’s staff numbers and range of competences in the coordination of the services. In particular, he allocated the SG an important agenda-setting power as chair of all ISGs dealing with priority initiatives included in the Commission’s work programme. While the lead DG is responsible for drafting both the impact assessment report and the policy proposal, input from the ISG, and thus from the SG, should also be taken into account (European Commission, 2015: 4). These organisational reforms affected the internal policy-making process in the feld of environmental policy in three main ways. First, due to the Commission President’s increased power to exercise political leadership within the Commission, the prioritisation of environmental policy is now more dependent on the Commission President’s own personal political agenda than in the past. In the Barroso Commission, the working programme was still a rather bottom-up process, making it diffcult for Barroso to impose his will. It is now a more centralised process, steered by von der Leyen in close coordination with her First Vice-President. Second, the introduction of project teams led by Vice-Presidents has promoted the earlier coordination of policy at a political level and thus has improved strategic political decision making amongst the Commissioners. Formerly, Commissioners regularly launched initiatives without intensive consultation with other Commissioners, leading to last-minute conficts in the days and weeks before publication. Currently, coordination at a cabinet level takes place from the very beginning of the policy formulation process. This facilitates agreement at an early stage, providing stronger policy guidance to the services, which is particularly important for the coordination of cross-sectoral environmental issues. Third, the more assertive role of the SG has led to a reduction in the level of discretion of the lead DG, ensuring that the views of other DGs are more fully incorporated into the drafts of the respective lead DG. This is particularly benefcial for those DGs that are in a less central role regarding a particular policy fle, or that have limited resources (Bürgin, 2018: 844–846; Bürgin, 2020a: 387).

Box 6.4 The Secretariat General’s flter function The preparation of Energy Union–related proposals provides two illustrations of the more interventionist, assertive role adopted by the SG in inter-service coordination than in the past. First, when DG Energy drafted the 2016 energy security package in its function as lead DG, it refrained from incorporating a provision

104 Alexander Bürgin on common gas purchasing into the package, arguing that common purchasing was already legitimate as long as EU law and WTO obligations were respected. However, the SG intervened on behalf of Energy Commissioner Šefcovic, who was in favour of such a provision. Second, in February 2015, the concerned DGs were asked to prepare a draft for the Energy Union strategy. The result was a strategy paper including recommendations that refected their particular portfolio interests and were, therefore, to some extent, mutually exclusive. Subsequently, the SG, in cooperation with the Šefcovic cabinet, took over the lead and introduced a more holistic view of the entire Energy Union project (Bürgin, 2020a: 387).

Compliance monitoring: new opportunities The implementation and compliance literature is sceptical regarding the Commission’s ability to enforce compliance (see Chapter 13 for details). In theory, in the case that an EU state fails to rectify the suspected violation of EU law, the Commission may launch a formal infringement procedure and refer the matter to the CJEU. Yet, there are three important limitations on the Commission’s power: frst, continuous pressure on certain member states to implement community laws might endanger their political support for future, potentially more ambitious environmental policies (Bürgin, 2015: 699); second, it takes many years for cases to appear before the CJEU (Hofmann, 2019: 346); and fnally, the Commission lacks the necessary human resources to chase every single case of non-compliance (Martens, 2008: 640). In an effort to make the process less confrontational, the Commission has focused on building capacity building measures in the member states, encompassing material and legal resources and ecological knowledge. New institutions have been set up to build up such capacities and improve coordination between public and private actors, as well as between EU, national and subnational levels of government. For instance, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) was established in 1992. It aims to promote the exchange of information and experience and developed ‘best-practice’ rules as regards inspection, permitting, monitoring, reporting and enforcement. In IMPEL, the Commission acts as a guide and coordinator, aiming to convince the national offcials of what it perceives to be the most desirable course(s) of action (Martens, 2008: 645). Research on the effects of such capacity building measures is still rare (Bondarouk and Mastenbroek, 2018: 16), but there is some evidence that they have contributed to narrowing the policy implementation gap (Börzel and Buzogány, 2019). In addition, advances in digitalisation have enabled reforms in the reporting and monitoring process, that have contributed in three important ways to strengthening the Commission’s capacity to monitor member states’ compliance with EU environmental law. First, quicker access to member states’ data has been achieved by increased levels of publicly available electronic data, faster data processing and harvesting by the EEA, i.e., a process that extracts and analyses data collected from online sources at national or local level independent of active reporting by member states. Second, the Commission has

European Commission 105 moved states from submitting granular data towards indicator-based reporting which is more comparable. This shift has been gradually implemented after the Commission detected in a ftness check of 181 reporting obligations that the overall effciency could be greatly enhanced (European Commission, 2017: 4). Finally, the EU’s earth observation programme, Copernicus, is allowing better real-time access to data, further increasing the accuracy of the information provided by the member states (Bürgin, 2020b).

Summary points • •

•

Internal fragmentation has been repeatedly addressed by organisational reforms that have contributed to a more top-down steering of the Commission and an earlier coordination at political level in the policy-making process. The decline in the number of new environmental legislative proposals published by the Commission has triggered an as yet unresolved debate amongst academics on the precise extent of environmental policy dismantling at EU level. Finally, poor implementation remains an enduring problem. Nevertheless, there is evidence of some improvement due to the success of the Commission’s capacity building measures and its improved monitoring capacities, enabled by advances in digital technology.

Conclusion Despite the challenges of rising Euroscepticism and increasing diversity amongst EU members, there are three main reasons why the Commission is still an infuential actor in the evolution of the EU environmental policy. First, its monopoly to initiate legislation provides it with signifcant agenda-setting power. While the European Council’s involvement in agenda setting has certainly grown, its internal divisions (exacerbated by the increased heterogeneity after Eastern enlargement) mean it can only issue vaguely defned guidelines and principles rather than comprehensive policy solutions. More substantive policy discussions, therefore, still require a detailed input from the European Commission (Nugent and Rhinard, 2016: 1202). Moreover, the lack of visionary leadership by the member states, in particular due to the absence of a strong German-France axis, has provided an opportunity for the Commission to present itself as a leader offering a vision for the general direction of the EU. Consequently, the public discontent with the EU, while to some extent being an obstacle, from a different perspective can also be considered as an opportunity for the Commission to provide leadership. This is illustrated by Commission President von der Leyen’s announcement of a European Green Deal, aimed at achieving a climate-neutral continent by 2050 and backed by signifcant new funds, which are unprecedented for what is ostensibly a package of environmental measures. Second, internal organisational reforms have increased the Commission President’s power to exercise political direction over the Commission. Consequently, the level of

106 Alexander Bürgin ambition of the Commission’s environmental policy agenda now has a much greater dependence on the Commission President’s priorities. This is illustrated by the diverging level of ambition between Juncker and his successor, Ursula von der Leyen. Moreover, another organisational reform, the vice-presidents’ special responsibility for the inter-institutional dialogue, has intensifed the coordination between the Commission and the Parliament. This has the potential to improve the standing of both vis-à-vis the Council (Christiansen, 2016: 1007; Dinan, 2016: 111). In addition, close coordination with the Parliament will become even more important in the future due to the new power arithmetic after the 2019 election, in which, for the frst time, the two main parties, the European Peoples Party and the Socialists & Democrats, lost their common majority (see Chapter 8 for more details). This implies that any Commission initiative now requires the support of at least three parties, offering the Greens potentially a greater infuence than in the past. Finally, the Commission’s infuence on EU environmental policy is not only refected in its ability to promote new legislation, but also by its capacity to enforce the implementation of existing environmental laws. There have been two important developments in this regard. First, despite persistent implementation defcits in the feld of environmental policy, the Commission’s stronger focus on enforcement and capacity building has contributed to narrowing the implementation gap (Börzel and Buzogány, 2019). Second, advances in digital technology have strengthened the Commission’s capacity to monitor compliance at the member state level. However, the full potential of digital transformation has yet to be fully realised, and the Commission’s monitoring capacity has only improved relatively recently (Bürgin, 2020b).

Summary points • • •

The public discontent with the EU is a chance for the Commission, and especially for the Commission President, to provide stronger environmental and climate policy leadership. Due to a more centralised internal leadership, the level of ambition of the Commission’s environmental policy agenda depends on the Commission President’s personal political priorities. Leadership not only implies an ambitious legislative agenda, but also appropriate capacities and strategies to ensure compliance. In this regard, the Commission has made signifcant progress in recent years.

Key questions 1 2 3

Explain why the European Commission plays such a vital role in EU environmental policy making. Which factors explain the Commission’s reduced environmental policy ambitions after the 2008 fnancial crisis? To what extent does the fragmentation of environmental policy making within the Commission enable and/or constrain new EU policy development?

European Commission 107 4 5

Why is the implementation of EU environmental policy so problematic for the Commission? To what extent is the European Commission still the most proactive ‘green actor’ at the EU level?

Guide to further reading • • •

For the debate on the Commission’s changing role in environmental policy, see Burns et al. (2020), Gravey and Jordan (2019) and Zito et al. (2019). For a better understanding of the internal administrative reforms and their impact on the Commission’s intra- and inter-institutional relations, see Becker et al. (2016) and Bürgin (2018, 2020a). For more detail on the Commission’s role in compliance monitoring, see Bondarouk and Mastenbroek (2018), Börzel and Buzogány (2019) and Bürgin (2020b).

Online resources • • •

European Commission, European Green Deal: https://ec.europa.eu/info/strategy/ priorities-2019-2024/european-green-deal_en European Commission, DG Environment: https://ec.europa.eu/dgs/environment/ European Commission, Better Regulation Agenda: https://ec.europa.eu/commission/ news/better-regulation-principles-2019-apr-15_en

References Becker, S., Bauer, M., Connolly, S. and Kassim, H. (2016) ‘The Commission: Boxed in and constrained, but still an engine of integration’, West European Politics, vol. 39, no. 5, pp. 1011–1031. Bondarouk, E. and Mastenbroek, E. (2018) ‘Reconsidering EU Compliance: Implementation performance in the feld of environmental policy’, Environmental Policy and Governance, vol. 28, no. 1, pp. 15–27. Börzel, T.A. and Buzogány, A. (2019) Compliance with EU environmental law: The iceberg is melting’, Environmental Politics, vol. 28, no. 2, pp. 315–341. Bürgin, A. (2020a) ‘The impact of Juncker’s reorganization of the European Commission on the internal policy‐making process: Evidence from the Energy Union project’, Public Administration, vol. 98, no. 2, pp. 378–391. Bürgin, A. (2020b) ‘Compliance with European Union environmental law: An analysis of digitalization effects on institutional capacities’, Environmental Policy and Governance, vol. 30, no. 1, pp. 46–56. Bürgin, A. (2019)‘The implications of the better regulation agenda for the European Parliament’s inter- and intra-institutional power relations’, Journal of European Integration, vol. 41, no. 2, pp. 187–202. Bürgin, A. (2018) ‘Intra- and inter-institutional leadership of the European Commission President: An assessment of Juncker’s organizational reforms’, Journal of Common Market Studies, vol. 56, no. 4, pp. 837–853.

108 Alexander Bürgin Bürgin, A. (2015) ‘National binding renewable energy targets for 2020, but not for 2030 anymore: Why the European Commission developed from a supporter to a brakeman’, Journal of European Public Policy, vol. 22, no. 5, pp. 690–707. Burns, C., Eckersley, P. and Tobin, P. (2020) ‘EU environmental policy in times of crisis’, Journal of European Public Policy, vol. 27, no. 1, pp. 1–19. Čavoški, A. (2015) ‘A post‐austerity European Commission: No role for environmental policy?’ Environmental Politics, vol. 24, no. 3, pp. 501–505. Cini, M. (2000) ‘Administrative culture in the European Commission: The cases of competition and environment’, in N. Nugent (ed.) At the Heart of the Union; Studies on the European Commission, 2nd edition, Macmillan Press, Basingstoke, pp. 71–87. Christiansen, T. (2016) ‘After the Spitzenkandidaten: Fundamental change in the EU’s political system?’ West European Politics, vol. 39, no. 5, pp. 992–1010. Delreux, T. and Happaerts, S. (2016) Environmental Policy and Politics in the EU, Palgrave, London. Dinan, D. (2016) ‘Governance and institutions: A more political Commission’, Journal of Common Market Studies, vol. 54 (Annual Review), pp. 101–116. Elantonio, M. and Spendzharova, A. (2015) ‘The European Union’s new “better regulation” agenda: Between procedures and politics: Introduction to the special issue’, European Journal of Law Reform, vol. 19, no. 1, pp. 3–15. European Commission (2020b) ‘Europe’s moment: Repair and prepare for the next generation’, Press Release, 27 May, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_940. European Commission (2019a) ‘Key fgures staff members’, https://ec.europa.eu/info/sites/info/ fles/european-commission-hr-key-fgures_2019_en.pdf. European Commission (2019b) ‘Executive summary of the ftness check of the ambient air quality directives’, SWD(2019) 428 fnal, 28 November. European Commission (2018a) ‘Evaluation of the European Environment Agency (EEA) and its European Environment Information and Observation Network (EIONET)’, COM(2018) 470 fnal, 19 November. European Commission (2018b) ‘Air quality: Commission takes action to protect citizens from air pollution’, 17 May, https://ec.europa.eu/commission/presscorner/detail/en/IP_18_3450 (accessed 27 August 2020). European Commission (2017) ‘Actions to streamline environmental reporting’, COM(2017) 312 fnal, Brussels. European Commission (2016) ‘Better regulation: Delivering better results for a stronger union’, COM(2016) 615 fnal, Brussels. European Commission (2015) ‘Instructions to services on the implementation of the working methods 2014–2019’, Ref. Ares (2015) 8695, 5 January. European Commission (2014) ‘Communication from the president to the Commission, the working methods of the European Commission 2014–2019’, C(2014) 9004, 11 November. European Economic and Social Committee (2017) ‘Investigation of informal trilogue negotiations since the Lisbon Treaty – Added value, lack of transparency and possible democratic defcit’, https://www.eesc.europa.eu/sites/default/fles/fles/qe-01-17-783-en-n.pdf. Gravey, V. and Jordan, A. (2019) ‘Policy dismantling at EU level: Reaching the limits of ‘an ever-closer ecological union’?’ Public Administration, Early View, doi:10.1111/padm.12605, pp. 1–14. Gravey, V. and Jordan, A. (2016) ‘Does the European Union have a reverse gear? Policy dismantling in a hyperconsensual polity’, Journal of European Public Policy, vol. 23, no. 8, pp. 1180–1198. Hartlapp, M., Metz, J. and Rauh, C. (2013) ‘Linking agenda setting to coordination structures: Bureaucratic politics inside the European Commission’, Journal of European Integration, vol. 35, pp. 425–441.

European Commission 109 Hofmann, A. (2019) ‘Left to interest groups? On the prospects for enforcing environmental law in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 342–364. Jevnaker, T. and Saerbeck, B. (2019) ‘EU Agencies and the Energy Union: Providing useful information to the commission?’ Politics and Governance, vol. 7, no. 1, pp. 60–69. Jordan, A. and Schout, A. (2006) The Coordination of the European Union: Exploring the Capacities of Networked Governance, Oxford University Press, Oxford. Kassim, H., Peterson, J., Bauer, M.W., Connolly, S., Dehousse, R., Hooghe, L. and Thompson, A. (2013) The European Commission of the Twenty-frst Century, Oxford University Press, Oxford. Knill, C. and Liefferink, D. (2007) Environmental Politics in the EU, Manchester University Press, Manchester. Knill, C. and Lenschow, A. (2000) Implementing EU Environmental Policy: New Directions and Old Problems, Manchester University Press, Manchester. Koch, M. and Lindenthal, A. (2011) ‘Learning within the European Commission: The case of environmental integration’, Journal of European Public Policy, vol. 18, no. 7, pp. 1–19. Martens, M. (2008) ‘Administrative integration through the back door? The role and infuence of the European Commission in transgovernmental networks within the environmental policy feld’, Journal of European Integration, vol. 30, no. 5, pp. 635–651. Nugent, N. and Rhinard, M. (2016) ‘Is the European Commission really in decline?’ Journal of Common Market Studies, vol. 54, no. 5, pp. 199–1215. Nugent, N. and Rhinard, M. (2015) The European Commission, Palgrave, London. Offcial Journal of the European Union (2016) ‘Interinstitutional agreement of 13 April 2016 on better law-making’, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX% 3A32016Q0512%2801%29. Radaelli, C. and Meuwese, A. (2010) ‘Hard questions, hard solutions: Proceduralisation through impact assessment in the EU’, West European Politics, vol. 33, no. 1, pp. 136–153. Schön-Quinlivan, E. (2011) Reforming the European Commission, Palgrave Macmillan, Basingtoke. Schulze, K. and Tosun, J. (2013) ‘External dimensions of European environmental policy: An analysis of environmental treaty ratifcation by third states’, European Journal of Political Research, vol. 52, no. 5, pp. 581–607. Torriti, J. and Löfstedt, R. (2012) ‘The frst fve years of the EU Impact Assessment System: A risk economics perspective on gaps between rationale and practice’, Journal of Risk Research, vol. 15, no. 2, pp. 169–186. van den Abeele, E. (2019) ‘The European Union versus the better regulation agenda: Why the outcome depends on a paradigm shift’, European Trade Union Institute, https://www.etui.org/ publications/background-analysis/the-european-union-versus-the-better-regulation-agenda. Zito, A., Burns, C. and Lenschow, A. (2019) ‘Is the trajectory of European Union environmental policy less certain?’ Environmental Politics, vol. 28, no. 2, pp. 187–207.

7

The Court of Justice of the European Union Ludwig Krämer

Summary guide Between 1976 and 2019, the European Court of Justice (ECJ) delivered about 1,200 judgements on environmental matters, more than half of them initiated by the European Commission against a member state. Most of them have dealt with the omission to transpose the requirements of EU environmental law into the national provisions, or the incomplete or incorrect transposition of EU environmental law. Cases relating to the inadequate practical application of EU law in the member states are less frequent. In general, the ECJ has tended to side with the environment; it has developed a considerable number of innovative arguments in order to ensure that EU environmental law and principles are applied. Most of its judgements have managed to strike the right balance between the diverging economic and ecological interests. However, it remains diffcult for individual persons and environmental organisations to bring cases before the ECJ themselves.

Introduction The CJEU (see Box 7.1) serves two main functions: (1) to oversee the lawful interpretation of the EU treaties and (2) to provide effective legal protection in the felds covered by EU law (Article 19, TEU). It is the last and fnal arbiter on the interpretation of EU law and its judgements create precedents in all 27 member states. In environmental law, the judgements contributed to making EU legislation and legal principles more precise and to ensuring that they are more uniformly applied.

Box 7.1 What is the Court of Justice of the European Union? The Court consists of three parts: (1) the Court of Justice, (2) the General Court and (3) an EU Civil Service Tribunal. The Civil Service Tribunal was dissolved in 2016 and will not be discussed in this chapter. The Court of Justice is composed of one judge per member state who is appointed by agreement between the governments of the member states. It has a number of main functions: it deals with disputes between EU institutions as well as actions DOI: 10.4324/9780429402333-7

Court of Justice of the European Union 111 taken by the EU Commission against a member state; it also gives preliminary rulings on the interpretation of EU law in cases which are submitted by the courts of the 27 member states; and it decides on appeals against decisions by the General Court. The Court of Justice is assisted in its work by Advocates-General who present opinions on the cases submitted to the Court. The General Court is composed of two judges per member state. It does not have Advocates-General. The General Court is mainly competent for cases submitted by private persons or companies or member states against an EU institution, as well as in competition matters.

The present structure of the EU judiciary system in environmental matters favours economic interests over environmental interests, which is illustrated by the following example. Where two companies in the EU make an unlawful agreement which restricts or distorts competition within the internal market (e.g., according to Article 101 of the TFEU), the European Commission (if indeed it even becomes aware of this situation) may send its inspectors to the companies, enter premises, interview persons, seize documents, examine books and records, and take other appropriate measures. At the end of the investigation procedure, the Commission will take a decision. It may impose fnancial sanctions of up to 10% of the total turnover of the companies. The companies may appeal against this decision to the General Court and then, if necessary, they may appeal against the judgement of the General Court to the Court of Justice. Where the same companies breach environmental legislation, for example, by discharging cadmium-containing waste water so that a river exceeds the maximum admissible concentrations (see Directive 2008/105/EC), and the Commission learns of it, it may decide to address a letter to the member state in which the company discharged the water. Where it is not satisfed with the member state’s answer, the Commission may begin formal proceedings by sending a formal letter to the member state in question. Should this answer again not be adequate, the Commission may issue a reasoned opinion. Should the member state’s answer still not satisfy the Commission, the latter may appeal to the Court of Justice. The Court may, at best, state that the member state in question has infringed its obligation under EU environmental law. No fnancial sanctions may be imposed. Only when the member state in question does not take the necessary measures to comply with the Court’s judgement, may the Commission initiate further proceedings – again with a letter of formal notice and a reasoned opinion preceding the application – and the Court then imposes a fnancial sanction (for details, see Chapters 13 and 14). The entire process typically takes eight to ten years. The difference is amazing: in the frst example, where competition law has been broken, there is a three-level procedure: the Commission decision; the application to the General Court; and the appeal. However, where environmental law has been broken, only one judicial level is available. No immediate sanction may be imposed by the Commission or the Court. And the action is taken against the relevant member state, not against the polluter. The next section describes the offcial and unoffcial statistics on environmental Court cases. The remaining sections then set out some of the most relevant features of the ECJ’s jurisdiction in environmental matters. This starts with a discussion of

112 Ludwig Krämer who can bring a case to the Court, i.e., who has legal ‘standing’. The next section then sets out some of the most innovative cases where the Court has played an especially important role in interpreting EU environmental law in order to protect the environment in the spirit, if not the exact letter, of the law. How the Court attempts to balance the interests of the EU (i.e., its objectives of environmental protection) and those of member states is the subject of the next section. The following section examines how the court balances environmental and economic interests. Then, the Court’s attempts to increase the transparency of EU environmental law and to strengthen citizen rights are discussed. This is followed by an outline of cases which appear to have been infuenced not only by legal, but also by political considerations. A comparison is made between the Court of Justice and the General Court (see Box 7.1) before the fnal section draws together some conclusions.

Summary points • • •

The ECJ is responsible for interpreting and applying EU law for the whole of the EU. The ECJ has 27 judges and the General Court has 54 judges. The present structure of the EU judiciary system favours economic interests over environmental interests.

Environmental court cases: a quantitative overview There are no specifc statistics on environmental cases held by the Court of Justice. The Court’s annual statistics of judicial activity lists cases on environmental matters together with consumer cases, under the heading ‘environment and consumers’ (Court of Justice, no date). Furthermore, there are many circumstances where important cases concerning environmental directives or regulations are categorised under other headings. For example, where a case is important with regard to the participation of the European Parliament or the residual competences of member states, it will be treated under the heading ‘law governing the institutions’, as will cases concerning access to environmental information. Alternatively, cases concerning environmental state aid are classifed as competition cases, etc. The author’s own statistics, collected since 1976, consider all environmental cases, although there are always some cases which are hard to classify. According to these data, between 1976 and until the end of 2019, the Court of Justice issued almost 1,200 judgements on environmental matters.1 More than 580 of these cases were submitted to the Court by the European Commission which took action against a member state for not, or not correctly, transposing EU environmental legislation into national law, or less frequently in recent years, for poorly applying EU environmental law in practice. The remaining cases were principally preliminary judgements on cases submitted by national courts (311 cases) and, actions by private persons, environmental organisations or companies (268 cases). Signifcantly, only in one single case has a member state taken action against another member state for not having complied with

Court of Justice of the European Union 113 Table 7.1 The duration of CJEU procedures in environmental cases initiated in the years 2016–2019 (in months, fgures rounded) Legal basis

2016

2017

2018

2019

Art. 258 TFEU Art. 260 TFEU Art. 263 (General Court) Art. 263P (Court) Art. 267

17 19 26 22 17

17

19 18 36 24 16

15 19 23 18 17

22 21 17

Source: own calculation.

its obligations under EU environmental law (namely, Case C-591/17, Austria v. Germany when Germany introduced an infrastructure use charge for passenger cars, but relieved vehicles registered in Germany from motor vehicle tax in an amount corresponding to that relief; the CJEU found this to be discriminating against foreigners). In substance, waste cases are the most common (229 cases), followed by nature conservation (187 cases), products (184 cases), water management (163 cases) and air and climate (128 cases). Table 7.1 summarises the duration of the procedures initiated by the Court under different Treaty articles in the years 2016–2019. However, the fgures do not include the pre-judicial phase between the Commission and the member state, where a letter of formal notice and a reasoned opinion is given (Article 258 TFEU; in cases of Article 260 TFEU, only a letter of formal notice is sent). When the pre-judicial phase is included, the overall time required to complete the whole procedure is closer to 47 months on average.

Summary points • • •

Detailed statistics on cases relating to competition or internal market are collected by the Court, but there are no offcial statistics relating to environmental cases. Environmental procedures before the Court generally take about two years to be completed. Where the Commission takes action against a member state, the whole procedure, including the pre-judicial stage, on average, takes almost four years.

The ECJ as an arbiter of diverging interests EU environmental law has developed progressively since the mid-1970s with an environmental chapter only inserted into the founding treaty in 1987 (see Chapter 2). EU environmental legislation was at frst drafted to a large extent as framework legislation, which left a considerable degree of discretion to accommodate the different legal cultures in member states. However, the general terms of EU environmental legislation nonetheless required a uniform interpretation in order to ensure their coherent

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application in all member states, including by their national, regional and local administrations and by their courts. It was the Court of Justice, not the Commission, which ensured this uniform interpretation (Krämer, 1992, 1993, 2002). An example illustrates how far this interpretative role of the Court in environmental matters had to go. As late as 1993, the United Kingdom argued in a case before the Court (specifcally Case C-56/90) that an environmental directive ‘merely requires the member states to take all practicable steps to comply’ with the directive’s provisions (ECLI:EU:C:1993:307, paragraph 40). The Court had to indicate that a directive imposed the obligation on member states to achieve a specifc result. Vested interests have long aimed at preventing the adoption of precise EU environmental legislation. They prefer, if legislation could not be avoided altogether, to see general provisions adopted which impose ‘best available techniques’, ‘best practices’, ‘good ecological quality’, ‘no signifcant risk’ or similar obligations (see Chapter 11 for other examples). Opposing environmental lobby groups are often thought to be less infuential than these vested interests (see Chapters 9 and 10). Therefore, it is not surprising that several member state governments have preferred not to impose very strict environmental obligations on economic operators in order to promote economic growth, albeit sometimes at the expense of the environment. The Commission has a tendency of submitting only cases to the Court, when it has a high chance of winning. Therefore, the Court had, until recently, few opportunities to interpret and sharpen such general provisions. Overall, it is fair to say that where such opportunities were offered, the Court normally interpreted EU environmental law in a pro-environmental way (Van Wolferen, 2018). The following text tries to illustrate the Court’s interpretative efforts with a number of examples. Standing Under Article 263(4) TFEU, any person may institute proceedings against a decision by an EU institution addressed to that person or against a decision which, although addressed to another person, is of ‘direct and individual concern’ to her, with the argument that the decision in question infringes EU law. This provision is the key provision for court actions (see also Table 7.1). In practice, though, court actions by NGOs have never been held admissible. The general rule is that NGOs and citizens have no standing in environmental matters. The frst reason for this situation lies in the drafting of the EU treaties. Indeed, while the treaties allow economic operators to initiate actions before national or the EU courts, where they are of the opinion that a legislative or an administrative measure creates obstacles to the free trade within the EU, environmental NGOs or citizens do not have the same possibility when they are of the opinion that a measure pollutes or otherwise damages the environment (Voigt, 2019). With regard to the free trade within the EU, Article 34 TFEU provides that ‘quantitative restrictions on imports and all measures having equivalent effect, shall be prohibited between member states’.2 The Court of Justice has ruled in numerous judgements that the individual producer or trader could claim in court that a legislative provision or a measure is incompatible with Articles 34 TFEU, as he was directly and individually concerned by such measures; national courts have ruled, under their national provisions, in the same way. In contrast, there is no provision in the EU treaties which prohibits the pollution or the impairment of the environment. All the provisions of the treaties which deal with

Court of Justice of the European Union 115 environmental issues (e.g., Articles 191–193 and 11 TFEU) are drafted in a rather neutral way, but do not have the purpose or the effect of protecting the interests of citizens or environmental NGOs (see Chapter 18). The Court of Justice has interpreted Article 263(4) TFEU rather restrictively. The leading case was Case C-321/95P. In that case, Greenpeace and other applicants opposed a decision by the Commission to grant fnancial assistance from the European Regional Development Fund to enable the construction of two power stations in the Canary Islands of Spain. The decision by the Spanish authorities which authorised the construction projects had been taken without an assessment of their direct and indirect effects on the environment. Such an impact assessment was obligatory under the Environmental Impact Assessment Directive (85/337/EEC). In addition, Regulation EEC/2052/88 also provided that fnancial assistance by the Regional Development Fund could only be given when the project in question was in conformity with EU law and policy. The General Court held the application to be inadmissible because the Commission’s decision did not affect the applicants in a way that differentiated them from all other persons (Case T-585/93); they were thus not directly and individually concerned by it. On appeal, the Court of Justice confrmed the inadmissibility of the application. It argued that the applicants always had the possibility to appeal to a Spanish court in order to have the construction permit annulled. The Spanish court might then, if necessary, submit a preliminary question to the ECJ on the interpretation of EU law. This jurisprudence was confrmed in numerous later judgements (e.g., Case T-94/04; Case C-355/08P; Case C-444/08P; Case C-583/11P). In particular, all applications of environmental organisations and individual persons against legislative provisions, decisions or measures in environmental matters were held inadmissible. The EU Courts considered that the protection of the environment was thus a matter of general interest, so that their applicants were not individually concerned. The General Court once tried, in a case on fsheries policy, to change the interpretation of Article 263(4) TFEU, arguing that it was not compatible with the human right of effective judicial protection. However, on appeal, the Court of Justice argued (Case C-263/02P) that it was up to the member states ‘to establish a system of legal remedies and procedures which ensure respect for the right of effective judicial protection’ (ECLI:EU:C:2004:210. paragraph 31); it held that the existing system of Article 263(4) TFEU could only be changed by an amendment of the EU Treaty. The Lisbon Treaty amended the relevant provisions (see Article 263(4) TFEU). Henceforth, for ‘a regulatory act which is of direct concern to [natural or legal persons] and does not entail implementing measures’, an individual concern is no longer necessary. In substance, this treaty amendment did not change the Court’s rules on standing. At present, the Court has to decide on the question of whether a person whose individual human rights to health and safety is threatened by a measure – climate warming due to excessive greenhouse gas emissions for example – is directly and individually concerned by measures that (insuffciently) address such emissions (Case C-565/19). The Court is more open with regard to standing before national courts. While it held that individual persons or NGOs could not rely on Article 9(3) of the Aarhus Convention which granted, under certain conditions, access to courts (Case C-240/09), it decided that national environmental law had to be interpreted in the light of that provision which intended to grant wide access to the courts. Therefore, a national provision could not exclude the right of standing for an NGO with the argument that the

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provision only protected general, but not also individual interests (Case C-115/09). In the same way, national water law could not exclude an NGO from having the right of access to a court when the relevant provision of EU law was precise and unconditional (Case C-664/15). Overall, it is obvious that the lack of standing for individuals and NGOs is a severe impediment to enforcing the application of EU environmental law.

Summary points • • •

Individuals and environmental NGOs have almost no access to the ECJ, as most environmental legislation and measures have been held to be of no direct and individual concern to them. The vast majority of environmental cases submitted to the ECJ are brought by the Commission, by member states or by national courts. The lack of standing for individuals and NGOs is a severe impediment to enforcing the application of EU environmental law.

Innovative Court judgements As EU environmental law landed largely on virgin grounds within the member states, the Court had the opportunity to develop a very innovative interpretation, which largely corresponded to the spirit rather than the letter of that law (Krämer, 2015). The very frst judgement in an environmental case showed the Court’s innovative capacity. This case concerned French waste discharges into the Rhine River which contaminated Dutch farmland and greenhouse agriculture (Case C-21/76). A question arose: could Dutch farmers claim compensation before Dutch courts, in the country (the Netherlands) where the damage occurred? Or, alternatively, should they address French courts, where the damage had originated but where their chances of compensation were considered to be less good? The Court decided that the victims could choose to apply either to Dutch or to French courts. Another important innovative Court judgement came in the 1980s. Before the terms of ‘environment’, ‘environmental policy’ or ‘environmental protection’ ever appeared in the treaties, the Court declared in a judgement of 1980 that the provisions on the free trade of goods did not prevent the EU from adopting measures which had the objective to protect the environment (Case C-92/79). In 1985, the Court took a further, very decisive step in Case C-240/83 when it declared that ‘environmental protection … is one of the Community’s essential objectives’ (European Court Report, 1985: 531, paragraph 13). When majority voting in the Council for environmental legislation was introduced into the EU Treaty (see Chapter 2), it became the normal decision-making rule. However, unanimous Council decisions were still required, among others, for ‘the management of water resources’ (Article 130s [2] EC Treaty). The Court decided that unanimous decisions were only required for the quantitative management of water resources which left the great majority of all decisions in the water sector to majority decisions (Case C-36/98). Subsequently, the EU Treaty was amended by states to align to this judgement.

Court of Justice of the European Union 117 The Court was also quite innovative in the use of the environmental principles of precaution and polluter-pays in its jurisdiction (Krämer, 2015). In 1998, it had to decide on an export ban which the Commission had imposed on British beef in order to prevent the spread of ‘mad cow disease’ (Bovine Spongiform Encephalopathy). British farmers and the UK Government argued that such a ban was illegal, as the exact cause of the disease was not scientifcally established at that point. The Court held that, as there was scientifc uncertainty with regard to the origin of the disease, the Commission was entitled, based on the principle of precaution, to take preventive measures. The problem, though, was that the precautionary principle was laid down in the environmental section of the EU Treaty, whereas the export ban was an agricultural measure. The Court solved this problem by declaring that the treaty also provided that environmental requirements had to be integrated into the other EU policies (see also Chapter 13); for this reason, agricultural measures should also be based on the precautionary principle (Case C-157/96). Since then, this interpretation of the precautionary principle and its use in the context of other EU policies have become standard practice by the Court as well as by the other EU institutions. In case C-487/17, the Court decided that where there was uncertainty whether a particular example of waste was hazardous or not, it had to be classifed, according to the precautionary principle, as hazardous waste. The Court referred to the polluter-pays principle in particular in the waste sector, where it had expressly been laid down in several directives and regulations. In a Belgian case, it dealt with hydrocarbons which had leaked from a petrol service station to an adjacent ground. The Court held that the hydrocarbons, spilled by accident, constituted ‘waste’ in the legal sense of the term. The manager of the service station was duly held responsible for the soil contamination by the hydrocarbons. However, the owner of the service station, Texaco, had supplied the hydrocarbons to the service station. If it had disregarded its contractual obligations and thereby contributed to the soil contamination, it also could have been considered to be the ‘polluter’ and held responsible (Case C-1/03). Had this been true, the land owner could have been able to recover his damage from Texaco, not the service station manager. The Court took a similar line in another innovative judgement in 2008. In this case (Case C-188/07), a tanker accident off the French coast had contaminated large parts of the shoreline with heavy fuels. A French municipality asked for compensation, among others from another petroleum company – Total. This company had contractually excluded all its own liability for any damage and argued in court that the carrier of the heavy fuel should be held responsible. The Court found that hydrocarbons which were accidentally spilled at sea and contaminating the coast of a member state did constitute waste. Where the producer of the heavy fuel had contributed, by its conduct, to the risk that the pollution caused by the shipwreck would occur, it could, in application of the polluter-pays principle, be held responsible for the damage of the municipality. In the area of nature conservation, EU legislation is essentially concentrated in two directives: on the protection of birds (2009/147/EC) and of natural habitats and species of fauna and fora (92/43/EEC). Over the years, the legal texts of both have been intensively interpreted by the Court, in doing so erecting a whole system of additional protection that sides largely with the environment. For example, the Court declared that, where a member state had not designated a protected area, though it was legally obliged to do so, it would let itself be treated as if it had designated the area

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(Case C-355/90; Case C-340/10). When member states and the Commission disagreed whether enough areas had been designated as protected habitats, the Court accepted evidence from a private environmental organisation, the International Council of Bird Preservation, and argued that the burden of proof that its fndings were incorrect would fall on the member state in question (Case C-3/96). In public procurement issues, EU legislation requires public authorities to accept, in general, the most economically advantageous tender. Although taking environmental criteria into consideration was not mentioned, the Court pointed out that the criteria did not necessarily have to be ‘of a purely economic nature’ (Case C-513/99, ECLI:EU:C:2002:495, paragraph 55). It interpreted Article 11 TFEU (according to which environmental requirements have to be integrated into the elaboration and implementation of other EU policies) (the environmental integration principle – see Chapter 12) as to mean that national authorities were allowed to consider ecological criteria, provided that they were linked to the subject matter of the contract, did not give an unrestricted freedom to the authorities, were expressly mentioned in the public tender documents and complied with all fundamental principles of EU law (Case C-448/01). This jurisprudence led to a complete change in EU public procurement legislation which aligned with the Court’s jurisdiction and thus gave member state authorities the possibility of inserting ecological criteria into their public procurement activities. As noted above, EU law requires an environmental impact assessment for the construction of certain infrastructure or industrial projects (Directive 2011/92). The Court clarifed that an assessment was also necessary for the demolition of a project (Case 50/09), though this was not foreseen in the directive. In Case C-279/12, it determined, under which conditions privatised water companies had to be treated, for access to information purposes, as public authorities. In a similar case, under EU law, landflls must be authorised. Non-authorised landflls must be closed down. The Court held that the member states not only had to close down the sites, but also to clean up the site and take away the waste (Case C-37/09; Case C-378/13). In a case concerning air pollution in the United Kingdom, the national courts doubted whether they could oblige the UK Government to elaborate an air quality plan in conformity with EU law. The ECJ held that they were entitled to take ‘any necessary measure … so that the authority establishes the plan required’ by EU law (case C-404/13, ECLI:EU:C:2014:2382, paragraph 58). In several cases before British courts, an environmental NGO, Client Earth, subsequently succeeded in forcing the UK Government to adopt and publish an air quality improvement plan.

Summary points • • •

The ECJ has developed a considerable number of innovative interpretations of environmental provisions in order to ensure more effective environmental protection. The ECJ normally goes beyond the precise wording of a provision, interpreting it according to its broader objectives and purpose. Human rights issues have not yet played a role in the Court’s environmental jurisdiction, but they may do so in the future.

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Balancing EU and member state interests In a number of decisions, the Court of Justice was asked to decide whether the EU or the member states were primarily responsible for addressing certain environmental problems. This question was of particular importance in the area of product-related provisions, as the treaties provide that there should be a free circulation of products within the EU, whereas the treaties allow the maintenance of national provisions in environmental matters. For example, the Court was asked whether the trade in waste should follow the provisions of free trade or the provisions of environmental protection. The Court decided that the environmental provisions should apply (Case C-155/91). This had the consequence, for example, that member states were allowed to prohibit imports of hazardous wastes from other states (Case C-2/90; Case C-228/00; Case C-458/00). In contrast, provisions on air emissions from cars were considered to affect the free trade in cars, so that member states could not, as a rule, deviate from the EU-wide standards which had been fxed (Case C-405/07). In very exceptional cases, the ECJ accepted that a legislative act be based both on the free trade and the environmental provisions (Case C-178/03). Member states and the EU discussed for a long time whether the EU could adopt provisions on the protection of the environment through criminal law. Finally, the Court decided that the EU was allowed to adopt such rules (Case C-176/03). However, in a second judgement, the Court found, without any explanation, that the type and level of criminal penalties were the responsibility of member states, i.e., the EU could not adopt common rules on them (Case C-440/05). The Court also had to decide whether rules on genetically modifed organisms (GMOs) came under free trade rules, or whether member states, regions or local authorities were allowed to go further than EU law and prohibit them altogether. While provisions on species of fauna and fora undoubtedly are environment-related provisions, the Court found that organisms which were genetically modifed were to be seen as products (joined Cases C-439/05P and C-454/05P). These rules, which had been fxed at EU level, therefore applied, independently of the nature of the local or regional environment. This jurisprudence was later ‘corrected’ by Directive 2014/52 which gave member states large discretion to restrict or prohibit GMOs. The ECJ considered that the UK system of attributing to the courts the decision on costs gave too much discretion to the courts and did not correctly transpose the requirement of EU law that environmental judicial proceedings should not be prohibitively expensive (Case C-530/11). Finally, the Court stated that member states were obliged to respect the rules of an international environmental agreement even when they had not signed up to that agreement; it was suffcient that the EU had signed it, provided that there already existed EU legislation in the sector covered by the agreement in question (Case C-213/03; Case C-239/03). The Court considered international trade agreements, which also touched on sustainable development, to be the shared responsibility of the EU and of member states, so that the member states also had to approve them (Opinion 2/15; Opinion 1/17). Generally speaking, the Court’s decisions to balance the interests of member states and those of the EU have been cautious and prudent and were acceptable to member states. In the vast majority, its decisions have shown considerable concern for the environment.

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Summary points • • •

The ECJ normally interprets EU law in a way that promotes EU integration. Generally, the ECJ tries to ensure effective environmental protection, even against the interests of member states. Where fundamental national interests are at stake (e.g., criminal law, waste infrastructure), the ECJ is cautious and tries to fnd acceptable solutions.

Balancing economic and environmental interests On several occasions, the Court has had to deal with questions concerning whether the free trade in materials should prevail or whether the member states should be allowed to restrict the free circulation of goods in order to protect their local, regional or national environments. With regard to pesticides, the Court decided that member states were allowed to restrict or ban the use of a specifc pesticide because of environmental reasons, at least as long as the EU legislation on pesticides had not been completely harmonised (Case C-272/80; Case C-94/83). In a landmark decision of 1988, the Court decided that member states were allowed to restrict the import of waste in order to set up effcient waste recovery systems at national level (Case C-302/86). In contrast, the export of waste material to other member states for recovery purposes (i.e., recycling or incineration with energy recovery) in order to have the recovery process reserved for national installations could normally not be prohibited (Case C-172/82; Case C-118/86; Case C-203/96). When Germany tried to protect its farmers by declaring that an ordinary agricultural practice was compatible with EU nature conservation provisions, the Court prohibited this measure (Case C-412/85). In contrast, when Germany tried to promote alternative energies by giving fnancial incentives to those that produced them, but limited them to national producers, the Court found that the free trade in electricity was not unduly hampered by this measure, as the electricity market was not yet suffciently harmonised (Case C-379/88).

Summary points • • •

The ECJ tries to maintain a fair balance between trade and environmental interests. Its jurisprudence is result-oriented and normally weighs carefully the purpose of a particular environmental provision. Until now, though, the Court has not yet clarifed the precise meaning of sustainable development in environmental terms.

The rights of citizens and environmental organisations Since its early judgements on environmental matters, the Court has tried to increase the transparency of EU environmental law and to strengthen citizen rights. Indeed, in the 1970s and the 1980s, member states generally only adopted internal circulars or other

Court of Justice of the European Union 121 administrative instruments requesting local, regional or national administrations to observe this or that practice. Crucially, these internal instruments were not available for citizens to use in their discussions with the administration or in court cases. The Court held this practice to be incompatible with the general principles of EU law. It was of the opinion that citizen and economic undertakings had a right to know what exactly their environmental rights and obligations were. EU environmental directives therefore normally had to be transposed into the national legal order by a legislative measure. Administrative circulars or similar measures which could be amended at the discretion of the administration at any time were deemed to be incompatible with this principle (see case C-59/90 above). An exception could only be made where a specifc provision of a directive exclusively addressed the national administration, for example, when a competent authority had to be appointed or when a report had to be sent to the Commission. This case led to the progressive disappearance of most administrative decrees and circulars. In a similar way, the Court addressed the problem of ‘tacit permits’. This was an administrative practice in several member states where if the administration did not react within a specifc time-span to an application for an administrative permit, the permit was de facto granted. The Court held that where EU environmental law provided for the granting of a permit, this permit had to be given expressly; a ‘tacit permit’ did not provide for the necessary legal security for applicants and the public in general. Of particular importance was the Court’s jurisdiction with regard to EU legislation on air or water pollution. The Court held that: [w]henever the failure to observe the measures required by the directives which relate to air quality and drinking water, and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in these directives. (Case C-237/07, paragraph 38) In earlier judgements, the Court had held that EU directives which fxed emission standards or quality values (concentration values) relating to air or water also aimed at the protection of human health. Therefore, its jurisdiction is likely to apply to most directives on air pollution or water contamination. It means that citizen or environmental organisations may apply to the national courts in order to have the provisions of the respective directive fully complied with. Thus, they may force their national administration to take the necessary measures in order to keep the pollution within the limits fxed by EU legislation. The principles raised in this jurisdiction are, moreover, not limited to air pollution and drinking water. They also apply to health-related noise legislation, provisions to protect the soil and groundwater and other water legislation. The Court has not yet had an opportunity to pronounce itself on such cases. The efforts to allow individual citizens to contribute to the protection of the environment might in future even lead to a change in the above-mentioned Court’s position on the standing of citizens and NGOs. Indeed, in 2011, the Court was asked about the interpretation of Article 9(3) of the Aarhus Convention which allowed citizens and NGOs, under certain conditions, to have standing in environmental matters. The Court discussed the objective of that provision and concluded that: [i]f the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a

122 Ludwig Krämer way as to make it in practice impossible or excessively diffcult to exercise rights conferred by EU law. It follows … that it is for the national court in order to ensure effective judicial protection in the felds covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in article 9(3) of the Aarhus Convention. (European Court Report, 2011, paragraphs 49 and 50) This judgement applies to the courts of the EU member states and asks them to ensure ‘to the fullest extent possible’ that the objectives of Article 9(39) of the Aarhus Convention are respected, i.e., that citizens and NGOs have access to national courts. However, as mentioned above, access for citizens and NGOs to the EU courts in environmental matters is, in practice, impossible as no such application has ever been successful. The question, which will inevitably be raised, is why does the Court of Justice not interpret Article 263(4) TFEU in a way that allows ‘to the fullest extent possible’ access to the EU Court in order to ensure effective judicial protection of EU environmental law? In addition, would such an interpretation not have to lead to a change in the Court’s position with regard to standing? Rather soon, the Court is certain to be asked this question.

Summary points • • •

The ECJ has tried to enlarge citizens’ rights for effective environmental protection. Human rights do not yet play a role in the jurisprudence of the ECJ. The Lisbon Treaty and the Aarhus Convention of 1998 may bring about some changes in the Court’s jurisprudence.

Political judgements Among the numerous environmental judgements by the Court are also some where the reader has the impression that more than purely legal reasons motivated the decision and that that political considerations also had an infuence (Voigt, 2019). In a case on the hunting of birds in France, the Court rejected the Commission’s application (Case C-252/85). The case concerned forms of traditional hunting which involved lime trees and threads and had considerable social importance in rural parts of France. The Court held that the Commission had not proven that the hunting measures were non-selective and that they did not correspond to the requirements of the Birds Directive. It seems that the Court in no other hunting case put the requirements on the burden of proof at such a high level. Then, in a Spanish case, the Court held that under certain conditions animal excrements – namely pig slurry – did not constitute ‘waste’ but a traded product (Case C-416/02). This was a judgement which was obviously infuenced by the objective to amend EU waste legislation. Meanwhile, the Court allowed Belgium to adopt regional legislation which banned the import of (hazardous) waste from other EU member states, but exempted the import of hazardous waste from other Belgian regions (Case C-2/90). Also, the Court

Court of Justice of the European Union 123 allowed Germany to grant fnancial incentive to producers of wind energy, though these incentives were limited to German producers (Case C-379/98). In both cases, the Court omitted to discuss whether the principle of non-discrimination was not disregarded by the respective legislation. In another case – where an environmental organisation had asked for access to a letter from the German chancellor concerning the construction of a private airport in a protected natural habitat – the Court refused access. The Court’s argument was that the disclosure of the letter in the year 2011 (more than ten years after it was written) would undermine German economic policy (Case T-362/08).3 The Court did not consider that the provisions of the Aarhus Convention applied to this case – which did not allow the disclosure of information to be refused on the grounds that the economic policy of a member state was undermined. Some other cases were already mentioned above. Both judgements with regard to the polluter-pays principle had the side effect of allowing recourse for damage against the large companies which owned the petrol service station or which had shipped heavy fuels.4 The still unexplained judgement stating that the EU had no competence to fx the type and level of criminal sanctions can also be categorised as a political judgement. And the Court’s fndings on standing also belong to this category: it has an obvious interest to restrict access to justice as far as possible. Of course, in all these examples, the eventual assessment is necessarily subjective and will depend on the position of the external observer. No hard evidence can be found in any of the cases discussed above.

Summary points • • •

In some cases, the political character of judgements appears obvious. Such cases mainly concern issues where public opinion in a particular member state threatens to affect the acceptance of the Court’s judgement. Overall, though, the number of ‘political’ judgements is very small; the vast majority of judgements are well argued and legally convincing.

The Court of Justice and the General Court It was mentioned in the Introduction that the ‘European Court of Justice’ consists of the General Court and the Court of Justice. While the General Court mainly deals with environmental cases which are brought by an individual person or a company against an EU institution, the Court of Justice deals essentially with environmental cases which are brought by the Commission against a member state. Furthermore, the Court of Justice deals with environmental cases which are submitted to it by national courts and on appeal against a judgement of the General Court. The question then is whether there is a difference between the two courts with regard to environmental protection. The appeal procedure does not show any difference in this regard. In only 2 of the 13 environmental cases, against which an appeal was introduced since 1989, was the appeal successful (Cases C-64/05P, C-405/07). These cases concerned general questions and did not address specifc environmental questions.

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Generally speaking, the Court of Justice is more innovative and creative in its attempt to protect the environment; a role which the Lisbon Treaty grants to it (see Articles 191–193 and 11 TFEU) (see Chapter 2 for details). The General Court appears to view the environment as one factor in society among many, rather than a general interest which cannot be placed at the same level as vested interests (Krämer, 2008). The more reserved attitude of the General Court towards environmental protection might at least partly be due to the fact that it deals with actions brought by private persons against EU institutions and bodies. However, the General Court always, and systematically, accepts the interpretation of EU environmental law given by the Court of Justice without continuing to defend its earlier differing position.

Summary points • •

Generally, the Court of Justice is more innovative and creative in its attempt to protect the environment – a role given to it by the Lisbon Treaty. The General Court appears to view the environment as one factor in society among many, in part because it deals with actions brought by private persons against EU institutions and bodies.

Conclusion: the Court’s role in the development of environmental law The Court’s role in shaping EU environmental law should not be underestimated. From the very beginning of its extensive jurisprudence on environmental law, it has tried to translate the far-reaching objectives and principles of the EU treaties into daily administrative and economic practice, namely: a high level of environmental protection; the improvement of environmental quality; economic development that takes environmental considerations into due account (sustainable development); precaution and prevention; and making the polluter pay. The jurisprudence of the Court on environmental issues has opened up new paths in the interpretation of EU law in general and often infuenced the making of EU secondary environmental law (Jans, 2009). The general understanding of the Court has been that EU law, where the 23 different linguistic versions have the same legal value, has to be interpreted according to the objective and aim of the provisions rather than according to its precise wording. Building on this understanding, the Court has shown itself to be creative and innovative in constantly trying to strike a balance between diverging interests on environmental matters. A small reservation has to be made with regard to the questions of standing, where the Court has persisted in treating access to justice in environmental matters in exactly the same way as access to justice in other areas of law, not taking into account the specifcity of environmental protection as a general interest. The areas of nature conservation and public procurement stand out. In matters of nature conservation, the Court embodied EU legislation with more precise legal obligations for public administrations and economic operators. As a result, its case law is taken into consideration in almost every administrative decision concerning a natural habitat or a specifc species. In the area of public procurement, the Court’s jurisprudence made it possible to include ecological criteria in the public tenders of local, regional or national administrations. This was despite the fact that the EU legislation

Court of Justice of the European Union 125 had explicitly rejected this possibility up to this point and thus subsequently had to be aligned to the Court’s judgements. The majority of innovative and progressively integrating ideas in environmental law are found in the preliminary judgements issued by the Court. This fact may further encourage judges in the 27 EU member states to submit more cases to the Court, with a view to allowing the Court to further contribute to the development of environmental law in the whole of the EU.

Summary points • • •

The ECJ has played and continues to play an outstanding role in interpreting and, in that way, shaping and fne-tuning EU environmental law, which is often originally formulated in general and vague terms. ECJ jurisprudence is often creative and innovative and tries, overall, to do justice to the environment. In the areas of nature conservation and public procurement, ECJ jurisprudence has strongly affected the subsequent development of EU law and infuenced national legislation, administrative practice and legal interpretation.

Key questions 1 2 3 4 5

Who has standing in the ECJ, and what are the implications for EU environmental law? Describe four of the most innovative court cases relating to the interpretation of EU environmental law, and explain their repercussions. In general, how well has the Court balanced environmental protection with economic or member states’ interests? What role has the Court played in the transparency and rights of citizens with regard to environmental policy? How might the Lisbon Treaty and the Aarhus Convention change its role? What different roles do the Court of Justice and the General Court play in EU environmental policy?

Guide to further reading • •

A more in-depth exploration of EU environmental law can be found in Krämer (2015). There are several detailed chapters on the Court’s practice in Voigt (2019). For details of important Court cases and judgements on EU environmental law, see Krämer (2002). An examination of the CJEU’s power to interpret environmental law is found in Van Wolferen (2018).

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•

A systematic analysis of the entire body of EU environmental law, i.e., over 500 directives, decisions and regulations, can be found in an online manual edited by Farmer (2011). A description of access to justice law in the EU and in 15 member states can be found in Ebbesson (2002).

•

Online resources • • •

Court of Justice of the EU: https://curia.europa.eu/jcms/jcms/j_6/en/ European Commission DG Environment implementation activities: https://ec. europa.eu/environment/legal/implementation_en.htm European Commission – court rulings on nature and biodiversity: https://ec. europa.eu/environment/nature/info/pubs/docs/others/ecj_rulings_en.pdf

Notes 1 2 3 4

Following the author’s classifcation system, there were 40 environmental judgements in 2017, 60 in 2018 and 52 in 2019. Article 36 TFEU states, in the same sense that ‘Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between member states’. Case T-362/08, IFAW v. Commission, ECLI:EU:T:20112:6. On appeal, IFAW won the case (C-135/11P, ELI:EU:C:2012:376). In US law, such judgements are sometimes qualifed as ‘deep pocket’ judgements: a person is held responsible who is economically in the best position to cover the damage.

References Court of Justice (no date) Annual Statistics of Judicial Activity, available at: http://curia.europa. eu/jcms/jcms/Jo2_7032/ (accessed 20 September 2011). Ebbesson, J. (ed.) (2002) Access to Justice in Environmental Matters in the EU, Kluwer Academic Publishers, The Hague, London, and New York. European Court Report (1985) Case C-240/83, Association de Défense des Brûleurs d’Huiles Usagées, p. 531. European Court Report (1993) Case C-56/90, Commission v. United Kingdom, pp. I–4109. European Court Report (2002) Case C-513/99, Concordia Bus Finland, pp. I–7123. European Court Report (2011) Case C-240/09, Lesoochranárske, judgment of 8 March 2011. Farmer, A. (ed.) (2011) Manual of European Environmental Policy, Taylor & Francis, London, available at: https://ieep.eu/understanding-the-eu/manual-of-european-environmental-policy (accessed 24 August 2020). Jans, J. (2009) ‘The effect of the ECJ judgments in environmental cases for other areas of EU law’, in G. Bándi (ed.) The Impact of ECJ Jurisprudence on Environmental Law, Szent István Társulat, Budapest, pp. 83–94. Krämer, L. (1992) Casebook on EU Environmental Law, Hart Publishing, Oxford and Portland, OR. Krämer, L. (1993) European Environmental Law Casebook, Sweet & Maxwell, London. Krämer, L. (2002) European Environmental Law Case Book, Hart Publishing, Oxford and Portland, OR.

Court of Justice of the European Union 127 Krämer, L. (2008) ‘Environmental judgments by the Court of Justice and their duration’, Journal for European and Environmental Planning & Law, vol. 5, no. 3, pp. 263–280. Krämer, L. (2015) EU Environmental Law, 8th edition, Sweet & Maxwell, London. Van Wolferen, M. (2018) To Justife the Wayes of God to Men: Limits to the Court’s Powers of Interpretation. PhD thesis, University of Groningen. Voigt, Christina (ed.) (2019) International Judicial Practice on the Environment: Questions of Legitimacy. Cambridge University Press, Cambridge.

8

The European Parliament Charlotte Burns

Summary guide The European Parliament established a reputation in its early years as a champion of environmental interests within the EU. The EU’s only directly elected institution, it provided a welcome access point for those excluded from decision making and a voice for green political parties at the national level. However, in its early days, it was also a reactive and relatively weak institution. In more recent times, the Parliament has benefted from treaty changes that have made it a co-legislator with the Council of the European Union. However, the EU’s enlargement and rise of populism have increased its internal heterogeneity, so that reaching an internal consensus on environmentally related policies has become increasingly challenging. And as its internal heterogeneity and formal policy powers have increased, its ability to represent the views of small political groups, such as the Greens, and marginalised interests, such as environmental NGOs, may have been compromised, reducing its overall ability to function as the EU’s environmental policy champion.

Introduction The European Parliament (hereafter ‘the Parliament’) is the only directly elected EU institution. Following the frst European elections of 1979, it rapidly established a reputation as a standard bearer for the environment. It has consistently benefted from the various EU Treaty reforms (see Chapter 2), seeing both its policy competence and formal powers increase steadily over the years. Over time, it has shifted from being a relatively weak institution, often derided as a mere ‘talking shop’, to a co-legislator that crafts legislation jointly with representatives of the member states in the Council of the European Union (see also Chapter 5). However, an increase in formal power does not necessarily translate into greater policy infuence. Thus, it has been suggested that as the Parliament’s powers increased, its willingness and ability to adopt radical environmental amendments and set the wider EU environmental policy agenda waned (see Burns and Carter, 2010; Burns et al., 2012) (see also Chapter 10). Moreover, a series of interlocking crises, most notably related to the economy, refugees, Brexit and rising populism, have together contributed to a growing fragmentation within the Parliament, which has made it harder to forge a consensus. Additionally, the emergence of climate change as a key issue on the EU’s and the UN’s policy agendas has exposed its relative weakness in representing the EU on the international stage. DOI: 10.4324/9780429402333-8

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Notwithstanding these concerns, the Parliament remains an important environmental actor within the EU with the ability to make a substantive contribution to strengthening policy outputs. This chapter frst describes the Parliament’s structure and powers, explains how and why it came to be regarded as a key environmental actor, and then explores the future challenges it faces. While the enlargements of the 2000s were less disruptive than originally predicted in some quarters, they have nevertheless ushered in a new, arguably more technocratic approach to policy making that have made it harder for the Parliament to function as the EU’s environmental champion.

Summary points • • • •

The European Parliament is the only directly elected EU institution. The powers of the Parliament have increased signifcantly since 1979, and it now has the power to amend and reject EU legislation. The Parliament has less power in international negotiations so struggles to infuence international policy on, for example, climate change. The Parliament has been regarded as an environmental champion within the EU, but recent changes, including enlargement and the rise of populist parties, have challenged that reputation.

Structure and functions Political composition The Parliament is composed of 705 members who sit in seven cross-national political groups. As Table 8.1 illustrates, no single group enjoys a majority. Therefore, in order to adopt amendments to new legislative proposals, the political groups must cooperate with one another to achieve an absolute majority. However, before they can reach an inter-group consensus, they must also reach intra-group agreement which can sometimes be challenging, particularly since the enlargements of 2004, 2007 and

Table 8.1 The composition of the European Parliament, April 2020 Political group

Number of members

European People’s Party (EPP) Group of the Progressive Alliance of Socialists and Democrats (S&D) Renew Europe (Renew) Identity and Democracy (ID) Group of the Greens and European Free Alliance (Greens/EFA) European Conservatives and Reformists Group (ECR) Confederal Group of European United Left/Nordic Green Left (EUL/NGL) Non-Affliated Members (NI)

187 148 98 76 67 61 39

Total

705

Source: European Parliament (2020a).

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2013, which have seen the political groups absorb a wider range of political parties from up to 27 states. Within the groups, each national delegation is given a certain number of positions of responsibility, which are decided via the D’Hondt system of proportional representation. Thus, the largest national delegation within the largest political group gains the most important posts, but there remains an opportunity for small groups and small national delegations within groups to gain some key posts (see Box 8.1).

Box 8.1 The Greens in the European Parliament The Greens were frst elected to the Parliament in 1984, securing only 11 seats. Following fraught negotiations, they chose to sit in a rainbow coalition with regionalists and the Danish movement against the EU (Bomberg, 1998: 90, 104). In 1989, the Greens formed the Green Group in the Parliament which was replaced in 1999 by the Green/EFA Group which saw the Greens again combine with regionalists (for example, the Scottish National Party and Plaid Cymru). In the 2004 and 2009 elections, the Green/EFA group secured suffcient numbers to become the fourth largest group in the Parliament. The 2014 elections were dominated by debates about austerity and the economic crisis, and the Greens struggled to gain traction in the face of growing support for Eurosceptic and populist parties (Pearson and Rüdig, 2020) and were only the ffth largest political grouping. In 2019, the European elections witnessed what became known as a ‘green surge’ with the highest ever number of MEPs elected for the Green/EFA political group, making it, albeit briefy, the fourth largest overall. However, in January 2020, the UK offcially left the EU and the size of the Parliament shrank from 736 to 705 MEPs; the 27 seats from the UK were duly redistributed amongst the remaining member states and parties (European Parliament, 2020a). This had the effect of reducing the Green/EFA representation to 67 MEPs and increasing the number of MEPs for the right-of-centre nationalist political grouping, Identity and Democracy to 76, again making the Green/EFA group the ffth largest (European Parliament, 2020a). Table 8.2 shows that the majority of the Green MEPs are drawn from parties in Northern Europe. There were MEPs elected from Croatia and Hungary in 2014, but in 2019 the Greens failed to secure suffcient support to win seats (Rüdig, 2019). An ongoing challenge for the Greens, therefore, is to be able to reach beyond their traditional bases to capture votes in Southern, Central and Eastern Europe. It might be supposed that the heterogeneity that characterises the Parliament makes achieving consensus diffcult, with numerous defections from group positions by national delegations. However, successive studies have shown that the Parliament behaves along ideological rather than national lines, i.e., German Social Democrat MEPs vote with the Social Democrat group rather than with German Liberal or Conservative MEPs (see Hix et al., 2007). Generally speaking, in order to secure amendments, the larger political groups need to cooperate with each other, and one of the most successful and typical coalitions has been a grand coalition between the two largest groups

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Table 8.2 Greens/EFA in the European Parliament, July 2020 Country

Number of Green members of the European Parliament

Austria Belgium Ecolo Belgium Groen Czechia Denmark Finland France Germany Ireland Latvia Lithuania Luxembourg Netherlands Portugal Spain Sweden

3 2 1 3 2 3 13 25 2 1 2 1 3 1 2 3

Total

67

Source: European Parliament (2020b).

NB: This table includes regionalist MEPs.

that represent the centre-right (the European People’s Party [EPP]) and centre-left (the Progressive Alliance of Socialists and Democrats [S&D]). However, the Parliament has become increasingly fragmented since 2014 as smaller parties from the Eurosceptic right have secured representation. In 2019, the EPP and S&D failed for the frst time to secure enough votes between them to form a stable coalition capable of securing an absolute majority of MEPs in the Parliament. This outcome means that the 2019–2024 Parliament will fnd it harder than ever before to reach internal agreement, which may make adopting amendments and legislation more challenging than it has been in the past (Votewatch, 2019). The need to cooperate and form coalitions means that the Parliament rarely adopts a radical position on legislation (Burns and Carter, 2010). For example, although the Parliament has been prepared to propose environmental amendments that impose signifcant costs upon certain member states and industries, broadly speaking, it has adopted the ecological modernisation agenda of the Commission, based upon greening capitalism and furthering economic growth (see Chapter 16 for further details). While a trend towards consensus affects all the political groups, from an environmental perspective, it most obviously impacts upon the Greens, who fnd it diffcult to secure the adoption of radical amendments. Indeed, the Greens regularly fnd themselves impaled on the horns of a fundamental dilemma: going along with the larger groups means that [their] … ideas are swallowed up and become indistinguishable from those of the mainstream parties. Yet to hold out often leaves the[m] … isolated, marginalized, and no nearer to achieving their goals. (Bomberg, 1998: 141) Realistically, they cannot afford to be purist on a regular basis; they need to form coalitions to have any chance of seeing their amendments adopted. Hence, the consensus

132 Charlotte Burns politics of the Parliament has had a deradicalising effect upon what both the Greens and the Parliament as a whole can achieve. The other side of the same coin is that the consensual approach also makes it hard for the Green’s opponents – typically small Eurosceptic and far-right groups – to disrupt pro-environmental decision making. Internal structures The Parliament organises its work through standing committees which mirror the ideological composition of the wider Parliament. In addition, it sometimes appoints temporary committees to consider especially pressing or controversial issues, which take the form of either special committees or committees of inquiry. Special committees normally sit for a year. For example, the Temporary Committee on Climate Change (CLIM) was established to help to prepare the Parliament’s position in the run up to the 2009 Copenhagen Conference of the Parties. Committees of inquiry normally investigate suspected maladministration or breaches of EU law. For example, in 2016, the Parliament set up a committee to investigate the ‘dieselgate’ scandal on emissions measurements in the automotive sector (European Parliament, 2017) (see Box 8.2).

Box 8.2 Dieselgate and the Parliamentary Committee of Inquiry into Emission Measurements in the Automotive Sector In 2015, the dieselgate scandal erupted when it came to light that some car companies were routinely and knowingly ftting devices to their vehicles to ‘cheat’ emissions tests as part of the offcial approval process. Put simply, cars were being approved for sale on the EU market that could not meet emission limits in ‘real-world’ situations. Moreover, these emissions, primarily of nitrous oxides, are injurious to human health. In December 2015, the Parliament convened a Committee of Inquiry into Emission Measurements in the Automotive Sector (EMIS) to investigate the role of the Commission and member states in the scandal. One of its key fndings was how limited the Parliament’s powers were to compel actors to give evidence or to cooperate with MEPs. The Committee even suggested that some member states and certain members of the Commission were borderline obstructive. The dieselgate scandal also revealed that the Commission was similarly limited in its ability to secure compliance with emission rules, instead having to rely upon member states to conduct the tests. According to the EMIS, many states ‘did not adopt an effective, proportionate and dissuasive penalty system’ to prevent the use of defeat devices and the Commission ‘lacked the political will and decisiveness’ to address the problem (European Parliament, 2017). The EMIS also suggested that there were deliberate delays in the introduction of more effective testing based on ‘real-world’ conditions, largely due to industry lobbying (ibid.). The EMIS report eventually helped to shape the Commission’s clean mobility package (European Commission, 2017) which is provoking signifcant technological change across the entire automotive sector (i.e., from fossil fuelled to electric vehicles) (Jordan and Moore, 2020).

European Parliament 133 When the Commission proposes legislation (see Chapter 6), responsibility for drafting the Parliament’s opinion is allocated to the most relevant committee. Inevitably, given the cross-sectoral nature of most environmental policy, sometimes there is an overlap of competence between committees. In these circumstances, affected committees can offer an opinion or committees may be given joint responsibility for drafting the Parliament’s opinion (European Parliament, 2019a: rules 57 and 58). According to this process, those responsible for drafting the report for each committee coordinate their work and the reports are adopted jointly. Thus, for example, during the consideration of the regulation upon the registration and evaluation of chemicals (REACH), a vast and complex package of legislation that sought to harmonise existing chemicals legislation, responsibility for drafting the report for consideration by the plenary was shared between no less than three committees (Smith, 2008). Such a sharing of responsibility can lead to coordination problems (Judge and Earnshaw, 2011). Smith (2008: 76) suggests that in the case of REACH, the sharing of competence ultimately led to the adoption of a weaker report by the Parliament. The Green Group opposed a move in the 2009–2014 Parliament to ensure that more reports were considered jointly by committees, on the grounds that the Industry Committee would dominate decision making on key environmental policies (Taylor, 2009). Certainly, Dionigi (2017) suggests that the sharing of competence has weakened the infuence that was once enjoyed by the Environment Committee. However, the sharing of responsibility can also aid the process of crafting a consensus that is acceptable to the whole plenary (Settembri and Neuhold, 2009). Within committees, individual members are allocated responsibility for drafting opinions: they are known as rapporteurs. Each rapporteur is responsible for consulting with the Commission and Council, affected interest groups and representatives from the other political groups within the Parliament in order to devise amendments that can command the support of the committee in the frst instance and then, subsequently, the wider plenary. Committee members can propose amendments to the draft report, and once the committee has adopted it, the report is referred to the plenary. At this point, amendments to the report can be offered by committees, political groups or groups of at least 35 MEPs. Plenary votes can be recorded at the request of a political group or at least 35 MEPs. Such votes are termed roll call votes and are made publicly available; they show how each MEP voted. They can be called where there is uncertainty about the outcome of the vote, for disciplinary purposes or so that groups can make a political point about how they are voting by making it a matter of public record. The work of each committee is coordinated by its bureau, composed of the committee chair and vice-chairs in consultation with the political group coordinators, who are the equivalent of party whips. The coordinators allocate the committee reports and the decision as to which political group gets a particular report varies from committee to committee. But an effort is made to ensure a distribution that allows smaller groups and/or non-aligned members the opportunity to sometimes draft important reports. The rapporteurs are aided in their work by shadow rapporteurs who are drawn from another political group. The Environment Committee The main committee dealing with environmental policy is the Committee of Environment, Public Health and Food Safety (commonly known as ENVI). With 79 members,

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Table 8.3 Membership of the Environment Committee by political group, April 2020 Groups

Number

European People’s Party (EPP) Progressive Alliance of Socialists ad Democrats (S&D) Renew Identity and Democracy (ID) Greens/European Free Alliance European Conservatives and Reformists European United Left and Green Nordic Left (GUE/NGL) Non-Aligned (NI)

20 16 11 9 8 7 5 3

Total

79

Source: https://www.europarl.europa.eu/committees/en/envi/home/members.

it is one of the largest committees and has always borne a heavy legislative workload, which has given it a high public profle (see Table 8.3). Between 1979 and 1999, it was characterised by remarkable continuity of leadership, as for 15 years one man, the British Labour MEP, Ken Collins, acted as its chair. He crafted a formidable reputation for himself and the committee as leading entrepreneurs in the feld of environmental policy. As Weale et al. (2000: 91) note, the committee and the wider Parliament came to be regarded as the defender of the environmental interest within the EU. However, in more recent years, the leadership of the committee has rotated more frequently. Moreover, the focus of parliamentary work has shifted to encompass more policy areas: the relative importance of environmental policy as a key area of competence for the EU and for the Parliament has waned (Burns, 2019; Burns et al., 2020). In addition, some areas of policy that have huge environmental implications fall outside the remit of the Environment Committee – most notably agriculture. The Common Agricultural Policy (CAP) is a major component of EU spending and is widely acknowledged to have caused environmental degradation through intensive farming and use of pesticides, which have had negative implications for bird populations (Donald et al., 2002) as well as possibly contributing to wider declines in insect life (Forister et al., 2019). Agriculture is an area where one might expect the Parliament to play a key role in facilitating environmental policy integration (see Chapter 12). However, the Agriculture Committee which is responsible for amending the CAP is dominated by producer interests and is traditionally quite conservative (Roederer-Rynning and Schimmelfennig, 2012). Hence, in 2013, when the spending and policy priorities of the CAP for 2014–2020 were negotiated, the Agriculture Committee was perceived as playing a key role in watering down the Commission’s proposals to make the CAP more effcient and more environmentally friendly, earning public opprobrium (Brunner, 2013) and undermining the Parliament’s wider reputation for environmental ambition. Finally, beyond the committees, it has also been suggested that there has been a long-term shift in the behaviour of the plenary in relation to environmental legislation, i.e., as the Parliament has become more powerful, it has become less radical (see Burns and Carter, 2010; Dionigi, 2017). The following section discusses the evolution of the Parliament’s powers and evaluates the extent to which it has been able to shape environmental policy.

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Summary points • • •

The Parliament is a transnational institution that votes along ideological rather than national lines. The Greens comprise the ffth largest group in Parliament; they hold key positions of responsibility and take the lead on important legislative reports. The Committee for the Environment, Public Health and Food Safety is a key actor; it is responsible for drawing up the Parliament opinions on environmental legislation, but it must secure the support of the plenary for its amendments.

Powers and policy infuence When the Parliament was frst elected in 1979, its legislative powers were relatively limited. Formally, it had the right to be consulted by the Commission on the content of proposals prior to the Council delivering its verdict. Thus, the Commission would propose legislation, the Parliament could offer amendments before the Council reached its common position. The Council, however, would often adopt its opinion before the Parliament had delivered its opinion or just ignore the Parliament’s amendments altogether. Following the isoglucose ruling of 1980 (see Box 8.3), the Parliament was able to delay the adoption of legislation under consultation, but remained a reactive institution with limited legislative power. However, from 1986 onwards, it fought for – and was the main recipient of – successive increases in its legislative powers and policy competences. As detailed in Chapters 2 and 4, the SEA introduced a more solid legal base for environmental policy. Crucially, it introduced QMV in the Council. The introduction of QMV freed up the legislative process and launched the Internal Market programme and with it a host of new environmental legislation, which the Parliament suddenly had much greater opportunity to amend. Moreover, the SEA increased the Parliament’s powers via the cooperation procedure so that the chance of its amendments being incorporated into the fnal version of policy also increased.

Box 8.3 The isoglucose ruling Two isoglucose producers, who were supported by the Parliament, took a case to the CJEU claiming that a Council regulation should be declared invalid on the grounds that the Council had failed to obtain the Parliament’s opinion prior to adopting it (Kirchner and Williams, 1983: 173). The Court’s ruling in Case 242/81 gave the Parliament a de facto delaying power which the Parliament exploited to the full by introducing a new rule of procedure that allowed it to postpone the fnal vote on a Commission proposal until the Commission had taken a position on its amendments. If the Commission did not accept the Parliament’s amendments, the matter could be referred back to committee for reconsideration, thereby delaying the Parliament’s opinion and holding up the whole policy

136 Charlotte Burns process (Corbett, 1998: 119). Thus, as Corbett (ibid.: 120) notes, the Parliament had ‘a strong bargaining position to fall back on’ and as a result was able to exert more legislative infuence in such situations. The case marked the beginning of a profound long-term shift, in which the bilateral dialogue between the Commission and Council was gradually replaced by a trilogue involving the Commission, the Council and the Parliament (see below).

Whilst the cooperation procedure is no longer used, its introduction marked a key turning point in the Parliament’s history; for over a decade, the procedure was the major vehicle used by the Parliament to secure its policy preferences. It also heralded the start of an era of closer collaboration between the Commission and the Parliament (Judge, 1992; Earnshaw and Judge, 1997). In order to exercise its new infuence, the Parliament needed to secure the support of relevant personnel in the European Commission, especially those in DG Environment. The cooperation procedure was used to adopt harmonisation measures necessary to complete the Single European Market under Article 100a of the SEA. Consequently, proposals seeking to harmonise national environmental standards in order to facilitate the completion of the Internal Market were adopted under cooperation. However, all other environmental measures were adopted under Article 130s of the SEA, which carried the consultation procedure (Judge, 1992: 195) (see Chapter 2 for further details). The Parliament therefore had a double interest in improving relations with the Commission: frst, to persuade the Commission to propose legislation under Article 100a so that the cooperation procedure would be used; and second, when cooperation was used, to secure the Commission’s support for its amendments. DG Environment started to view the Parliament’s Environment Committee as a natural ally against both the Council and colleagues in other DGs who were unsympathetic to environmental concerns (Judge, 1992: 199–200). There is some evidence to suggest that DG Environment was prepared, where possible, to bring forward more proposals under Article 100a to secure the Parliament’s support. For example, between 1989 and 1992, 15 out of the 29 environmental proposals brought forward by the Commission were based on Article 100a (ibid.: 195). Council offcials began to suspect that ‘an incestuous relationship’ was developing between the Parliament and DG Environment (DG Environment Offcial, quoted in ibid.: 199). Indeed, Ken Collins established regular meetings with the Environment Commissioner to maintain an open dialogue between their respective organisations. Overall, the cooperation procedure allowed the Parliament to insert itself into the traditional dialogue between the Commission and Council, replacing it with a trilogue involving the Commission, the Council and the Parliament (Earnshaw and Judge, 1997: 560). In many ways the introduction of the cooperation procedure paved the way for the increases in the Parliament’s formal and informal powers in the Maastricht Treaty, which introduced the Parliament’s long-desired co-decision procedure, now known as the ‘ordinary legislative procedure’ (OLP). Initially, the procedure applied to only 15 treaty articles, but its scope was subsequently extended by various Treaty reforms and now covers 85 policy areas, including most areas of environmental policy (European

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Table 8.4 The ordinary legislative procedure Stage of decision making

Options

Commission Proposal EP First-Reading Opinion Commission Opinion

Accept, amend or reject Commission proposal Accept, amend or reject the Parliament’s frstreading amendments

Council Common Position

Accept or reject the Parliament’s amendments. If all the Parliament’s frst-reading amendments are accepted, legislation is adopted

EP Second Reading

Accept, amend or reject Council Common Position. If Common Position is accepted, legislation is adopted

Commission Opinion

Accept, amend or reject the Parliament’s secondreading amendments Council needs QMV for the Parliament’s amendments with Commission support and unanimity for amendments rejected by the Commission

Council Position

Accept or reject the Parliament’s second-reading amendments If the Parliament’s amendments are accepted, legislation is adopted If the Parliament’s amendments are rejected, a Conciliation Committee is convened

Conciliation Committee in order to negotiate a compromise on those European Parliament amendments that the Council cannot accept

If co-legislators (European Parliament and Council) cannot reach agreement, the proposal falls If co-legislators do reach agreement, the legislation is adopted

Parliament, 2010: 36–40). The OLP makes the Parliament a genuine co-legislator with the Council: the agreement of both institutions is necessary for new legislation to be adopted. It introduces: a third reading; an unconditional right of rejection for the Parliament; and a conciliation procedure, which is triggered after the Parliament’s second reading if the Council cannot accept MEP’s amendments (see Table 8.4). The conciliation process involves a committee composed of delegations of equal size from both the Council and Parliament, who negotiate a compromise that both sides are both prepared to accept. The Commission is also present and acts as a facilitator. If either institution fails to adopt the compromise text negotiated by the conciliation committee, then the proposal falls. There is no doubt that, since its introduction in November 1993, the OLP has had a profound effect upon inter-institutional relations. While the introduction of cooperation increased informal contacts between the Commission and Parliament, the OLP has facilitated the development of direct informal relations between them. In the early years of EU environmental policy, these informal relations emerged as a response to the diffculties of negotiating an agreement with 30 or more people present in a fullblown conciliation meeting. As trilogues are easier to arrange and manage than full conciliation meetings, they are widely used, with conciliation meetings reserved for all but the most intractable issues. For example, the 2014–2019 Parliament was the frst

138 Charlotte Burns in which no conciliation meetings were held, but 1,185 trilogue meetings took place (European Parliament, 2019b). The nature of these informal meetings has continued to evolve over time. As Table 8.4 indicates, the Parliament and the Council are able to conclude the legislative process at frst reading if both sides have committed themselves to agree as early as possible in the procedure (European Parliament, Council and Commission, 1999, 2007, 2016). To facilitate early agreements, the Council’s representatives (drawn from the Presidency) meet with the rapporteur, the chair of the lead committee and the shadow rapporteurs from the Parliament with a view to fnding common ground. There was initial resistance to such contacts in the Parliament on the grounds that negotiations should only take place once the Parliament had given its formal opinion in the plenary (see Shackleton and Raunio, 2003; Roederer-Rynning and Greenwood, 2015). However, over time, such fears were allayed and the use of so-called fast-track readings started to increase. In the 1999–2004 session, 28% of OLP dossiers were agreed at frst reading, increasing to 72% in the 2004–2009 session; 85% were agreed in the 2009–2014 session and 89% between 2014 and 2019 (European Parliament, 2019b: 1). The increased use of informal trilogue meetings potentially excludes smaller groups such as the Greens, even with the adoption of rules that seek to ensure that they are broadly representative. In principle, small groups can make their views known during committee deliberations and in plenary, and/or if they are selected to provide one of the shadow rapporteurs that comprise the negotiating team. However, as committee meetings and plenaries are increasingly used to rubber stamp agreements negotiated by a few actors behind closed doors, the ability to have one’s views considered during the legislative process is much lower. Moreover, the Parliament’s reputation as an environmental champion has rested partly upon its openness to outsider interests (see Chapter 18), which in the early days was particularly useful for environmental NGOs who were more likely to be excluded from the decision-making processes in and around the Commission and Council (see Chapter 9). The shift towards backroom deals potentially excludes such actors from the decision-making process, which is problematic for the Parliament, which has tried to present itself as the most open and representative EU institution. The process of informal negotiation also means that the amendments adopted by the plenary are more likely to be the subject of compromises: their content has been through a process of intra- and inter-institutional negotiations. As noted above, this more consensual approach to politics has a potentially negative effect of deradicalising the content of the Parliament’s amendments – a process that is heightened if there are two layers of compromise through which amendments are being fltered. This shift in the norms of decision making may explain why the Parliament’s amendments to environmental legislation appear to have become less ‘green’ over time (Burns and Carter, 2010; Burns et al., 2012; see Box 8.5). There are of course other potential explanations for this shift in the Parliament’s behaviour. One of Burns and Carter’s (2010: 136–139) key fndings was that after 1999, the Parliament became less environmentally radical, a fnding confrmed by Dionigi (2017). One obvious explanation was the changing ideological composition of the Parliament. The EPP became the largest political group in 1999, a position it has managed to retain ever since. Its dominance combined with the rise of the populist Eurosceptic right from 2009 onwards has shifted the centre of gravity of the Parliament to the centre-right, which is traditionally less sympathetic to

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environmental concerns than the centre-left (Carter, 2010). Dionigi (2017) also points to the fact that as the Parliament became powerful, it attracted lobbying from a wider range of actors, including business actors, which have shaped its policy positions in a more business-friendly direction. Another possible explanation for the decline in the Parliament’s environmental ambitions was the enlargement of the EU after 2004 (for more details, see Chapters 2, 4 and 20). For example, since 2004, only two Greens MEP have been elected from Central and East European states – one each from Croatia and Hungary. Whilst Eurobarometer polls suggest that the number of EU citizens identifying the environment, climate and energy issues as one of the two most important facing their country increased from 5% in June 2014 to 20% in June 2019, the increase in public concern is mainly located in Northern Europe (Pearson and Rüdig, 2020). For example, in a Eurobarometer survey specifcally on climate change, 23% of Europeans stated that climate change was the most serious issue facing the planet. However, the fgure was signifcantly higher for Sweden (50%) and Denmark (47%) and much lower for East European states, with 15% of Poles and Czechs, 11% of Romanians and Hungarians and only 10% of Bulgarians agreeing (Eurobarometer, 2019). Given the low salience of the environment in these states, one might expect them to work together to block environmentally ambitious policy. However, the evidence that they are doing so is rather mixed (see Box 8.4).

Box 8.4 Visegrad MEPs and climate change and energy policies Some authors suggest that the so-called Visegrad Four states of Czechia, Hungary, Poland and Slovakia have worked together to shape climate and energy policy in the Council (Wurzel et al., 2019). However, Ćetković and Buzogány (2019) have found that whilst six states (Poland, Hungary, Czechia, Slovakia, Bulgaria and Romania) are more likely to object to the adoption of new EU climate and energy legislation, they do not form a cohesive blocking minority in the Council because they have different national interests, and consequently, the coalitions they form vary across the range of individual climate and energy policies. Studies of MEP behaviour have found similar patterns. Burns et al. (2012) presented some evidence that MEPs from the post-2004 enlargement states played a role in weakening the Parliament’s position on the 2008 Climate and Energy Package. However, they noted that German and Italian MEPs also called for lower standards. Burns (2019) has suggested that whilst there is clear evidence of Polish ECR MEPs voting together en masse to block air quality rules in 2015, that there is limited evidence of a coordinated voting bloc amongst Central and East European MEPs. Zapletalová and Komínková (2020) have similarly suggested that there was limited evidence of a coordinated bloc voting together on climate and energy policy in the eighth Parliament session (2014–2019). These fndings do not mean that MEPs from the CEE nations have had no impact upon overall policy ambition and outcomes, but they do suggest that their inability to forge stable coalitions has limited their overall infuence.

140 Charlotte Burns

Summary points •

• •

The principal process by which environmental policy is adopted is the ordinary legislative procedure. It has transformed the process of environmental policy making by creating a three-way dialogue (‘trilogue’) between the Parliament, Commission and Council. The use of trilogues is now common practice under the ordinary legislative procedure with the vast majority of legislation (including environmental legislation) being agreed at the frstreading stage. These informal processes raise challenges for transparency and participation in decision making, particularly for smaller groups such as the Greens and environmental interest groups.

Future challenges The European Parliament has been on a steep upward trajectory since 1979. It has secured its treasured right of co-decision under the OLP, which applies to many areas of environmental policy as well as important cognate domains such as agriculture, energy and development. The extension of its policy competence did, however, coincide with a relative low point in EU environmental policy activity and ambition (Burns et al., 2020), which may have limited its ability to advance more transversal issues such as environmental policy integration (see Chapter 12) and sustainability (see Chapter 16). In addition, the move to involve a wider range of committees in legislative decision making and the marked increase in business lobbying in Brussels have led to more business-oriented positions being advanced by the Parliament. Moreover, the Parliament still has no power of co-decision in relation to environmental measures with fscal and energy supply implications, land use, town and country planning and the quantitative management of water resources (Article 175(2), TEU) – areas that still require unanimity in the Council (see Chapter 2). The Parliament also plays a limited role in common foreign, security and trade policies (see Chapters 3 and 15); key areas that remain dominated by the Council and Commission. Therefore, it is diffcult for the Parliament to exert any impact upon the positions adopted by the EU in important international environmental and trade negotiations such as those on ozone, trade and climate change (see Box 8.5). In these areas, the Parliament’s role is limited to assenting to agreements struck between the Council and Commission and offering its opinion upon their implementation (see Chapter 15). For some agreements that lead to an international treaty, the Parliament does have a veto power, but it has tended to use this power sparingly (Delreux and Burns, 2019). Rather the Parliament has used its ability to infuence such negotiations by using the OLP to shape legislation that has a bearing on international negotiations, such as the Climate and Energy Package (see Burns, 2017) and in supporting the positions adopted by the Commission on international agreements (Delreux and Burns, 2019). For example, the Parliament used its powers under the OLP effectively to strengthen key legislation by, for example, reducing the number of free permits allocated under the Emissions Trading Scheme (see Chapter 17).

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Box 8.5 The European Parliament and climate change Whilst the Parliament has been the recipient of signifcant increases in legislative power, it still has signifcantly less power over international affairs. This limitation has circumscribed its capacity to shape directly important international policies such as on climate change (Burns, 2017). Evidence suggests that even where the Parliament has gained increases in power, such as the right to reject international agreements under the Lisbon Treaty, it has been unwilling to use them regularly. So far, it has only rejected two agreements, both of them in ‘non’ environmental areas: the Anti-Counterfeiting Trade Agreement (ACTA) and the Society for Worldwide Interbank Financial Telecommunications (SWIFT) Agreement. It did so mainly because of transparency concerns and in part to fex its legislative muscle (Ripoll Servent, 2018). Notwithstanding its reluctance to reject international agreements, the Parliament has successfully inserted itself into side meetings of the UNFCCC Conference of the Parties where it engages with a wide range of actors (Delreux and Burns, 2019). The Parliament has also worked closely with the other institutions in seeking to develop ‘one voice’ across the institutions to project the image of a united EU in climate negotiations (Delreux and Burns, 2019). However, this ‘one voice’ strategy potentially limits the Parliament’s traditional role in amending and criticising EU legislation.

The increases in the Parliament’s powers have also generated a massive increase in its workload. For example, between 1993 and 1999, the Parliament dealt with 164 OLP dossiers (European Parliament, 1999), increasing to 403 between 1999 and 2004, and then 454 between 2004 and 2009 and 488 between 2009 and 2014, before dipping to 401 between 2014 and 2019 (European Parliament, 2019b: 1). Such an increase has strained the Parliament’s resources. For example, an ongoing source of concern has been the lack of in-house expertise and an over-reliance upon interest groups for data and research materials. Moreover, the Parliament has been unable to undertake impact assessments on new legislative proposals at the decision-making stage (see Chapters 6) or systematically evaluate existing policies (see Chapter 14). In 2004, and in recognition of the growing need for the Parliament to be able to draw upon wider expertise, it established its own Policy Departments, which either commission or undertake research on behalf of individual committees (European Parliament, 2011). In addition, there has been the challenge of enlargement. All the institutions have coped well with the increase in size of the EU, but some trade-offs have had to be made. The decision to use informal meetings to lubricate the process of decision making in order to prevent policy stasis has achieved that goal, but at a cost: transparency and participation have been sacrifced to some degree. A combination of the climate school strikes and the activism of Greta Thunberg and Extinction Rebellion helped to push the environment to the top of the EU policy agenda in 2019. A key challenge for the Parliament is how to capitalise upon the increased salience of the environment as a political issue. There is a general sense that the Juncker Commission was less interested in ambitious forms of environmental policy, but Ursula von der Leyen has made the achievement of a Green Deal for Europe

142 Charlotte Burns the central part of her term in offce. For the Parliament, the Green Deal represents both an opportunity and a challenge. There is certainly more scope for it to work with the Commission to drive forward the environmental agenda. However, there is a risk, especially in an increasingly fragmented Parliament, that MEPs will be unable to deliver on the Commission’s environmental ambitions, particularly post COVID-19.

Summary points • • •

Despite the increase in its formal powers, the Parliament still has limited ability to infuence environmentally signifcant policy areas such as international negotiations on climate change and domestic fscal policy. The Parliament also has limited in-house expertise and has struggled to cope with the increase in its workload. A key challenge for the coming years is to develop a coherent position that enables the Parliament to strengthen Commission proposals.

Conclusions The European Parliament has, in little over 40 years, undergone a signifcant transformation. It is no longer a weak talking shop limited to making the Council wait for its opinion; it is a genuine co-legislator that has the ability to set the wider EU policy agenda (see Chapter 10). Its political groups have overcome national differences to fnd common ideological causes, and the Green Group has, over time, increased its representation to become a serious political force within the Parliament. The Parliament has secured a hard-won reputation as a key environmental actor that has forced its way into the traditional bipartite relationship between the Commission and Council. However, as its powers and heterogeneity have increased, the Parliament has encountered new challenges. The cumulative strain of a greatly increased workload and a greater number of member states within the wider EU has seen the emergence of more informal processes of decision making. While these have clear advantages in terms of increasing the effciency of decision making, they also carry risks. These risks are arguably particularly acute in the environmental policy feld. The Parliament has traditionally been able to represent the views of small groups such as the Greens and marginalised interests such as environmental NGOs, but these groups face being excluded as decision making once again moves behind closed doors.

Summary points • •

In little over 40 years, the Parliament has been transformed from a weak talking shop to a genuine co-legislator that can shape a wide array of policy areas. The Parliament has secured a hard-won reputation as a key environmental actor, forcing its way into the traditional bipartite relationship between the Commission and Council.

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However, as its powers and internal heterogeneity have increased, the Parliament’s ability to represent the views of small political groups, such as the Greens, and marginalised interests, such as environmental NGOs, may have been compromised.

Key questions 1 2 3 4 5

What is the principal procedure used for adopting environmental legislation in the Parliament? What impact has enlargement had upon the Parliament’s ability to function as a pro-environmental actor? What are the wider implications of the use of more consensual processes of decision making in the Parliament? What are the principal challenges facing the Green Group in the Parliament? Why does the Parliament struggle to infuence international environmental negotiations, and what steps has it taken to overcome these limitations?

Guide to further reading •

• • •

Corbett et al. (2016) and Ripoll Servent (2018) provide excellent introductions to the European Parliament. For an analysis of the evolution of the party system and voting behaviour of the European Parliament, see Hix et al. (2007). For an up-to-date analysis of the ‘Greens in Brussels’, see Rüdig (2019). For an analysis of the Parliament’s environmental behaviour over time and across different procedures see Burns (2019), Burns and Carter (2010) and Burns et al. (2012). For information on the Greens’ electoral performance, see the regular profles in Environmental Politics (e.g., Pearson and Rüdig, 2020).

Online resources • • •

The European Parliament: https://www.europarl.europa.eu The Committee on Environment Public Health and Consumer Protection Environment: https://www.europarl.europa.eu/committees/en/envi/home/highlights VoteWatch: www.votewatch.eu

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Burns, C. (2017) ‘The European Parliament and climate change: A constrained leader?’ in R.W. Wurzel, J. Connelly, and D. Liefferink (eds.), The European Union in International Climate Change Politics. Still Taking a Lead? Routledge, London, pp. 52–65. Burns, C. (2019) ‘In the eye of the storm? The European Parliament, the environment and the EU’s crises’, Journal of European Integration, vol. 41, no. 3, pp. 311–327. Burns, C. and Carter, N. (2010) ‘Is codecision good for the environment?’ Political Studies, vol. 58, no. 1, pp. 128–142. Burns, C., Carter, N. and Worsfold, N. (2012) ‘Exploring the implications of enlargement for the European Parliament’s environmental record’, Journal of Common Market Studies, vol.  50, no. 1, pp. 54–70. Burns, C., Eckersley, P. and Tobin, P. (2020) ‘EU environmental policy in times of crisis’, Journal of European Public Policy, vol. 27, no. 1, pp. 1–19. Carter, N. (2010) ‘The Greens in the 2009 European Parliament election’, Environmental Politics, vol. 19, no. 2, pp. 295–302. Ćetković, S. and Buzogány, A. (2019) ‘The political economy of EU climate and energy policies in Central and Eastern Europe revisited: Shifting coalitions and prospects for clean energy transitions’, Politics and Governance, vol. 7, no. 1, pp. 124–138. Corbett, R. (1998) The European Parliament’s Role in Closer Integration, Macmillan, London. Corbett, R., Jacobs, F. and Neville, D. (2016) The European Parliament, 9th edition, John Harper Publishing, London. Delreux, T. and Burns, C. (2019) ‘Parliamentarizing a politicized policy: Understanding the involvement of the European Parliament in UN climate negotiations’, Politics and Governance, vol. 7, no. 3, pp. 339–349. Dionigi, M. (2017) Lobbying in the European Parliament. The Battle for Infuence, Palgrave Macmillan, Basingstoke. Donald, P., Pisano, G., Rayment, M. and Pain, D. (2002) ‘The Common Agricultural Policy, EU enlargement and the conservation of Europe’s farmland birds’, Agriculture, Ecosystems and Environment, vol. 89, no. 3, pp. 167–182. Earnshaw, D. and Judge, D. (1997) ‘The life and times of the European Union’s cooperation procedure’, Journal of Common Market Studies, vol. 35, no. 4, pp. 543–564. Eurobarometer (2019) Special Eurobarometer 490 – Climate change, European Commission public opinion, available at: https://ec.europa.eu/commfrontoffce/publicopinion/index.cfm/ General/index (accessed 1 March 2020). European Commission (2017) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Delivering on low-emission mobility A European Union that protects the planet, empowers its consumers and defends its industry and workers. COM/2017/0675 fnal. Brussels. European Parliament (1999) Activity report 1 November 1993 to 30 April 1999 of the Delegations to the Conciliation Committee, European Parliament, Brussels. European Parliament (2004) Activity report 1 May 1999 to 30 April 2004 of the Delegations to the Conciliation Committee, European Parliament, Brussels. European Parliament (2010) Activity report 1 May 2004 to 13 July 2009 of the Delegations to the Conciliation Committee, European Parliament, Brussels. European Parliament (2011) ‘Studies page’, available at: www.europarl.europa.eu/activities/ committees/studies.do?language=EN (accessed 4 August 2011). European Parliament (2017) ‘Report on the inquiry on emissions in the automotive sector’, Committee of Inquiry into Emission Measurements in the Automotive Sector, 2 March 2017, available at: https://www.europarl.europa.eu/doceo/document/A-8-2017-0049_EN.html#title3 (accessed 1 March 2020).

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European Parliament (2019a) ‘Rules of Procedure of the European Parliament, ninth parliamentary term, December 2019’, available at: https://www.europarl.europa.eu/doceo/document/RULES-9-2019-07-02-TOC_EN.html (accessed 1 March 2020). European Parliament (2019b) Activity report, developments and trends of the ordinary legislative procedure, 1 July 2014 to 1 July 2019 (8th parliamentary term), European Parliament, Brussels, available at: http://www.epgencms.europarl.europa.eu/cmsdata/upload/db42253a1064-4e52-bbd7-04c3ba88d0ca/activity-report-2014-2019_en.pdf (accessed 1 March 2020). European Parliament (2020a) The European Parliament after Brexit, European Parliamentary Research Service, available at:https://www.europarl.europa.eu/RegData/etudes/ ATAG/2020/642259/EPRS_ATA(2020)642259_EN.pdf (accessed 1 March 2020). European Parliament (2020b) ‘MEPs by member state and political group’, available at: https:// www.europarl.europa.eu/meps/en/search/table (accessed 1 March 2020). European Parliament, Council and Commission (1999) ‘Joint declaration on the practical arrangements for the new codecision procedure’, OJC, no. 148, pp. 1–2, Offcial Journal of the European Communities, Brussels. European Parliament, Council and Commission (2007) ‘Joint declaration on the practical arrangements for the codecision procedure’, OJC, no. 145, pp. 5–9, Offcial Journal of the European Union, Brussels. European Parliament, Council and Commission (2016) ‘Interinstitutional agreement between the European Parliament, the Council of the European Union and the European Commission on better law-making’, OJL no. 123, (12.5.2016), pp. 1–14, Offcial Journal of the European Union, Brussels. Forister, M., Pelton, E. and Black, S. (2019) ‘Declines in insect abundance and diversity: We know enough to act now’, Conservation Science and Practice, vol. 1, p. e80, doi:10.1111/csp2.80. Hix, S., Noury, A. and Roland, G. (2007) Democratic Politics in the European Parliament, Cambridge University Press, Cambridge. Jordan, A.J. and Moore, B. (2020) Durable by Design? Policy Feedback in a Changing Climate, Cambridge University Press, Cambridge. Judge, D. (1992) ‘Predestined to save the Earth: the Environment Committee of the European Parliament’, Environmental Politics, vol. 1, no. 4, pp. 186–212. Judge, D. and Earnshaw, D. (2011) ‘“Relais actors” and codecision frst reading agreements in the European Parliament: The case of the advanced therapies regulation’, Journal of European Public Policy, vol. 18, no. 1, pp. 53–71. Kirchner, E. and Williams, K. (1983) ‘The legal, political and institutional implications of the isoglucose judgments 1980’, Journal of Common Market Studies, vol. 22, no. 2, pp. 173–190. Pearson, M. and Rüdig, W. (2020) ‘The Greens in the 2019 European elections’, Environmental Politics, vol. 29, no. 2, pp. 336–343. Ripoll Servent, A. (2018) The European Parliament, Palgrave, London. Roederer-Rynning, C. and Greenwood, J. (2015) ‘The culture of trilogues’, Journal of European Public Policy, vol. 22, no. 8, pp. 1148–1165. Roederer-Rynning, C. and Schimmelfennig, F. (2012) ‘Bringing codecision to agriculture: A hard case of parliamentarization’, Journal of European Public Policy, vol. 19, no. 7, pp. 951–968. Rüdig, W. (2019) ‘Green parties and elections to the European Parliament, 1979–2019’, in L. Ward and J. Brady (eds.), Greens for a Better Europe, Twenty Years of the UK Green Infuence in the European Parliament 1999–2019, London Publishing Partnership, London, pp. 1–48. Settembri, P. and Neuhold, C. (2009) ‘Achieving consensus through committees: Does the European Parliament manage?’, Journal of Common Market Studies, vol. 47, no. 1, pp. 127–151. Shackleton, M. and Raunio, T. (2003) ‘Codecision since Amsterdam: A laboratory for institutional innovation and change’, Journal of European Public Policy, vol. 10, no. 2, pp. 171–188.

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Smith, M.P. (2008) ‘All access points are not created equal: Explaining the fate of diffuse interests in the EU’, British Journal of Politics and International Relations, vol. 10, no. 1, pp. 64–83. Taylor, I. (2009) ‘Greens attack European Parliament reforms’, European Voice, 5 May, available at: www.europeanvoice.com/article/2009/05/greens-attack-european-parliamentreforms/64787.aspx (accessed 4 April 2011). Votewatch (2019) ‘How the old “pro-anti” EU framing becomes obsolete after EU elections’, available at: https://www.votewatch.eu/blog/how-the-old-pro-anti-eu-framing-becomesobsolete-after-eu-elections/ (accessed 6 January 2020). Weale, A., Pridham, G., Cini, M., Konstadakopoulos, D., Porter, M. and Flynn, B. (2000) Environmental Governance in Europe, Oxford University Press, Oxford. Wurzel, R.W., Liefferink, D. and Di Lullo, M. (2019) ‘The European Council, the Council and the Member States: Changing environmental leadership dynamics in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 248–270. Zapletalová, V. and Komínková, M. (2020) ‘Who is fghting against the EU’s energy and climate policy in the European Parliament? The contribution of the Visegrad Group’, Energy Policy, vol. 139

9

Interest groups Nathalie Berny and Brendan Moore

Summary guide Environmental policy is now one of the largest and most mature areas of EU activity, and over the last 50 years, it has become a site of signifcant lobbying. Business interests are especially active, being both exposed to but also active infuencers of the policy process. Environmental NGOs also fock to Brussels to fnd new opportunities for political infuence. However, academic research is divided on the infuence enjoyed by interest groups in the EU’s multilevel policy-making system. In general, interest groups representing key business sectors are able to use their economic clout to exert pressure directly on decision-makers. Most Brussels-based environmental NGOs have signifcantly expanded their lobbying activities and increased their policy expertise. They seem to be more effective on issues with high public salience.

Introduction Today, ‘Brussels is increasingly compared to Washington DC as the other capital of lobbying’ (Dür et al., 2019). In this chapter, lobbying is understood to encompass the diversity of activities aimed at shaping public policy, whether directly, via the decision-making process (i.e., formal and informal contacts with offcials), or indirectly through the wider environment of decision-makers (grassroots mobilisations, media and public relations, research). Lobbying in Brussels has increased in parallel with the number of interest groups active there. Interest groups are defned here as any organisation attempting to infuence public policies, which also includes non-membership groups such as business organisations. In 1959, there were an estimated 100 interest groups at the EU level; there were 1,450 in 2000 (Greenwood, 2017: 14). In July 2020, no less than 12,000 organisations were registered in the EU’s Transparency Register. Although evaluations of their numbers differ across surveys, all underline the exponential increase that has occurred since the early 1990s (Wessels, 2004; Greenwood, 2017). This increase corresponds with the broadening of EU competences and the emergence of new rules of decision-making. As outlined in Chapters 1 and 2, EU integration was initially concerned with economic integration. As a result, corporate and professional interests were the frst to organise themselves in Brussels and remain dominant to this day. The interest group population in Brussels has become more diverse, especially since the 1980s, with a notable increase in the numbers of DOI: 10.4324/9780429402333-9

148 Nathalie Berny and Brendan Moore non-governmental organisations (NGOs) in the felds of environment, development aid and human rights (Greenwood, 2017). In this chapter, we focus on special and diffuse interest groups, specifcally business and environmental groups, with the aim of comparing their respective lobbying strategies and infuence. While special interest groups attempt to infuence public policies for the beneft of their membership (namely, professional and business organisations, trade unions, etc.), diffuse interest groups try to advance a broader set of causes that affect citizens. These two types of interests usually have opposing views on specifc policy issues (Dür and Mateo, 2016). The distinction between them is useful when comparing the constraints weighing on their mobilisation and lobbying strategies. This chapter highlights how they organised themselves over time to secure greater leverage over EU policy outputs and outcomes. Indeed, the EU’s attempts to reconcile economic imperatives with the protection of the environment have often stumbled on the sharply diverging priorities of the environment, agriculture, energy and transport sectors (EEA, 2019). The ecological modernisation discourse outlined in Chapter 16 suggests that both objectives can in theory be reconciled, thanks to the cooperation of stakeholders, new technologies and a mix of policy instruments (Grant, 2013). The shift between the present model of ecological modernisation towards a green transition agenda endorsed by the von der Leyen Commission (see Chapter 16) is broadly supported by many environmental NGOs. But it continues to divide business groups, some of whom regard the latter as an existential threat to their activities. The next section shows how interest group formation has been linked to the European Commission’s constant need for policy support and issue-specifc information. The third section discusses the capacity of groups to mobilise their members in an increasingly complex policy-making context. The fourth section compares the relative infuence of business and environmental NGOs and highlights the importance of the discursive strategies that each employ to secure leverage in the policy-making process. The ffth section considers the alliances that attempt to span both camps via an ecological modernisation discourse, whose intrinsic tensions are more apparent with the European Green Deal. The fnal section concludes and refects on the evolving balance of power between diffuse and special interest groups.

Summary points • • •

Lobbying is a signifcant phenomenon in Brussels, the de facto ‘capital’ of the EU. Special interest groups (such as business groups) voice the concerns of narrow segments of society compared to diffuse interest groups (such as environmental NGOs). Environmental policy is a confictual policy domain with business organisations and environmental NGOs often on opposing sides.

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Interest group formation and maintenance Interest group politics has become a basic part of EU policy making since the founding treaties in the 1950s. Indeed, where there is decision-making power, there are sure to be some interest groups trying to satisfy their policy preferences. Decision makers, in turn, need their technical expertise, information on political processes and support to make their legislative proposals both realistic and acceptable (Mazey and Richardson, 2015). This is certainly the case when policy domains involve opposing interests and views, and even more in an EU context where the support of domestic interest groups gives EU institutions more leverage than member states. The European Commission has been especially instrumental in mobilising interest groups given the small size of its staff and its status as the EU’s primary agenda-setter (see Chapter  10), providing them access and sometimes funding (Mazey and Richardson, 2015). The early mobilisation of special interests Business interests have succeeded in organising themselves and are generally effective at having their voices heard in Brussels. Business is not, however, a monolithic actor and is divided into sectors and even companies within the same sector (Grant, 2013; Greenwood, 2017). The European integration process prompted national business associations and industry federations into collective action (Wessels, 2004). The initially rather defant Union of Industrial and Employers’ Confederations (UNICE, now Business Europe) led the way in 1958. Cohesive interests in the agriculture, chemicals, iron and steel sectors were also able to combine forces relatively early on. US frms followed the progress of the common market, frst within AmCham Belgium (1978). A public affairs consultancy sector eventually emerged in Brussels in the 1970s to meet their lobbying needs (Green Cowles, 2002). Initially, the Commission gave privileged access to EU business associations in order to facilitate one-stop consultations, thus incentivising business interests to adopt common policy positions. European multinational frms challenged this topdown and structured mode of representation. In the 1980s, they organised themselves in Brussels in order to advocate directly for the liberalisation of the common market. This initiative was welcomed by several Commissioners, who were eager to secure a business constituency to gain leverage over other DGs and member states (Coen, 2002). The creation of the European Roundtable of Industrialists (ERT), bringing together CEOs and board chairmen from major European frms, was a joint initiative of the Industry Commissioner Davignon and CEOs active in Brussels. In the 1980s, the European Commission started channelling frms expanding lobbying by creating ‘fora’ – such as high-level groups or stakeholder platforms – in particular policy domains (Coen, 2009). Despite its traditional openness to a wide range of interests, the growing involvement of corporate interests in EU policy making has led the European Commission to adopt more selective forms of consultation focused on key players in a sector. The discretion showed by the DGs in this regard has prompted demands for more transparency in both their practices and in lobbying in Brussels, as well as the activities of the Parliament and the Council (see Box 9.1).

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Box 9.1 The transparency of lobbying practices: a timeline In the 1990s, the Commission called for an ‘open and structured dialogue with special interest groups’ (SEC(92) 2272 fnal) opting for lobbyist self-regulation and voluntary codes of conducts. Conversely, the European Parliament adopted an accreditation system for lobbyists who must sign a code of operation and join a public register. The Commission acknowledged the importance of ‘interest groups’, ‘civil society organisations’ and ‘interested parties’ in its 2001 White Paper on European governance, aimed at improving the effectiveness and legitimacy of EU policy making (COM(2001) 428 fnal). This was followed by the creation of online registers covering individual consultative, expert and comitology committees. In 2007, the Commission laid out minimum standards to build a common approach across its DGs and implemented a ‘reinforced culture of consultation and dialogue’ (COM(2002) 704 fnal). It also set up the CONECCS (Consultation, the European Commission and Civil Society) database, which contains information on staff, lobbying spending and a website for online consultations on new Commission proposals. The Transparency Register was then launched with even more exhaustive data coupled to a requirement for all interest groups to sign a code of conduct (COM(2008) 323). In the 2010s, the Parliament and the Commission agreed to share the Transparency Register. From 2014, the Juncker Commission committed to greater transparency and a common (and mandatory) register covering all three EU institutions. This marked the start of the Commission’s ‘no registration, no meeting’ policy: individual Commissioners, their Cabinets and DGs would henceforth only meet with lobbyists on the register (COM(2014) 9004). An online register of specifc meetings was created. This was followed by failed (2016–2019) negotiations on a formal inter-institutional agreement between the Commission, Parliament and Council to adopt a common (and mandatory) register (COM(2016) 627).

When it comes to special interests, it is important to understand that they will not always adopt a common stance, and second, that they may be divided in their responses to a specifc environmental policy proposal. Firms have a strong incentive to lobby for regulatory norms that secure their business models, while trying to avoid costly regulation and/or shift its burden onto their competitors. Sometimes, this makes it logical for frms to lobby in favour of stricter environmental regulations. Hence, in the 1970s, US frms lobbied in Brussels for tighter norms on polluting emissions than had been adopted by the US federal government. The competition over norms is not limited to the defence of national regulatory models (see Chapter 11). The emergence of an EU level of decision-making has also offered possibilities for venue-shopping – when interest groups seek to pre-empt a decision taken by their national government by lobbying in Brussels (Mazey and Richardson, 2015). Finally, EU funding opportunities in different policy sectors have increased over time. For example, the emerging renewable energy sector has benefted from investment in Research and Innovation funding from the 1990s. A search for additional leverage and/or public funding was also behind the decision of a growing number of environmental NGOs to be present in Brussels.

Interest groups 151 The boom in environmental lobbying In 1981, DG Environment was established to prepare new environmental legislation (see Chapter 6). This immediately created rivalries with existing DGs who were already working on environmentally related issues. While DG Environment welcomed insights from business groups, it also asked for inputs from environmental NGOs. The Commission’s search for a balanced perspective was consistent with other countries’ experiences of developing an environmental policy sector (McFarland, 1987; Rucht, 1997). This logic of mutual support was already evident when environmental policies and the environmental movement were in their infancy in Europe in the 1970s. Initiated in 1974 by a number of activists in their respective member states, the European Environmental Bureau (EEB) became the frst European federation of environmental groups that were trying to shape an emerging environmental policy in the member states. The Commission provided the EEB with funding, thus solving the collective action dilemma for national organisations which did not necessarily have extensive fnancial resources. Early on, it also relied heavily on the expertise of the Institute for European Environmental Policy (IEEP), a think tank founded in 1976. The organisational and fnancial growth of the environmental movement later contributed to the emergence of a Brussels-based community of environmental NGOs. Several international organisations created offces in Brussels: Friends of the Earth in 1985, followed by the World Wildlife Fund (WWF), Greenpeace and Birdlife International. Many of their national branches were active within the EEB, where they had tested the added value of getting frst-hand information on emerging legislative proposals (Berny, 2008). Starting in the 1990s, new and more specialised environmental NGOs joined them. Some originated from or were affliated with an international parent organisation such as Climate Action Network (CAN) Europe; others were genuinely new, such as the Health and Environment Alliance (HEAL). In the late 2000s, environmentally oriented foundations converged on Brussels. These non-membership organisations rely primarily on the support of private donors (individual or corporate). Although most aim to fund NGO activities, some carry out their own advocacy strategies such as, for instance, the European Climate Foundation. Growing relationships between environmental NGOs and EU institutions (such as the environmentally friendly European Parliament, see Chapter 8) provided opportunities for both funding and policy-making access. In the 1990s, a decision on the funding of environmental NGOs acknowledged their valuable input in the legislative work of the Commission (Council Decision 97/872/EC). The Commission encouraged the frst Brussels-based environmental NGOs to set up a coalition (initially the Big Four, growing over time into the Green 10) to coordinate their activities. Today, the Green 10 enjoys regular consultations with top offcials in DG Environment, DG Climate Action, their respective Commissioners and the presidency of the Council of the EU (Long and Lörinczi, 2009). Although EU incentives such as access to decision-making and direct funding have played an important role in the emergence of EU-level interest groups, a dynamic of collective action is also part of their persistence over time. The next section explores this aspect by addressing the benefts that such groups offer to their members.

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Summary points • • •

The European Commission is riven by different sectoral logics, with each DG mobilising and interfacing with its own distinct constituencies of interest groups. The European Commission has encouraged and channelled the formation of EU interest groups, including in the NGO sector. Interest groups have themselves also adapted in innovative ways, on occasions shaping the Commission’s own consultation practices.

The mobilisation of interest groups The landscape of interest representation in Brussels refects a growth dynamic based on the steady expansion of EU competences and powers, and competition between interests for decision-makers’ attention. The European Commission’s renewed commitment to consulting stakeholders on new policy initiatives has amplifed both these trends (Mazey and Richardson, 2015). But the ensuing diversifcation of the interest groups population has raised questions over the capacity of EU-level organisations to voice their member’s views. Diversifcation and fragmentation As Brussels has become more crowded with interest groups, it has also become more complicated to navigate. Although the EU’s current database of interest groups – the publicly available Transparency Register (see Box 9.1) – is not exhaustive due to the voluntary nature of registration and data provision, it mirrors the fndings of academic research (Greenwood, 2017; Berkhout et al., 2018). At frst, interest groups were reluctant to sign up to the registry. But the Commission’s decision to guarantee access only to staff representing organisations that were registered boosted the number of organisations on the registry by nearly 20% in less than a year (Mützel, 2016). Academics estimate that business interests represent around 70% or more of the organisations active in Brussels, which is roughly the same as national political systems (Berkhout et al., 2018). An offce in or close to Brussels and the number of access passes to the Parliament provide other ways to estimate the overall scale of EU lobbying. Regarding both aspects, the non-proft sector seems to compete on more equal terms with corporate interests (see Figure 9.1). Many registered organisations are ‘lobby tourists’, e.g., only occasionally following up with policy monitoring and consultations (Ibid: 48). The register shows the diversity of channels to access the EU institutions for individual organisations: lobbying directly in Brussels vs. lobbying through a national federation or EU interest group. They can also resort to a consultancy or commission a report from a think tank. For instance, WWF UK was until recently recorded in the EU register as running a WWF European Policy Offce and commissioning research work from the IEEP. The comparison between frms’ and environmental NGOs’ lobbying strategies highlights the mutual benefts of collective action within EU-level interest groups and between them. Indeed, the latter may persist and thrive in an increasingly fragmented

Interest groups 153 6,000

5,000

4,000

3,000

2,000

1,000

-

Lobby & law firms Corporate

Trade unions

NGOs

Think tanks

Organisations with Belgium office, EP passes and Commission meetings

Religious

Public authorities

Other

Figure 9.1 Interest groups in the EU’s Transparency Register.

environment, if they are able to provide their membership with four collective goods: information; access; reputation; and possibly funding (Coen, 2009). Their capacity to deliver these also depends on the role played by their membership over time. Alliances between different interest groups are a more fexible approach to pool resources between EU level and/or national organisations for shared benefts. Large frms target multiple venues Individual frms and business federations are registered in equal proportions (see Figure 9.1). This parallel increase often blurs overlapping membership. Business Europe’s headquarters also host several member federations; the same is true of COPA-COGECA, the umbrella group representing conventional farming unions. European professional federations have remained less fragmented than the producer ones such as, for instance, in the agro-food sector (Greenwood, 2017). The modest size of corporate interest representations in Brussels can be a little misleading. Most frms’ EU affairs departments are, for example, limited to a couple of people, while the vast majority of organisations of EU-level business organisations have less than fve employees (Greenwood, 2017). The most well-resourced have often a strong interest in EU environmental policy (see Table 9.1). Considering the way European federations operate is necessary to complete the picture on corporate lobbying. These federations monitor EU policy developments for their members and provide them access to EU institutions to voice directly their concerns. The size of their membership and capacity to reach a common position matter for

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Table 9.1 EU business groups that seek to infuence EU environmental policy (by staff size) Name

Sector

Established Staff 2020 in Brussels (website)

CEFIC

Chemicals

1959

Business Europe COPA/ COGECA* EURELECTRIC ACEA

General Agriculture

AMCHAM EU

Electricity Car manufacturers Mechanical, electrical, electronic and metal articles industries General

EUROFER FuelsEurope Eurometaux

Orgalim

CEMBUREAU EUROPABIO

Staff 2019 Membership (in FTE, EU Register)** 42

Mixed

1958 1959–1962

Not available 56 48

30 18

1989 1991

42 39

5,2 13

1947

31

3.8

Mixed Peak federation Mixed Direct frm membership Peak federation

1978

29

9,8

Iron/steel Refning

1956 1989

27 22

8.2

Non-ferrous metals Cement Bioindustries

1957

18

14.5

1947 1996

17 16

4

Direct frm membership Mixed Direct frm membership Mixed Mixed Mixed

* Merged secretariat with COGECA (farmer cooperatives) in 1962. Staff in EU register available only for COGECA. ** Involved with lobbying.

their representativeness and thus the weight they carry with the EU decision-makers. It may also hamper their capacity to go beyond the lowest common denominator among members, possibly weakening their position in negotiations. Setting up working groups where members’ staff contribute with their expertise on specifc issues may, however, help in the sharing of information and in the framing of common positions. Their participants may, in turn, be offered an opportunity to represent the whole federation in selective EU consultations processes, such as high-level groups or comitology committees, which is also true for EU-level NGOs (for more details, see Chapters 6 and 8). Working groups are a valuable resource for the members of an EU business federation. Multinational frms asked Business Europe to pay higher membership fees in order to participate in its working groups (Greenwood, 2017). Like Business Europe, many federations have become mixed-membership organisations (frms and national associations, see Table 9.1) under the pressure of frms developing holistic lobbying strategies (Coen, 2009). Large frms have set up EU political affairs units, without neglecting the infuence offered by EU federations with usually low membership fees. There is sharing of responsibility in Brussels business organisations such as CEFIC [the chemical industry association] …. with large frms and their CEOs taking the lead on major issues, and associations playing a secondary role by lending expertise and ‘representativeness’ to the process. (Green Cowles, 2002: 76)

Interest groups 155 These strategies of overlapping membership help large frms to build a ‘reputation’ for competence and reliability when providing information to the European Commission and Parliament (Coen, 2009). Displaying a ‘European identity’ is another of the golden rules of the game in Brussels. Firms have also created ad hoc business alliances in order to reach common positions and gain credibility in the process. The lifespan of the Alliance of Energy Intensive Industries after 2005 demonstrates the virtuous circle between securing members and forging a reputation. Formed shortly after the start of the EU emission trading system (EU ETS) in 2005, the Alliance successfully advocated for free access to otherwise valuable emission allowances during many subsequent rounds of policy making (Moore and Jordan, 2020). Environmental NGOs: representativeness and expertise The diversifcation of the environmental NGO community resulted in greater issue coverage (see Table 9.2). Expansion in numbers and policy staff has been signifcant over the last decade. This has also been true for some newcomers such as Client Earth, a global advocacy foundation specialising in environmental litigation and older organisations such as the EEB whose staff doubled between 2014 and 2020. Environmental NGOs’ specialisation in lobbying as the main objective and mode of action has led some to conclude that the staff active in Brussels enjoy high autonomy and are not fully representative of their members’ views (Warleigh, 2001). The EU

Table 9.2 Brussels-based environmental interest groups ranked (by staff size) Name

Topics

Date Status

EEB WWF EPO Transport and Environment Birdlife Europe

Trans-sectoral Trans-sectoral Transportation

1974 Federation G10 1989 Regional offce G10 1990 Federation G10

56 40 34

32 26,2 10,2

1993 Regional offce G10

29

14

CAN Europe FOEE FERN

Trans-sectoral with biodiv/ agri focus Climate Change Trans-sectoral Forests

1989 Federation 1985 Federation 1995 Activist organisation Standardisation 2001 Federation Trans-sectoral

G10 G10 EEB

29 28 21

12,2 5 14

EEB

19

Not in register

Federation Federation G10 Outreach offce EEB Regional offce G10

18 17 17 16

5 2,2 6,5 8

European Environmental Citizens’ Organisations for Standardisation (ECOSs) Zero Waste Europe HEAL ClientEarth Greenpeace European Unit

Waste Trans-sectoral Trans-sectoral Trans-sectoral

2013 2003 2008 1989

* Involved in lobbying. (Websites accessed 24.07.2020).

Member Staff Staff 2020 of 2020 EU Register website FTE*

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arena is indeed more conducive to behind-the-scenes lobbying than the grassroots mobilisation and public campaigns that the NGOs often use at the national level where they try to build public support to exert pressure on public authorities. Insider strategies as opposed to outsider ones often prevail because of the complexity of the EU decision-making process and the technical nature of much of the policy work (Rucht, 1997; Parks, 2015). The partial disconnect between national and EU public debate makes it challenging for national members both to justify their EU work to their membership and to take credit for any success secured in Brussels (Berny, 2013). Setting up working groups has, however, proven relevant in mobilising the national organisations which, in turn, have gained knowledge of EU processes and benefted from EU funding opportunities. The involvement of national organisations depends on their goodwill and capacity to engage. Members can be the lead organisation on specifc campaigns. More interestingly, the European organisations of Greenpeace and WWF which are automatically part of the EU offces have sought to become more active in a steering committee composed of EU national members (Berny, 2008). European environmental NGOs have also tried to cooperate in joint actions, although they are more likely to compete over issues than their members. Indeed, displaying technical expertise on specifc policy issues is a way to access decision-makers and funders. The information and expertise that member organisations provide to join actions matter more than any fnancial resources they can muster. In fact, European federations such as the EEB or Friends of the Earth Europe (FOEE) deliberately charge modest membership fees to ensure wide participation. While several national members of Birdlife and FOEE have remained EEB members, the competition on issues has become increasingly acute with more environmental NGOs travelling to Brussels. In this context, the Green 10 remains a valuable platform for facilitating collective action. It serves as a forum for information exchanges between its members. When unanimity is not met, it leads to cooperation on a ‘cluster of issues’ (Long and Lörinczi, 2009), including with non-G10 members. Finally, the G10 allows environmental NGOs to present a collective response to more or less expected events such as the EU membership referendum in Britain in 2016. Mirroring business alliances, there are also a number of cross-national alliances of environmental and nonenvironmental NGOs such as the Scrap the ETS campaign led by Corporate Europe Observatory (CEO).

Summary points • • •

The business interest landscape is diverse and fragmented, but several organisations are nonetheless able to focus on many different venues at the same time to secure infuence. By contrast, environmental NGOs have developed insider lobbying strategies to compete with business interests in Brussels, while trying to build up support from their membership. Both camps, whether business or NGOs, create ad hoc alliances on specifc topics.

Interest groups 157

The infuence of interest groups Measuring infuence includes observing whether public decisions are in line with groups’ expressed demands (Dür et al., 2019). But for Lukes (2005: 29), the scope of this question is inherently limited, as some conficts between interests may be hidden. Two other additional faces of political power may also matter: frst, when some issues and groups are prevented from reaching the decision-making process or are co-opted when doing so; second, when the ‘structural power’ of business interests (Lindblom, 1977) prevents other groups from even realising that they are losing out. These additional faces justify the need to consider the discursive strategies of interest groups in framing relevant issues and contesting the status quo prevailing in particular policy domains. Measuring infuence Infuence suggests a ‘causal relationship’ between a group’s activities and fnal policy outcomes, which is diffcult to observe in practice (Dür et al., 2019: 11) (see also Chapter 14). Instead, EU studies have measured infuence by using certain proxies in decision-making processes. Drawing on the resource exchange model of interest groups in Brussels (Mazey and Richardson, 2015), Bouwen (2004) focused on access and links the format of interest groups (large frms, national federation, EU federations) to their capacity to match the differential needs of the EU institutions for expertise and support. Another strand of research has more recently elaborated on alternative methodologies, such as textual analysis or the spatial measure of interest groups’ preferences and success, to focus on the similarity between groups’ initial aims and fnal policy outcomes (Klüver, 2013; Dür et al., 2019). Nevertheless, assessments still diverge on the respective infuence of diffuse and special interests. However, there is some consensus on some aspects. Research for example suggests that there is no direct link between the amount of resources deployed by groups and their lobbying success (Greenwood, 2017; Dür et al., 2019). Indeed, business interests will be less likely to prevail if the policy process tackles publicly salient and confictual issues (Parks, 2015) (see also Chapter 10). The part played by different EU institutions in the decision-making process also matters, determining which information to provide, when and how. Finally, no single actor is able to control the whole process of decision-making, as simultaneously engaging in and across multiple venues is rather challenging (Greenwood, 2017; Berkhout et al., 2018) (see also Chapter 11). Although the ‘one-dimensional’ view of infuence and political power offers a broad picture of EU lobbying, the drawbacks identifed by Lukes (2005) nonetheless remain valid. Indeed, the systematic mapping of actors active during policy making easily disregards what is actually a highly selective process (Berkhout et al., 2018). The focus on observable behaviour leads to general conclusions on the power balance between interests based on the legislative process of specifc polices. It does not cover either the informal interactions between policy actors or the resilience of the policy status quo in policy domains impacting the environment. For example, the greening of the CAP over the last two decades has been credited to the efforts of environmental NGOs whose discourse was backed by a constellation of other actors within the EU institutions and member states, often driven by their own agendas (Grant, 2013). However, the general principles behind the CAP still rest on a productivist worldview shared by EU offcials and the main farm unions. The implementation of hard-won agri-environment policy measures have repeatedly failed to halt biodiversity loss in Europe (European Court of Auditors, 2020).

158 Nathalie Berny and Brendan Moore This example shows that both the pre-legislative and post-legislative implementation stages remain crucial in shaping policy outputs and outcomes. Environmental NGOs have been traditionally active at the implementation stage. The natural lifespan of most policy issues implies that their lobbying victories may be provisional, especially if they trigger counter-lobbying campaigns by business (Parks, 2015). As noted in Chapter 10, the EU decision-making process is characterised by multiple points of access with formal and informal interactions between decision-makers and interest groups both at the national and EU levels. A decision on a technical norm in a comitology committee or a telephone call to a minister before an upcoming Council meeting may have crucial and long-lasting consequences. With lobbying, the devil is often in the detail. At the same time, both special and diffuse interest groups must frame policy issues in a way that is favourable to their long-term aims (on this point, see also Chapter 10), while navigating the different cycles and sectoral logics affecting EU policies. Business interests: old and new narratives Well-resourced business interests may be able to combine insider and outsider lobbying strategies (Dür and Mateo, 2016). They proactively adapt their discourses according to the circumstances, not necessarily always maintaining a defensive stance towards the EU’s green agenda. Thus, even the companies that stand to be most negatively affected by the mounting demands for a zero-carbon Europe have openly embraced pro-sustainable development and pro-well-being concerns in their communication strategies. Business interests have even disputed the claim that environmental NGOs exclusively represent public interests, by underscoring their own contribution to enabling full employment and economic prosperity. Both arguments are regularly deployed in battles that criss-cross policy sectors and actors during the policy formulation stages within the Commission and when crucial decisions are made about which DG will draft a specifc policy proposal and/or which Parliamentary committee will follow-up on it. Besides, the dominant narrative that presents environmental regulations as a cost for industry that harms its competitiveness is widely backed by member states, especially during economic recessions. The Better Regulation agenda of the Juncker Commission is a continuation of previous initiatives launched over the decade of austerity policy after 2008–2009 (see also Chapters 16 and 19). Ambitious environmental norms ranging from air emissions to energy effciency have lacked political support either from member states or the European Parliament. Organisations such as Business Europe and ACEA backed the Commission’s simplifcation/deregulation agenda, demanding more self-regulation rather than new policy initiatives (see Chapter 17 for details). Business organisations have also reshaped their discursive strategies to support the public interest, for example, by greenwashing and/or reversing the good vs. bad guy narrative that is widely employed by environmental NGOs. Greenwashing refers to rhetorical or symbolic action which fails to address the full environmental impact of economic activities. For example, European gas companies within a coalition called Gas Naturally have claimed that fossil gas is a credible alternative to fossil oil. This pro-environment framing was deliberately selected to align with the Commission’s priorities of clean energy supplies and greater energy security (Simon, 2020).

Interest groups 159 While funding research and public relations in Brussels is nothing new, as exemplifed by the engineering of doubt around climate science (Michaels and Ainger, 2020), some companies and/or their coalitions tend to use scripts that are similar to NGOs when advocating in favour of the global common good. For example, a journalistic project known as the Monsanto Papers has revealed the links between biotech industry actors and the Genetic Literacy Project website, presenting environmental NGOs as villains who are intent on preventing human progress (Foucart and Horel, 2018). The challenge confronting NGOs: out of sight and out of mind? As the environment lost its political salience after 2008, environmental NGOs in Brussels attempted to defend existing environmental priorities in the legislative agenda as well as the existing acquis communautaire. In order to infuence agenda setting, they have traditionally built their discourse and alliances on the foundation provided by international treaties and EU environmental policies. They thus used the UN SDGs as a discursive resource to increase the environment’s prominence in the agenda of the Juncker Commission, despite their non-legally binding character. They also endeavoured to strengthen the normative framework of the environmental sector policy by using European Environment Agency reports, which are usually rooted in scientifc and technical arguments. These offer an evidence-based justifcation for broader policy statements such as the EAP. Brussels-based environmental NGOs campaigned to keep several commitments in the Seventh EAP such as the Soil Directive, the new Air Quality Directives and the circular economy package (see also Chapter 19). Second, regarding the maintenance of the acquis, they have closely monitored the Fitness Check evaluations to ensure that environmental legislation was not weakened or dismantled. This process, which aims at assessing if existing legislation is ‘ft for purpose’, has targeted the Waste, Air Quality and REACH legislation among others. In 2016, environmental NGOs across Europe succeeded brilliantly in building public awareness of the nature directives, convincing half a million people to take part in the Commission public consultation on the associated Fitness Check. No previous Commission stakeholder consultation had ever generated such high levels of public participation. However, environmental NGOs have not remained in a solely defensive position over the last decade. Lacking leverage to change the power balance in sectoral policy domains, they have invested time and resources to focus greater public attention on lobbying practices in Brussels, notably those employed by large companies and consultancies. In parallel to the EU institutions’ initiatives on lobbying, they have developed ever more sophisticated strategies to achieve infuence, providing new information at the agenda-setting stage, highlighting what they see as problematic practices and advocating for tighter regulation on lobbying and more transparent policy processes in Brussels (see Box 9.2). By naming and shaming different lobbying behaviours, they have aimed at changing the underlying rules of the policy game in Brussels. Strategies targeting this latter aspect might have signifcant impacts if successful, as illustrated by environmental NGOs’ battle to obtain legal standing before the Court of Justice of the EU (Berny, 2018) (see also Chapter 18).

160 Nathalie Berny and Brendan Moore

Box 9.2 Naming and shaming lobbying practices: some examples Environmental NGOs have used a number of practices to name and shame, from organising events, publishing guides, reports and online platforms to announcing spoof awards. The Worst EU Lobbying Awards (2005–2010) were, for example, organised by CEO, FOEE, LobbyControl & Spinwatch and focused on the privileged access enjoyed by some industry interests and their selective use of misleading and/or inaccurate information. The Lobby Planet guides (2004, 2011, 2017) from Corporate Europe Observatory have given the location of the most signifcant business associations and public authorities, providing data on their spending and staffng at key moments in the policy process. Environmental NGOs have also produced sector-specifc reports such as ‘Big Oil and gas buying infuence in Brussels’ (CEO, FOEE, Food and Water Europe, Greenpeace, 2019) which called for ‘fossil free politics’. Finally, Integritywatch.eu & LobbyFacts.eu (since 2015) are two platforms which merge public data in a user-friendly manner for use by the general public, journalists and researchers. They are designed to ensure that the rules of the EU register are abided by.

Trying to change the perceptions of a situation or an actor is a key aspect of lobbying. The strategies of both business interests and environmental NGOs reveal that symbolic struggles play an important part in maintaining or contesting the status quo. They may well use the same terms, such as sustainable development or low-carbon transition, but with very different meanings to serve their policy objectives. The next section addresses this very aspect by considering the strategies of alliance building.

Summary points • • •

The relative infuence of interest groups is diffcult to assess; it can incorporate both changes to specifc policy provisions and to the dominant narrative framework in particular policy domains. Business organisations have shifted their lobbying tactics in recent years, becoming more adept at using the tactics of NGOs to target the general public with their messages. Environmental NGOs also use normative pressure to contest the status quo in several critical sectoral policy domains, such as agriculture and energy.

Interest group alliances in support of stronger environmental action The lobbying landscape in Brussels is more complex than a simple binary confict between environmental NGOs and business interests. As noted above, ecological modernisation implies that a dialogue between divergent interests or the promotion of new technologies can pave the way to sustainable development (see Chapter 16). This discourse actually offers ‘an umbrella for potentially divergent interests’ (Grant, 2013) which is conducive to unholy alliances between actors that do not usually work closely

Interest groups 161 across the business–environment divide, for instance on climate change–related issues (Meckling, 2011). Such alliances do not directly question the economic imperative of European integration but rather aim at accommodating it to limit the negative externalities of economic activities on the environment and human health. However, in 2019, the student climate strikes, other environmental emergencyrelated mobilisations and the success of green-minded candidates in the European elections created a surge in public interest in the environment, going well beyond climate change. The publication of the Commission’s European Green Deal, the COVID-19 pandemic and the ensuing economic crisis have revealed how exogenous factors such as public attention and economic cycles can either challenge or reinforce the policy status quo as well as affect the power balance among interest groups. The logic of alliance building Cooperation on a given policy issue potentially offers mutual benefts for environmental NGOs and business. The former can gain leverage beyond their usual audiences and allies in Brussels. The latter can improve its reputation in a context where it is diffcult to overtly oppose the soft discourse of ecological modernisation. Such ‘baptist-and-bootlegger’ coalitions (Sotirov et al., 2017: 69) are more likely on salient public issues that attract high media attention such as, for example, in the EU timber regulation where environmental NGOs successfully built a coalition with importdependent industries and retailers. Coalitions allow organisations to pool resources and gain visibility when their policy objectives converge, although some concessions might be needed. But more interestingly, with such alliances, environmental NGOs and business interests exploit the divisions within one another’s camp. Notions such as the green economy, the low-carbon economy and climate neutrality have become more widespread in Brussels over the last decade (see Chapter 16). The green economy was a conciliatory notion adopted in the context of the post-2008 global economic crisis. Although some environmental NGOs embraced it reluctantly, it created a split between green industries who were eager to invest in and create new markets and energy-intensive or extractive industries which were likely to bear the higher price of adopting new policies. With respect to smaller companies, the Renewable Green initiatives (REGRID) gathered both national and European environmental NGOs and Transmission System Operators – i.e., the businesses transporting and using energy infrastructures – to promote the use of renewables in the low-carbon energy transition. The obstacles to stronger environmental action While the environment was largely absent from the policy priorities of the Juncker Commission, his successor, Ursula von der Leyen, brought environmental issues back to prominence by placing a green transition at the top of her six priorities. This was an unprecedented move from an incoming Commission President. It is still unclear to what extent this shift in the high-level policy priorities will lead to changes in detailed policies that actually make a difference. The Commission proceeded by releasing a policy programme in December 2019 (COM(2019) 640) setting out several principles and objectives and laying out a roadmap of specifc policies to be followed up during its mandate, with the frst elements being

162 Nathalie Berny and Brendan Moore unveiled in the frst quarter of 2020. The breadth of the European Green Deal is likely to accentuate splits within the business camp such as the Alliance for a Competitive European Industry (ACEI), made up of Business Europe and the main EU industrial federations. In the past, Eurelectric, representing the electricity industry, disagreed with many of its partners in ACEI on whether the EU emissions trading should be reformed to raise carbon prices (Moore and Jordan, 2020). The alliance has called for policy to ‘transform [Europe] towards a sustainable and low-carbon future’ while boosting competitiveness in its 2020 manifesto (ACEI, 2020: 3). Some ACEI members are nevertheless used to employing a dual strategy of announcing pro-environment pledges while trying to undermine European ambition via behind-the-scenes lobbying (Laville, 2019). In general, business interests did not contest the general aim of the European Green Deal but their lobbying efforts instead targeted the Commission services during the drafting of the initial communication document in the Autumn of 2019. Brussels-based news outlets published leaks of different versions, suggesting that the upcoming Commission would keep to its most ambitious objectives. But once the EU succumbed to the COVID-19-induced recession, several business interests endeavoured to delay or minimise the introduction of environmental standards or the publication of far-reaching strategies such as From Farm to Fork (Giegold, 2020). As various recovery plans were launched across Europe, some backing polluting sectors such as car production and airline travel, environmental NGOs sought to defend the principles embedded in the European Green Deal.

Summary points • • •

Their reaction to the publication of the European Green Deal communication in 2019 confrmed that business interests are reluctant to overtly oppose a progressive green agenda at EU level. However, business interests were much more vocal during economic recession that was triggered by the COVID-19 pandemic. In turn, a broad constellation of pro-environment actors, from activists to public offcials, have argued in favour of green recovery, setting the stage for a (discursive) battle that will run and run.

Conclusion Lobbying during the different policy stages and in the multilevel institutional settings of the EU is a resource-intensive and selective process for all interest groups. The environment offers a particularly fascinating case study of how the lobbying activities of different interest groups interact dynamically with changing institutional rules and exogenous conditions. In the course of the last 50 years, the interaction has produced an extensive corpus of ambitious laws, although the need to integrate environmental concerns into all policy domains has been fully addressed (see Chapter 12 for more details). Although the ecological modernisation discourse has provided a means to reconcile divergent interests, differences between different interest groups have nevertheless persisted. Indeed, environmental policy priorities were increasingly downgraded after 2008–2009. Although the release of the European Green Deal in 2019 suggested that environmental aims were once again in the ascendant, the arrival of COVID-19 provided business interests with an unexpected opportunity to lobby for slower implementation and weaker targets.

Interest groups 163 A longitudinal perspective offers a stimulating way to understand the mobilisation of corporate and diffuse interests in a context of diversifed and fragmented interest representation. While business interests from key economic sectors can exert pressure on decision-makers using their ‘economic muscle’ (Greenwood, 2017), seeking and maintaining public support for the arcane details of a particular EU policy making can be extremely challenging for environmental NGOs. Nevertheless, the information that environmental NGOs provide on political processes has proven critical to gain access to (and share concerns with) EU decision-makers. In turn, corporate interest groups have in recent years drawn on some of the environmental NGOs’ more adversarial and public opinion-focused communication strategies to secure infuence over some decisions. Greater transparency nonetheless helps diffuse interest groups such as environmental NGOs to play the EU multilevel game on more equal terms.

Summary points • • •

Interest groups at the EU level have had to continuously adapt their lobbying strategies over the last 50 years. Despite some efforts at cooperation on limited topics, the divide between environmental groups and business interests mostly remains, as witnessed during the launch and implementation of the European Green Deal. Greater transparency in lobbying practices has benefted environmental groups; it also seeks to improve the democratic legitimacy of the EU.

Key questions 1 2 3 4

How have environmental NGOs and business interests adapted to the EU institutions’ need for expertise? What benefts can EU interest groups provide to their members? How do the lobbying strategies employed by environmental NGOs and business interests differ? Why do the pre- and post-legislative phases have such a signifcant infuence on the content of a given policy and thus the lobbying strategies used by interest groups?

Guide to further reading • • •

Interest groups at the EU level have had to continuously adapt their lobbying strategies over the last 50 years. Dialer and Richter (2009) cover a large array of aspects on EU lobbying with chapters by academics and professionals. Greenwood (2017) is the fourth edition of the only textbook on the subject. Dür et al. (2019) offer a detailed account of the political infuence of business actors in the EU.

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Online resources • • •

Transparency register: https://ec.europa.eu/transparencyregister/public/homePage. do?locale=en#en Consultations open on the Commission proposals: https://ec.europa.eu/info/ consultations_en Transparency International EU’s Integrity Watch: https://www.integritywatch.eu/

References Alliance for a Competitive European Industry (ACEI) (2020) ‘Europe’s Industry - United for an inspiring future’, Brussels: ACEI. Berkhout, J., Beyers, J., Braun, C., Hanegraaff, M. and Lowery, D. (2018) ‘Making inference across mobilisation and infuence research: Comparing top-down and bottom-up mapping of interest systems’, Political Studies, 66(1), 43–62. Berny, N. (2008) ‘Le lobbying des ONG internationales d’environnement à Bruxelles’, Revue française de science politique, 58(1), 93–116. Berny, N. (2013) ‘Europeanization as organizational learning: When French ENGOs play the EU multilevel policy game’, French Politics, 11(3), 217–240. Berny, N. (2018) ‘Failing to preach by example? The EU and the Aarhus Convention’, Environmental Politics, 27(4), 757–762. Bouwen, P. (2004) ‘Exchanging access goods for access: A comparative study of business lobbying in the European Union institutions’, European Journal of Political Research, 43(3), 337–369. Coen, D. (2002) ‘Business interests and European integration’, in Balme, R., Chabanet, D. and Wright, V., eds., Collective Action in Europe, Paris: Presses de la Fondation Nationale des sciences politiques, 255–277. Coen, D. (2009) ‘Business lobbying in the European Union’, in Coen, D. and Richardson, J.J., eds., Lobbying the European Union: Institutions, Actors and Issues, Oxford: Oxford University Press, 185–168. Dialer, D. and Richter, M. (Eds.) (2009) Lobbying in the European Union: Strategies, Dynamics and Trends, Cham: Springer. Dür, A., Marshall, D. and Bernhagen, P. (2019) The Political Infuence of Business in the European Union, Ann Arbor: University of Michigan Press. Dür, A. and Mateo, G. (2016) Insiders versus Outsiders: Interest Group Politics in Multilevel Europe, Oxford: Oxford University Press. European Court of Auditors (2020) European Biodiversity on Farmland: CAP Contribution Has Not Halted the Decline, Special report. European Environment Agency (EEA) (2019) The European Environment —State and Outlook 2020: Knowledge for Transition to a Sustainable Europe, Copenhagen: European Environment Agency. Foucart, S. and Horel, S. (2018) ‘Monsanto Papers’, Accessible at: https://www.europeanpressprize.com/article/monsanto-papers/, accessed 22.09.2020. Giegold, S. (2020) ‘European Green Deal: Lobbyists try to water down a sustainable way out of the Corona crisis’, 23 April 2020. Accessible at: https://sven-giegold.de/en/green-deallobbyists-water-down/, accessed 3.07.2020. Grant, W. (2013) ‘Business’, in Jordan, A. and Adelle, C., eds., Environmental Policy in the EU: Contexts, Actors and Policy Dynamics, Environmental Policy in the EU, London: Routledge, 170–187. Green Cowles, M. (2002) ‘Large frms and the transformation of EU business associations: A historical perspective’, in Greenwood, J., ed., The Effectiveness of EU Business Associations, London: Palgrave, 64–78.

Interest groups 165 Greenwood, J. (2017) Interest Representation in the European Union, London: Macmillan International Higher Education. Klüver, H. (2013) Lobbying in the European Union: Interest Groups, Lobbying Coalitions, and Policy Change, Oxford: Oxford University Press. Laville, S. (2019) ‘Exclusive: Carmakers among key opponents of climate action’, The Guardian, 10 October. Lindblom, C. (1977) Politics and Markets, New York: Basic Books. Long, T. and Lörinczi, L. (2009) ‘NGOs as gatekeeper, a green vision’, in Coen, D. and Richardson, J.J., eds., Lobbying the European Union: Actors, Institutions, and Issues, Oxford: Oxford University Press, 169–185. Lukes, S. (2005) Power: A Radical View, London: Routledge. Mazey, S. and Richardson, J.J. (2015) ‘Shooting where the ducks are’, in Richardson, J.J. and Mazey, S., eds., European Union. Power and Policy-Making, London: Routledge, 419–443. McFarland, A.S. (1987) ‘Interest groups and theories of power in America’, British Journal of Political Science, 17(02), 129–147. Meckling, J. (2011) Carbon Coalitions: Business, Climate Politics, and the Rise of Emissions Trading. Cambridge: MIT Press. Michaels, L. and Ainger, K. (2020) ‘The climate smokescreen’, in Núria, A. and Jordi, X., eds., Climate Change Denial and Public Relations: Strategic Communication and Interest Groups in Climate Inaction, Abingdon: Routledge. Moore, B. and Jordan, A. (2020) ‘Disaggregating the dependent variable in policy feedback research: Analyzing the EU Emissions Trading System’, Policy Sciences, 53, 291–307. Mützel D. ‘EU transparency register fails to restrain lobbyists’, Euractiv.de, 1st June 2016. Parks, L. (2015) Social Movement Campaigns on EU Policy: In the Corridors and in the Streets, London: Springer. Rucht, D. (1997) ‘Limits to mobilization: Environmental policy for the European Union’, in Smith, J., Chatfeld, C. and Pagnucco, R., eds., Transnational Social Movements and Global Politics. Solidarity beyond the State, Syracuse: Syracuse University Press, 195–213. Simon, F. ‘Natural gas is a ‘caveat’ in energy transition, EU admits’, Euractiv.com, 29 May 2020. Sotirov, M., Stelter, M. and Winkel, G. (2017) ‘The emergence of the European Union Timber Regulation’, Forest Policy and Economics, 81, 69–81. Warleigh, A. (2001) ‘“Europeanizing” civil society: NGOs as agents of political socialization’, Journal of Common Market Studies, 39(4), 619–639. Wessels, B. (2004) ‘Contestation potential of interest groups in the EU: Emergence, structure, and political alliances’, in Marks, G. and Steenbergen, M.R., eds., European Integration and Political Confict, Cambridge: Cambridge University Press, 195–214.

Part 3

Policy dynamics

10 Agenda setting Sebastiaan Princen

Summary guide This chapter looks at the formation of the EU’s environmental policy agenda. After discussing what is meant by the term ‘agenda’ and what types of agenda can be discerned at EU level, it presents a theoretical framework for understanding agenda-setting processes. This framework highlights the interplay of issue frames and institutional venues as the main driver of agenda formation. It then discusses seven key characteristics of EU environmental agenda setting, which help to understand why issues come onto the EU agenda and what challenges and opportunities political actors face when they try to push an issue onto it. Although agenda-setting processes are relatively unstructured, agenda-setting processes do exhibit a number of regularities which refect the characteristics of the EU’s political system. It concludes that the analysis of agenda-setting dynamics has implications for the strategies that are used by prospective agenda setters to shape new EU policies.

Introduction In December 2019, Time Magazine named Greta Thunberg ‘person of the year’. Just over a year before, in August 2018, she had started her series of school strikes to increase awareness of climate change. Her actions inspired climate strikes and climate marches around the world, aimed at forcing politicians into greater action. She was not the frst to draw attention to the issue. In 2006, Al Gore’s movie An Inconvenient Truth made climate change the ‘talk of the town’ in Europe and North America. An issue that had hitherto interested a relatively small circle of experts and environmentally conscious citizens suddenly became a hot topic in public debate. As a result, politicians in several European countries embraced the issue, propelling it to the top of the political agenda in many of them. The issue also received a boost at the EU level, with the launch of new initiatives in subsequent years, eventually leading to a policy commitment to achieve climate neutrality in the EU by 2050 and the launch of the European Green Deal package (see Chapter 16). The story of climate change as an issue is a story of agenda setting. At any given point in time, some issues are considered important, given serious attention and prioritised by politicians, while other issues are considered less important and hence are neglected. The set of issues that receive considerable attention in a political system DOI: 10.4324/9780429402333-10

170 Sebastiaan Princen is called the political agenda (Kingdon, 2003: 3). Political agendas change over time. Issues may receive a lot of attention at one point in time (e.g., climate change in the years after 2006), but much less attention in other periods. This is equally true for environmental protection more generally: in some periods, this issue is considered to be politically ‘hot’, while in others, it is seen as secondary to other concerns. Environmental issues have certainly moved up and down the political agenda over the last 50 years (see Chapters 2 and 4). Studying (political) agendas is interesting and worthwhile for two reasons. First, being on the agenda is a necessary precondition for policy success. Only when issues receive attention (i.e., when they are being actively considered and policy makers devote effort and time to them) will they be subjected to new policy development (for further details, see Chapter 11). As a result, agendas are politically highly consequential. Second, the content of the political agenda is neither a ‘given’ nor directly related to objective or scientifc measures of the importance of problems. Whether or not an issue receives attention is the result of political processes and political decisions in which some issues are ‘played up’ while others are ‘played down’. Therefore, agenda setting is a fundamentally political process. In this chapter, I will take a closer look at agenda setting on environmental issues in the EU. How are political agendas formed? And what determines whether or not environmental issues come onto the EU agenda? To answer these questions, I will frst discuss in greater detail what is meant by ‘an agenda’. Then, I will present a popular theoretical framework that can be used to understand agenda-setting processes. On the basis of this conceptual and theoretical foundation, the second part of the chapter will focus on the dynamics of environmental agenda setting in the EU, going through seven key characteristics that may help us understand why and how environmental issues come onto the EU agenda.

Summary points • • •

The political agenda consists of the set of issues that receive considerable attention in a political system. The content of the agenda determines which issues will be subjected to policy making and decision making, and, hence, is politically consequential. Which issues are on the agenda at a given point in time is determined by political processes.

What are political agendas? In the Introduction, the concept of a ‘political agenda’ was used as if there is only a single agenda in a given political system. However, different types of agenda can be discerned, depending on who is giving attention. The political agenda can be defned as the set of issues that receive attention from politicians and policy makers. In addition, there is also a ‘public agenda’ (the set of issues that are considered important in public opinion) and a ‘media agenda’ (the set of issues that receive a lot of attention in the media). These agendas affect each other. For example, one reason why many politicians have embraced climate change as an issue in recent years is that the issue

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has become more important among the public, which, in turn, is partly a result of greater media coverage of extreme weather events, the launch of government reports and protests by people such as Greta Thunberg. Nevertheless, they are not identical. At any given point in time, some issues may be important for politicians and policy makers that do not necessarily loom large in public opinion or receive much attention in the media, and vice versa. Therefore, it is important to distinguish between them. In each of these main types of agenda, different sub-agendas can be discerned. If we limit ourselves to the political agenda in the EU, there may be an overall set of EU priorities (the EU’s political agenda), but each of the EU’s institutions also has its own agenda. Thus, the European Parliament’s agenda may not be identical to the agenda of the European Council or the European Commission. And within those institutions, even further subdivisions exist. Within the European Commission, for instance, the agenda of DG Environment will be different to DG Trade’s (for details, see Chapter 6). Hence, what we have is not one ‘agenda’, but a range of partly overlapping, partly hierarchically ordered agendas, which affect each other, but also have their own internal dynamics. In addition to the variety of agendas, it is also important to bear in mind that ‘the agenda’ is not a fxed set of issues. According to the defnition given above, an issue is ‘on the agenda’ if it receives ‘serious’ or ‘considerable’ attention, i.e., if it does not, it is ‘off the agenda’. In reality, the dividing line between being ‘on’ and ‘off’ the agenda is not always clear. Moreover, attention for issues that are said to be ‘on the agenda’ may also differ, with some receiving more attention than others or specifc levels of attention varying over time (as we saw for climate change, see above). Hence, rather than trying to defne some (arbitrary) threshold to distinguish between issues that are on and issues that are off the agenda, it is more useful to think of an agenda as a continuum, with issues ranging from less to more attention. The main political struggle over agendas is concerned with moving issues up or down that agenda.

Summary points • • •

Different types of agenda can be discerned, including the political agenda, the media agenda and the public agenda. Within the EU’s overall political agenda, specifc agendas can be identifed for each of the EU’s institutions and also for sub-units within them. Agenda processes revolve around attempts to move issues up or down agendas.

Frames and venues in agenda setting Why do some issues go up the agenda while others go down or are ignored altogether? This section presents a theoretical framework that can be used to answer that question. It is based on the work of two American political scientists, Frank Baumgartner and Bryan Jones (in particular Baumgartner and Jones, 2009). Although it was developed in the context of domestic (i.e., US) agenda setting, it has been shown to be equally applicable to agenda setting in the EU (cf. Princen, 2016). The basic idea of their theoretical framework is that the rise and fall of issues on the political agenda are determined by the interplay of two factors: issue frames and institutional venues. By using or manipulating these two factors, policy actors seek to

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affect the scope of participation on an issue by involving actors who are supportive of their cause and keeping out their opponents. In that way, they try to reach the most receptive audience for their claims. The frst element in agenda setting is framing. Framing is the process of defning an issue, and the problem underlying it, in certain terms. Framing is important because most issues can be framed in different ways. Take the example of genetic modifcation in food crops, an issue that has waxed and waned on the EU agenda over the past few decades. What is at stake in this issue? Depending on one’s point of view, possible answers include: • • • • • •

Developing more effcient methods of growing crops in order to increase the competitiveness of the agricultural sector; Creating better tasting or more nutritious crops that improve the health of consumers; Finding ways to increase agricultural production in developing countries, thus decreasing hunger and poverty in the world; Misleading consumers by inserting artifcial genes into their food, whose longterm effect on human health maybe uncertain; Creating novel crops that have the potential to crowd out other species and thereby reduce biodiversity; Tampering with Nature in a show of human hubris vis-à-vis the natural order of things.

All of these perspectives on genetic modifcation have been highlighted by participants in the debate on the technology. They represent many different frames of ‘the issue’ of genetic modifcation, which have informed a number of EU policies, including Directive 2001/18, concerning the deliberate release into the environment of GMOs. Note that the political tone of the six frames presented above is very different. The frst three frames stress the positive potential of genetic modifcation, whereas the fnal three frames emphasise the potential negative consequences. Much of the debate on this issue has revolved around attempts by proponents and opponents to promote their frame at the expense of others. In doing so, frames are used to stir up (or, as the case may be, dampen) interest in an issue and thus to alter the balance of proponents and opponents around it. When environmental NGOs evoke the specter of health threats and a large-scale loss of biodiversity, they hope to achieve two things. First, they hope to raise interest in the issue among people who are not (yet) concerned about it (for other examples, see Chapter 9). Second, they hope to convince people to oppose the technology by making the negative potential consequences more salient. Proponents of the technology adopt exactly the opposite approach: they try to convince people there is little to worry about (‘the technology is scientifcally tested and safe in our hands’) and they try to give it a positive connotation (‘cheaper, healthier food for all’), e.g., by promoting so-called ‘golden rice’, which is genetically modifed to contain more vitamin A. Frames are politically signifcant because they have very different policy implications. The frst three (positive) frames all imply a wider use and further spread of genetically modifed crops. The other three (negative) frames, by contrast, imply a containment of or even a ban on using genetic modifcation in food crops. Therefore, once a certain frame becomes dominant and is not seriously contested, it largely determines the type of policy to be pursued (Rochefort and Cobb, 1994).

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The effect of framing is both mediated and reinforced by the second element in the theoretical framework: the existence and characteristics of institutional venues. Policy making does not take place in an institutional void. In modern political systems, policy making takes place within distinct institutional loci, such as government departments and parliamentary committees. These are called policymaking ‘venues’. Venues differ in terms of the types of issue they are likely to take up; generally speaking, they focus on issues that tie in with their institutional remit (Princen, 2009: 35). As a result, venues will tend to give attention to issues that are framed in terms that relate to their remit and ignore issues that are framed in terms that have nothing to do with their remit. This offers room for moving issues between venues. After all, as we saw above, whether or not an issue is an ‘environmental issue’ or an ‘economic issue’ depends on the way it is framed. If genetic modifcation is seen as a relatively risk-free technology that has great economic potential, policy making will most likely take place in an economic policy venue, such as the European Commission’s DG Internal Market, Industry, Entrepreneurship and SMEs (also known as ‘DG GROW’). But if genetic modifcation is seen as an inherently risky technology that may adversely affect the environment, then policy making will likely take place in an environmental venue such as DG Environment. Hence, if an issue is framed in a certain way, it is more likely that it will be taken up by some venues and not by others. Therefore, the choice of venue signifcantly also affects subsequent policy processes (for some examples, see Chapter 11). An important part of agenda setting consists of attempts to steer an issue towards a certain, more receptive venue. Actors within a venue may do this for themselves, for example, when they try to gain a foothold over policy making in a certain feld. It may also be a strategy by outside actors, a role often played by environmental NGOs in the EU, who frame an issue in a certain way in order to target the venue that they believe is most favourable to them. The latter strategy is called ‘venue shopping’ (Baumgartner and Jones, 2009: 36). In the end, agenda setting revolves around the interplay between framing and venues. By framing issues in a certain way, it becomes more (or less) likely that a given venue will pick up that issue. Conversely, when a certain venue deals with an issue, it is likely to defne it in terms that ft its pre-existing remit and preoccupations. As long as there is one dominant issue frame and a stable set of venues dealing with it, an issue will not gain much attention and be low on the agenda. However, when an issue frame is contested and/or attempts are made to shift policy making from one venue to another, the issue will become more salient and rise up the political agenda. This theoretical framework applies to the EU in two ways. First, the EU as a whole can be seen as a venue vis-à-vis the member states and other international organisations. One can then analyse how and why issues move from those other venues to the EU and vice versa, thus exemplifying multilevel governance. Second, the EU, in turn, consists of a range of venues (the institutions and units within those institutions). One can think of the European Commission (Chapter 6) and the European Parliament (Chapter 8) as distinct policy venues in the EU. Agenda setting in the EU can also be understood in terms of the dynamics between these and other venues, such as the Council and the Court (see Chapters 5 and 7, respectively).

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Summary points • • •

Agenda setting can be understood in terms of the interplay between different issue frames and institutional venues. Framing consists of attempts to defne an issue in certain terms, so as to stir up or deny attention for that issue and thus change the balance of political support and opposition. Institutional venues are more receptive to issues that relate to their core remit. They will engage more actively with issues that are aligned with it.

The characteristics of agenda setting in the EU In the previous section, a general theoretical framework for understanding agendasetting processes was presented. In the remainder of this chapter, we will take a closer look at the dynamics of environmental agenda setting in the EU. This discussion will be structured along the lines of seven key characteristics of EU environmental agenda setting: 1 2 3 4 5 6 7

The EU as a multilevel system; The interlinkages between the EU and other international organisations; Agenda setting amidst variety; The limited role of public opinion; The role of focusing events; Links with other policy areas; From new issues to ongoing concerns.

Together, these characteristics provide a way to understand the context in which agenda setting on environmental issues takes place, and of the kind of challenges and opportunities that political actors face when they try to bring environmental issues onto the EU’s agenda. The EU as a multilevel system The EU is part of a multilayered system of governance, which is often described as a system of ‘multilevel governance’ (Hooghe and Marks, 2001). A crucial characteristic of multilevelled systems is that issues are dealt with at several levels simultaneously. Thus, the different levels of government do not simply specialise in specifc issues; rather, the same can be taken up at different levels at the same time. Chapter 20 concludes that EU environmental policy is an area of multilevel governance par excellence (Fairbrass and Jordan, 2004). One reason for this is that many environmental issues occur at multiple geographical scales, which are often intertwined. For instance, air pollution is partly a local problem, with a large variation in air quality between parts of Europe and local sources of pollution (such as car emissions). Yet it is also linked with other parts of the continent and even the wider world because pollutants are carried over long distances from this original source to other regions.

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Hence, the effects and causes of environmental issues are sometimes local, sometimes European and sometimes global. Moreover, cause and effect are sometimes closely linked geographically (more household waste leads to more pollution on local garbage dumps), but sometimes, they lie far apart (pollution of a river in one country leads to poorer water quality in another country). Where one level begins and another ends is often unclear, hence the continuing debate about task allocation in the EU (for a favour of it, see Chapters 2 and 4). The EU’s multilevel character, coupled with the almost intrinsic multilevel character of environmental problems, has a number of consequences for agenda setting on EU environmental issues. These consequences involve both challenges and opportunities for actors who want to place an environmental issue on the EU agenda. The main challenge revolves around the question: why should this issue be dealt with at the EU level? In a unitary political system, as one fnds in many EU states, it is self-evident that the central government can take up any issue it wishes to. But in a system of multilevel governance, by contrast, the allocation of issues to different levels is not self-evident and in fact is often deeply contested. Within the EU, the general rule for allocating issues is given by the principle of subsidiarity found in the founding treaties. It states that the EU can only act if the issue cannot be dealt with at least equally well by the member states. However, this is far from a hard and fast rule. After all, when is an issue ‘better’ or ‘equally well’ dealt with at the member state level? How does one measure this and what is the threshold for saying the EU does a better job than member states? Nevertheless, the subsidiarity principle does provide an argumentative challenge for prospective agenda setters, and it provides ammunition for actors opposed to the inclusion of an issue on the EU agenda. Therefore, interest groups who want to place an issue on the EU agenda have to make a convincing argument that the EU is a suitable level for dealing with their issue (for examples, see Chapter 9). In other words, they have to frame it in European terms because of the EU’s institutional remit (Princen, 2009: 39–40). For some issues, this is fairly easy, in particular if the causes and/or effects of the environmental problem can be argued to be cross-border. For other issues, however, such a link is more diffcult to make. Box 10.1 gives an example of how the European Commission dealt with this argumentative challenge in its proposal to ban certain disposable plastic products. Having said this, the EU’s multilevel character also offers incentives to and opportunities for political actors who want to place an issue on its agenda. Since issues are often dealt with at multiple levels, actors who are unsuccessful at one level may try again at another level, i.e., attempt a form of venue shopping. The EU level is particularly attractive for actors (e.g., politicians, civil servants and interest groups) who have diffculties getting things on agendas and/or having their preferred policies adopted domestically. Throughout the history of EU environmental policy, environmental NGOs have been attracted to Brussels for this very reason. If the political context is more receptive to their issue at the EU level than at the domestic level, such actors can use the EU to bypass domestic resistance and have policies considered or even adopted at EU level that would be unfeasible domestically. In the Europeanisation literature, this is known as uploading (see also Chapter 4) (Beyers and Kerremans, 2011). This strategy is particularly powerful because the distinction between what ‘belongs’ at the EU level and what is ‘better’ dealt with at the member state level is often fuzzy, leaving room for pushing issues at either or even both levels. This has been one of the drivers of agenda-setting dynamics on environmental (and other) issues.

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Box 10.1 Framing the issue of disposable plastics On 28 May 2018, the European Commission presented a proposal for a directive to ban certain disposable plastic products, such as cotton buds, cutlery, plates and straws made of plastic, and restrict others (European Commission, 2018). In the explanatory memorandum, it sought to frame the issue in such a way as to make it acceptable to as wide a set of actors as possible. To this end, it used several lines of argument: • •

• •

This was a serious problem: single-use plastics make up about 50% of all marine litter found on European beaches and it damages sea life. This was European (rather than a domestic) issue because: (1) marine litter moves across borders; and (2) in the absence of EU-wide rules, individual member states would adopt their own measures, which would cause barriers to trade within the EU. Banning disposable plastics ties in with several international commitments undertaken by the EU, such as the UN Sustainable Development Goals (SDGs). A ban on plastics would be good for the economy, stimulating innovation in alternatives and thereby increasing the competitiveness of European businesses (another longstanding objective of EU policy).

These lines of argument not only served to show that the proposal would have signifcant benefts, but also to substantiate the claim that the EU (rather than individual member states) should be taking these measures. To that end, the proposal employed a mix of environmental, institutional and economic arguments. This is typical of framing strategies around new EU policy initiatives. Although their success varies. In this case, the proposed approach was successful – it was adopted on 5 June 2019 (as Directive 2019/904).

The interlinkages between the EU and other international organisations The multilevel character of environmental issues is not restricted to the EU. Many environmental issues are also dealt with at the global level (see also Chapters 3, 15 and 16). As a result, the EU is part of an even larger system, which includes many levels  – local, regional, national, European and global. Many of the dynamics that were described above also apply between the EU and global levels. Political actors can strategically and selectively ‘plug’ issues in global institutions in order to have their voice heard domestically (Keck and Sikkink, 1998) or at EU level. Chapters 3 and 15 show how the global level has been an important driver of the EU’s political agenda. As a result, an important part of the EU’s environmental policy agenda is a result of international developments, including the negotiation and conclusion of international treaties. The direction of infuence goes both ways, however. While international developments affect the EU agenda, the global environmental agenda is, in turn, shaped by the activities of political actors from within states and regions, including the EU.

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This also means that global environmental institutions offer opportunities for European actors to infuence the EU environmental agenda. By placing an issue on the global agenda, actors can put pressure on EU policy makers to take up that issue as well. An example of this is how the rise of the concept of ‘biodiversity’ in global environmental politics, and the conclusion of the Convention on Biological Diversity in 1992, led to a greater role for environmental considerations in EU fsheries policy. By framing overfshing in terms of the (globally developed and accepted) concept of ‘biodiversity’, European environmental NGOs were able to involve EU environmental policy makers into a policy area that had hitherto been dominated by fsheries interests (Princen, 2010). Another example was the original UN conference held in Stockholm in 1972 (see Chapter 2). Agenda setting amidst variety Agenda setting revolves around identifying and defning problems. In environmental politics, much depends on one’s perceptions of actual environmental conditions and the relative importance of environmental protection as compared to other values and objectives. On both accounts, great diversity exists across the EU, because of differences in natural conditions, levels of economic development, cultural understandings of environmental issues and political systems between (and sometimes within) individual member states. As a result, the overall importance attached to environmental protection as well as the attention for specifc environmental issues vary across the European continent, much more so than in any of its member states (but more similar to what can be found in the USA or Canada). Since actors from the EU member states (be they politicians, civil servants or interest groups) play an important role in defning the EU agenda, this has also affected the EU agenda. Traditionally, the literature on environmental policy making in the EU distinguished between a number of (Northern European) ‘environmental leaders’ (most notably Denmark, Germany and the Netherlands) and another set of (Southern European) ‘laggards’ (Sbragia, 1996: 237; Liefferink and Andersen, 1998: 254) (see also Chapters 2 and 5). Agenda-setting dynamics around environmental issues were then explained in terms of the struggle between these blocs, and in particular, the initiatives taken by the ‘green’ member states. Although this North–South divide has become less marked since the mid-1990s, differences between more and less environmentally conscious member states continue to exist (see Chapter 5 for more details). Environmentally conscious member states exert a particular infuence on the EU’s environmental agenda because they are both more willing and able to invest time and effort in developing an issue. They tend to concentrate on those issues that are closest to their interests and ignore issues they care less about. Moreover, it is easier for political actors in those states to play an active role on an issue if they have suffcient expertise and person power. The member states that have the most progressive environmental policies are often those that have the most experts working on environmental issues. As a result, in most cases, only a subset of member states is actively involved in the process of agenda setting, such as the member states that form the Green Growth or Visegrad groups. These tend to be those member states for which a particular environmental issue is particularly important. Despite the important role of member states in environmental agenda setting, one should not focus exclusively on the differences between member states. Equally

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signifcant are the differences within member states. For instance, right-wing parties and left-wing parties within a particular state normally have very different ideas about the relative importance of environmental protection and specifc environmental problems. The same is true for environmental groups and industrial interests within a member state. These different approaches can also be found within the EU institutions. As we saw above, the Commission is not a unifed institution, but consists of different DGs, each with its own institutional interests and agenda. In actual policy-making processes, the crucial political dividing line is therefore often between competing ‘advocacy coalitions’ (Jenkins-Smith et al., 2018), which bring together like-minded actors. One advocacy coalition may consist of DG Environment, the EEA, a number of environmentally minded MEPs and environmental policy makers and NGOs from a number of member states. Another may consist of DG GROW, trade-oriented MEPs and economic policy makers and interest groups from those same member states. This arrangement changes the political playing feld compared to a situation in which single member states (rather than broader advocacy coalitions) are pitted against each other. The limited role of public opinion In democratic domestic political systems, public opinion is an important source of agenda setting. When an issue becomes important to the public, it is likely also to move higher up the political agenda. Our running example of climate change is a good case in point. The reason for this is that politicians have an incentive to respond to public opinion. If an issue is important to citizens, they can gain public support by taking up that issue. This, in turn, may improve their chances of success in the next elections. In the EU, public opinion arguably plays a smaller role when compared to each of its member states and other democratic countries (see Chapter 18). There are two reasons for this (Imig and Tarrow, 2000; Princen, 2009: 37–38). The frst reason is that EU decision makers are less dependent on public opinion than are domestic politicians. Unlike governments in presidential or parliamentary systems, the Commission is ‘elected’ neither directly nor indirectly. Ministers in the Council of Ministers (and heads of government in the European Council) answer to their parliaments and voters, but because there are 27 participants, it is very diffcult to hold individual participants to account for what is decided. The European Parliament, fnally, is directly elected, but studies of voting behaviour show that European elections are decided on national issues, not European ones (e.g., Schmitt and Toygür, 2016) (see Chapter 8). All in all, therefore, the EU’s political system is structured in such a way that EU decision makers do not need to be as attentive to public opinion as domestic politicians. Second, it is more diffcult to mobilise public opinion at EU level than within a single member state. As we saw above, member states vary in the overall importance attached to environmental issues and to the specifc environmental issues they worry about. In addition, it is diffcult to mobilise public opinion in all member states at the same time because the EU’s public sphere is highly fragmented, if only because media systems are organised along national lines. As a result, it is rare for a single issue to become important in most member states at the same time. Climate change has been an example of such cross-border public mobilisation, but it is quite exceptional in this regard and even then, public sentiment has not been equally strong in all parts of the EU.

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This is not to say that public opinion plays no role at all in the EU. However, its effects are more indirect and, when it comes to environmental issues, occur most strongly around issues that have widespread appeal in a large number of member states. The role of focusing events Apart from general swings in public opinion, environmental issues can also be propelled up the political agenda in response to highly salient, much-publicised events that draw attention to a given issue. The quintessential example in environmental policy was the Chernobyl disaster in 1986, which drew strong attention to the risks of nuclear energy. Other examples were the large-scale oil spill caused by the sinking of the oil tanker Prestige off the coast of Spain in 2002 and the major industrial accident in a chemical plant near the Italian town of Seveso in 1976. Each of these disasters eventually led to EU responses and legislation, as documented in Chapter 2. These events have left an indelible mark on policy. For instance, the chemical accident in Seveso led to a directive aimed at the prevention of industrial accidents and limiting their impact, which is still known as the ‘Seveso Directive’. Likewise, the ‘Erika Package’, consisting of a range of directives and regulations aimed at improving the safety of oil transport by sea, was adopted after a major oil spill in the Bay of Biscay caused by the oil tanker Erika in 1999. It was further strengthened after the Prestige accident. Such events have been dubbed ‘focusing events’ by the American scholar John Kingdon (2003: 94–100) (see also Birkland, 1998). Focusing events are powerful because they put one particular (aspect of an) issue in the spotlight, while simultaneously detracting attention from other (aspects of) issues. As they increase the awareness of a particular problem, so people will tend to give greater priority to that problem. For a (brief) period of time, that problem seems to be much more important than other problems, catapulting it up the political agenda as calls for action to remedy it mount. Focusing events do not speak for themselves. An important role in interpreting framing events is played by political actors who seek to frame them in such a way as to support their preferred cause. For political actors, crises and disasters are opportunities that they can use to sway the opinion of (other) policy makers and the general public in their direction. To that end, they actively try to frame events in ways that ft with their own interests. Lobby groups in particular devote huge amounts of their time to framing problems. They can do this because the causes, consequences and implications of major crises are not always clear. To give another nuclear energy-related example: what were the implications of the meltdown in the Fukushima nuclear power plant in Japan after the tsunami of March 2011? Did it show that nuclear energy is inherently unsafe and should therefore be phased out in Europe? Or did it merely show that nuclear power plants should not be built in earthquake-prone areas, of which there are relatively few in Europe? During and after the crisis, it was exactly this type of political debate that was being waged, with different actors in different countries promoting arguments that best ftted their interests and preconceived positions. Focusing events may lead to activity at EU level because domestic politicians can use EU action as a way to address the concerns of their (domestic) constituencies. Moreover, large-scale environmental disasters have the potential to focus attention and public opinion in a wide range of member states at the same time, overcoming the

180 Sebastiaan Princen limits of the EU’s fragmented linguistic and media landscape. As a result, focusing events can affect the public agendas of a large number of member states simultaneously, which pushes the issue onto the EU agenda. Links with other policy areas Environmental issues are closely linked with other policy areas, not just in the EU but elsewhere. For instance, if one wants to reduce air pollution, any policy proposal one can conceivably come up with (e.g., switching from fossil-fuelled power plants to renewable energy sources, taxing the use of cars or strengthening emission standards for trucks) will have implications for other areas, such as economic development, urban planning and transport. Often, these implications are negative: higher taxes on fossil fuels may hamper economic development, make it more expensive for people to use their cars or require costly investments by government (e.g., development of alternative energy sources) or frms (e.g., installing new pollution-abatement devices). In the EU, the many links between the environment and other issue areas both pose challenges and offer opportunities for would-be agenda setters. The main challenge consists of gaining attention for the environmental aspects of an issue vis-à-vis other aspects, in particular, economic development. In the EU, this struggle is reinforced by the EU’s institutional remit. The EU started as an economic union, and economic issues still form the core of the EU’s raison d’être (see Chapters 1–3). Institutionally, it is refected by the fact that the Commission’s economic DGs (Competition, Economic and Financial Affairs, GROW, Trade) are considered the most important and powerful within the Commission (see Chapter 6 for details). Since promoting the economic development of its member states is a core task for the EU, issues and arguments that relate to economic development have a much greater chance of reaching the EU agenda than issues and arguments that do not. For this reason, a classic strategy in EU agenda setting – and interest group lobbying more generally – has been to present an issue in economic terms (see also Chapter 9), even when it is not overtly economic in nature. The key thing is to frame a given issue as making a contribution to economic development. An example is the argument that stricter environmental protection measures will yield economic benefts because they create an incentive for frms to develop and invest in innovative technologies, which will strengthen their position on world markets vis-à-vis competitors from outside the EU. This was also part of the arguments given by the Commission in its proposal for a ban on single-use plastics, highlighted in Box 10.1 above. Another example was the report published by DG Environment in April 2019, which claimed that the costs of not implementing EU environmental law amounted to €55 billion per year. Together, such arguments are part of a wider discourse that has been termed ecological modernisation (see Chapters 4 and 9). Whether or not these are actually valid arguments, what is important for understanding agenda-setting processes is to recognise the strategic value of employing them in policy processes. By presenting environmental protection not (just) as a beneft to the environment but as a contribution to the economy (‘ecological modernisation’), the potential trade-off between environmental protection and economic development is reversed. This makes the issue appealing to the policy makers operating in venues that are chiefy interested in economic development, which, in turn, increases the chances of it climbing up the political agenda.

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Above, we saw how linking environmental protection to another issue area can both present a hurdle (when environmental protection is perceived to go against another cherished political objective) and offer opportunities (when environmental protection is perceived to contribute to another cherished political objective). This type of strategic issue linkage can also occur with other areas than economic development. A classic strategy, often employed by the Commission, for bringing issues to the EU agenda has been to link them to the internal market (see Chapter 2). The argument then is that an issue needs to be dealt with because it involves barriers to trade. This argument was particularly important in the early years of EU environmental policy, before a separate legal basis was included in the Single European Act. Even today, however, links to the internal market can be used strategically to increase the chances of agenda access for an environmental issue (as we also saw in the case of the ban on single-use plastics in Box 10.1), or to promote environmental policy integration (see Chapter 12). From new issues to ongoing concerns EU environmental policy in the 1970s and 1980s was marked by the rapid buildup of a body of legislation that covered a range of issues previously not dealt with at EU level. Since the 1980s, new issues have been taken up, but in addition, an increasing proportion of the environmental agenda has been taken up by debates on the revision of existing legislation. As a result, the proportion of EU environmental legislation that amends previous laws has steadily increased over time (see McCormick, 2001: 64, for the period 1973–1999). The systematic evaluation and updating of existing legislation has been institutionalised as part of the European Commission’s better regulation agenda, which includes impact assessment, and the evaluation and ‘ftness checking’ of existing directives and regulations (for more details, see Chapters 6, 14 and 19). As a result, agenda-setting processes have taken on a somewhat different character. For most environmental issues, the key question no longer is: ‘should the EU be involved?’ but ‘what should the EU be doing?’ And the point in getting the issue on the EU agenda is no longer to make the EU take it up, but to change existing policies (strengthening or weakening them, depending on a political actor’s objectives). This change in both the stakes of and the key struggles in agenda-setting strategies marks a shift from ‘new issues’ to ‘ongoing or recurring concerns’, in turn, raising new analytical challenges for EU scholars (see Chapter 19). Some debates on existing legislation concern fundamental aspects of an issue. Most amendments, however, concern very specifc and often highly technical updates of existing regulatory standards. Table 10.1 gives a sample of offcial Commission documents (so-called COM documents – or ‘COM docs’) published in the frst six months of 2019 for which DG Environment was responsible. It includes 8 out of the 16 COM documents published by DG Environment in that period. These give a feel for the kind of environmental issues that are currently on the EU agenda (besides climate change, which falls under a separate DG for Climate Action). Crucially, almost all the documents relate to issues that were already subject to EU policies and legislation. Some documents concern issues that are relatively broad and strategic in scope, such as the report on the Seventh Environment Action Programme and the review of the green infrastructure strategy. Most, however, deal with narrower issues such as the report on (waste) batteries and accumulators or the proposal to list methoxychlor in Annex A to the Stockho Pollutants. Related to this, most documents

182 Sebastiaan Princen Table 10.1 A sample of COM documents from DG Environment (published between 1 January and 30 June 2019) COM number

Title

COM(2019)82

Proposal for a Council Decision on the submission, on behalf of the European Union, of a proposal for the listing of methoxychlor in Annex A to the Stockholm Convention on Persistent Organic Pollutants Report on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species Report on the implementation of the Water Framework Directive (2000/60/ EC) and the Floods Directive (2007/60/EC) Second River Basin Management Plans First Flood Risk Management Plans Communication on the European Union Strategic Approach to Pharmaceuticals in the Environment Proposal for a Council Decision on the position to be taken on behalf of the European Union at the 18th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES CoP18) Report on the implementation and the impact on the environment and the functioning of the internal market of Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC Report on the evaluation of the Seventh Environment Action Programme Review of progress on implementation of the EU green infrastructure strategy

COM(2019)85

COM(2019)95 COM(2019)128 COM(2019)146

COM(2019)166

COM(2019)233 COM(2019)236

Source: Eur-Lex database (2019).

deal with the implementation, evaluation and further specifcation of existing legislation, rather than the development of new legislation. Little publicised as they may be, these issues are an important part of the EU environmental agenda – and they form an increasingly large part of it. As a result, the agenda dynamics around EU environmental policy have become focused more on updating existing policies than on building up the EU’s role in environmental policy (the standard focus of the EU integration literature) (for a more detailed summary, see Chapters 4 and 19).

Summary points • • •

Agenda setting on environmental issues in the EU takes place within a multilevel system, which spans local, regional, national and global levels. Environmental agenda setting in the EU is strongly affected by the EU’s specifc geographic, institutional and political characteristics. Over time, the EU’s environmental agenda has focused less on completely new issues and more on the revision of existing policies and legislation.

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Conclusion This chapter has introduced and highlighted the dynamics of agenda setting in EU environmental policy. It has sought to provide an understanding of how and why (certain) environmental issues come onto the EU’s political agenda. Agenda setting is a relatively fuid stage of the policy-making process, because issues and participants have not yet crystallised. In fact, agenda setting is exactly about determining what issues will be dealt with, when and by whom. This makes agenda setting an elusive phenomenon, which is strongly affected by idiosyncratic factors, such as the occurrence of sudden media ‘hypes’ and unexpected focusing events. Nevertheless, there is order in these seemingly chaotic processes. As this chapter has shown, environmental agenda setting in the EU refects the institutional and political characteristics of the EU’s political system. As a result, agenda-setting processes in the EU show similarities with agenda-setting processes that can be observed elsewhere. Nonetheless, there are a number of specifcities that fow from the way the EU has been organised and operates, such as the EU’s multilevel character, the variety of perspectives on environmental protection among its member states, the relatively limited role of public opinion in EU decision making and the EU’s institutional remit and decision-making procedures. Although it remains extremely diffcult to predict precisely which issues will be on the top of the EU (environmental) agenda a few years from now, the order in EU agenda-setting processes can help to understand what is happening now and why. In addition, the analysis of agenda-setting dynamics presented in this chapter has clear implications for the kinds of agenda-setting strategies that political actors such as environmental NGOs decide to use and the challenges they face when employing them (see also Princen, 2011). As a result, attempts to infuence the agenda, either by bringing issues onto it or by keeping them off, have become an integral part of the activities of actors in EU environmental policy making.

Summary points • • •

Since agenda-setting processes are relatively unstructured, their outcome is often diffcult to predict in advance. Nevertheless, EU agenda-setting processes show a number of regularities and recurring dynamics, which refect the characteristics of the EU’s political system. The analysis of agenda-setting dynamics has implications for the strategies that are used by prospective agenda setters and their strengths and weaknesses.

Key questions 1 2

Why is an understanding of agenda-setting processes so important for comprehending environmental policy making in the EU? How do issue framing and institutional venues affect the likelihood that a given issue will come onto the EU’s political agenda?

184 Sebastiaan Princen 3 4 5 6

What consequences does the multilevel character of environmental policy making have for agenda-setting processes in the EU? Under what conditions would you expect public opinion to play a small/ large role in agenda setting on environmental issues in the EU? What does the shift from new issues to ongoing concerns mean for agendasetting processes related to EU environmental issues? Overall, do you think it is easier or more diffcult for environmental issues to come onto the EU’s political agenda than it is for them to come onto the political agenda of the country that you live in?

Guide to further reading • • • •

Kingdon (2003) has written one of the most infuential books on agenda setting. It proposes a framework based on three interacting ‘streams’ of policy making. Baumgartner and Jones (2009) develop and apply an agenda-setting theory based on the interplay of frames and venues. Princen (2011) gives an overview of the various strategies used by political actors to bring issues onto the EU agenda. Princen (2016) provides an overview of the development and state-of-the-art on EU agenda setting, with references to the wider literature.

Online resources • • •

For new and upcoming policy initiatives, you can take a look at the European Commission’s webpage for public consultations: https://ec.europa.eu/info/ consultations_en The EU’s Environmental Action Programme, which identifes priority issues for a period of multiple years: https://ec.europa.eu/environment/action-programme The EU Policy Agendas Project, an academic project aimed at studying policy agendas in the EU: http://www.policyagendas.eu

References Baumgartner, F.R. and Jones, B.D. (2009) Agendas and Instability in American Politics, 2nd edition, University of Chicago Press, Chicago, IL. Beyers, J. and Kerremans, B. (2011) ‘Domestic embeddedness and the dynamics of multi-level venue-shopping in four EU member states’, Governance, vol. 25, no. 2, pp. 263–290. Birkland, T.A. (1998) ‘Focusing events, mobilization, and agenda setting’, Journal of Public Policy, vol. 18, no. 1, pp. 53–74. European Commission (2018) Proposal for a Directive of the European Parliament and of the Council on the Reduction of the Impact of Certain Plastic Products on the Environment, COM (2018) 340, Brussels: 28 May 2018. Fairbrass, J. and Jordan, A. (2004) ‘Multi-level governance and environmental policy’, in I. Bache and M. Flinders (eds) Multi-Level Governance, Oxford University Press, Oxford, pp. 147–164.

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Hooghe, L. and Marks, G. (2001) Multi-Level Governance and European Integration, Rowman and Littlefeld, Lanham, MD. Imig, D. and Tarrow, S. (2000) ‘Political contention in a Europeanising polity’, West European Politics, vol. 23, no. 4, pp. 73–93. Jenkins-Smith, H.C., Nohrstedt, D., Weible, C.M. and Ingold, K. (2018) ‘The advocacy coalition framework: An overview of the research program’, in C.M. Weible and P.A. Sabatier (eds) Theories of the Policy Process, 4th edition, Routledge, New York, pp. 135–172. Keck, M.E. and Sikkink, K. (1998) Advocates beyond Borders: Advocacy Networks in International Politics, Cornell University Press, Ithaca, NY. Kingdon, J.W. (2003) Agendas, Alternatives, and Public Policies, 2nd edition, HarperCollins College Publishers, New York. Liefferink, D. and Andersen, M.S. (1998) ‘Strategies of the “green” member states in EU environmental policy making’, Journal of European Public Policy, vol. 5, no. 2, pp. 254–270. McCormick, J. (2001) Environmental Policy in the European Union, Palgrave, Basingstoke. Princen, S. (2009) Agenda Setting in the European Union, Palgrave, Basingstoke. Princen, S. (2010) ‘Venue shifts and policy change in EU fsheries policy’, Marine Policy, vol. 34, no. 1, pp. 36–41. Princen, S. (2011) ‘Agenda setting strategies in EU policy processes’, Journal of European Public Policy, vol. 18, no. 7, pp. 927–943. Princen, S. (2016) ‘Agenda setting in the European Union: From sui generis to mainstream’, in N. Zahariadis (ed.) Handbook of Public Policy Agenda Setting, Edward Elgar, Cheltenham and Northampton MA, pp. 348–366. Rochefort, D.A. and Cobb, R.W. (eds) (1994) The Politics of Problem Defnition: Shaping the Policy Agenda, University Press of Kansas, Lawrence. Sbragia, A. (1996) ‘Environmental policy: The push-pull of policy-making’, in H. Wallace and W. Wallace (eds) Policy-Making in the European Union, Oxford University Press, Oxford, pp. 235–255. Schmitt, H. and Toygür, I. (2016) ‘European Parliament elections of May 2014: Driven by national politics or EU policy making?’, Politics and Governance, vol. 4, no. 1, pp. 167–181.

11 Policy making Henning Deters

Summary guide This chapter examines how the EU transforms political issues and demands into policy decisions via the policy process. Due to its multi-faceted nature, the EU environmental policy process cannot be captured fully by a single theory. Instead, it is shaped by a combination of different processes, each of which may dominate at certain times and for particular issues. In intergovernmental processes, policy making revolves around environmental leader and laggard states, with outcomes being determined by their respective bargaining power and the use of confict management techniques. In supranational policy making, the European Parliament and the Commission each aim to raise the level of protection above the lowest common denominator of member state positions. Finally, ever more environmental policy decisions are adopted via a transnational process in which the Commission and expert offcials are relatively loosely coupled to their domestic governments.

Introduction Policy making is the process through which the EU transforms environmental issues and demands into collectively binding decisions. It unfolds between agenda setting (Chapter 10) and national implementation (Chapter 13), and can be divided into the sub-stages of policy formulation, decision making and ‘policy shaping’ (Peterson, 1995). In examining policy making throughout all these sub-stages, this chapter introduces the key actors, discusses the institutional setting in which they are embedded and highlights typical dynamics in the ways in which they interact. EU environmental policy making has multiple facets. There is no single theory that captures them all. Nevertheless, making sense of the seemingly erratic ways in which the EU formulates, decides and shapes specifc environmental policies still requires a theoretical perspective. For simplicity, this section focuses on three broad perspectives: intergovernmental, supranational and transnational. According to the intergovernmental perspective, EU policy is determined by bargaining among national governments with preferences that are formed by domestic politics, independent of the EU. The distribution of preferences and bargaining power determines the dynamics and outcomes of policy making. However, the more different the preferences are, the more likely policy making will fail or not be initiated at all (Moravcsik, 1993). DOI: 10.4324/9780429402333-11

Policy making 187 Escaping deadlock requires that the losers are compensated by package deals, side payments and other forms of consensus building (Moravcsik and Vachudova, 2003: 53). Another prediction of the intergovernmental perspective is that the most powerful governments can obtain extra concessions, especially if decisions require unanimity (Moravcsik, 1993: 499–500). By contrast, the supranational perspective argues that institutional actors like the European Commission, the Parliament and the CJEU enjoy autonomy from member states and can independently infuence EU policy (Stone Sweet and Sandholtz, 1997). In particular, the Commission’s right of initiative and the European Parliament’s veto power allows them to assert their interests, while the evolving jurisprudence of the CJEU shapes the broader legal context in which policy making occurs (Scharpf, 2001; Pollack, 2003a). Finally, scholars adopting a transnational perspective contend that EU membership entails powerful norms that alter national policy makers’ preferences and the way in which they interact (Checkel, 2005). In particular, national experts and working-level offcials are seen as part of an emerging transnational administration with weak links to both supranational actors and national governments (Trondal and Bauer, 2017). Moreover, they become socialised and coopted into a common esprit de corps favouring deeper European integration (Joerges and Neyer, 1997). The transnational perspective therefore expects EU policy making to be coupled to sector-specifc rather than domestic preferences and to be driven by technical arguments rather than national interests. Each perspective captures essential features of EU environmental policy making, but neither encompasses the many ways in which the EU transforms environmental issues into policies. Hard bargaining among member states coexists with powerful interventions from EU institutions and technocrats. How can this apparent paradox be understood? The answer is that EU policy making is not monolithic but rather a combination of all three processes (Scharpf, 2001). Coexisting in a layered system, their relative weight depends on the historical period and the nature of the issues at hand. The next section examines the intergovernmental process. This process shaped EU environmental policy most strongly in the late 1960s to the mid-1980s and seems to be reemerging since the eastern enlargement and the fnancial crisis. The third section analyses the supranational process. This process, in which the Commission is a powerful agenda setter, and in which the European Parliament has a veto over policy decisions, came to the fore in the late 1980s. The fourth section describes the transnational process, showing how the technocratic nature of a transnational administrative space mediates governmental positions, amplifes sector-specifc positions and in general depoliticises decision making.

Summary points • • •

Policy making refers to the process of transforming issues on the policy agenda into collectively binding decisions through policy formulation, decision making and policy shaping. EU policy making is not monolithic but rather a combination of intergovernmental, supranational and transnational processes. Understanding EU environmental policy making requires a combination of different theoretical perspectives.

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Intergovernmental policy making The environment is often seen as a ‘low politics’ issue compared to, for example, defence or the economy. Over the course of the last 50 years, it has, however, grown in salience, increasing the potential for contestation. The more salient and contentious an issue is, the more likely will it be decided with early and substantive involvement of the ministers in the Environment Council or by the Heads of State and Government in the European Council. Member states’ policy positions will be more rigid and the input and infuence of the European Parliament and the Commission more limited. In the intergovernmental process, policy making centres on the member states and revolves around the positions of the ambitious ‘leaders’ and the cautious ‘laggards’ (see Chapter 5). Although these roles are somewhat fuid and issue-dependent, they tend to divide the rich northern and western member states from those in the south and east of Europe (Börzel, 2002; Skjærseth, 2018). Member states’ preferences are determined by a mixture of socio-economic and institutional factors. Voters in rich states attach greater value to environmental protection, while economic growth and competitiveness are more important in less affuent countries. There are also economic determinants, such as the importance of certain economic sectors or a country’s energy mix. For example, during the negotiations on Europe’s frst binding carbon dioxide standards for passenger cars, policymakers had to overcome Germany’s desire to protect its large car industry (Deters, 2018: 86–87) (see Box 11.1). Similarly, Poland’s opt out from the EU’s goal to be carbon neutral by 2050 is largely down to the fact that it generates four ffths of its electricity from coal. Member states also clash over incompatible policy legacies and regulatory traditions (Börzel, 2002). Especially, in the initial phase of EU environmental policy (see Chapter 2), the regulatory ‘misft’ between new EU policies and pre-existing domestic approaches led to stalling tactics and cumbersome decision making (see also Chapter 4). However, it also encouraged leader states to upload their approaches to the EU level, as discussed in the next section.

Box 11.1 A race to the top in car emissions policy? The regulation of car emissions illustrates how intergovernmental environmental policy is shaped by governments that are inclined to walk away from the bargaining table. Depending on the default policy, however, this may imply racing to the top rather than marching at the pace of the slowest. Car emission norms initially refected a lax compromise between Greece and Denmark. Greece wanted an even weaker policy, whereas Denmark hoped to apply its stricter domestic norms (Hubschmid and Moser, 1997: 232). While this hope was never tested in the Courts, there was strong precedence against it. In the famous Cassis case, the CJEU ruled that member states must in principle “mutually recognize” each other’s product regulations as equivalent. Leader states thus faced high legal uncertainty when applying stricter national regulations (Holzinger, 2011: 120). In 1988, the Commission proposed stricter norms, which, however still fell behind those of the US. Denmark, the Netherlands, Germany and the European Parliament demanded US-equivalent norms, but Italy, Greece, France and the UK rejected them. Since defaulting to national regulation was risky following the

Policy making 189 Cassis ruling, the former had to go along with whatever the latter would accept. Determined to prevent unilateral action, the Commission commenced state aid proceedings against states that sought to use national tax incentives to support the production of cars that exceeded EU norms (Hubschmid and Moser, 1997: 239). Shortly before the Council adopted its common position, the CJEU ruled in the Danish Bottles case that environmental protection justifed trade restrictions, allowing the leaders to adopt stricter norms. The Commission dropped its proceedings, the Netherlands and Denmark implemented their tax schemes and Germany and Denmark announced US-equivalent norms. Faced with the prospect of a fragmented car market, the laggards accepted a stricter EU Directive (89/458/EEC), which the European Parliament had in the meantime amended in line with even stricter US standards (Hubschmid and Moser, 1997: 239–240). The results of intergovernmental policy making are largely shaped by the distribution of preferences and bargaining power among member states. The literature distinguishes two dynamics (Scharpf, 1996; Holzinger and Knill, 2004): In the race to the top, which applies to product regulations such as car emission norms or recycling targets, leader states can set the pace and dictate the stringency of environmental policy almost single-handedly. This is because the free movement of goods principle that underpins the European single market allows member states to set national environmental product requirements as long as they do not discriminate between foreign and domestic goods (de Sadeleer, 2014: 296). The laggard states are thus confronted with a choice between on the one hand, a market fragmented by diverse regulations that are unilaterally determined by leader states, and on the other hand, a single EU policy negotiated with their participation. Even if harmonisation approaches the stringency preferred by the leader states, the laggards are likely to accept it as the lesser of two evils. Partly as a result of the race to the top, EU environmental product regulations tend to be determined by the most ambitious countries. However, since harmonisation in general preempts national regulation (Dougan, 2000), the growing acquis has meant that the pioneer states have become less able to present the laggards with faits accomplis. In contrast, policy making on production processes, such as energy effciency targets or industrial emission ceilings, has been heavily shaped by lowest common denominator bargaining (see Box 11.2). Leader states are not allowed to restrict the importation of a product on the grounds that it was manufactured under laxer foreign regulations. While leaders have an interest in a level playing feld with stringent EU-wide policies, the laggards are generally unwilling to relinquish the competitive advantage of their lighter regulatory burden. Since access to the single market does not depend on coordination with the leader states, the laggards may credibly veto any policy that exceeds their preferred low level of protection. As a result, EU policy above the lowest common denominator seems unlikely under the high threshold of the qualifed majority necessary to adopt EU legislation, and even more so when environmental policy making requires unanimity. A ‘joint-decision trap’ may arise when central decision making is blocked while preempting unilateral action by the constituent states (Scharpf, 2006). Far from an ironclad law, however, the resistance of the least ambitious is routinely overcome through various dynamics of confict management (Héritier, 1999; Holzinger, 2011; Deters, 2018), including compensation, procrastination and delegation.

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Box 11.2 The Just Transition Fund: compensating the losers from EU climate policy? The dynamics of lowest common denominator bargaining and compensation characterise recent EU climate policy making. In November 2018, the European Commission presented a strategy to achieve climate neutrality by 2050 and announced a Just Transition Fund to compensate laggard states. At the June 2019 European Council, however, Poland, Hungary and the Czech Republic rejected the net zero goal, referring to their fossil fuel dependence and asking for more funding. This came against the backdrop of parallel negotiations on the EU’s overall budget (the multiannual fnancial framework) that were expected to redistribute funding from Eastern Europe to the crisis-hit south. While the Czech and Hungarian governments came around after the Council affrmed their right to achieve the 2050 target using nuclear energy, Poland, which has no nuclear plants, decided to opt out. When the Commission presented its Just Transition Fund proposal in January 2020, by far the largest slice was allocated to Poland, in the hopes that this ‘carrot’ would bring it back into line. Future decisions may add a ‘stick’: according to a proposal supported by heavyweights like French President Macron and Council President Michel, access to the full sum would be conditional upon signing up to the 2050 climate neutrality goal. The frst, compensation, usually takes the form of side payments, e.g., making the new policy acceptable by the promise of fnancial assistance in its implementation (see Box 11.2). Although environmental policy is essentially a regulatory issue, implementation costs are sometimes eased by distributive programmes. For example, the European Regional Development Fund and the European Investment Bank provide fnancial assistance for renovations under the Energy Effciency Directive (2012/27/ EU). Examples of more informal side payments include the agreement by Spain and Ireland during the Maastricht negotiations to extend qualifed majority voting in environmental policy in exchange for ‘the establishment of the cohesion fund’ (Börzel, 2002: 206). Package deals, another form of compensation, are exchanges of concessions across at least two policies in which the positions of leader and laggard are reversed. They often require agreement at the Heads of State level (Scharpf, 1997: 192–130) and are therefore limited to high stakes issues like climate change (Holzinger, 2011: 122). The need to accommodate diverse preferences also engenders procrastination and incrementalism. To get around deadlock, policy makers often proceed in a stepwise fashion, adopting vague framework decisions and long-term goals without immediate obligations and concrete policy measures. Framework decisions temporarily obscure confict, because member states may interpret them according to their respective preferences (Héritier, 1999: 17). By emphasising ambitious-sounding goals, governments can claim credit, while placing the implementation costs on their successors (Müller and Slominski, 2013: 1429). A case in point is the European Emission Trading System. During the initial pilot phase, 90% of the carbon allowances were allocated for free, and full auctioning was delayed until 2027 (Müller and Slominski, 2013: 1436). The length of the lead time is especially important for industry, as it ensures that investments in pollution control equipment are recouped in the context of rigid innovation cycles. Many regulations are therefore slowly phased in.

Policy making 191 Delegation, the fnal confict management dynamic, partly follows from procrastination. When member states adopt a framework decision, they implicitly empower the Commission and the CJEU to decide on its precise meaning, unless the framework itself provides for future secondary negotiations. If a member state under-implements, the CJEU may be called upon to adjudicate and eventually enforce the policy. Member states may also explicitly delegate the feshing out of the policy details to the Commission and transnational expert committees in the form of delegated and implementing acts. In this case, transnational and supranational policy processes are triggered (see below).

Summary points • • •

In the intergovernmental process, policy making revolves around the preferences of leader and laggard states, which are largely determined by domestic factors. Due to high consensus requirements, intergovernmental policy decisions are disproportionately shaped by the governments most inclined to walk away from the bargaining table. Member states employ various mechanisms of confict management to achieve consensus, including compensation, procrastination and delegation.

Supranational policy making Ordinary legislation The 1987 Single European Act and subsequent treaty revisions gave rise to a supranational process, in which policy making is co-shaped by the Commission and the European Parliament (see Chapters 2 and 4). The Commission infuences environmental policy making under the ordinary legislative procedure in three ways. First, as an agenda setter, it asserts direct infuence over the initial policy formulation (see Chapter 10). Although the Council and Parliament have been able to amend Commission proposals without formal restrictions since the adoption of the Maastricht Treaty, the Commission still determines the legal foundation of policy making (Burns, 2004: 5). It steadily prepares the ground (Hartlapp, 2017) and exploits windows of opportunity, in which arising issues, actor constellations and policy ideas infrequently align to increase the odds of its initiatives being accepted (see Kingdon, 1984). The enforcement of car emission norms provides an illustration. Long before the 2015 ‘Dieselgate’ emissions scandal broke (see Chapter 8), the main weakness of the system was known (Hooftman et al., 2018: 5–6): enforcement was left entirely to national authorities that acted quite leniently toward their domestic car industries. The Commission had already prepared a reform proposal, but as important car-producing states like Germany and Italy were loath to amend the status quo, it kept the reform on the backburner. However, once the outright cheating by Volkswagen and other manufacturers was uncovered, the Commission hurried to adopt the proposal. Seizing the opportunity provided by the scandal, it managed to get the key provisions through the Council, including on-road testing and greater centralisation of enforcement. Second, as a ‘gatekeeper’ (Crombez et al., 2006), the Commission provokes leader states to upload their policies to the EU level. The fact that no policy can be adopted

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without a Commission initiative encourages states with entrenched environmental policies to assert infuence over policy formulation as early as possible. This policy contest is fuelled by member states’ desire to limit the costs of adapting their institutions and policies to refect regulations imposed by ‘Brussels’. Rather than just passively resisting these intrusions, leader states actively approach the Commission, promoting their domestic model as blueprint for an EU-wide initiative (Héritier et al., 1996; Börzel, 2002; Liefferink and Wurzel, 2017). The Commission’s gatekeeping role is crucial: once a government has wooed the Commission in a successful frst move, the chances that other states will shape the agenda decline (Héritier, 1996: 153). Oftentimes, the UK and Germany stood at the centre of the contest, resulting in a patchwork that combined the more innovative aspects of their respective national approaches (Knill and Liefferink, 2007: 115). However, the dynamism of this policy contest diminished after 2000, giving way to what some have referred to as a more European policy style (see Box 11.3). Three factors contributed to this: because of more transparent, longterm agenda planning by the Commission (see Chapter 6), member states can better anticipate upcoming policy initiatives; the Commission has responded to faltering environmental ambitions in member states by advancing fewer proposals (Steinebach and Knill, 2017); and the steady maturation of the whole sector has left less room for states to upload policy innovations to the EU level. Finally, as a policy broker, the Commission is also an important catalyst in the subsequent decision making. It is well informed about the preferences and strategic positions of other actors. It can therefore identify effcient policy options and opportunities for confict management that would be lost in the context of decentralised bargaining (Scharpf, 2006: 850).

Box 11.3 EU policy: from a patchwork to a common policy style? In the 1980s and 1990s, a regulatory competition between Germany and the UK played a key role in pushing EU environmental policy in a more innovative policy direction. In the case of the large combustion plant directive, German offcials allegedly handed the Commission a copy of an existing German regulation (Zito, 2000: 59–65). The Commission then added its own regulatory concepts to the draft, namely the precautionary principle, uniform emission ceilings derived from the best available technology and the principle of mitigating pollution at source. This draft was much less fexible than the British approach that relied on ambient standards and cost-beneft analyses. The subsequent decision making followed the main lines of the German draft (Héritier et al., 1996; Börzel, 2002). By contrast, the proposal for the directive on the free access to environmental information ‘was essentially written by an expert from the British Environment Ministry’ (Knill and Liefferink, 2007: 113). The UK had just introduced extensive rights to public information on new authorisation procedures and hurried to mould the Commission’s thinking. However, this approach clashed with the confdentiality of the German administration, but since the proposal was less contested by other member states, the UK successfully uploaded its model (Héritier et al., 1996: 236–238).

Policy making 193 Within the last two decades, policy competition has declined. As a result, a genuinely European policy style has emerged (Newig and Koontz, 2014). Following this approach, general objectives, such as ‘good water quality’ in the case of the Water Framework Directive, are defned at the EU level. But in order to attain the EU-level goal, member states are nonetheless allowed to formulate their own monitoring and action plans at the national or subnational level, often with broad stakeholder participation. These plans are assessed at regular intervals by the European Commission and then subsequently updated by the member states. The other source of supranational intervention is the European Parliament (see Chapter 8). Its main power lies in infuencing legislation during the decision-making phase. While the Commission became ever more constrained, the Parliament’s procedural infuence only increased. Today, the ordinary legislative procedure provides it with a veto, placing it on an equal footing with the Council. The interventions of the Commission and the European Parliament make a practical difference, because they tend to promote stricter environmental policy (see Chapters 6 and 8). However, since the fnancial crisis, political scientists have observed that these actors are not ‘hard-wired to seek ever-closer union’ (Bickerton et al., 2015: 712) but have responded to changing policy contexts. Since the frst round of Eastern enlargement, legislative output has declined, now dipping back almost to the level of the 1980s, when environmental policy making was largely intergovernmental (see Figure  11.1). While the output of climate policy is still growing in scope and intensity (Gravey and Moore, 2018), environmental policy making more generally is ‘increasingly characterized by stasis’ (Burns et al., 2018: 199; see also Chapter 19). In the area of clean air and water protection, the Commission has been so reluctant to put forward new initiatives that ‘the EU … entered a four‐year period of almost complete regulatory inactivity after the year 2010’ (Steinebach and Knill, 2017: 430). Moreover, the empowerment of the European Parliament ironically coincided with tamer amendments (Burns et al., 2013). Arguably, however, the gatekeeping role of the Commission at least safeguards the existing acquis from dismantling without its approval (see Gravey and Jordan, 2020: 5), especially since it may withdraw a proposal before the Council weakens it too much (Lupo, 2018: 317–318). Hierarchical policy making In its capacity as guardian of the Treaties, the Commission can also bring forward policy change unilaterally. Compared to more constitutionalised areas like competition policy, the Commission’s hierarchical decision-making power is quite limited in the area of the environment. Nevertheless, it may attempt to encourage reform through soft law production and litigation. By adopting soft law, e.g., voluntary guidelines, the Commission monitors member states and assists them in the correct implementation of ever more widespread framework directives (see Box 11.3). One example in which the Commission leveraged this role to unilaterally strengthen environmental policy was emissions trading. By issuing a strict interpretation of the method that member states use to allocate carbon allowances to their national industries, the Commission tried to reduce the number of allowances that could be disbursed. However, after the

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Commission had rejected several national allocation plans, member states successfully appealed to the CJEU (Müller and Slominski, 2013: 1435), illustrating that its discretion is limited. Litigation under the infringement procedure (see Chapters 7 and 13), although foremost an implementation tool, can affect policy making when, faced with the consequences of legal defeat, member states reconsider their positions (Schmidt, 2018). In the context of the ‘Dieselgate’ scandal, the Commission applied such a two-pronged strategy. It proposed legislation for stricter emission tests and central enforcement. At the same time, it launched infringements against member states for failing to enforce existing car emission rules and for failing to take measures against air pollution in congested areas. The infringement decisions triggered debates about highly unpopular city level bans on diesel cars, which the German government in particular wanted to avoid in case it threatened the German car industry.

Summary points •

• •

In the ordinary legislative procedure, environmental policy is not only shaped by bargaining among governments but also by the supranational interventions of the Commission and the European Parliament, who aim to promote higher levels of protection. In the supranational process, the Commission has some limited powers to unilaterally develop policy, e.g., by issuing soft law and shaping national implementation processes. The Commission’s gatekeeping role encourages leader states to compete over the policy agenda, resulting in a patchwork of national policy styles at EU level.

Transnational policy making Environmental legislation under the ordinary legislative procedure is only the tip of the policy making iceberg. In quantitative terms, more policy-shaping decisions are adopted via an administrative process by the Commission and a myriad of transnational expert committees known as ‘comitology’ (see Figure 11.1). For reasons described above, environmental legislation is often incomplete: operating below the surface, transnational policy decisions are needed to constantly ‘clarify, update, or specify’ (Brandsma and Blom-Hansen, 2016: 531) legislation produced via supranational and intergovernmental processes. Due to its complex, technical nature and the concomitant need for expertise, environmental policy has the second highest number of comitology committees (Deters, 2018: 36), making the transnational process particularly relevant. Its institutional set-up has been reformed several times, most recently by the Treaty of Lisbon. In its current form, there are two major versions: implementing acts that specify uniform conditions for the implementation of EU legislation (Art. 291 TFEU); and delegated acts that ‘supplement or amend certain non-essential elements’ of legislation (Art. 290 TFEU), such as annexes of banned substances. Legally, there is a signifcant grey area between the two, but the practical difference lies in the respective roles played by expert committees and the European Parliament.

Policy making 195

Measures Adopted

40

30

Type of Measure Administrative

20

Legislative

10

0 1980

1990

Year

2000

2010

2020

Figure 11.1 EU environmental policy: administrative and legislative measures adopted per year, 1970–2020. Source: based on Eur-Lex.

The Commission, after consulting stakeholders, must submit draft implementing acts to committees of member state delegates, which operate under various procedures stipulated in the respective basic legislation. While the opinion of advisory committees is not binding upon the Commission, examination committees may veto the implementing act, either by a simple or qualifed majority against it or by failure to reach a qualifed majority in favour. If the examination committee rejects an implementing act, the Commission may revise it or forward it to an appeals committee for discussion among Council diplomats. The Parliament has no formal say in either procedure. Under a version of the examination procedure, the Commission was able to push through even contentious decisions, such as authorisations of genetically modifed maize and controversial pesticides, against a majority of delegates. In general, however, the Commission tries to avoid unpopular decisions and seeks consensus (Weimer, 2017). Before the Lisbon Treaty reform, most transnational environmental policy decisions were adopted using a precursor to the examination procedure, in which the European Parliament had a right to ‘scrutinise’ and reject implementing acts if the Commission exceeded its mandate. This procedure was replaced by delegated acts, but it still applies in existing legislation until amended (Blom-Hansen, 2011). In the case of delegated acts, expert committees are populated not only by member state offcials but also by European Parliament staff members and sometimes other stakeholders (Brandsma, 2016). Their advice, however, is not binding upon the Commission. Instead, the European Parliament (by absolute majority) and the Council (by qualifed majority) may veto individual delegated acts or revoke the delegation altogether. There are different views on how policy makers interact in the transnational process. Some researchers emphasise the fact that member states and the Parliament

196 Henning Deters have intentionally designed the institutional set-up in order to delegate problematic decisions to the Commission without losing their grip on the outcomes. In this view, committee members behave no differently from their political siblings in the Council of Ministers. They are guardians of member states’ interests, equipped with clear mandates that they seek to defend through bargaining (Pollack, 2003b). Although the working groups that the Commission consults before adopting delegated acts have no power to intervene, they serve as watchdogs. In reality, vetoes against implementing and delegated acts are extremely rare. Rather than seeing this as a sign of weak control, some scholars argue that the Commission anticipates contestation and self-censures accordingly (Brandsma and Blom-Hansen, 2016). Yet, when it comes to choosing between delegated acts and the implementing procedures, the Commission tends to propose the option that provides it with the most autonomy, despite regularly encountering ferce criticism from the European Parliament and the Council (Brandsma and Blom-Hansen, 2016; see also Box 11.4). Other scholars argue, by contrast, that implementing and delegated acts are rarely contested, because transnational administrative decision making is all about rational arguments and sound solutions. In this view, comitology committees and working groups are fora in which experts and offcials that have practical experience in implementing EU policy on the ground can coordinate their actions in search of the common good. In contrast to political bargaining in the Council, these deliberations are based on tentative positions, as the delegates, who often belong to the same ‘epistemic community’ (Haas, 1992), are open to persuasion by reference to scientifc evidence and shared principles of technical rationality (Joerges and Neyer, 1997; Joerges, 2006).

Box 11.4 The Climate Law proposal: contested delegation in EU climate policy In March 2020, the European Commission presented its proposal (COM (2020) 80 fnal) for a Climate Law – a key piece of legislation to achieve the EU’s goal of becoming climate-neutral by 2050. The proposal empowers the Commission to review member states’ progress every fve years. It also allows the Commission defne intermediate goalposts to make sure greenhouse gas reductions remain on track prior to the 2050 deadline. According to the proposal, the Commission can adopt these intermediate goals by issuing delegated acts. Thus, a qualifed majority in the Council and an absolute majority in the European Parliament would be needed to reject them. By contrast, under the ordinary legislative procedure, a qualifed majority is necessary to adopt decisions. Moreover, the input by Council and Parliament to formulating delegated acts is limited to non-binding advice. Since both ‘chambers’ felt sidelined, they were quick to raise concerns. At the time of this writing, the draft report of the European Parliament’s rapporteur (in charge of negotiating with Commission and Council), supported by the legal committee, removed all references to delegated acts; several national parliaments also warned that it breached the principle of subsidiarity; and Poland’s EU ambassador warned that climate goals adopted via delegated act could be challenged before the CJEU (Krukowska, 2020).

Policy making 197 Case studies of comitology decisions (Weimer, 2015) and surveys among committee members (Egeberg et al., 2003; Blom-Hansen and Brandsma, 2009) partially corroborate both perspectives. There is, in other words, both technocratic deliberation and political bargaining in transnational policy making. Which dynamic prevails depends on various factors, including the salience and intensity of national interests, and the type and composition of the committee (Blom-Hansen and Brandsma, 2009). If, as is often the case, technical evidence and arguments rather than power are key for infuencing transnational policy decisions, the precise choice of experts matters a lot (Böhling, 2014). Although excluded from decision making, stakeholder representatives are often directly involved in committee work and supply critical information (see Nørgaard et al., 2014: 492). In risk regulation, scientifc advice is solicited from European regulatory agencies such as the European Food Safety Authority (Weimer, 2015). Moreover, the national experts that populate the working groups and implementing committees are largely disconnected from the dynamics of national party competition, as they originate from the technical working level of their respective ministries or even from separate agencies (Benz, 2009: 142–143). Overall, their opaque working style and institutional distance from political contestation arguably facilitate policy making by stealth, which is shaped more by sectoral views than territorial differences (Egeberg et al., 2003: 21; see Box 11.5).

Box 11.5 Transnational policy making by stealth: lights out for incandescent bulbs? Between 2009 and 2012, incandescent light bulbs were taken off the single market and replaced by energy-saving lamps (on the following, see Deters (2018)). Decided largely behind the scenes, the plan only became politically salient for an instant. In Spring 2007, the European Council urged the Commission to come forward with a proposal to keep up with countries outside the EU that were already banning incandescent lamps. The phaseout was eventually adopted in the Winter of 2008 by the Commission and a regulatory committee (via Regulation 244/2009). The committee delegates were experts from national agencies and specialised units of environment and energy ministries. Numerous stakeholders participated in the deliberations, although for the fnal session and vote, the committee met behind closed doors. The discussion focused on technical arguments (such as timetables and performance standards) but the phaseout was never contested. Consumer and environmental associations welcomed the energy savings, and manufacturers expected to increase their sales margins, as consumers clung to incandescent light bulbs. In the aftermath, however, policy makers were taken aback by the public alarm generated by what became known as the ‘light bulb decree’. As the media caught on, public interest soared. The European Parliament, which had been silent, suddenly took an interest. It debated rejecting the implementing regulation using its ‘scrutiny’ power but refrained from doing so. National governments then reacted by blaming ‘Brussels’, although former Environment Commissioner Wallström chided them for having ‘ignored their responsibility to explain [the decision] to their citizens’ (quoted in Die Presse, 24 December 2009).

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As discussed in the previous sections, supranational and especially intergovernmental environmental policy making became more cumbersome after 2004, while the fnancial crisis made governments even more sensitive to economic concerns. In this context, it seems likely that depoliticised administrative policy making serves as a bypass to intergovernmental deadlock. In general, the risk of deadlock leads to more bureaucratic activity, as the overruling of delegated law becomes more diffcult (Junge et al., 2015). Although the Council and the European Parliament have produced less environmental legislation since the turn of the millennium, more decisions have been adopted via the transnational process (see Figure 11.1). It is less clear, however, whether the transnational route is employed to conserve the momentum of environmental policy under adverse conditions or, conversely, to silently dismantle the environmental acquis in the face of economic hardship. Recent research points to the latter. Pollex and Lenschow (2020) showed that the transnational process entails major opportunities to shape policy beyond mere fne-tuning. In climate policy, delegated and implementing acts were not only used more frequently after the crisis, but their stringency has decreased as well (Burns and Tobin, 2020).

Summary points • • •

In quantitative terms, most environmental policy decisions are adopted via transnational administrative procedures known as implementing and delegated acts. The institutional set-up of the transnational process is only loosely coupled to national governments, and it refects more strongly the views of expert communities and sectoral constituencies. Because transnational policy making mostly involves the shaping of decisions left undetermined by legislators, the use of delegated law making sometimes provokes ferce political debate later in the policy process.

Conclusions Environmental policy making in the EU is not monolithic but shaped by intergovernmental, supranational and transnational processes that follow distinct institutional rules and engender separate dynamics. In the intergovernmental process, it revolves around the positions of member states with different socio-economic and institutional backgrounds. To overcome diversity and lowest common denominator bargaining, policy makers rely on mechanism of confict management, including compensation, delegation and procrastination. In the supranational process, still the default in EU environmental policy, interventions by the European Parliament and the Commission lift environmental policy making above lowest common denominator bargaining. The Commission, while restricted in its unilateral action capacity, has nonetheless encouraged policy contests in which different states vie with another to shape policy formulation. Finally, in the transnational process, governmental interests are not directly represented but mediated by institutional norms that encourage collaborative

Policy making 199 problem-solving and by the loose coupling between administrators and their national governments. Until quite recently, the evolution of EU environmental policy making has been described as one of ever closer European integration, resulting in ever more ambitious environmental protection adopted via the supranational process (see Chapters 2 and 4). This chapter gives reason for skepticism about projecting this historical trend far into the future. First, there is less room for national leadership: many product regulations have already been harmonised at EU level, preempting states from triggering new races to the top. Second, after the fnancial crisis, the Commission became more reluctant to put forward major environmental initiatives outside of climate policy, while the Parliament’s zeal was always tied to a quest for legislative power that is now effectively satisfed (see Chapter 8). Third, eastern enlargement post-2004 has increased diversity in the Environment Council to an extent that may prove diffcult to bridge by the available tools of confict management. However, as gridlock becomes more likely, technocratic decision making through the transnational process will be harder to reign in. Time will tell if this shift leads to dismantling by stealth or to the silent maintenance of the EU’s famed environmental momentum.

Summary points • • •

EU environmental policy making is not monolithic but shaped by intergovernmental, supranational and transnational processes. Each of these three processes has distinct institutional rules and follows specifc policy dynamics. Enlargement and the economic and fscal crisis have reduced the scope of the supranational process, ushering in greater intergovernmental and transnational policy making.

Key questions 1 2 3 4 5 6

Which actors are at the centre of environmental policy formulation activities? Does the transnational process depoliticise environmental policy making, and if so, how? What factors infuence the bargaining success of environmental leaders and laggards? How do the European Parliament and the Commission co-shape environmental legislation? Why is the future trajectory of EU environmental policy less certain? Which factors determine whether policy making is conducted via the intergovernmental, supranational or transnational processes?

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Guide to further reading • • •

Lelieveldt and Princen (2015) provide strong focus on policy making, viewed through the lens of comparative politics. Burns et al. (2018) examine to what extent environmental policy making has become more gridlocked and more intergovernmental since the fnancial crisis. Weimer (2017) disentangles the roles of science, bureaucracy and political contestation in EU risk regulation.

Online resources • • •

Euobserver – Climate & Environment: https://euobserver.com/environment The European Parliament “Legislative Train”: https://www.europarl.europa.eu/ legislative-train/ Comitology Register: https://ec.europa.eu/transparency/regcomitology/index.cfm

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Policy making 201 de Sadeleer, N. (2014) EU Environmental Law and the Internal Market (Oxford: Oxford University Press). Deters, H. (2018) The EU’s Green Dynamism: Deadlock and Change in Energy and Environmental Policy (London: EPCR Press/Rowman & Littlefeld). Dougan, M. (2000) ‘Minimum Harmonization and the Internal Market’. Common Market Law Review, Vol. 37, No. 4, pp. 853–885. Egeberg, M., Schaefer, G. and Trondal, J. (2003) ‘The Many Faces of EU Committee Governance’. West European Politics, Vol. 26, No. 3, pp. 19–40. Gravey, V. and Jordan, A. J. (2020) ‘Policy Dismantling at EU Level: Reaching the Limits of “an Ever-Closer Ecological Union”?’ Public Administration, Vol. 98, No. 2, pp. 349–362. Gravey, V. and Moore, B. (2018) ‘Full Steam Ahead or Dead in the Water? European Union Environmental Policy after the Economic Crisis’. In Burns, C., Tobin, P. and Sewerin, S. (eds) The Impact of the Economic Crisis on European Environmental Policy (Oxford: Oxford University Press), pp. 19–42. Haas, P. M. (1992) ‘Introduction: Epistemic Communities and International Policy Coordination’. International Organization, Vol. 46, No. 1, pp. 1–35. Hartlapp, M. (2017) ‘How Time Empowers Agency: Combining the EU Commission’s Political Powers and Its Administration’s Advantage of Acting from a Long-Term Perspective’. Journal of European Integration, Vol. 39, No. 3, pp. 303–317. Héritier, A. (1996) ‘The Accommodation of Diversity in European Policy‐making and Its Outcomes: Regulatory Policy as a Patchwork’. Journal of European Public Policy, Vol. 3, No. 2, pp. 149–167. Héritier, A. (1999) Policy-Making and Diversity in Europe: Escaping Deadlock (Cambridge: Cambridge University Press). Héritier, A., Knill, C. and Mingers, S. (1996) Ringing the Changes in Europe: Regulatory Competition and the Transformation of the State. Britain, France, Germany (New York: de Gruyter). Holzinger, K. (2011) ‘Environmental Policy in the Joint-Decision Trap? The Critical Balance between “Market-Making” and “Market-Correcting”’. In Falkner, G. (ed) The EU’s Decision Traps: Comparing Policies (Oxford: Oxford University Press), pp. 111–127. Holzinger, K. and Knill, C. (2004) ‘Competition and Cooperation in Environmental Policy: Individual and Interaction Effects’. Journal of Public Policy, Vol. 24, No. 1, pp. 25–47. Hooftman, N., Messagie, M., Van Mierlo, J. and Coosemans, T. (2018) ‘A Review of the European Passenger Car Regulations – Real Driving Emissions vs Local Air Quality’. Renewable and Sustainable Energy Reviews, Vol. 86, pp. 1–21. Hubschmid, C. and Moser, P. (1997) ‘The Co-operation Procedure in the EU: Why Was the European Parliament Infuential in the Decision on Car Emission Standards?’ Journal of Common Market Studies, Vol. 35, No. 2, pp. 225–242. Joerges, C. (2006) ‘“Deliberative Political Processes” Revisited: What Have We Learnt about the Legitimacy of Supranational Decision-Making’. Journal of Common Market Studies, Vol. 44, No. 4, pp. 779–802. Joerges, C. and Neyer, J. (1997) ‘Transforming Strategic Interaction into Deliberative Problem-Solving: European Comitology in the Foodstuffs Sector’. Journal of European Public Policy, Vol. 4, No. 4, pp. 609–625. Junge, D., König, T. and Luig, B. (2015) ‘Legislative Gridlock and Bureaucratic Politics in the European Union’. British Journal of Political Science, Vol. 45, No. 4, pp. 777–797. Kingdon, J. W. (1984) Agendas, Alternatives, and Public Policies (Boston, MA: Little, Brown). Knill, C. and Liefferink, D. (2007) Environmental Politics in the European Union (Manchester: Manchester University Press). Krukowska, E. (2020) ‘EU Executive Is Said to Seek More Control over Climate Targets’, Bloomberg, 29. February 2020, https://www.bloomberg.com/news/articles/2020-02-29/ eu-executive-is-said-to-seek-more-control-over-climate-targets. Lelieveldt, H. and Princen, S. (2015) The Politics of the European Union, 2nd edition, (Cambridge: Cambridge University Press).

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Liefferink, D. and Wurzel, R. K. W. (2017) ‘Environmental Leaders and Pioneers: Agents of Change?’ Journal of European Public Policy, Vol. 24, No. 7, pp. 951–968. Lupo, N. (2018) ‘The Commission’s Power to Withdraw Legislative Proposals and Its “Parliamentarisation” between Technical and Political Grounds’. European Constitutional Law Review, Vol. 14, No. 2, pp. 311–331. Moravcsik, A. (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’. Journal of Common Market Studies, Vol. 31, No. 4, pp. 473–524. Moravcsik, A. and Vachudova, M. A. (2003) ‘National Interests, State Power, and EU Enlargement’. East European Politics and Societies, Vol. 17, No. 1, pp. 42–57. Müller, P. and Slominski, P. (2013) ‘Agree Now – Pay Later: Escaping the Joint Decision Trap in the Evolution of the EU Emission Trading System’. Journal of European Public Policy, Vol. 20, No. 10, pp. 1425–1442. Newig, J. and Koontz, T. M. (2014) ‘Multi-Level Governance, Policy Implementation and Participation: The EU’s Mandated Participatory Planning Approach to Implementing Environmental Policy’. Journal of European Public Policy, Vol. 21, No. 2, pp. 248–267. Nørgaard, R. W., Nedergaard, P. and Blom-Hansen, J. (2014) ‘Lobbying in the EU Comitology System’. Journal of European Integration, Vol. 36, No. 5, pp. 491–507. Peterson, J. (1995) ‘Decision‐making in the European Union: Towards a Framework for Analysis’. Journal of European Public Policy, Vol. 2, No. 1, pp. 69–93. Pollack, M. A. (2003a) The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU (Oxford: Oxford University Press). Pollack, M. A. (2003b) ‘Control Mechanism or Deliberative Democracy? Two Images of Comitology’. Comparative Political Studies, Vol. 36, Nos. 1–2, pp. 125–155. Pollex, J. and Lenschow, A. (2020) ‘Many Faces of Dismantling: Hiding Policy Change in Non-Legislative Acts in EU Environmental Policy’. Journal of European Public Policy, Vol. 27, No. 1, pp. 20–40. Scharpf, F. W. (1996) ‘Negative and Positive Integration in the Political Economy of European Welfare States’. In Marks, G., Scharpf, F. W., Schmitter, P. C., and Streeck, W. (eds) Governance in the European Union (London: SAGE), pp. 15–39. Scharpf, F. W. (1997) Games Real Actors Play: Actor-Centered Institutionalism in Policy Research (Boulder, CO: Westview Press). Scharpf, F. W. (2001) ‘Notes Toward a Theory of Multilevel Governing in Europe’. Scandinavian Political Studies, Vol. 24, No. 1, pp. 1–26. Scharpf, F. W. (2006) ‘The Joint-Decision Trap Revisited’. Journal of Common Market Studies, Vol. 44, No. 4, pp. 845–864. Schmidt, S. K. (2018) The European Court of Justice and the Policy Process: The Shadow of Case Law (Oxford: Oxford University Press). Skjærseth, J. B. (2018) ‘Implementing EU Climate and Energy Policies in Poland: Policy Feedback and Reform’. Environmental Politics, Vol. 27, No. 3, pp. 498–518. Steinebach, Y. and Knill, C. (2017) ‘Still an Entrepreneur? The Changing Role of the European Commission in EU Environmental Policy-Making’. Journal of European Public Policy, Vol. 24, No. 3, pp. 429–446. Stone Sweet, A. and Sandholtz, W. (1997) ‘European Integration and Supranational Governance’. Journal of European Public Policy, Vol. 4, No. 3, pp. 297–317. Trondal, J. and Bauer, M. W. (2017) ‘Conceptualizing the European Multilevel Administrative Order: Capturing Variation in the European Administrative System’. European Political Science Review, Vol. 9, No. 1, pp. 73–94. Weimer, M. (2015) ‘Risk Regulation and Deliberation in EU Administrative Governance— GMO Regulation and Its Reform’. European Law Journal, Vol. 21, No. 5, pp. 622–640. Weimer, M. (2017) ‘No More Blame Game: Back to the Future of Comitology’, Verfassungsblog, https://verfassungsblog.de/no-more-blame-game-back-to-the-future-of-comitology/. Zito, A. R. (2000) Creating Environmental Policy in the European Union (Basingstoke: Macmillan).

12 Policy integration Claire Dupont and Andrew Jordan

Summary guide The EU has made a signifcant effort to integrate environmental objectives into the policy making activities of all policy sectors. As an approach to improving environmental problem solving, environmental policy integration (EPI) certainly has great political potential: if implemented, economically powerful sectors such as agriculture, energy and transport would automatically take steps to ‘design out’ environmental problems before they even arise. Advocates of EPI maintain that it could do even more, potentially contributing to a signifcant improvement in the quality of the environment. However, EPI has proven stubbornly challenging to implement in practice. A set of factors help us understand why this has generally been the case in the EU, including: the EU’s institutional and policy context; the (variable) degree of political commitment to EPI; the inability to recognise the functional interrelations among policies; and the relative strength of the narrative or discourse underpinning EPI. The 2019 European Green Deal may nevertheless represent a new political opportunity for the EU to fnally realise EPI’s full potential.

Introduction In 2019, the European Commission presented its plans for the European Green Deal (European Commission, 2019). For the frst time, it seemed that the Commission had garnered and channelled political support for an integrative policy framework to facilitate a sustainable transition. The Green Deal will take years to implement, but its adoption established a new baseline of political ambition to implement policy integration that was previously lacking in the EU. The urgent need to transition to a more sustainable economy and society has been strongly underlined by a number of knowledge and scientifc organisations and agencies (EEA, 2019; IPCC, 2018), which has provided a stronger cognitive push for greater EPI. There are several reasons to expect the EU to be relatively good at integrating an environmental dimension into the work of all policy sectors. Since the 1970s, it has established a very extensive and innovative system of environmental policy. It has done a great deal to popularise the principle of EPI, often drawing on work conducted by European academics and research institutes (Jordan and Lenschow, 2010; Lenschow, 2002). Indeed, EPI is very much a specialism of the EU; it was frst included in Article DOI: 10.4324/9780429402333-12

204 Claire Dupont and Andrew Jordan 130r(2) of the Single European Act in 1986. Today, Article 11 of the TFEU states that ‘environmental protection requirements must be integrated into the defnition and implementation of the Union’s policies and activities’ (emphasis added), giving EPI an almost constitution-like status within the EU. No other comparable political system in the world has afforded EPI such importance (Jordan and Lenschow, 2008). However, although quasi-constitutional in nature, the EU’s commitment to EPI has proven to be particularly challenging to implement in practice. Decades of efforts to implement EPI – as distinct from European integration (see Chapter 1) – have continually encountered numerous barriers and setbacks. One eminent EU environmental lawyer concluded that the Treaty Article remains ‘an empty shell which has not had much substantive content’ (Krämer, 2005: 555), while Weale and Williams (1992: 49) described early EU efforts to implement EPI as a ‘faltering and haphazard affair’. A rich body of scholarship has identifed a combination of variables that can help us understand the implementation challenges in the EU, including the institutional set-up and policy context of the EU, the (variable) degree of political commitment, the recognition of functional interactions and the strength of the narrative or discourse for EPI (De Roeck et al., 2016; Dupont, 2016; Jordan and Lenschow, 2010; Persson et al., 2018). In this chapter, we explore the historical background to the European Green Deal. We discuss what the EU has or has not done to implement EPI in practice, and we explore the combination of variables highlighted in the existing literature to understand why its implementation in the EU has been so variable. Throughout, we focus on the rich EU scholarship on policy integration (Jordan and Schout, 2006), noting how it has been informed by and on occasions informed a broader, international literature on policy coordination and integration outside Europe. In the next section, we discuss how EPI has been defned within the EU. We then chart the changing ways in which it has sought to apply EPI. Next, we identify and discuss the various factors which help to understand how and why EPI has been applied in the way that it has. In the fnal sections, we draw out some overall themes and highlight the prospects for the future of EPI in the EU.

Summary points • • •

The EU has been a consistently strong advocate of EPI, which is now hardwired into its founding treaties. There are several reasons to expect the EU to be relatively good at integrating an environmental dimension into the work of all policy sectors. However, EPI has proven to be stubbornly diffcult to implement in practice. Decades of effort to implement it have continually encountered signifcant barriers and setbacks.

Defning environmental policy integration What EPI is and how it should be assessed has proven an area of continuous discussion among academics and policy makers (see Box 12.1). This discussion has been made more complex, given the many related concepts used in the existing literatures, e.g., joined-up governance, whole-of-government policymaking, mainstreaming, policy coherence and coordination. All of these somehow embrace the same general aim of

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Box 12.1 What is the aim of policy integration? As laid down in the EU Treaties, EPI is about ensuring that environmental protection requirements are ‘integrated into the defnition and implementation of the Union’s policies and activities’ (Article 11, TFEU). But the specifc aims of policy integration can range from ensuring certain policy objectives are superfcially ‘taken into account’ across policy settings, through to ensuring their absolute prioritisation across all policy areas (Jordan, 2002; Lafferty and Hovden, 2003). To confuse matters, normative statements (how EPI should be pursued) and empirical statements (how EPI is being implemented in the policy world) are often used interchangeably. The debates often boil down to whether a ‘weaker’ form of EPI is being advocated (taking environmental objectives into account) or a ‘stronger’ form of EPI (where environmental protection is the overriding priority). Being clear and explicit about the aim being pursued is important for identifying whether the result of EPI should be a policy that is merely coherent with environmental policy objectives or a policy that has been fundamentally reoriented to achieve long-term environmental and sustainability objectives. Finally, any evaluation of policy efforts to achieve greater EPI is heavily dependent on whether the reference point is a weak or a strong interpretation. In general, environmental ministries and NGOs have tended to favour a strong interpretation, whereas economic ministries and business groups have favoured a weaker one.

bringing different policies together, but do so in slightly different ways (Kivimaa and Mickwitz, 2009; Trein et al., 2020). Recognising EPI in practice means unpacking the (often implicit) aims that are being pursued in and addressing the connections with related policy coherence and coordination exercises. Some scholars suggest that environmental objectives need only be taken into account during the policy process (the emphasis therefore being on policy coordination), while others argue that environmental objectives must not be harmed by policy outputs (the emphasis therefore being on policy coherence) (Cejudo and Michel, 2017; Dupont, 2016). Further, an important interpretation highlights the prioritisation of environmental policy objectives in other policies (Lafferty and Hovden, 2003). This understanding argues that policy integration is successful only if it achieves tangible improvements in the quality of the environment (i.e., an emphasis on actual impacts and outcomes, rather than just legal commitments). Finally, policy integration should also be seen in a long-term perspective: policy processes and decisions interact over time and at multiple levels of governance (Dupont and Oberthür, 2012). Taking a longterm perspective into account means that the evaluation of success of policy integration also depends on the benchmark against which policy decisions and processes are being assessed (see Box 12.1). With these challenges also comes the added complexity of evaluating whether any particular policy output or outcome has been infuenced by efforts to pursue EPI. For weak EPI, a box-ticking exercise to check whether environmental protection requirements were at least considered can be carried out through an analysis of policy documents, political statements and through feedback from key policymakers. But this does not go as far as requiring an assessment of the infuence of EPI on the environmental

206 Claire Dupont and Andrew Jordan impacts of a particular policy. For strong interpretations of EPI, all policy measures are expected to have a benefcial impact on the environment. However, it is analytically challenging to connect an environmental phenomenon with a specifc policy decision (Jordan and Lenschow, 2010). The analytical focus then necessarily returns to deskbased assessments of tools and procedures (Jordan and Lenschow, 2008) (see Box 12.2), rather than the real-world impacts of EPI on the state of environmental quality. In sum, as a concept, EPI sits apart from broader ideas about policy coordination because it is essentially concerned with putting the environment centre-stage in all steps and stages of policy making. Therefore, it means ensuring that environmental objectives are central in agenda setting, decision-making to implementation and evaluation. According to those advocating stronger interpretations of EPI, it is considerably more than just ‘coordination’ in the policy process, but is rather the sum of coordination, coherence and impact. In other words, it is a principle that is and/or should be implemented in practice in the means of making policy (coordination), in the assessment of potential policy outputs or decisions (coherence) and in the implementation or outcome of policy decisions (impact) (Dupont, 2016).

Summary points • • •

While there is no commonly agreed defnition of EPI, a minimum requirement is for environmental objectives to be taken into account in the work of other policy sectors. A stronger form of EPI involves three main elements: ensuring integration in the policy making process, leading to more coherent policy outputs that, in turn, result in outcomes that have a positive impact on environmental quality. However, how EPI is evaluated ultimately depends on which defnition of EPI is being pursued and on the timescale over which the evaluation is being conducted.

The history of policy integration efforts in the EU Given the challenges in defning and measuring EPI in practice as discussed above, EPI scholars have often relied on the implementation of certain tools that provide an indication that a particular governing authority is taking EPI seriously. Such tools can include legal principles, administrative tools for coordination and political strategies (see Box 12.2).

Box 12.2 Different instruments of environmental policy integration The EU has certain tools, measures and instruments that it can use to implement EPI. Its regulatory measures include standard setting for products and production processes, binding targets to reduce or phase out harmful emissions and support for research and deployment of technical solutions. Others include administration, budgeting/fnancing and policy evaluation. The EU has thus far had limited room to reform fscal measures as a means to implement EPI (see Chapter 17). First, administrative instruments can be used to reorganise the

Policy integration 207 institutional and policy context to advance EPI. While the EU has deployed a fairly limited number of administrative instruments, the inter-service consultations in the Commission have, as noted in Chapter 6, been strengthened over the years to facilitate greater policy integration. Second, the EU uses budget and fnancing instruments to earmark funding for environmental policy objectives in other policy domains. The efforts to ‘green’ the Common Agricultural Policy by providing funding mechanisms to farmers to preserve nature are one example. Renewed efforts have been made in recent years to ensure that a portion of the EU’s overall budget (the Multiannual Financial Framework [MFF]) is assigned to climate protection. Third, the EU deploys assessments and evaluations to integrate its own policies and those of its member states. For example, the Commission uses its impact assessment procedure to highlight and explore the environmental impacts of different policy options during the policy formulation stage (see also Chapter 6); the EU’s Directive on Strategic Environmental Assessment requires EU member states to explore the potential environmental impacts of national plans and policies before they can go ahead; and the European Environment Agency publishes reports on the integration of environmental protection into EU transport policy.

The slow implementation of EPI: 1970–2007 The history of the EU’s engagement with the EPI principle dates back at least as far as the First Environmental Action Programme in 1973 (Lenschow, 2002: 3). Of all the EU institutions, the Commission stands out as having been the most consistently forceful advocate of EPI. However, DG Environment struggled to sell it even to other parts of the Commission, let alone to the rest of the EU. EPI nevertheless remained, to greater or lesser degrees, a feature of all subsequent EAPs. Leading up to and following the publication of the landmark UN Brundtland report on sustainable development in 1987, the political momentum around EPI grew (WCED, 1987). Member states became more interested in the principle, and deeper institutionalisation of EPI occurred across EU institutions during the 1990s (Jordan and Schout, 2006). The Single European Act added the principle of EPI to the treaties. Article 130r(2) of that Act read as follows: ‘environmental protection requirements shall be a component of the Community’s other policies’. But it was the Maastricht Treaty that laid down the wording on EPI that has remained throughout subsequent Treaty reforms, namely that ‘environmental protection must be integrated into the defnition and implementation’ of other EU policies (emphasis added, now Article 11, TFEU), elevating EPI to an overarching legal principle, although without necessarily elevating environmental objectives above other policy objectives. In the mid-1990s, the accession of three new advocates of EPI (Sweden, Austria and Finland) gave the debate about how to implement EPI a signifcant political boost. Henceforth, many new actors, most notably the Heads of State and Government (in the European Council), the European Parliament and the Council of Ministers, were drawn into a common process of sectoral reporting, reviewing and target setting known as the Cardiff Process, a reference to the location of the June 1998 European

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Council. Hopes were high that the self-imposed discipline of writing and sharing integration strategies and reports would generate new information, learning and, eventually, a new and pervasive sense of commitment in the sectors to ‘own’ environmental problems. But as is now widely known, the resulting strategies never lived up to these high expectations (Herodes et al., 2007). The Cardiff Process eventually offcially fzzled out, but residual policy tools remained in place, including a number of reporting, reviewing and coordination tools such the EEA’s Transport and Environment Reporting Mechanism – or TERM (see Box 12.2). In the 2000s, EPI efforts were redirected. First, EPI was reconnected more closely to policy developments around sustainable development. The EU’s very frst Sustainable Development Strategy (SDS) was published by the Commission in the run-up to the 2002 Johannesburg UN summit (see also Chapter 16). However, the EU’s SDS was not produced in a particularly coordinated manner, as Hinterberger and Zacherl (2003: 15) argued. Problems of coherence, including ecologically harmful subsidies paid by the EU to the energy, fsheries and agricultural sectors, were glossed over, and the promise to include ambitious targets and timetables was dropped (Wurzel, 2001: 14). Moreover, insuffcient thought was given to how to assess the extent to which it contributed to or even undermined EPI (Pallemaerts et al., 2007: 6). Second, EPI became far more closely connected to climate policy, which triggered a new conceptual debate about something known as climate policy integration (CPI). CPI is generally understood to be a sub-category of EPI, but its importance and political salience rather quickly outstripped that of EPI as the EU established more and more ambitious goals and targets for climate and energy policy after the late 1990s (Oberthür and Roche Kelly, 2008). CPI resolves some of the evaluation and measurement challenges associated with EPI. It includes a clear metric against which success can be evaluated: namely the change in the amount of greenhouse gas emissions (with overarching political targets as benchmarks). Measuring the impact of a policy on greenhouse gas emissions, and the potential to reduce such emissions, is a calculation that can be more easily attained ex ante (as part of a policy impact assessment) or ex post (as part of policy evaluation exercises – see Chapter 14). Data on emissions has also become more precise and refned since the adoption of the United Nations Framework Convention on Climate Change in 1992, making the link between process, impacts and outcomes easier – but not easy – to identify. Climate policy integration: from 2008 to the European Green Deal While EPI fell out of the spotlight as climate change gained in political salience, the EU remained politically committed to sustainable development, at least in terms of words and strategy. The EU’s 2020 strategy for ‘smart, sustainable and inclusive growth’, published in 2010, aimed to mainstream sustainable development throughout the EU’s policy sectors (European Commission, 2010). In practice, however, there was more progress on CPI than on EPI in the mid-2000s and early 2010s. The EU’s professed leadership on climate change has both an internal and external dimension (compare Chapters 2 and 3). Engaging in global climate leadership externally through advocating strong multilateral action at global level required the EU to demonstrate ‘leadership-by-example’ (Wurzel et al., 2017). The EU’s efforts culminated in a number of policy measures, adopted in 2008, that was called the ‘integrated climate and energy package’. It included measures to reform the EU’s emissions trading system, to increase the share of renewable energy and to support carbon capture and storage

Policy integration 209 technologies, for example. The policy measures were agreed to implement several overarching targets for 2020: a binding 20% reduction in greenhouse gas emissions compared to 1990 levels; a binding 20% increase in the share of renewable energy in fnal energy consumption; and a non-binding 20% target for the increase of energy effciency, compared to business-as-usual scenarios for 2020 (Jordan et al., 2010; Oberthür and Pallemaerts, 2010). By 2017, the EU had already achieved its 2020 target to reduce emissions by 20%. EU climate policy became gradually more fxed to energy policy both in terms of policy actions and institutional coordination. In 2010, a new DG for Climate Action in the European Commission seemed at frst glance to split climate away from other related policy felds (from DG Environment, most notably), raising concerns that this move would amplify the European Commission’s historical reputation for turf battles and disintegrated policymaking (see Chapter 6). However, it lifted climate policy to a new level of political attention (Adelle et al., 2012). Commission President JeanClaude Juncker (2014–2019) took a further step towards reorganising the Commission’s structure in favour of more coordination and integration when he appointed a single Commissioner for Energy and Climate Action, Miguel Arias Cañete. Interservice coordination among Commission DGs intensifed during Juncker’s mandate, although the quality of the coordination activities varied considerably. Such measures have helped to dismantle the well-known silos within the Commission, but for CPI to prosper, other EU institutions must also coordinate their activities (Bürgin, 2018). The move to a greater focus on climate policy was both a result of the growing political salience of climate change and the accumulation of more scientifc information on the rates and scope of changes (such as EEA, 2016, 2019; IPCC, 2018). But it also presented a new opportunity to further advance EPI and sustainable development (under its 2020 strategy). The political salience of climate change was clearly expressed by the highest political level in the EU (Dupont, 2019). In October 2009 for example, the European Council agreed to reduce greenhouse gas emissions by 80–95% by 2050 (European Council, 2009). Further statements on the need for the EU to take leadership in global climate governance, not least by adopting ambitious internal emissions reduction targets and policy measures, were repeated throughout the 2000s and 2010s by all EU institutions (Dupont and Oberthür, 2017; Wurzel et al., 2017). The EU also adopted targets for 2030, including a 40% emissions reduction target, an increase in the share of renewables to at least 32% and an improvement by at least 32.5% in energy effciency. Crucially, the rising political salience of climate change helped the EU to legislate on some of the fundamental drivers that lead to environmental and climate damage; drivers in areas such as energy, housing and transport that had traditionally lain at the margins of the EU’s legal competence to act. The competence to make policy on energy was fnally included in the EU’s Lisbon Treaty, which entered into force in 2009. While the competence on environment, climate and energy policies remains shared – meaning that the EU and member states are both responsible for policymaking in different facets of the policy feld – the EU has certainly gained considerable authority in these areas (Dupont, 2020). The roll out of the EU’s Energy Union in 2015, for example, showed how European integration in a policy area that had long been carefully guarded by the member states can still be achieved with right policy interconnections and political framing (Szulecki et al., 2016). The overarching framework of the European Green Deal thus had a strong foundation in a long history of EPI and CPI development in the EU. The European Green Deal was characterised by Commission President Ursula von der Leyen as the EU’s ‘man on the moon’ moment. She put Executive Vice-President Frans Timmermans in charge of implementing it – a choice that has been widely

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welcomed by policymakers and NGOs. He is widely seen as the right person for the job and generates confdence in the EU’s ability to follow through on the commitments made. Crucially, the Green Deal offers a new framework which various EU-level actors can use to advance EPI and CPI (see Box 12.3). So, after several decades of slow development punctuated by numerous setbacks, policy integration may fnally be a policy idea whose time has come.

Box 12.3 The European Green Deal: a new opportunity to advance policy integration? The European Green Deal is, on paper, an integrative, overarching policy framework that underlines that ‘all EU actions and policies will have to contribute to the European Green Deal objectives’ (European Commission, 2019: 3, emphasis added). It aims: to transform the EU into a fair and prosperous society, with a modern, resource-effcient and competitive economy, where there are no net emissions of greenhouse gases in 2050 and where economic growth is decoupled from resource use. It also aims to protect, conserve and enhance the EU’s natural capital, and protect the health and well-being of citizens from environment-related risks and hazards. (ibid.: 2) To achieve the aims, the Commission proposed several strategies that cross policy domains. They are informed by a slightly different way of thinking about EPI, which is more systemic and focused less on specifc sectors and more on society-wide transformations. This thinking has been developing in the EEA and parts of academia for a number of decades (EEA, 2016, 2019; Patterson et al., 2017).

Summary points • • •

The EU has struggled to implement the principle of EPI since the 1970s, but since the mid-2000s, it has had some success in implementing CPI, with climate change mitigation enjoying particularly high political salience. The implementation of EPI has involved the deployment of many different instruments. The drawbacks in particular have underlined the fact that EPI is a complex, multi-levelled challenge. While EPI has proven harder to implement than some of its early advocates hoped, the EU’s efforts have laid the ground for the more integrative approach within the European Green Deal.

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Understanding the implementation of EPI in practice A rich body of scholarship has highlighted a combination of variables that have a bearing on how EPI is defned and implemented (De Roeck et al., 2016; Dupont, 2016; Jordan and Lenschow, 2010; Persson et al., 2018) (see also Chapter 4). Institutional set-up and policy context When assessing EPI in the EU, we need to be aware of the very complex way in which legal competences are shared across different sectors and levels of governance in the EU, how these have shifted over time and the relative weak capacity for central leadership inherent in the EU’s institutional structure. Depending on the particular competence, decision-making rules can vary, and the capacity of the EU to make proposals for certain types of policy instruments and in certain policy domains can be constrained. Each of the actors within the EU policymaking structure has a role in the policymaking process (see Chapters 5–9), with the EU functioning in a multi-level, or even polycentric, governance style (Rayner and Jordan, 2013). This context shapes the possibilities for and also obstacles to any implementation of EPI in practice. Furthermore, beyond the legal and institutional context, we need to understand the implementation of EPI from the perspective of different policy pathways, and how institutional traditions and cultures impact the development of policy in the EU (Dupont, 2016). Path dependency from one policy cycle to the next can further limit room to adapt policy tools and measures for EPI (Jordan and Lenschow, 2008). The EU continues to work predominantly within the constraints and possibilities of its institutional structures (see Box 12.2), even if these may not be the most suitable or effcient for transformative and/or fully integrated policy action. The extent to which an overarching framework such as the European Green Deal may serve to adjust direction remains to be seen. The degree of political commitment Political commitment is generally considered to be hugely important for the establishment and implementation of policy integration (Jordan and Lenschow, 2008; Lafferty and Hovden, 2003). It has long been argued that without an overarching commitment and leadership from the political level, policy integration may not succeed or be sustained (Jordan, 2002), although other conditions are also needed, including pressure from different actors to push leaders to commit in the frst place. This is especially so for the EU, which for a long time has had no obvious central political leader. Today, the European Council provides considerable political impetus and guidance to the other EU institutions (see Chapter 5). A review of EPI scholarship found that political backing may exist in the EU, but without other enabling variables in place, there is no guarantee of successful policy integration (Jordan and Lenschow, 2010). Recognising and measuring political commitment in research remains a big challenge, however, as does the study of how it interacts with other variables (see Box 12.4).

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Box 12.4 Defning and measuring the political commitment to policy integration Pinning down what is meant by ‘political commitment’ is tricky. The broader literature on policy coherence and policy mainstreaming, for example, often highlights the need for political will, political leadership and political commitment to ensure a certain policy output or outcome materialises. However, often these variables are not adequately defned and unpacked (Brinkerhoff, 2000; Jordan and Schout 2006; Van Der Weyden, 2003). Political commitment can, however, be usefully defned to include a mix of discourse and action: political discourse in favour of (strong, ambitious) action on EPI; followed up with action across legal, political, administrative and knowledge domains. For example, commitment to the environment and to EPI could include: setting binding, ambitious environmental targets; providing fnancing and other budgetary measures; making organisational and structural realignments; and investing in new monitoring and evaluation processes. This chapter documents the abundance of discourse on EPI over the last 40 years or so. By contrast, the second aspect of political commitment for EPI (i.e., action) has been thinner on the ground. The European Green Deal represents an unprecedented opportunity to translate high-level political commitment to environmental protection into tangible and enduring forms of EPI.

Functional interactions The functional or material interrelations between one policy area and another need to be known and recognised. Policy offcials require knowledge about the cross-sectoral causes and impacts of environmental issues to design and promote integrated policy responses. A heightened role for stakeholders that can bring knowledge on the need for integrated policy responses into the policy process has been regarded as an enabler of higher levels of EPI (EEA, 2005; Herodes et al., 2007). But this factor requires both the recognition of functional interactions and action based on this recognition. When the characteristics of the interactions between policy areas are direct and synergetic, it is far easier to highlight and act upon these connections to advance EPI. For example, we know that the predominant source of climate-damaging greenhouse gas emissions comes from burning fossil fuels in our energy sector. While energy policy has often focused on energy security measures, the obvious interactions between energy production and climate change can also be harnessed to propose policies that focus on energy effciency and renewable energy. By reducing demand for energy and by displacing fossil-based energy sources with renewable energy sources, there is a direct and synergetic interaction between climate policy, that aims to reduce greenhouse gas emissions, and energy policy, that has long aimed for more secure energy supplies (Adelle et al., 2012; Dupont, 2016). Conversely, when the functional interconnections are not direct or obvious, and when these interactions demonstrate policy objectives that confict with each other, the opportunities to advance EPI are lower (Dupont, 2016). For example, agricultural or industrial policies have for a long time had opposing objectives to the environmental

Policy integration 213 policy sector. Aiming to produce food or goods that are considered essential necessities for society and the economy has not always aligned with environmental policies that encourage conservation, nature protection and the reduction of emissions. In such cases, advocates of EPI face higher barriers and are likely to encounter longer delays. The strength of the narrative/discourse for EPI Taken together, the degree of political commitment, the institutional set-up and policy context and the recognition of functional interrelations go some way to explaining the conditions in which EPI is enabled and/or delayed. However, the strength of the narrative around EPI is arguably also important. Analysing who is providing what (type of) discourse, when, to whom and with what resources can highlight how and whether EPI is pushed into the ‘mainstream’ of policy priorities (Detraz and Betsill, 2009; Schmidt, 2010). European citizens increasingly support action on the environment and climate change and support stronger EU action (Eurobarometer, 2008, 2019). A consistent discourse around the necessity of integrated policy responses, articulated by a wide variety of societal and political actors, is, however, necessary to translate public concern into political support for EPI (Dupont, 2019; Spendzharova and Versluis, 2013). In the past, the Cardiff Process of EPI reporting had a low political profle outside Brussels. With the European Green Deal, President von der Leyen has brought together a strong political vision, a highly respected political fxer (Frans Timmermans) and the promise of signifcant new funding. New research is needed to explore whether the European Green Deal is able to succeed in overcoming some of the well-known obstacles to EPI.

Summary points •

• •

To understand and explain EPI in the EU, analysts need to examine several variables: the institutional set-up and policy context; the degree of political commitment; the functional interactions between policy sectors; and the presence of a compelling and enabling discourse. However, EPI requires a subtle combination of all four, which arguably has seldom existed in the EU. There is a rich body of research on EPI; new studies of the European Green Deal can provide fresh insights into how and why EPI succeeds in certain conditions but not others.

EPI: from policy principle to policy practice Several underlying themes should now be obvious. First, the principle of EPI has achieved greater legal force, which is no small feat by itself. But that proved insuffcient for effective implementation of EPI in practice. While the Commission and predominantly DG Environment have pushed for EPI from the beginning of the 1970s, the institutional responsibility spilled over to the Council (and therefore to member states) with the Cardiff Process in the 1990s. However, without consistent, high-level political backing and EPI champions across the EU institutions, the Cardiff Process

214 Claire Dupont and Andrew Jordan failed to achieve long-lasting EPI. Without high-level political commitment, responsibility for implementing EPI was not clear enough and in consequence remained low on the EU’s list of priorities. Second, with the rise of the political salience of climate change and the EU’s ambitions to become a global climate leader, there was a shift in emphasis towards CPI which gained political traction across all the institutions of the EU. The political backing for CPI resulted in the adoption of several policy measures, especially in the energy policy domain, that aimed to reduce greenhouse gas emissions and contribute to combating climate change. This wide political backing was conspicuously absent in the years when the Commission was fghting a relatively lonely battle to promote EPI. CPI opened up the previously closed energy sector to new forms of policy coordination and coherence checking. Third, several attempts to make administrative changes to overcome deep-rooted policy silos have had different degrees of success. For a long time, very few EU-level actors were anywhere as committed to EPI as DG Environment. However, the elevation of climate policy through the establishment of a DG for Climate Action, and later a single Commissioner in charge of Energy and Climate Action, pushed CPI out of its environment silo into other policy areas. Further coordination efforts among DGs were also attempted through, for example, impact assessment and strategic policy planning (see Chapter 6). Whether such mechanisms have led to a qualitative improvement in pursuit of EPI remains to be properly assessed (Bürgin, 2018). Nevertheless, they enabled the Commission to propose the European Green Deal. Fourth, as discussed above, scientifc input to EU policy processes has played a key role in the development of more systemic approaches to delivering EPI. Such approaches have directly informed some of the proposals contained within the Commission’s Green Deal. To understand and explain EPI’s development, scholars have drawn on a wide range of theoretical perspectives to explain the EU’s efforts to implement EPI. Four, broad categories of factors are now known to be especially important: the institutional set-up and policy context of the EU; the degree of political commitment; a recognition of functional interrelations; and the presence (and strength of) a narrative or discourse that is supportive of EPI. The Green Deal offers an unprecedented opportunity to test these explanations against real-world events. Thus, while the institutional set-up for decision-making has not dramatically altered in the EU, the EU institutions have managed to secure greater authority in policy areas where its competence is (at most) shared (Herranz-Surrallés et al., 2020). Political commitment to the integrated approach of the European Green Deal seems to exist; in fact, the European Commission President has made it the centrepiece of her mandate and assigned her highest-ranking Commissioner to oversee its implementation. The European Parliament has endorsed and supported the Green Deal, even calling for stronger ambition. The European Council and the Council have also endorsed the Green Deal and the EU’s ambition for Europe to become the world’s frst climate-neutral continent by 2050. The Deal also recognises and seeks to address the interrelations among a myriad of different policies. And fnally, the discourse (or narrative) within the main EU institutions seems to suggest that resources will eventually be mobilised to ensure the Green Deal is a success. Future research will have an opportunity to assess whether these initially positive starting conditions were a suffcient guarantor of future policy integration.

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Summary points • • •

The EU has long been a leading advocate of EPI, but it has faced challenges in implementing it in practice. With the rise in political salience of climate change, CPI gradually came to the fore, in turn, presenting new opportunities to advance EPI in policy areas such as energy and transport where it had struggled to gain traction in the past. The European Green Deal shows that the EU has – at least on paper – come to a point when a version of EPI is fnally being implemented in practice, but it remains to be seen whether it genuinely tackles the underlying drivers of unsustainable development in the EU.

Conclusions The EU has travelled a long way in relation to EPI. While the EU institutions, and particularly the Commission and its DG Environment, have been advocating EPI since the 1970s, many decades passed before the EU fnally arrived at a clear conceptualisation and a set of procedures to implement it in practice. Implementation remains the key challenge, however. Right through to the late 1990s, EPI was implemented in a piecemeal fashion: either through improving policy formulation activities within the Commission or through establishing new ways of working with the other EU institutions. Some progress was nevertheless made. In the 2000s in particular, climate change moved up the EU’s political agenda. Using this to advance CPI gradually became a logical policy solution to the historical problem of how to implement EPI in practice. EPI has thus benefted from the relative success of CPI. The new, overarching framework of the European Green Deal presents a more systemic approach to responding to environmental issues than, for example, the Cardiff Process of planning and reporting. Crucially, the Green Deal calls on ‘all EU actions and policies’ to contribute to ensuring that the EU’s objectives are met, many of them underpinned by international obligations. Together, they set a clear set of boundaries for decision makers in other policy domains to work within, but not transgress. While the Green Deal has built on years of effort to implement EPI and then CPI, it will take time to establish whether the objectives and discourse of the Green Deal are actually translated into concrete policy actions, impacts and outcomes. Scholars and policy makers have a much better idea of what factors enable EPI. Four are particularly important: the basic institutional set-up; the degree of political commitment; the extent to which functional overlaps are recognised; and the strength of the overarching discourse or narrative. When and where these four elements align, we should expect implementation to increase. While the European Green Deal appears to be the fulflment of many decades of learning about when, why and how EPI and CPI works, its success is not a given. New research is necessary to identify the critical enabling factors. Is there, for example, a particular defnition of EPI that is especially supportive of a wider, society-wide sustainability transformation? In doing so, scholars may fnd themselves grappling with new questions – concerning social justice for example – that have not been as high profle in the past. Either way, the 2020s will provide rich empirical material to advance our knowledge of EPI.

216 Claire Dupont and Andrew Jordan

Summary points • • •

Progress in implementing EPI in the EU has been slow, but decades of policy action and learning nonetheless laid the foundations of the European Green Deal. Knowledge of what works for EPI and why has grown, driven in particular by European scholars. Future empirical research on the implementation of the Green Deal could provide important new insights in relation to the theory and practice of EPI.

Key questions 1 2 3 4 5

Why did the EU implement a quasi-constitutional commitment to EPI in its Treaties? What kinds of mechanisms and tools has the EU employed to achieve EPI, when and for how long? What is the relationship between EPI and CPI, both in theory and in practice? How do the four explanatory factors outlined above interact in relation to a particular policy integration challenge, such as decarbonising the transport or energy sectors? Choose one policy proposal in the European Green Deal. Use the four explanatory factors, frst, to explain its formulation and, second, to predict how well it will be implemented.

Guide to further reading •

• •

The foundational texts are by Jordan and Lenschow (2008, 2010). Dupont (2016) provided a detailed study of CPI in EU energy policy, which includes rich empirical data and a helpful framework to assess its implementation in practice. Trein et al. (2020) outline an agenda for bringing together research on many related concepts, such as joined-up governance, policy coordination, mainstreaming and so on. The European Green Deal is likely to dominate policy practice and scholarship for years to come. It is worthwhile reading the text of the Commission’s proposal (2019) and the European Environment Agency’s (2019) State and Outlook of the Environment in Europe report, which provided the underlying knowledge base.

Policy integration 217

Online resources • • •

The European Environment Agency: https://www.eea.europa.eu/, and its SOER report: https://www.eea.europa.eu/soer-2020/intro. The European Commission: https://ec.europa.eu/info/index_en, and especially its pages on the Green Deal: https://ec.europa.eu/info/strategy/priorities-2019-2024/ european-green-deal_en. United Nations’ Environment Programme: https://www.unenvironment.org/, and especially its annual emissions gap report: https://www.unenvironment.org/ resources/emissions-gap-report-2019.

References Adelle, C., Russel, D., and Pallemaerts, M. (2012) A ‘coordinated’ European energy policy? The integration of EU energy and climate change policies. In F. Morata and I. Solorio Sandoval (Eds.), European Energy Policy: An Environmental Approach (pp. 25–47). Cheltenham: Edward Elgar. Brinkerhoff, D. W. (2000) Assessing political will for anti-corruption efforts: An analytic framework. Public Administration and Development, 20(3), 239–252. Bürgin, A. (2018) Intra- and inter-institutional leadership of the European Commission president: An assessment of Juncker’s organizational reforms: Leadership of commission president. JCMS: Journal of Common Market Studies, 56(4), 837–853. Cejudo, G. M., and Michel, C. L. (2017) Addressing fragmented government action: Coordination, coherence, and integration. Policy Sciences, 50(4), 745–767. De Roeck, F., Delputte, S., and Orbie, J. (2016) Framing the climate-development nexus in the European Union. Third World Thematics: A TWQ Journal, 1(4), 437–453. Detraz, N., and Betsill, M. M. (2009) Climate change and environmental security: For whom the discourse shifts. International Studies Perspectives, 10(3), 303–320. Dupont, C. (2016) Climate Policy Integration into EU Energy Policy: Progress and Prospects. London: Routledge. Dupont, C. (2019) The EU’s collective securitisation of climate change. West European Politics, 42(2), 369–390. Dupont, C. (2020) Defusing contested authority: EU energy effciency policymaking. Journal of European Integration, 42(1), 95–110. Dupont, C., and Oberthür, S. (2012) Insuffcient climate policy integration in EU energy policy: The importance of the long-term perspective. Journal of Contemporary European Research, 8(2), 228–247. Dupont, C., and Oberthür, S. (2017) The Council and the European Council: Stuck on the road to transformational leadership. In R. K. W. Wurzel, J. Connelly, and D. Liefferink (Eds.), The European Union in International Climate Change Politics: Still Taking a Lead? (pp. 66–79). London: Routledge. EEA (2005) Environmental Policy Integration in Europe: State of Play and Evaluation Framework. EEA Report no 2/2005. Copenhagen: European Environment Agency. EEA (2016) State of the Environment Report, 2015. Copenhagen: European Environment Agency. EEA (2019) The European Environment—State and Outlook 2020. Knowledge for Transition to a Sustainable Europe. Copenhagen: European Environment Agency. Eurobarometer (2008) Europeans’ Attitudes towards Climate Change. (Special Eurobarometer 300) https://ec.europa.eu/commfrontoffce/publicopinion/archives/ebs/ebs_300_full_en.pdf.

218 Claire Dupont and Andrew Jordan Eurobarometer (2019) Climate Change (Special Eurobarometer 490).https://ec.europa.eu/clima/ sites/clima/fles/support/docs/report_2019_en.pdf. European Commission (2010) Europe 2020: A European Strategy for Smart, Sustainable and Inclusive Growth COM(2010) 2020. Brussels: European Commission. European Commission (2019) The European Green Deal. COM(2019) 640. Brussels: European Commission. European Council (2009) Presidency conclusions, 29/30 October 2009. Brussels: Council of the European Union. Herodes, M., Adelle, C., and Pallemaerts, M. (2007) Environmental Policy Integration at the EU Level: A Literature Review. EPIGOV Paper No. 5. Ecologic – Institute for International and European Environmental Policy. Herranz-Surrallés, A., Solorio, I., and Fairbrass, J. (2020) Renegotiating authority in the Energy Union: A Framework for analysis. Journal of European Integration, 42(1), 1–17. Hinterberger, F., and Zacherl, R. (2003) Ways towards Sustainability in the European Union, SERI Institute, Vienna. IPCC (2018) Global Warming of 1.5°C. An IPCC Special Report. Intergovernmental Panel on Climate Change, www.ipcc.ch. Jordan, A. (2002) Environmental Policy in the European Union: Actors, Institutions and Processes. London: Earthscan. Jordan, A., Huitema, D., van Asselt, H., Rayner, T., and Berkhout, F. (Eds.). (2010) Climate Change Policy in the European Union: Confronting the Dilemmas of Mitigation and Adaptation? Cambridge: Cambridge University Press. Jordan, A., and Lenschow, A. (2008) Environmental policy integration: An innovation in environmental policy? In A. Jordan and A. Lenschow (Eds.), Innovation in Environmental Policy? Integrating the Environment for Sustainability (pp. 313–341). Cheltenham: Edward Elgar Publishing Ltd. Jordan, A., and Lenschow, A. (2010) Environmental policy integration: A state of the art review. Environmental Policy and Governance, 20(3), 147–158. Jordan, A., and Schout, A. (2006) The Coordination of the European Union: Exploring the Capacities for Networked Governance. Oxford: Oxford University Press. Kivimaa, P., and Mickwitz, P. (2009) Making the climate count: Climate policy integration and coherence in Finland. In The Finnish Environment (Vol. 3). Helsinki: Finnish Environment Institute. Krämer, L. (2005) The dispersion of authority in the European Union and its impact on environmental legislation. In F. Wijen et al. (Eds.), A Handbook of Globalization and Environmental Policy (362–386). Cheltenham: Edward Elgar. Lafferty, W. M., and Hovden, E. (2003) Environmental policy integration: Towards an analytical framework. Environmental Politics, 12(5), 1–22. Lenschow, A. (Ed.). (2002) Environmental Policy Integration, London: Earthscan. Oberthür, S., and Pallemaerts, M. (Eds.). (2010) The New Climate Policies of the European Union: Internal Legislation and Climate Diplomacy. Brussels: VUB Press. Oberthür, S., and Roche Kelly, C. (2008) EU leadership in international climate policy: Achievements and challenges. The International Spectator, 43(3), 35–50. Pallemaerts, M. Herodes, M. and Adelle, C. (2007) Does the EU Sustainable Development Strategy Contribute to EPI? Ecologic: EPIGOV concerted action, Berlin. Patterson, J., Schulz, K., Vervoort, J., van der Hel, S., Widerberg, O., Adler, C., Hurlbert, M., Anderton, K., Sethi, M., and Barau, A. (2017) Exploring the governance and politics of transformations towards sustainability. Environmental Innovation and Societal Transitions, 24, 1–16. Persson, Å., Runhaar, H., Karlsson-Vinkhuyzen, S., Mullally, G., Russel, D., and Widmer, A. (2018) Editorial: Environmental policy integration: Taking stock of policy practice in different contexts. Environmental Science and Policy, 85, 113–115.

Policy integration 219 Rayner, T., and Jordan, A. (2013) The European Union: The polycentric climate policy leader? Wiley Interdisciplinary Reviews: Climate Change, 4(2). https://doi.org/10.1002/wcc.205. Schmidt, V. A. (2010) Taking ideas and discourse seriously: Explaining change through discursive institutionalism as the fourth ‘new institutionalism’. European Political Science Review, 2(1), 1–25. Spendzharova, A., and Versluis, E. (2013) Issue salience in the European policy process: What impact on transposition? Journal of European Public Policy, 20(10), 1499–1516. Szulecki, K., Fischer, S., Gullberg, A. T., and Sartor, O. (2016) Shaping the ‘Energy Union’: Between national positions and governance innovation in EU energy and climate policy. Climate Policy, 3062(March), 1–20. Trein, P., Biesbroek, R., Bolognesi, T., Cejudo, G. M., Duffy, R., Hustedt, T., and Meyer, I. (2020) Policy Coordination and integration: A research agenda. Public Administration Review. https://doi.org/10.1111/puar.13180. Van Der Weyden, M. (2003) Australian healthcare reform: In need of political courage and champions. Medical Journal of Australia, 179, 280–281. WCED (1987) Our Common Future. World Commission on Environment and Development. Weale, A., and Williams, A. (1992) Between economy and ecology? The single market and the integration of environmental policy, Environmental Politics, 1(4), 45–64. Wurzel, R. (2001) The EU presidency and the integration principle. European Environmental Law Review, 10, 7–15. Wurzel, R. K. W., Connelly, J., and Liefferink, D. (Eds.). (2017) The European Union in International Climate Change Politics: Still Taking a Lead? London: Routledge.

13 Policy implementation Asya Zhelyazkova and Eva Thomann

Summary guide The EU policy-making process does not end with the fnalisation and adoption of EU legislation. In order to have a measurable impact on environmental quality, EU policies must also be implemented by member states, businesses and civil society. However, implementation remains the ‘Achilles heel’ of EU policy, contributing to the maintenance of diverse environmental outcomes on the ground in the member states. Thus, while some member states fail to comply with EU environmental rules, others implement more ambitious policies than the EU formally requires. The EU has been and remains active in seeking to remedy implementation problems. Follow-up enforcement by EU institutions is generally effective, but it is often very slow. Nonetheless, non-compliance with EU environmental law remains a problem and causes considerable health-related and environmental costs. In tackling it, member state capacity, domestic politics and civil society play an important role.

Introduction The EU has a host of binding and soft legislation to tackle climate change and protect the environment. The extent to which environmental policies remain a mere paper exercise depends entirely on the extent to which the member states and the targeted actors—industry, businesses, individuals, et cetera—actually implement them in practice. Policy implementation is a key stage of the policy process because the EU’s efforts to protect the environment remain essentially ineffective, without successful implementation. Member states have experienced implementation problems for decades (e.g., Jordan, 1999). In 2018, the Commission uncovered no less than 73 violations of EU environmental policy, which is the third-highest number of cases after Mobility and Transport (101) and Internal Market (97). Furthermore, the environment was the area with the most unresolved compliance problems, with 298 ongoing law violations at the end of 2018 (European Commission, 2018). Consultants commissioned by the European Commission have calculated that full implementation of EU environmental legislation could save the EU economy around 55 billion Euros every year in health costs and direct costs to the environment (European Commission, 2019a). In other words, implementation has often been the Achilles’ heel of EU environmental policy. DOI: 10.4324/9780429402333-13

Policy implementation 221 This chapter addresses three key questions. First, what is the actual state of play with regard to the implementation of EU policy? Second, to what extent do the member states differ in implementing rules and what explains the apparent variation in their individual implementation performance? Third, what strategies can improve compliance with EU environmental law, and which have actually been used?

Summary points • • •

Implementation is vital to ensure EU environmental policy work, but it is also the Achilles heel of the EU policy process. The EU institutions and the member states are the key players in the implementation process, but private actors and citizens also play important parts. Failure to implement EU environmental policies incurs high economic costs which are born by member states and wider civil society.

Analysing EU policy implementation Policy implementation started to be widely studied in the 1970s, when scholars recognised the importance of policy implementers in making policies work (for example, Pressman and Wildavsky, 1984; Sabatier and Mazmanian, 1980). Discretion, when rules and institutions leave policy implementers with several possible courses of action or inaction (Hupe, 2013), is almost inevitable especially in a multi-level governance system such as the EU (Thomann, 2019). In EU scholarship, policy implementation research started to boom in the 1990s (see Falkner et al., 2005; Knill, 2015; Treib, 2014). We can distinguish three analytical perspectives on policy implementation (Matland, 1995; Thomann and Sager, 2017). First, the top-down perspective mainly views policy implementation as a result of hierarchical guidance ‘from above’. Compliance is a key concern, i.e., whether or not the decisions or actions of policy implementers conform to the centrally decided policy. The bulk of EU environmental policy research focuses on this important question (Treib, 2014). Second, a more bottom-up perspective views policy implementation as a process of problem solving from the standpoint of implementing and civil actors. This perspective focuses on questions of performance, that is, the (no) resolution of the problems that originally motivated the policy. Some policies may be fawed or have unintended side effects, so that even ‘perfect’ compliance may not ensure problems are solved. For example, critics of the EU Emissions Trading System have argued that it does not effectively reduce global emissions, while leading to a loss of competitiveness in global markets (Muûls et al., 2016) (see also Chapter 17). Nowadays, many analysts adopt a third, more hybrid perspective on implementation, which brings together both questions—relating to compliance and performance—in a unifed analytical framework. Once a policy has been decided, we can distinguish three different processes of policy implementation (see Figure 13.1) (Patton, 1997). For instance, Regulation (EC) 715/2007 established emission limits for motor vehicles to tackle the problem of air pollution caused by motor vehicles. Directive 2007/46, and specifcally Article 46, obliged member states to monitor and enforce these requirements vis-à-vis car producers. The

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Policy & instruments Action plans Emission limits for vehicles

Outcomes Behavioral change

Impacts Solution of problem

Lower car emissions

Less air pollution

Implementing actors Put policy into practice

Addressees Need to change their behaviour

Beneficiaries Benefit from problem solving

EU members Inspectors

Car producers & consumers

Population

Outputs Implemented measures, monitoring & enforcement Vehicle testing

Figure 13.1 Policy outputs, outcomes and impacts: emission limits for vehicles. Source: own illustration based on Patton (1997).

Regulation, although relatively short in length, identifes a number of tasks that particular actors should accomplish. Certainly, so-called implementing agents need to produce the administrative products (outputs) in order to transform the tasks identifed in the Regulation into action ‘on the ground’. Thus, the EU member states must set up transposition procedures, implementing structures and allocating resources to inspectors so they can check that cars comply with emission limits. Ideally, these outputs will produce behavioural changes (outcomes) among actors responsible for the policy problem, the so-called policy addressees. Car producers, in turn, need to produce cars that have lower emissions, so that consumers can purchase them. This should then lead to intended (and unintended) effects on the problem to be solved (impacts), such as less air pollution caused by cars, which, in turn, affects the entire population (benefciaries). Crucially, the majority of research on EU environmental policy implementation focuses on the policy outputs; although important, much less is known about their practical effectiveness in delivering suffcient policy outcomes. The stages of policy implementation Article 4(3) of the TEU assigns the member states the principal responsibility for policy implementation (see also Chapter 7). The implementation process in the EU could be defned as the transmission of legislation adopted at EU level into the actions of member states. Outputs are delivered across several stages (see Table 13.1). At the very frst stage, EU directives need to be translated by member states into national law and the national judicial and administrative system (formal/legal transposition). At this stage, the policy output is still ‘on paper’ and thus not ‘into action’ (Versluis, 2007). The relevant national and sub-national authorities are obliged to enforce and apply the adopted decisions within national settings (administrative implementation). Finally, civil society actors need to change their behaviour in practice (outcomes; practical application) in order for implementation to be complete. Article 17(1) TEU also assigns a role to the Commission to oversee implementation by monitoring compliance and enforcing EU law vis-à-vis member states in case of

Policy implementation 223 Table 13.1 EU policy implementation: actors, processes and criteria Process

Focus

Transposition (formal outputs)

Legal and bureaucratic Legislators / measures for parliaments transposing EU law into Interest groups, the national judicial & veto players administrative system Administration

Administrative implementation (practical outputs)

National regulatory practice Regulatory styles, Organisational and administrative structures Practical application Behavioural change of (practical outcomes) addressees, national, sub-national and at the frontline

Actors

National and sub-national administrative units Agencies Public servants Service providers Economic actors Citizens

Criteria Timeliness (Notifcation of omission) Completeness Correct integration into regulatory context Correct application of and compliance with the legal prescriptions Monitoring and enforcement Compliance of addressees (outcomes)

Own illustration based on Falkner et al. (2005), Knill and Tosun (2012), Knill (2015) and Thomann (2019).

infringements (for further details, see Chapter 6). Both administrative implementation and practical application are part of ‘practical implementation’ which is such a strong focus of the hybrid and bottom-up perspectives outlined above. Legal and practical compliance Refecting the top-down and hybrid perspectives, the literature on compliance broadly distinguishes between three aspects of compliance: notifcation; transposition (legal compliance); and practical compliance (Börzel, 2001; Börzel et al., 2012; Zhelyazkova et al., 2016). EU implementation has mainly been studied in terms of whether EU directives are transposed into domestic law as required (Treib, 2014). In particular, EU member states are legally obliged to formally notify the Commission of all relevant legislation meeting the goals of EU directives before a specifed deadline. However, it is possible that EU member states meet the respective directive deadlines, but the notifed legislation does not refect the EU requirements. In these situations, the EU member states have failed to correctly incorporate the EU objectives and requirements in their national legislation. Many EU scholars focus on notifcation and transposition as indicators of non-compliance with EU policies (Kaeding, 2006; Mastenbroek, 2005; Steunenberg, 2006). However, successful transposition constitutes only one stage of the implementation process, as the transposed directives also need to be properly and correctly applied by the relevant sub-national institutions (Falkner et al., 2007; Versluis, 2007). Even though member states have greatly improved their transposition performance, practical compliance remains problematic. Qualitative studies have identifed numerous gaps in the application of directives (Falkner et al., 2005; Hartlapp and Falkner, 2009; Versluis, 2007). A major conclusion is that the ‘law in practice’ does not refect the ‘law of the books’ because bureaucratic actors often fail to comply with EU legislation and/ or with national laws designed to implement EU legislations.

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The enforcement of compliance What are the consequences if member states fail to comply? As described in Chapters 6 and 7, a failure to comply could result into the instigation of infringement proceedings by the Commission, which consist of three formal consecutive stages. The infringement procedure is generally seen as an ‘enforcement ladder’, where each stage increases the pressure on law-violating actors to remedy implementation gaps (Tallberg, 2002). The frst phase is informal and aims to establish if there are any implementation gaps. This is not the case at later stages of the procedure, where the Commission threatens to refer law-violating governments to the CJEU. The formal stages of the infringement procedure are also a tool to shame non-compliant member states into acting by naming and shaming them in public (Knill, 2015; see below). Over the years, the Commission has expanded its capacity to monitor member states’ compliance with EU rules. First, the member states are required to notify the Commission of all their relevant legislation on a particular directive (Thomson et al., 2007). Second, the Commission regularly entrusts external legal consultants to conduct ‘conformity-checks’ of EU environmental legislation, both in terms of legal and practical compliance. Nevertheless, the Commission remains seriously weakened compared to national regulators in monitoring the application of EU rules within the member states, as the latter are better positioned to observe the impact of the EU rules on national industries, businesses and citizens. Beyond compliance: customisation and performance While questions of compliance and enforcement are the primary focus of the topdown perspective, bottom-up and hybrid perspectives have highlighted the importance of processes of customisation and performance. Why is this? Faithful transposition of EU policy often co-exists with remarkable differences in how member states actually adopt EU policies. These non-literal interpretations of EU policies are variously termed as ‘customisation’, ‘gold-plating’ or ‘over-implementation’ (Falkner et al., 2005; Thomann, 2019; Thomann and Zhelyazkova, 2017). Customisation means that provisions of directives undergo changes during transposition in their regulatory density (i.e., the number of rules) and restrictiveness (i.e., the coerciveness of rules). As a result, national environmental standards often differ from the original EU rules. Such differences increase the diversity of policy outcomes across EU countries and contribute to the differential impact of EU policies (Thomann and Zhelyazkova, 2019). Domestic policy addressees may also bypass their law-violating governments and implement EU policies correctly (Zhelyazkova et al., 2018). Given the legal supremacy of EU law over national legislation, private and public institutions may choose to voluntarily apply EU rules, especially when relevant national rules are still lacking. Instances of practical implementation exceeding legal compliance are common in EU environmental policy. According to recent data, in 63% of the practical implementation cases related to environmental directives, the respective member state actually exceeded the levels of legal compliance (Zhelyazkova et al., 2018). These fndings could be attributed to the increasing infuence of transnational EU networks of civil servants and diversity of actors involved in the implementation of EU environment policy, including civil society, private actors, etc. The diversity in expertise brings new knowledge into the implementation of EU policy and contributes to effective problemsolving capacities even in the absence of relevant national legislation.

Policy implementation 225 The challenge of researching policy implementation Nevertheless, the burgeoning literature on the performance of domestic actors beyond compliance remains constrained by the availability of data (Knill, 2015). While the Commission regularly collects data on member states’ compliance, there is still limited quantifable data on the performance of domestic actors in relation to environmental policies. Furthermore, most studies of compliance focus on a specifc type of EU legislation—directives—and exclude other policy instruments such as regulations, decisions and soft law. Directives are general pieces of legislation that establish the objectives of EU law, but allow member states to select the means to meet them in the transposition process. Conversely, regulations and decisions are highly specifc pieces of legislation that are directly applicable to the member states, implementing institutions and citizens. EU soft law is generally less directly binding for member states, but still requires implementation (Hartlapp, 2019). Furthermore, based on the EU’s legal database (EUR-Lex), the average number of EU regulations has increased since 1995 (1,200 new regulations per year), while the average number of directives is much lower (80 new directives per year). Therefore, it is questionable whether the fndings of research that is based only on environmental directives are generalisable to the bulk of EU environment policies.

Summary points • • • •

The implementation of EU directives should result in national policy outputs (administrative products by implementing actors) and policy outcomes (behavioural change of addressees). EU policy implementation has different formal stages: transposition; administrative implementation; practical application; and enforcement by the EU. Scholars have studied EU policy implementation in terms of legal compliance, practical compliance, customisation and performance. Studying EU policy implementation in terms of performance is important but challenging because of limited data availability.

The politics of policy implementation How and why do member states differ in complying with and implementing EU environmental policies? We begin by briefy summarising the EU institutions and national actors, instruments and procedures involved. We then present recent evidence about legal compliance, customisation and practical compliance with the environmental policies of 27 member states (i.e., the EU-28 minus Croatia). Moreover, we discuss the enforcement activities of the European Commission based on infringement statistics (European Commission, 2020a). Finally, we discuss the reasons why member states comply to different degrees.

226 Asya Zhelyazkova and Eva Thomann Policy implementation: actors, policies and processes The EU has adopted some of the world’s most ambitious environmental policies over the past 50 years (see Chapters 2 and 4). However, as the Commission states, ‘our environment can only be well protected if Member States properly implement the legislation they have signed up to’ (European Commission, 2019a). For example, the Dieselgate case (see Boxes 8.2 and 13.1) showed the practical diffculties in achieving the change intended by EU policies, especially if the addressees are powerful political players (namely, the German carmakers). It also highlighted the global repercussions of non-compliance, and the importance of pressures by non-governmental actors— environmental organisations, consumers and the media—in forcing state actors to enforce EU rules. Dieselgate was not just a high-profle case of practical non-compliance. It was also a case of non-compliance by member states who failed to enforce the EU rules. For example, Germany had no effective sanctions in place to penalise automakers for breaching EU rules, apart from largely symbolic fnes. Accordingly, in 2017 the Commission commenced infringement proceedings against seven member states, including Germany, for failing to deter car manufacturers from violating car emissions legislation.

Box 13.1 The Dieselgate saga According to the EEA, air pollution causes tens of thousands of premature deaths each year in the EU. To tackle this problem, several EU directives defne acceptable limits for exhaust emissions of new vehicles sold in EU and EEA member states. Article 46 of Directive 2007/46 and Article 13 of Regulation (EC) 715/2007 oblige member states to have effective penalty systems in place to deter car manufacturers from breaking the law. At the same time, the EU has been promoting ‘clean diesel technology’ through subsidies and inducements since the 1990s. As early as 2011, the European Commission’s Joint Research Centre found that the level of harmful nitrogen dioxide (NOx) emissions from different car models exceeded the EU levels by up to 14 times when operated under real road conditions. In 2015, the US Environmental Protection Agency discovered excessive emissions from several Volkswagen (VW) models sold in the US. Moreover, it claimed that VW was systematically cheating on diesel emission tests by installing illegal software known as ‘defeat devices’. VW eventually admitted that it cheated on NOx and CO2 tests. The German government maintained that it was unaware of the breaches. The European Parliament nevertheless began to investigate the role of the member states in the affair (see also Box 8.2). In 2016, the US Justice Department sued VW over its use of emission-cheating software. Over the next two years, VW reached a fnancial settlement with the US government and took measures to compensate customers. Eventually, in 2018, VW was fned 1 billion euros by German prosecutors. Charges were brought against former VW CEO Martin Winterkorn. Studies later revealed that virtually every other European automaker had been cheating on the same tests.

Policy implementation 227 Legal and practical compliance with EU policies The Commission reports on different aspects of legal compliance, one of which is timely notifcation of national implementing measures. In 2017, the Commission recorded 113 cases of late notifcation of national measures related to EU environmental directives, while much fewer cases (41) were recorded in 2018 (European Commission, 2018). Cases of late notifcation in 2018 related to the transposition of directives on air quality and waste management. Even if member states transpose the EU requirements on time, this does not necessarily mean that national legislation meets the goals of the EU directives (‘legal compliance’). Figure 13.2 illustrates how the share of correctly transposed EU environmental law provisions varies across 27 member states. We observe that member states generally transpose EU legal provisions correctly (Zhelyazkova et al., 2017). The only exceptions are Poland, Slovakia and the Netherlands who conformed with less than 50% of the EU’s provisions. Poland and the Netherlands experienced diffculties especially in meeting the requirements of Directive 2001/81/EC (setting national emission ceilings for certain atmospheric pollutants). Conversely, Greece, Romania and Portugal appear to be ‘front-runners’ in the transposition process. However, we should take these fndings with a pinch of salt. Some studies indicate that member states may just literally translate the EU policies into national legislation, without

Figure 13.2 Member states: conformity with the requirements of environmental directives, 2007–2013. Source: own calculations, based on external evaluation reports commissioned by the EU Commission. Note: Croatia is excluded from the analysis because it joined the EU in 2013.

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taking the necessary steps to adapt the EU rules to their domestic political context (Falkner et al., 2005). Unlike legal compliance, there is limited data on member states’ practical compliance across different countries and policy areas. A recent study comparing four policy areas (internal market, environment, justice and home affairs and social policy) showed that member states do not lag behind the practical implementation of EU environmental directives relative to legal compliance (Zhelyazkova et al., 2016). The data is based on external evaluation reports commissioned by the Commission in the period between 2007 and 2013, and it contains information about legal compliance in the 27 member states. One possible explanation for this fnding is that EU environmental rules generally impose precise requirements on the member states, ensuring that both national governments and civil servants share the same objectives in the implementation process. Interestingly, however, national authorities are relatively slow in notifying the Commission of relevant environment-related domestic legislation in comparison to internal market, immigration and social policies. In other words, EU environmental policies require signifcant changes in national regulatory frameworks and it takes time before member states are able to comply with EU requirements. Differences in compliance between and within member states Why do some member states comply better with the EU rules than others? There has been a long-standing discussion, summarised in Chapters 2, 5 and 11, about ‘leaders’ and ‘laggards’ in the production of new EU environmental policies (Liefferink et al., 2009). It is important to remember that this debate also extends to the implementation phase (Börzel, 2000). Before the 2004 enlargement, there were major concerns that aspiring members lacked the capacity and willingness to comply with the environmental acquis. This resulted in CEE countries being given temporary exemptions from EU environment policy requirements. Figure 13.3 suggests that this policy response worked: the CEE member states receive fewer infringement cases than their Western counterparts in relation to environmental policies (Börzel and Buzogány, 2019; Zhelyazkova et al., 2017). Practical compliance is also slightly higher in the CEE member states. Figure 13.3 illustrates that they do not comply any better or worse than Western European countries. Again, the temporary exemptions appear to have helped CEE member states muster the resources needed to implement EU legislation. Compliance with environmental policies also varies within member states over time. The implementation gap has narrowed over the past 25 years despite the expansion of the environmental acquis (Börzel and Buzogány, 2019). The only exception pertains to the Southern member states, which continue to lag behind in the implementation of EU environmental legislation. There are several reasons why ‘widening’ (i.e., EU enlargement) and ‘deepening’ (i.e., policy expansion) have not exacerbated non-compliance with EU environmental law. Arguably, the EU member states implemented more demanding environmental policies in the past and most of the new EU environmental policies simply amend existing legislation (see also Chapter 19). Existing research shows that EU rules that modify existing EU legislation incur fewer compliance costs on the member states than new ones (Börzel and Buzogány, 2019). This is because member states will have already implemented earlier versions of the EU rules and only require a few extra changes to implement the amendments.

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Figure 13.3 Member state compliance in three policy areas. Source: Adapted from Zhelyazkova et al. (2017).

Customisation and performance Thomann and Zhelyazkova (2017) found that when customising EU environmental policies, most member states tend to adopt stricter and more rules than minimally required by the EU (Slovenia and Latvia being the main exceptions). Figure 13.4 illustrates patterns of customisation (see also Box 13.2). The observed variation in customisation indicates that member states not only have a role as ‘compliers’ with EU law (the top-down perspective), but also as ‘problem-solvers’ (the more bottom-up perspective) (Thomann, 2019). These fndings resonate with the argument made by Jans et al. (2009: 434–435) that the system of environmental protection within EU policies is a set of minimum standards, allowing member states to take stricter measures (as enshrined in Article 176 EC Treaty). Figure 13.4 and Box 13.2 show how often states make use of this possibility. Therefore, customisation is not only possible but is arguably necessary for successful environmental protection under the Treaties. In fact, there is some evidence that additional stringency—but not additional density—is associated with better practical compliance as well (Thomann and Zhelyazkova, 2019). There is limited research comparing performance in implementing EU policies across member states. However, recent evidence suggests that decentralised actors in member states work towards bottom-up problem solving in EU environment policy. Differences also exist within a single member state. For example, different Dutch

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Figure 13.4 The customisation of EU environmental policy requirements in old and new member states. Source: Adapted from Thomann and Zhelyazkova (2017).

Box 13.2 The customisation of EU policies: two examples The restrictiveness (stringency) and the density (amount of) rules in EU directives can be customised by member states. For example, Article 9(2) of Directive 2001/18/EC obliges member states to make available to the public all information about specifc type of releases of GMOs. When transposing it, Italian authorities included an additional obligation (added density) for farmers cultivating GMOs to install adequate cartels clearly indicating the presence of GMOs. Italy’s transposition of Article 9(2), thus, resulted in a more restrictive legislation to producers of GMOs than the EU rules (added stringency). In another example, Directive 2003/4/EC allows the EU member states to refuse public access to environmental information, if such disclosure would adversely affect intellectual property rights. Slovenian rules, however, specifed that intellectual property rights would not be a ground for refusal (less stringent) by adding that the applicant can still review a copy of the requested information (greater density).

municipalities varied in their performance at implementing the EU Ambient Air Quality Directive. In particular, smaller municipalities experienced more diffculties in implementing the directive than bigger ones (Bondarouk and Liefferink, 2017). Similarly, Gollata and Newig (2017) found vast spatial differences in the practical implementation of an EU air quality directive.

Policy implementation 231 European Union enforcement activities The EU’s enforcement activities show that compliance with EU environmental policy has improved over time (Jordan and Tosun, 2012). In particular, the number of open infringement procedures relating to environment has decreased from 479 in 2007 to 339 in 2019. As Figure 13.5 illustrates, there are large differences between member states in the number of infringement procedures, but there are no clear-cut regional patterns. Most of the cases, however, tend to be settled successfully. In 2019, the CJEU issued 337 judgements for non-compliance and the EU member states in question failed to comply with only 51 of them. When states fail to comply with CJEU judgements, the Commission can ask it to impose fnancial sanctions (see Chapter 7 for details). For example, following the recommendation by the Commission, the CJEU recently imposed a fne of 25 million euros on Italy for not providing appropriate collection and treatment systems for urban waste water in most of its urban agglomerations. Italy is also obliged to pay a penalty of 30,112,500 euro for every six months of delay until compliance is achieved.

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The majority of EU infringement cases are opened against governments that fail to notify the Commission of relevant environmental policies. Nevertheless, it is important to note that this trend does not necessarily imply that member states generally fail to correctly transpose the environmental acquis. In fact, the number of infringement cases related to environmental policies has declined since 1994, if we control for the greater quantity of environmental laws and the greater number member states that could potentially violate them (Börzel and Buzogány, 2019). Nevertheless, member states arguably still face implementation challenges; just different ones than they experienced 50 years ago.

Summary points • • • •

Most scholars focus on different aspects of member states’ compliance with EU environmental rules, which include notifcation, legal and practical compliance. There has been a narrowing of implementation gaps over time; Eastern enlargement after 2004 has not led to a sudden surge in infringement cases. EU member states frequently go beyond (‘customise’) the minimum requirements of EU environmental law, but to different degrees. The practical implementation of EU environmental rules remains in an analytical ‘black box’.

Why do member states (not) comply with EU environmental law? Environmental policy is one of the best-researched areas in the EU (Treib, 2014). It has been described as a political bargaining process in which fnding solutions can be challenging (Jordan, 1999; Mastenbroek, 2005). Broadly speaking, the EU compliance literature identifes two top-down explanations for the variation in compliance with EU legislation. The frst explanation presents non-compliance as a result of states’ internal capacity limitations and/or the inherent complexity and ambiguity of EU objectives (also known as the ‘management’ approach or state-based explanations). Capacity limitations arise when a government lacks the necessary resources or cannot muster suffcient bureaucratic support to enforce EU policies (Chayes and Chayes, 1993; Tallberg, 2002). Government and bureaucratic ineffciency have proven especially infuential in curbing member states’ capabilities to process, interpret and adapt EU environment policies into national settings (Hille and Knill, 2006; Jensen, 2007). Furthermore, veto players can also delay transposition, if the national institutional framework allows them to block the adoption of legislative proposals (Haverland, 2000; Haverland and Romeijn 2007). For example, Haverland (2000) showed that Germany delayed the implementation of the Packaging Waste Directive, even though Germany’s existing legislation partially matched the formal requirements of the directive. However, the remaining adjustments encountered strong resistance from the

Policy implementation 233 chamber representing the German states (the Bundesrat) that was run by a different political coalition than the central government. The second explanation suggests that states voluntarily choose to defect from EU policies if the perceived benefts exceed the costs of non-compliance (also known as the ‘enforcement’ approach) (Downs et al., 1996; Fearon, 1998). The benefts of noncompliance could be either associated with alternative priorities (given that compliance often entails committing scarce resources that could in theory be allocated to alternative uses), or policy preferences that differ from the requirements of the adopted policy. EU implementation scholars generally focus on societal and government support for the EU or government policy preferences (Thomson et al., 2007; Toshkov, 2010). Empirical results, however, provide inconclusive evidence regarding the infuence of preference-related factors on member states’ compliance with EU environmental legislation. Whereas most European citizens and national governments are highly supportive of the EU environmental acquis in general, member states still experience problems in the implementation of specifc policies (Haverland, 2000). In other words, non-implementation is not always intentional (Jordan and Tosun, 2012). Finally, in the spirit of a more hybrid approach to analysing compliance, recent studies have investigated the relevance of a third explanation for poor implementation that focuses on normative pressures for compliance. In particular, it emphasises the importance of socialisation and learning as determinants of compliance with EU policies. In particular, participation in pan-European, transnational networks (e.g., the Federation of Nature and National Parks of Europe, Planta Europa, the Central and East European Working Group for Biodiversity, etc.) has increased awareness of possible solutions to environmental problems amongst civil servants. In addition, European NGOs also participate in the implementation of EU policies through specifc programmes funded by the EU (e.g., IMPEL, EuroNatur) (Andonova and Tuta, 2014) and/or organised by the EEA. In a similar vein, environmental civil society groups have played an important role in forcing their national governments to comply with EU environmental requirements by exposing implementation gaps (Andonova and Tuta, 2014; Dimitrova and Buzogány, 2014) (see also Chapter 9).

Summary points • • • •

Top-down perspectives focus on the willingness and capacities of member states to comply, whereas the hybrid perspective incorporates the importance of normative pressures in accelerating implementation. Member states fail to comply with EU environmental policies mostly because they have limited administrative capacities to implement EU rules. There is limited empirical evidence to suggest that non-compliance with environmental directives is driven by governments fundamental unwillingness to implement EU rules. Participation in transnational networks and actively engaged environmental civil society organisations facilitate policy implementation.

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Addressing implementation challenges Implementation is a well-known Achilles heel in multi-level governance systems (Jordan, 1999). What, therefore, has the Commission done to address it? Since the 1980s, there have been annual reports on the application of EU law and seven EAPs, many of which have highlighted the problem (see Chapter 2 for details). Despite these challenges, the EU remains active in employing a variety of instruments to remedy compliance problems (see Box 13.3). In addition, it continuously seeks to build bridges between different actors rather than enter into confict and/or deploy more topdown forms of control (Jordan and Tosun, 2012). Its strategies of managing and enforcing compliance have been particularly successful in steering accession states towards compliance (Börzel and Buzogány, 2019). First of all, the Lisbon Treaty introduced delegated acts that empower the Commission to implement EU legislation, without formally consulting the member states (see Chapter 6 for details). Since 2009, the Commission has adopted or is currently preparing 953 delegated acts, most of which relate to environmental policies (European Commission, 2020b). However, it is important to note that the closing of implementation gaps only pertains to legal compliance. The member states still face problems when implementing environmental directives in practice. Second, the IMPEL network has worked more closely with the Commission since 2009. The network brings together national and EU policy makers, environmental inspectors and enforcement offcers in the environmental sector who share knowledge, skills, ideas and best practices in the implementation of EU environmental legislation. IMPEL organises conferences and workshops to discuss solutions to implementation problems, but it also helps member states build capacities by organising training sessions for their environmental inspectors. Third, the Commission has developed new instruments to strengthen member states’ capacities to implement EU environmental legislation. In 2016, it introduced European Environmental Reviews (EIRs). Similar to IMPEL, their main objective

Box 13.3 EU policies that directly address implementation challenges A number of specifc policies directly address implementation challenges. For example, Recommendation 2001/331/EC provides non-binding minimum criteria for environmental inspections in the member states. Moreover, three so-called ‘horizontal’ directives have been adopted to support and extend implementing measures. For example, the directive on standardised reporting (Directive 91/692/EEC) requires member states to send information on implementation to the Commission every three years. The directive on environmental liability (2004/35/EC) complements the civil liability system as it establishes a framework based on the ‘polluter-pays’ principle (see Article 191 [2], TFEU), based on the notion of ‘pure ecological damage’. Finally, the directive on the protection of the environment through criminal law (2008/99/ EC) seeks to introduce more harmonised national penalties for violations of key provisions of EU laws. Moreover, Chapter 17 reveals that the adoption of better or ‘smarter’ forms of regulation as well as ‘new’ policy instruments was partly motivated by the desire to address implementation problems (Jordan and Tosun, 2012; Radaelli, 2018).

Policy implementation 235 is to identify and resolve environmental implementation gaps in a fexible and inclusive manner, before they escalate into full blown compliance problems. To this end, the EIR entails a two-yearly cycle of publication of country reports and discussions between the Commission, member states and other stakeholders. The Commission publishes annual country reports highlighting the main achievements and challenges in each country. The 2019 review again identifed weak public administration as one of the main reasons for insuffcient practical application and urged national governments to incorporate different stakeholders in implementation processes in order to build better capacities and public understanding (European Commission, 2019b). In sum, there has been a gradual and signifcant move away from centralised enforcement towards improved private, decentralised enforcement of EU law by citizens and NGOs. The inclusion of procedural provisions in EU environmental legislation has enabled the EU’s individual rights regime to operate in this policy area (Hofmann, 2019) (see also Chapter 18). Although non-compliance still presents challenges to the effectiveness of environmental policies, the Commission can now rely on a wider range of policy instruments and networks to induce behavioural change in national authorities and administrations beyond the tried and tested approach of commencing infringement proceedings. Time will tell whether these softer instruments lead to signifcant improvements in the implementation of environmental policies.

Summary points • • •

The EU takes compliance with environmental policy seriously and has developed a suite of specifc instruments to facilitate the resolution of implementation gaps in a fexible and inclusive way. Delegated acts empower the Commission with more implementing power in relation to EU legislation. Networking processes such as IMPEL and the EIR encourage member states to share knowledge about the challenges and also the solutions that arise in the implementation of EU environmental legislation.

Conclusions In this chapter, we have observed that the EU has devoted considerable resources to ensuring the proper implementation of its environmental policies. Nevertheless, implementation remains the Achilles heel of the EU environmental policy process, largely because the member states remain in charge of implementing EU policies— initially on paper and then in practice. Consequently, we still observe differences in the implementation of EU environmental policies across countries. Scholars have employed different perspectives to explain the variation in the implementation of EU environmental policies. Top-down approaches have focused on member states’ compliance with the EU policies. They suggest that the most important factor contributing to effective compliance is the governmental and bureaucratic capacity of member states and their implementing institutions. Conversely, hybrid and

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bottom-up studies have emphasised the problem-solving capacity of domestic actors as expressed in processes of customisation and performance. These studies have uncovered differences in member states’ compliance, customisation and performance in relation to EU environmental rules. New and improved ways of conceptualising and obtaining data on implementation have led to novel empirical insights. In particular, it has become clear that CEE countries are not the environmental ‘laggards’ they were originally expected to be. In fact, many member states go beyond the minimal requirements set by the EU and implement more ambitious rules. In fact, there are many instances in which the practical implementation of EU environmental rules is better than its implementation appears on paper. These insights suggest that although compliance continues to be an important concern, the role of member states in implementation is not merely that of passive ‘compliers’, but also of active ‘problem-solvers’. Thus, the member states have an active reason to cooperate with the Commission and various environmental stakeholders in both formalised and informal channels and networks, where all may gain knowledge of the most effective ways to address pressing environmental problems. Since the 1990s, the Commission has also increased its competences over the implementation of EU environmental policies, adopting a number of specifc policy instruments at EU level. Finally, by promoting greater ex post evaluation (see Chapter 14), the Commission has been able to better monitor compliance with EU environmental rules. To conclude, we should note that most innovations aim at facilitating member states’ compliance with the EU environmental acquis. Yet we still lack a solid understanding of the impact of implementation and compliance on actual environmental outcomes—a task better suited to policy evaluation (see Chapter 14). To what extent does compliance with EU environmental policies actually contribute to the resolution of environmental challenges? Does policy implementation suffciently prepare member states to cope with future environmental challenges? These crucial questions, which are also discussed in Chapter 20, remain on the agenda for future research.

Key questions 1 2 3 4 5

Which actors shape the implementation of EU environmental policy? What are the main stages of the policy implementation process, and which actors are most dominant at each stage? Think back to the Dieselgate scandal. How well can it be explained by the three main approaches to understanding EU compliance? To what extent does implementation vary across different policy sectors and member states? What are the most promising strategies to improve compliance with EU environmental policy?

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Guide to further reading • • •

On the debate about leaders and laggards in environmental policy, see Börzel (2000), Liefferink et al. (2009), Knill et al. (2012), Gunningham and Sinclair (2017) and Tobin (2017). On the future of EU environmental policy and its implementation, see the special issue of the journal Environmental Politics (Volume 28, 2019, Issue 2). For a favour of the rich scholarly debate about implementation, compliance, enforcement and customisation patterns, see Falkner et al. (2005), Tosun (2012), Treib (2014), Knill (2015), Thomann and Sager (2017) and Thomann (2019).

Online resources • • •

A full timeline of the Dieselgate affair: https://www.cleanenergywire.org/ factsheets/dieselgate-timeline-car-emissions-fraud-scandal-germany European Commission webpage on implementation of environmental policy: https://ec.europa.eu/environment/legal/implementation_en.htm Environmental Implementation Review with country reports: https://ec.europa. eu/environment/eir/country-reports/index_en.htm

References Andonova, L. and Tuta, Ioana A. (2014) ‘Transnational networks and paths to EU environmental compliance: Evidence from new member states’, Journal of Common Market Studies, vol. 52, no. 3, pp. 1269–1291. Bondarouk, E. and Liefferink, D. (2017) ‘Diversity in sub-national EU implementation: The application of the EU Ambient Air Quality directive in 13 municipalities in the Netherlands’, Journal of Environmental Policy & Planning, vol. 19, no. 6, pp. 733–753. Börzel, T. A. (2000) ‘Why there is no ‘southern problem’. On environmental leaders and laggards in the European Union’, Journal of European Public Policy, vol. 7, no. 1, pp. 141–162. Börzel, T. A. (2001) ‘Non-compliance in the European Union: Pathology or statistical artefact?’, Journal of European Public Policy, vol. 8, no. 5, pp. 803–824. Börzel, T. A. and Buzogány, A. (2019) ‘Compliance with EU environmental law. The iceberg is melting’, Environmental Politics, vol. 28, no. 2, pp. 315–341. Börzel, T. A., Hofmann, T. and Panke, D. (2012) ‘Caving in or sitting it out? Longitudinal patterns of non-compliance in the European Union’, Journal of European Public Policy, vol. 19, no. 4, pp. 454–471. Chayes, A. and Chayes, A. (1993) ‘On compliance’, International Organization, vol. 47, no. 2, pp. 175–205. Dimitrova, A. and Buzogány, A. (2014) ‘Post-accession policy-making in Bulgaria and Romania: Can non-state actors use EU rules to promote better governance?’, JCMS: Journal of Common Market Studies, vol. 52, no. 1, pp. 139–156. Downs, G. W., Rocke, D. M. and Barsoom, P. N. (1996) ‘Is the good news about compliance good news about cooperation?’, International Organization, vol. 50, no. 3, pp. 379–406.

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European Commission (2018) ‘Monitoring the application of European Union law. Part 2: Policy areas’, available at: https://ec.europa.eu/info/sites/info/fles/report-2018-commission-staff-working-document-monitoring-application-eu-law-policy-areas-part2.pdf (accessed 1 October 2020). European Commission (2019a) ‘Implementation of community environmental legislation’, available at: https://ec.europa.eu/environment/legal/implementation_en.htm (accessed 28 February 2020). European Commission (2019b) ‘Environmental implementation review 2019: A Europe that protects its citizens and enhances their quality of life’, available at: https://ec.europa.eu/environment/eir/pdf/eir_2019.pdf (accessed 27 August 2020). European Commission (2020a) ‘Statistics on environmental infringements’, available at: https:// ec.europa.eu/environment/legal/law/statistics.htm (accessed 27 February 2020). European Commission (2020b) ‘Delegated acts’, available at: https://webgate.ec.europa.eu/ regdel/#/delegatedActs (accessed 8 April 2020). Falkner, G., Hartlapp, M. and Treib, O. (2005) Complying with Europe: EU harmonisation and soft law in the member states, Cambridge University Press, Cambridge. Falkner, G., Hartlapp, M. and Treib, O. (2007) ‘Worlds of compliance: Why leading approaches to European Union implementation are only ‘sometimes-true theories’, European Journal of Political Research, vol. 46, no. 3, pp. 395–416. Fearon, J. D. (1998) ‘Bargaining, enforcement, and international cooperation’, International Organization, vol. 52, no. 2, pp. 269–205. Gollata, J. A. and Newig, J. (2017) ‘Policy implementation through multi-level governance: Analysing practical implementation of EU air quality directives in Germany’, Journal of European Public Policy, vol. 24, no. 9, pp. 1308–1327. Gunningham, N. and Sinclair, D. (2017) Leaders and laggards: Next-generation environmental regulation, Routledge, London. Hartlapp, M. (2019) ‘Soft law implementation in the EU multilevel system: Legitimacy and governance effciency revisited’, in N. Behnke, J. Broscheck, and J. Sonnicksen (eds), Confgurations, dynamics and mechanisms of multilevel governance, Palgrave Macmillan, Cham, pp. 193–210. Hartlapp, M. and Falkner, G. (2009) ‘Problems of operationalization and data in EU compliance research’, European Union Politics, vol. 10, no. 2, pp. 281–304. Haverland, M. (2000) ‘National adaptation to European integration: The importance of institutional veto points’, Journal of Public Policy, vol. 20, no. 1, pp. 83–103. Haverland, M. and Romeijn, M. (2007) ‘Do member states make European policies work? Analysing the EU transposition defcit’, Public Administration, vol. 83, no. 3, pp. 757–778. Hille, P. and Knill, C. (2006) ‘`It’s the Bureaucracy, Stupid’: The implementation of the acquis communautaire in EU candidate countries, 1999–2003’, European Union Politics, vol. 7, no. 4, pp. 531–552. Hofmann, A. (2019) ‘Left to interest groups? On the prospects for enforcing environmental law in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 342–364. Hupe, P. (2013) ‘Dimensions of discretion: Specifying the object of street-level bureaucracy research’, Der moderne Staat – Zeitschrift für Public Policy, Recht und Management, vol. 6, no. 2, pp. 425–440. Jans, J. H., Squintani, L., Aragão, A., Macrory, R. and Wegener, B. W. (2009) ‘‘Gold plating’ of European environmental measures?’, Journal for European Environmental and Planning Law, vol. 6, no. 4, pp. 417–435. Jensen, C. B. (2007) ‘Implementing europe: A question of oversight’, European Union Politics, vol. 8, no. 4, pp. 451–477. Jordan, A. (1999) ‘The implementation of EU environmental policy; a policy problem without a political solution?’, Environment and Planning C: Government and Policy, vol. 17, no. 1, pp. 69–90.

Policy implementation 239 Jordan, A. and Tosun, J. (2012) ‘Policy implementation’.’, in A. Jordan and C. Adelle (eds), Environmental policy in the EU: Actors, institutions and processes, 3e, Routledge, London, pp. 247–266. Kaeding, M. (2006) ‘Determinants of transposition delay in the European Union’, Journal of Public Policy, vol. 26, no. 3, pp. 229–253. Knill, C. (2015) ‘Implementation’, in J. Richardson and S. Mazey (eds) European Union: Power and policy-making, Routledge, London and New York, pp. 371–397. Knill, C., Heichel, S. and Arndt, D. (2012) ‘Really a front-runner, really a Straggler? Of environmental leaders and laggards in the European Union and beyond—A quantitative policy perspective’, Energy Policy, vol. 48, no. 1, pp. 36–45. Knill, C. and Tosun, J. (2012) ‘Governance institutions and policy implementation in the European Union’, in J. Richardson (ed), Constructing a policy-making state? Policy dynamics in the EU, Oxford University Press, Oxford, pp. 309–333. Liefferink, D., Arts, B., Kamstra, J. and Ooijevaar, J. (2009) ‘Leaders and laggards in environmental policy: A quantitative analysis of domestic policy outputs’, Journal of European Public Policy, vol. 16, no. 5, pp. 677–700. Mastenbroek, E. (2005) ‘EU compliance: Still a ‘black hole’?’, Journal of European Public Policy, vol. 12, no. 6, pp. 1103–1120. Matland, R. E. (1995) ‘Synthesizing the implementation literature: The ambiguity-confict model of policy implementation’, Journal of Public Administration Research and Theory, vol. 5, no. 2, pp. 145–174. Muûls, M., Colmer, J., Martin, R. and Wagner, U. J. (2016) ‘Evaluating the EU emissions trading system: Take it or leave it? An assessment of the data after ten years’, Grantham Institute briefng paper 21, Imperial College, London. Patton, M. Q. (1997) Utilization-focused evaluation: The new century text (3rd ed.), SAGE, Thousand Oaks, CA. Pressman, J. L. and Wildavsky, A. (1984) Implementation. University of California Press, California. Radaelli, C. M. (2018) ‘Halfway through the better regulation strategy of the Juncker Commission: what does the evidence say?’, JCMS: Journal of Common Market Studies, vol. 56, no. 1, pp. 85–95. Sabatier, P. and Mazmanian. D. (1980) ‘The implementation of public policy: A framework of analysis’, Policy Studies Journal, vol. 8, no. 4, pp. 538–560. Steunenberg, B. (2006) ‘Turning swift policy-making into deadlock and delay - National policy coordination and the transposition of EU directives’, European Union Politics, vol. 7, no. 3, pp. 293–319. Tallberg, J. (2002) ‘Paths to compliance: Enforcement, management, and the European Union’. International Organization, vol. 56, no. 3, pp. 609–643. Thomann, E. (2019) Customized implementation of European Union food safety policy: United in diversity? Palgrave Macmillan, Cham. Thomann, E. and Sager, F. (2017) ‘Moving beyond legal compliance: Innovative approaches to EU multilevel implementation’, Journal of European Public Policy, vol. 24, no. 9, pp. 1253–1268. Thomann, E. and Zhelyazkova, A. (2017) ‘Moving beyond (non-)compliance: The customization of European Union policies in 27 countries’, Journal of European Public Policy, vol. 24, no. 9, pp. 1269–1288. Thomann, E. and Zhelyazkova, A. (2019) ‘I did it my way’: Customisation and practical compliance with EU policies’, ECPR General Conference, Wroclaw. Thomson, R., Torenvlied, R. and Arregui, J. (2007) ‘The paradox of compliance: Infringements and delays in transposing European Union directives’, British Journal of Political Science, vol. 37, no. 4, pp. 685–709.

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Tobin, P. (2017) ‘Leaders and laggards: Climate policy ambition in developed states’, Global Environmental Politics, vol. 17, no. 4, pp. 28–47. Toshkov, D. (2010) ‘Taking stock: A review of quantitative studies of transposition and implementation of EU law’, Institute for European Integration Research, Vienna. Tosun, J. (2012) ‘Environmental monitoring and enforcement in Europe: A review of empirical research’, Environmental Policy and Governance, vol. 22, no. 6, pp. 437–448. Treib, O. (2014) ‘Implementing and complying with EU governance outputs’, Living Reviews in European Governance, vol. 9, no. 1, pp. 5–47. Versluis, E. (2007) ‘Even rules, Uneven practices: Opening the ‘black box’ of EU law in action’, West European Politics, vol. 30, no. 1, pp. 50–67. Zhelyazkova, A., Kaya, C. and Schrama, R. (2016) ‘Decoupling practical and legal compliance: Analysis of member states’ implementation of EU policy’, European Journal of Political Research, vol. 55, no. 4, pp. 827–846. Zhelyazkova, A., Kaya, C. and Schrama, R. (2017) ‘Notifed and substantive compliance with EU law in enlarged Europe: Evidence from four policy areas’, Journal of European Public Policy, vol. 24, no. 2, pp. 216–238. Zhelyazkova, A., Kaya, C. and Schrama, R. (2018) ‘When practice goes beyond legislators’ expectations: Analysis of practical implementation exceeding legal compliance with EU directives’, JCMS: Journal of Common Market Studies, vol. 56, no. 3, pp. 520–538.

14 Policy evaluation Per Mickwitz1

Summary guide In order to develop new environmental policies, it is important frst to evaluate those that have already been adopted. However, this intuitively simple idea has proven diffcult to apply in practice, no more so than in the complex governance context of the EU. Attributing impacts to specifc policies is challenging; making evaluations of existing policies genuinely useful for new processes of political decision making is even more demanding. Five approaches for dealing with these challenges are discussed in this chapter, namely: side-effect evaluation; intervention theories; triangulation; multi-criteria analysis; and participation-based evaluation. How and why these approaches are (or are not) utilised in the EU is described and assessed. Recently, the political attention afforded to retrospective evaluation has increased in the EU, and the focus has broadened from evaluating expenditure programmes to legislation and other non-spending policies. Nonetheless, more effort is needed to create a wellestablished culture of environmental policy evaluation in the EU.

Introduction ‘The car taxation reform has increased the popularity of low-emission cars’ was the headline of an article in the largest Finnish newspaper, Helsingin Sanomat, on 26 January 2011. It stated that, because of the tax reform, which linked taxation to carbon dioxide (CO2) emissions, the average CO2 emissions of new cars had dropped from 180 grams per kilometre in 2006 to less than 150 in 2009. Impressive! But how can one know that the lower emissions were due to the tax policy reform and not caused by other factors? In addition to taxation, a wide set of other policy measures have been applied in many member states with the aim of reducing CO2 emissions from cars. These include EU policies such as voluntary agreements with the car industry and a requirement to provide information to consumers about CO2 emissions based on the Labelling Directive (1999/94/EC). In addition, many factors other than public policies affect car purchasing decisions. Over the three years 2007–2009, there was a fnancial crisis and large sports utility vehicle (SUVs) – temporarily – went out of fashion. In order to say anything meaningful about the impact or effectiveness of a particular policy, a proper policy evaluation is required. Evaluation is based on the very simple idea (Vedung, 2010) that policies can and should be improved by systematic DOI: 10.4324/9780429402333-14

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determination of their merit, worth or value (Scriven, 1991). But why should one devote scarce resources to look backwards and try to evaluate the impacts of past policies or programmes? There are two main reasons. First of all, evaluations may provide crucial insights for learning and developing new policies. The socio-technical systems, such as the mobility system, that give rise to the environmental problems that policies and programmes try to address are very complex and not fully understood. Although research does increase knowledge, environmental policies must always be formed and implemented in a context predominated by uncertainty and ignorance. These policies should, therefore – at all levels, from the EU to the local – be refexive and based on continuous learning from past experiences. Second, evaluations are also important to facilitate public participation and ultimately ensure public accountability (see also Chapter 18). This chapter is concerned with the evaluation of environmental policies, and specifcally, the evaluation of EU policies and programmes. This implies that some important evaluations of EU-relevant organisations, such as the EEA (European Commission, 2018b), lie beyond the scope of this chapter. Evaluation is frequently defned so that it includes both prospective (ex ante) and retrospective (interim or ex post) evaluation. In this chapter, policy ‘evaluation’ will follow Vedung (1997) and limit it to retrospective studies; prospective studies (i.e., ex ante evaluation, or what in the EU has been christened Impact Assessment) are discussed in Chapters 6 and 11. Although the focus is on EU policies, it is important to remember that policies are routinely evaluated by evaluators operating at many different levels – the whole EU, one or a few member states, one municipality or certain target groups or stakeholders – and from many different perspectives. Since the basic idea of policy evaluation is so simple, why is it proven so diffcult to employ evaluation in practice? The reasons can be grouped into two categories: frst, challenges related to producing credible evaluation results and, second, diffculties linked to making evaluations policy relevant. On account of the complexities of socio-technical systems, it is extremely diffcult to determine the effects of any individual policy or programme when a multitude of other factors – some of them other policies and programmes – infuence the same system. There are several interlinked terms to describe this challenge: Vedung (1997) and Mickwitz (2003) term it the ‘impact problem’; others use the concept of ‘attribution’ (Sanderson, 2002), whereas Ferraro (2009) discusses it from the standpoint of ‘counterfactual thinking’. Undertaking evaluations that are actually used is the second and probably trickiest aspect of evaluation. Environmental policy decision making is always political and involves many actors and many different interests, and a lot of other information than that provided by formal evaluations is used. In such situations, the infuence of particular evaluations maybe small; in practice, they may be completely ignored. In the EU, these two generic problems are, if anything, even more accentuated than those pertaining to national policy making. Nowadays, EU environmental policies are formed and implemented in a setting that can be characterised by the notion of multi-level or polycentric governance (see Chapter 1 and Box 14.2). These concepts are helpful in understanding the relationships among the actors involved in commissioning, producing and using evaluations. Each of these is hugely dependent on each other. If an evaluation is framed and commissioned by a single EU institution and carried out in a non-participatory way, it is unlikely to be widely used at the national and local level or by NGOs.

Policy evaluation 243 This chapter has two aims: frst, to discuss how contemporary evaluation has addressed these two challenges (i.e., the production of credible evaluation results and usable knowledge); and second, to discuss some of the current features of evaluation practice in EU environmental policy making and refect on their future prospects.

Summary points • • •

Evaluating environmental policies is in principle important both for policy learning and for public accountability. Evaluating environmental policies is, however, diffcult in practice, because it is hard to produce credible results and even harder to produce usable evaluation knowledge. The EU is a system of polycentric governance with many actors operating at multiple levels of governance; this adds considerably to the practical diffculty of evaluating its policies.

Contemporary evaluation approaches This section will review fve approaches to evaluation developed in areas (e.g., social policy, education and development aid) where evaluations have been traditionally undertaken. Side-effect evaluation The EU generally evaluates the effectiveness or cost-effectiveness of specifc policies. For example, the Commission’s Better Regulations Guidelines for evaluation state: ‘[b]y evaluating, the Commission takes a critical look at whether EU activities are ft for purpose and deliver their intended objectives at minimum cost (i.e., avoiding unnecessary costs or burdens)’ (European Commission, 2017: 52). While evaluating the effectiveness of regulations is necessary, it is seldom suffcient. It is necessary because objectives are key elements used in the policy formulation process, and, therefore, they should be followed up. But it is not suffcient largely because of side effects and because changes in the dynamic context of policies could make established goals irrelevant at a later stage. Policies and programmes seldom turn out exactly as intended. This is to some extent due to poor implementation; what is provided – by member state and local-level institutions – is not exactly what was expected (see also Chapter 13). It may be because the drafting of policies was based on incorrect assumptions (Hoogerwerf, 1990). But it may also be because policies, especially important ones, tend to be used in complex and changing contexts, where there are many other actors as well as external factors and the interactions between them all are uncertain. The real effects of policies, even when extensively planned, are therefore often unanticipated. Or, in the words of the philosopher Karl Popper (2003: 104), ‘although we may learn to foresee many of the unintended consequences of our actions … there will always be many we did not foresee’.

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Popper (ibid.: 105) therefore argues that ‘the main task of the social sciences … is the task of analysing the unintended social repercussions of intentional human actions’. In the context of environmental policy evaluation, the rebound-effect is a particularly important type of side effect.2 The ‘side-effects evaluation’ model (Vedung, 1997: 49ff) is a response to this line of criticism. In this model, the effects of policies are frst divided into anticipated and unanticipated ones. Then, they are categorised according to whether they occur inside or outside the target area, and fnally, a qualitative categorisation is made of them all. The unanticipated effects are often only partially known before an evaluation is undertaken. Therefore, one important task, sometimes even the most important task, of an evaluation is to reveal unanticipated effects not previously known. For example, an evaluation of Finnish environmental permits established that the crucial role of temporary relaxations of permit conditions for the development and diffusion of new technologies was an unanticipated side effect of the intended fexibility of the permit system (Hildén et al., 2002). Intervention theory-based evaluation Intervention theory has become a key tool in contemporary evaluation. An intervention theory can be seen as a model ‘of the microsteps or linkages in the causal path from program [or, more generally, intervention] to ultimate outcome’ (Rogers et al., 2000: 10) on the basis of the detailed assumptions of how the intervention is intended to work. The word ‘theory’ in ‘intervention theory’ easily causes confusion, since it may be misinterpreted as referring to scientifc theory, whereas in fact it refers to how an intervention should work, not how it actually works when implemented. Intervention theories are thus tools for assessing the actual implementation and the effects that policies and programmes have had in practice. Hansen and Vedung (2010) argue that a fully developed intervention theory should have three elements: situational; causal; and normative. The situational theory is about the context and the issue the intervention should address (the size of the problem, the causes of the problem, etc.). The causal theory is about how a particular intervention – directly or indirectly – would have an impact on the issue. The normative theory is about why a situation achieved through the intervention would be preferable. Interventions are almost always based on several intervention theories, not just one, since different stakeholders often have very different expectations about a particular policy intervention (Weiss, 2000). An evaluation should therefore refect these different assumptions and expectation by constructing multiple intervention theories instead of just relying on one (see Box 14.1). Constructing and comparing the intervention theories used by different parties is an especially important task when policies are made in multi-level contexts such as the EU.

Box 14.1 Evaluating integrated pollution control When national legislators eventually transpose EU regulations into national law (a key step in the implementation process – see Chapter 13), the needs of target groups or addressees may not have been fully appreciated by the policy

Policy evaluation 245 formulators working in Brussels. Accordingly, utilising multiple intervention theories refecting the assumptions of different parties at different levels might be useful. For example, the directive concerning integrated pollution prevention and control (96/61/EC) and the Finnish Environment Protection Act (2000/86), through which it was transposed and implemented, has largely been based on the assumption that the main target group would be large-scale industrial factories. When the new Finnish Environmental Protection Act was drafted, it was, however, decided at the national level to extend the Directive’s scope – by including all activities that had previously required a permit, of any sort. At a sweep, this apparently small shift in scope, but also focus, extended the Directive to a wider array of smaller units. A subsequent evaluation showed that in Finland the largest category of permits in the frst two years was actually granted to farms (Mickwitz et al., 2003). Utilising this information to reformulate the assumptions about how the directive functions in practice could be an important contribution to new policy making debates at EU level as well as in Finland.

Multi-criteria evaluation Evaluation is by its very nature normative, so some value criteria on which to base the judgements must be utilised. When one uses more than a single criterion, a more comprehensive debate about policies can be facilitated through the evaluation. Different criteria can be used, such as general evaluation criteria, economic criteria and criteria related to democracy. Because of the frequently discussed ‘democratic defcit’ of the EU (see Chapters 18 and 20), criteria such as acceptability, transparency, participatory rights and equity have a particular salience in the evaluation of EU policies. While important in their own right, they are also related to the other criteria, since acceptable and transparent policies might also have greater impacts and be more effective. Triangulation There is no unique and universal answer to the question of how one should empirically examine the impacts of a particular policy. Often, however, approaches using several types of data and methods are appropriate, especially in environmental policy. This is known as ‘triangulation’ (Scriven, 1991). Four types of triangulation can be distinguished: (1) multiple methods; (2) multiple data sources within one method; (3) multiple analysts; and (4) multiple theories. One reason for using triangulation is to empirically examine links which are assumed in intervention theories, but there are other reasons as well. Triangulation is a good way to identify the unanticipated effects of policies; several evaluators applying many perspectives (theories) examining multiple types of data with a number of methods are more likely to uncover interesting and unexpected effects than a single evaluator using only one method of evaluation. Utilisation of many data sources and methods is also crucial when multiple evaluation criteria are used. Not all data or all methods can have the same role in analysing all the criteria in a multi-criteria evaluation. Nor can they have the same role for all stages in all alternative intervention theories. Emphasising triangulation is instead about defning

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several rather than a few ways to address these issues and, in the process, to stress the interplay between different data, methods and researchers. There is arguably a particular need for triangulation in relation to the evaluation of EU policies and programmes. This is because the legitimacy, and hence use, of a particular evaluation at EU level requires wide coverage, preferably including all 27 member states. At the same time, identifying the impacts of policies on complex socio-technical systems requires detailed approaches that take into account all the relevant factors – many of which often are context-specifc and some of which depend on local ecological features – and that recognise the multi-level governance nature of policy formation and implementation. Triangulation is often the only way to satisfy both these requirements. However, using several methods simultaneously is also challenging and resource-intensive (see below). Often a multi-disciplinary evaluation team is required to achieve the necessary rigour. Since all disciplines have their own terminology and styles of reasoning, communication between evaluators with a background in different felds may not always be easy to establish. Participation-based evaluation The frequently observed lack of use of evaluation fndings (Patton, 2008) has resulted in a wide range of efforts to promote the use of evaluations. Michael Patton states that: [E]valuations should be judged by their utility and actual use; therefore, evaluators should facilitate the evaluation process and design any evaluation with careful consideration of how everything that is done from beginning to end, will affect use … the focus … is on intended use by intended users. (ibid.: 37; emphases in the original) Key aspects of utilisation-focused evaluation are therefore to determine the intended users and to facilitate use throughout the evaluation process. The main tools for achieving this are participation and cooperation. Nowadays, promoting the use of evaluations is not only necessary but even mandatory. It may, however, also be problematic to achieve, since the interactions with potential users can – and should – infuence evaluations but not affect the integrity of the evaluators undertaking the analysis. Yet, the potential problems of involving intended users and stakeholders in evaluations do not imply that they should be excluded. On the contrary, evaluations without any involvement are far more problematic. Promoting the use of evaluations requires extensive transparency of the evaluation results as well as in the evaluation process and methods used.

Summary points • • •

Most policies have some unintended side effects; revealing them is one of the most important challenges facing policy evaluators. Assessing impacts and fnding side effects is best achieved by drawing on a plurality of data, methods and theories, as well as evaluation criteria. ‘Intended use by intended users’ should be an important guiding principle throughout the evaluation process, not just when it has been completed.

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Policy evaluation: demand and supply Except in a few ‘pioneering’ countries, policy and programme evaluation is a relatively recent phenomenon in Europe. The pioneers were Germany, Sweden and the UK in Europe, and outside Europe, they were the US and Canada (Furubo and Sandahl, 2002). In these countries, policy evaluation started as early as the 1960s. For the followers, EU requirements were an important driver. The use of EU Structural Funds in particular was coupled with requirements for evaluation, which stimulated the emergence of evaluation practices across Europe – for example, in Finland, Ireland and Spain (ibid.) and more recently in post-2004 member states such as Poland (Stern, 2009). The diffusion of evaluation practices across Europe is important because it created an evaluation community of actors. Even more importantly, it established a culture that is essential also for the evaluation of all other policies, including environmental ones. Secondly, evaluation has spread not only across countries but also across policy domains. When compared to many other policy domains, environmental policy and programme evaluation emerged later and is still not as well institutionalised (Mickwitz, 2003; Schoenefeld and Jordan, 2019). Demands for policy evaluation in the EU The demands for the evaluation of EU environmental policies arise from two main sources. First, general evaluation requirements in the EU have extended to environmental policies and programmes. Second, environmental policies often include their own specifc demands for evaluation. The most important general requirement for evaluation is stated in the EU’s Financial Regulation (European Commission, 2018a) and is specifed in a series of Communications (e.g., European Commission, 2007, 2019a). These largely constitute what is called the Better Regulation Agenda, which was introduced in 2015 by the Juncker Commission (see also Chapters 1 and 20). It built on initiatives pursued by previous Commissions and aims to ensure that regulations do what they are supposed to do without putting unnecessary burdens on frms and citizens (European Commission, 2015). A recent Communication, entitled Better Regulation: Taking Stock and Sustaining our Commitment states that ‘[e]valuation is one of the key pillars of better regulation’ (European Commission, 2019a: 8). Among other things, it (European Commission, 2019a: 8) stated that ‘[evaluation] allows us to check whether European legislation and funding programmes deliver as intended and remain relevant and ft for purpose’. The Communication also emphasised the ‘evaluate frst’ principle introduced by the Commission in 2015, i.e., ‘to systematically evaluate legislation frst before proposing a revision’. Evaluations are also required by EU environmental policies. This is, however, a fairly recent phenomenon. The Fifth EAP, adopted in 1993, contained no articulated demands for policy evaluations. The task of evaluating policies was, however, clearly stated in the Sixth EAP, adopted in June 2002. Paragraph c of Article 10 (EC, 2002: 14) stated that the objectives of the programme shall be pursued by ‘improvement of the process of policy making through … ex post evaluation of the effectiveness of existing measures in meeting their environmental objectives’. The seventh EAP emphasised evaluation mainly in order to improve policy consistency and coherence (European Parliament and Council of the EU, 2013). In addition to these demands, many individual EU regulations and directives contain requirements for evaluations. For example,

248 Per Mickwitz the Monitoring Mechanism Decision (280/2004/EC) requests member states to report to the Commission, by 15 March 2005 and every second year after that, quantitative estimates of the effect of policies and measures on emissions by sources and removals by sinks of greenhouse gases between the base year and subsequent years, including 2005, 2010 and 2015, including their economic impacts to the extent feasible. (EC, 2004: 4) However, such evaluation and monitoring requirements are not always consistent, resulting in an ineffcient use of evaluation resources. Key actors in policy evaluation If one takes a top-down perspective, there is no doubt that the Commission is the key actor in EU policy evaluation. Most evaluations of EU policies used to be commissioned by the Commission, outsourced on the basis of standard procurement procedures, and intended to support its decision making and strategies (Stern, 2009). Nowadays the Commission’s role in actually undertaking evaluations has increased, but it frequently procures consultants to produce essential background studies. The European Court of Auditors is an EU institution established by the EU treaties to audit the EU’s fnances. It inspects EU funds to ensure that they are correctly accounted for and spent in accordance with EU rules. Since the European Court of Auditors – as many national audit institutions do – also considers whether the best value is obtained for the money spent, the focus of its work has since grown from just legal audits and spending control to audits that closely resemble policy evaluations (Stern, 2009). Some of them concern environmental policies. For example, the review (European Court of Auditors, 2017) EU Action on Energy and Climate Change provided a comprehensive overview of the challenges, the policy responses adopted and an assessment of the results achieved with respect to climate and energy. In the late 1990s, the EEA became active in policy evaluation. The EEA started the Reporting on Environmental Measures project, which in 2001 published a report, Reporting on Environmental Measures, which at that time represented the state of the art on environmental evaluation concepts and methods (EEA, 2001). After a period when the EEA was almost invisible in policy evaluation, over the last fve years it has once again assumed a leading role. In 2016 it published a report entitled Environment and Climate Policy Evaluation (EEA, 2016a) which set out its commitment to and approach to policy evaluation. This report was well founded in contemporary evaluation theory and dealt with all the fve aspects dealt with in this chapter. It did, however, emphasise side effects and participation less than this chapter. The EEA (2016b) has, for example, used these approaches to produce a comprehensive evaluation of the impacts of EU policies on land use and degradation. Another example was the EEA (2019) evaluation of the effectiveness of EU policy on large combustion plants. The EU also funds a lot of environmental research. In, for example, the Eighth Framework Programme – Horizon 2020 (2014–2020) – climate action, environment resource effciency and raw materials have a dedicated budget of €3.1 billion. Many of the funded projects have focused on the natural sciences, but multi-disciplinary projects that include work packages focusing on policies are becoming more common. Many of these projects include studies which can be viewed as evaluations.

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Box 14.2 Which actors evaluate policies in the EU? It is only quite recently that research has begun to reveal which actors are actually undertaking evaluations. Huitema et al. (2011), for example, studied 259 evaluations of climate policy, undertaken in six EU member states. Schoenefeld (2018) studied 618 evaluations from the EU, Germany and the UK. Of the evaluations studied by Huitema et al. (2011), universities and independent research institutes had conducted most of the evaluations (140), followed by consultancy frms, who had conducted more than 50 evaluations. Schoenefeld (2018) separately studied formal evaluations, i.e., those funded by the public sector. Of these, most were conducted by research institutes, followed by government bodies with commercial consultancies being the third most common group. The informal evaluation he studied were mainly founded by environmental organisations, foundations and industry. Most informal evaluations were conducted by research institutes, almost as many by environmental organisations followed by commercial consultancies.

Summary points • • •

The demand for evaluations of EU policies and programmes has increased. Many actors are involved in commissioning, producing and using evaluations, but the position of evaluation is often quite weak. In the late 1990s, the EEA was a leading actor in policy evaluation; after a lull in activity, it has once again become a major actor in undertaking policy evaluation.

The main policy evaluation practices in the EU In this section, the practical role of the fve evaluation approaches that were presented above at the conceptual level is discussed. Side-effect evaluation Evaluation in the EU is heavily focused on goal achievement or effectiveness; in that sense, side effects have had a secondary role. At the same time, many important EU policy strategies are based on the idea of side effects. Already, the EU’s better regulation agenda was largely based on the idea that regulations have undesired side effects on competitiveness and the conditions for growth and jobs (European Commission, 2005). While this may well be true for many regulations, it should, however, also be acknowledged that the side effects of some regulations on competitiveness, growth and jobs can also be positive (Porter and van der Linde, 1995). Utilising a side-effect evaluation perspective more fully would imply that the assumption of undesired side effects on competitiveness should be tested, but it would also imply expanding the

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realm of potentially important side effects. One policy challenge demanding a greater focus on potential side effects is that of EPI, which has had a stronger legal base since the 1997 Amsterdam Treaty (see Chapter 12 for details). The evaluation chapter in the Commission’s Better Regulation Guidelines (European Commission, 2017) does not address side effects at all. This is quite interesting, as the chapter on (ex ante) Impact Assessment, in the same guidelines, identifes a variety of side effects and, for example, concludes that it may be necessary to reformulate a proposal when options ‘are likely to lead to disproportionate negative effects (of any type, for instance, on fundamental rights, SMEs, competitiveness and innovation, trade partners, regions, developing countries, etc.)’. For any particular regulation, most of these impacts would clearly be side effects. Very frequently, (ex post) evaluations of environmental policies in practice ignore all side effects. If they are addressed, mainly positive impacts are (briefy) covered. Evaluations that fully reveal unanticipated side effects are rare or perhaps even altogether absent. For example, the comprehensive evaluation of the Seventh EAP (EC, 2019b) only dealt with the goals and approaches of the programme. The evaluation concluded that ‘new agendas such as the circular economy and the Sustainable Development Goals’ have been supported by the Seventh EAP, but the side effects of the programme on, for example, economic growth or the sustainable development goals were not directly evaluated. Intervention theory-based evaluation Among the contemporary approaches to evaluation discussed above, the one which used to be least visible in the Commission’s approach to evaluation, e.g., Evaluation Standards (European Commission, 2007) and in evaluations of environmental policies, was that based on intervention theory. This has, however, changed. In the 2017 Better Regulation Guidelines (European Commission, 2017: 57), the Commission emphasised the intervention logic as the starting point for an evaluation. Multi-criteria evaluation The Commission has clearly adopted a multi-criteria approach, but some criteria are deemed more important than others. Already at the top of its evaluation web page, as well as in its Better Regulation Guidelines (European Commission, 2017), the Commission stressed fve criteria: • • • • •

‘Effectiveness (whether the EU action reached its objectives)’; ‘Effciency (what are the costs and benefts)’; ‘Relevance (whether it responds to stakeholders’ needs)’; ‘Coherence (how well it works with other actions)’; ‘EU added value (what are the benefts of acting at EU level)’.

Box 14.3 Which evaluation criteria are most commonly used? Huitema et al. (2011) studied 259 evaluations of climate policy, undertaken in six EU member states. Schoenefeld (2018) studied 618 evaluations from the EU, Germany and the UK, and Sandin et al. (2019) studied 33 evaluations of energy

Policy evaluation 251 effciency policies in Sweden. These three meta-analyses offer useful insights into the evolving practices of policy evaluation in Europe. They confrm the dominance of effectiveness as the main evaluation criterion. Out of 259 evaluations studied by Huitema et al. (2011), 213 used effectiveness as a criterion, followed by effciency in 74 cases and cost-effectiveness in 72. Other criteria, such as fairness, coordination with other policies and legitimacy, are sometimes used, but not very frequently. Similarly, Schoenefeld (2018) found that 69 out of a sample of 84 evaluations used effectiveness, and Sandin et al. (2019) found that 22 out of 33 evaluations used effectiveness. Criteria such as accountability and legitimacy were very seldomly used in the evaluations studied by Schoenefeld (2018) and Sandin et al. (2019). Another interesting observation by Huitema et al. is that 201 studies used one or two criteria and only ten evaluations used four or fve criteria, while no studies used more than that. The two other meta-evaluations show similar results. All three meta-evaluations found that the vast majority of evaluations take as given the goals of the policy being evaluated. In other words, they are not very refexive.

Triangulation In the Commission’s Better Regulation Guidelines (European Commission, 2017: 56), ‘triangulation’ is explicitly used. It is stated: ‘[e]valuations are based on the best available evidence (factual, opinion based etc.) which should be drawn from a diverse and appropriate range of methods and sources (triangulation)’. In practice, all evaluations of EU policies use triangulation at least to some degree. They are conducted by teams of evaluators (multiple analysts). Most evaluations use several types of data, most frequently employing a combination of document analysis, statistics, surveys and expert consultations through interviews or workshops (multiple data sources). To some extent, several methods are used, largely due to the nature of the different data sources and the different criteria (multiple methods). At the same time, in many evaluations, neither the quantitative nor the qualitative analyses are very sophisticated; frequently, only descriptive statistics and expert opinions are reported, without any further analysis. Many evaluations lack any theoretical perspectives, whether based on social sciences or on intervention theories (multiple theories).

Box 14.4 More than one evaluation method is often used, but there is room for improvement Recent meta-evaluations of policy evaluation practices also assessed the extent to which they draw on multiple methods. Huitema et al. (2011: 188) found that ‘the use of multiple methodologies is not rare, but that more than half of the evaluations use only one methodology’. In the formal evaluations studied by Schoenefeld (2018), using more than two methods was very rare, while one and two methods were both used as frequently. Document analyses (70) was the most common method, followed by modelling (27) and questioners/interviews (24). The evaluations studied by Sandin et al. (2019) mostly used two or three

252 Per Mickwitz methods, the most common being: interviews (30) and document analyses (28). Schoenefeld (2018) also found that formal evaluations tend to use more quantitative methods than informal ones. Sandin et al. (2019) found opportunities to apply methods more for validation of fndings, to cross-check sources and to make the analyses of counterfactual development more refned.

Participation-based evaluation Participation is an especially tricky issue in the EU context (see Chapter 18) because of the large numbers and huge variety of actors affected by, as well as involved in, the preparation and implementation of policies. The Better Regulation Guidelines (European Commission, 2017), recognised and emphasised the need to cooperate with various stakeholders and contained a whole chapter (VII) entitled ‘Guidelines on Stakeholder Consultation’. In addition to collaboration with stakeholders, they also stressed the importance of transparency and public access to both the process and results of evaluation. They even stated that one should ‘[i]dentify target groups that run the risk of being excluded’. In practice, evaluations of EU environmental policies very often involve some form of participation. Mostly, participation is related to data collection (i.e., stakeholders flling in questionnaires, being interviewed or participating in workshops). Sometimes, stakeholders are asked to comment on problem descriptions and, later on, the main fndings and policy recommendations. There is rarely meaningful participation in determining the terms of reference of the evaluation or choosing the evaluation methods or criteria (see Box 14.5).

Box 14.5 To what extent does the public participate in policy evaluation? The three meta-evaluations referred to in Boxes 14.2–14.4 also assessed the extent of actor participation in evaluation. Huitema et al. (ibid.: 193) examined to what degree ‘the involvement of stakeholders went further than being an object of study’. They found that ‘the overwhelming majority of the evaluations in the database do not meet the basic criterion of a participatory analysis (up to 95.8 per cent, depending on method of measurement)’. Of the 33 evaluations studied by Sandin et al. (2019), only six showed any deeper participation, while in the other evaluations, involvement was limited to data collection.

The other side of participation is the independence of evaluators to draw conclusions and make judgements without interference, which is crucial for the reliability of evaluations. Independence was mentioned in the Commission’s 2017 Guidelines (European Commission, 2017: 56) which stated: ‘[a]n evaluation can be considered as independent when evaluators: (i) carry out their tasks without infuence or pressure from the organisation’. But according to Stern (2009: 72), ‘there is a widespread

Policy evaluation 253 perception in the evaluation community that independence is not always highly valued’. Nowadays, based on the Better Regulation Guidelines, evaluations are produced by the Commission as staff working documents. While this might increase the possibilities that the knowledge in the resulting evaluations is actually used, it could also be problematic. The Commission has multiple roles (see Chapter 6). As well as being a key policy formulator and overseer of implementation (see also Chapter 13), it is also becoming more heavily involved in evaluation. If one adopts a less Brussels-centric approach to analysing the evaluation of EU environmental policies, many more actors come into view (see also Box 14.2). The use of policy evaluation in the EU To improve its evaluation functions and in response to suggestions by the Court of Auditors and an external evaluation of the use of evaluation results in the Commission, a communication was issued in 2007 entitled Responding to Strategic Needs: Reinforcing the Use of Evaluation (European Commission, 2007: 2). It was aimed at improving the ‘relevant coverage, focus and timing’ of evaluations, by integrating evaluation into ‘management, strategic planning and programming cycles’ and through ‘better communication of evaluation results’. Also, the Better Regulation Guidelines (European Commission, 2017) stressed the need to ensure maximum use of the results of evaluations. Especially, transparency, dissemination of reports and results and defning follow-up actions were emphasised. These are all well-justifed actions addressing the problems revealed, but at the same time, the improvements sought are diffcult and will require resources and time to achieve. With the Better Regulation agenda, the Commission increased the role of evaluations and through the ‘evaluate frst’ principle (see above), the use of evaluations in further policymaking has been enhanced. Policy making and the use of evaluation is, however, always political. Since the Juncker Commission had very limited environmental ambitions, there was not much room for utilising evaluations to inform new environmental policies. In the von der Leyen Commission programme, a European Green Deal is the top priority. Thus, the potential scope for utilising evaluations is much larger at the EU level than previously. Finally, the use of evaluations can be infuential only if the knowledge needs of potential users is taken into account at all stages, including the planning, commissioning and conduct of evaluations. Unfortunately, the intended user base for EU-commissioned evaluations has been, and still is, mostly limited either to the Commission or often just the DG or unit that commissioned them. A well-functioning and broad network for environmental policy and programme evaluations would be highly desirable. It would not only enhance the quality and use of evaluations by the Commission, but also improve the quality and use of the evaluations that are commissioned by others (national and local authorities, NGOs and interest groups). In the US, the Environmental Evaluators Networking Forum (EENF), with annual gatherings in Washington DC, was established in 2006.3 Since 2012, the European Environmental Evaluators Network (EEEN) forum has been organised annually. The EEA and many national environmental protection agencies have had a crucial role in organising annual EEEN events. Compared to the task of increasing the quality and use of environmental and climate policy evaluations in a large, polycentric system such as the EU, the EEEN may appear a small step, but it provides a promising foundation to build on.

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Summary points • • •

Recently, the emphasis on retrospective evaluation has increased in the EU, and the focus has broadened from expenditure programmes to legislation and other non-spending policies. In practice, environmental policy evaluations have largely focused on the question of effectiveness. Multiple analysts and multiple data sources are almost always used, while the use of multiple theories is exceptional.

Conclusions and future challenges In the past 20 years, the EU has seen increased emphasis on – the apparently simple idea of – retrospective (or ex post) evaluation. In this time, the focus of EU evaluations has expanded from expenditure programmes to include legislation and other nonspending policies. The EU’s environmental policies are being evaluated by a varied cast of different actors. Some evaluations are broad, such as that of the Seventh EAP, while most are focused on specifc policy measures. Through these developments, EU environmental policy evaluation is becoming more systematic. Environmental policy evaluations largely focus on effectiveness, i.e., whether the environmental objectives of the policies adopted are being achieved. Effectiveness evaluation is essential, but it is not suffcient. The development of EU environmental policy would be better served if evaluations provided assessments of a variety of side effects and use criteria other than effectiveness to a greater degree than hitherto. So far, intervention theories have been far too little used in EU environmental policy evaluations. While multiple analysts and multiple data sources constitute the rule rather than the exception, there is great need for improvements in the use of multiple theories. Furthermore, there is room for improvement in the methodological rigour of the quantitative as well as qualitative methods used in evaluations. Descriptive statistics of survey distributions or quotes from expert interviews are data descriptions, not analysis per se. Finally, there is a need to combine comprehensive EU analyses with more detailed local case studies. Although much can be done to produce more credible evaluation results, the biggest challenges are related to making evaluations more relevant and widely used. Strengthening evaluation use requires more focus on ‘intended use by intended users’, a wider perception of intended users than just the Commission or DG Environment and the promotion of unintended uses by a variety of users through greater transparency and broader dissemination. The Commission has made signifcant progress in institutionalising ex ante Impact Assessments (see Chapter 11). Signs of a similar development can be seen also with respect to ex post evaluation. As an integral part of the Better Regulation agenda, evaluation has evolved hugely even during the last ten years. Most contemporary evaluation approaches are well integrated in the guidelines of both the Commission and

Policy evaluation 255 the EEA, but evaluation practices are still lagging somewhat behind. The ambitious environmental and climate policy agendas of the von der Leyen Commission as well as of several EU member states and many European cities and municipalities provide a context for undertaking evaluations in such a way that the resulting knowledge is actually used in new policy development. In order to enhance the quality of environmental evaluations as well as their use, it is crucial to build a stronger community of European environmental evaluators. In recent years, the EEEN has emerged as a new meeting place where actors commissioning, using and producing environmental evaluations can come together and share insights and experiences. By strengthening it even further, the EEEN could provide a forum to address the very practical problem outlined at the very beginning of this chapter – how to fully evaluate a strategically important national car tax reform.3 This effort could be informed by comparisons with similar evaluations in other countries and might also consider the implications for future EU environment and climate policies.

Summary points • •

•

The importance of evaluating EU environmental policies is becoming more widely recognised. Modern evaluation concepts have increasingly been included in EU evaluation guidelines, but the practice of evaluation has not yet fully incorporated them. In the EU, the potential to link ex ante and ex post evaluation has not been fully exploited. Improving environmental evaluations will require strengthening the community of European environmental evaluators.

Key questions 1 2 3 4 5 6

Why is it important to evaluate EU environmental policies? What are the main challenges associated with undertaking policy evaluation in a complex, multi-levelled context such as the EU? Which approaches to evaluation are considered to be especially relevant to environmental policy evaluation, and why? Who are the key actors in EU environmental policy evaluation, and what are their roles? How are the main evaluation approaches used in contemporary environmental policy evaluation in the EU? How could the practices of EU environmental policy evaluation be improved?

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Guide to further reading • •

Vedung (1997) provides the seminal European book on policy evaluation. Mickwitz (2003) offers a specifc framework on how to evaluate environmental policies. Crabbé and Leroy (2008) offer a more in-depth introduction to environmental policy evaluation. Binbaum and Mickwitz (2009) assemble a number of articles on key methodological challenges associated with environmental policy evaluation. Schoenefeld and Jordan (2019) examine the growth of policy evaluation in Europe and explore the factors that lay behind it.

• • •

Online resources • • •

The European Commission: https://ec.europa.eu/info/law/law-making-process/ evaluating-and-improving-existing-laws/evaluating-laws_en The European Environmental Evaluators Network (EEEN) forum: http://www. environmentalevaluators.net/europe/ The European Environment Agency: https://www.eea.europa.eu

Notes 1 I am grateful to Research Professor Paula Kivimaa for her comments on the original version of this chapter which was published in the 3rd edition of this book. It was written as part of a project funded by the Academy of Finland (Decision 127288). 2 The rebound-effect refers to the idea that improved energy effciency (or resource effciency) also results in reduced cost of energy. The saved money is either used to expand the same activity (e.g., driving) or it is used on something else, which directly or indirectly uses energy (or resources). The rebound-effect results in smaller energy savings than would otherwise be the case (Gillingham et al., 2015). 3 After the frst version of this chapter was published in 2012, I learnt that the Finnish car tax reform had been thoroughly evaluated in 2012. According to Perrels and Tuovinen (2012), the car tax reform had a ‘very noticeable effect on the consumer’s choice of passenger car models’. The decrease in average emissions was infuenced by other factors as well, such as fuel taxation, technological development, EU policies and policies in other countries. Perrels and Tuovinen (2012) attribute about half (13–17 g/km) of the decrease (33 g/km) in average emissions from new cars sold to the tax reform.

References Binbaum, M. and Mickwitz, P. (eds) (2009) ‘Environmental program and policy evaluation: Addressing methodological challenges’, New Directions for Evaluation, vol. 122, Summer, Jossey-Bass, San Francisco, CA. Crabbé, A. and Leroy, P. (2008) The Handbook of Environmental Policy Evaluation, Earthscan, London. EU (2013) ‘Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well,

Policy evaluation 257 within the limits of our planet’’, Offcial Journal of the European Communities, vol. L354, no. 56, pp. 171–200. European Commission (2002) ‘Decision No. 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme’, Offcial Journal of the European Communities, vol. L242, no. 45, pp. 1–15. European Commission (2004) ‘Decision No. 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol’, Offcial Journal of the European Communities, vol. L49, no. 47, pp. 1–8. European Commission (2005) Better Regulation for Growth and Jobs in the European Union, Communication of the Commission to the European Parliament, Commission of the European Communities (COM (2005) 97), European Commission, Brussels. European Commission (2007) Responding to Strategic Needs: Reinforcing the Use of Evaluation, (SEC (2007) 213), European Commission, Brussels. European Commission (2015) Better Regulation for Better Results - An EU Agenda, Communication of the Commission to the European Parliament, Commission of the European Communities (COM (2015) 215), European Commission, Brussels. European Commission (2017) Better Regulation Guidelines, Commission Staff Working Document, SWD (2017) 350, European Commission, Brussels. European Commission (2018a) Financial Regulation Applicable to the General Budget of the Union, July 2018, Directorate-General for Budget, Publications Offce of the European Union, Luxembourg. European Commission (2018b) Evaluation of the European Environment Agency (EEA) and Its European Environment Information and Observation Network (EIONET), Commission Staff Working Document, SWD(2018) 470 fnal, European Commission, Brussels. European Commission (2019a) Better Regulation: Taking Stock and Sustaining Our Commitment, (COM (2019) 178, European Commission, Brussels. European Commission (2019b) Evaluation of the 7th Environment Action Programme to 2020 “Living Well, within the Limits of Our Planet”, Commission Staff Working Document, SWD(2019) 181 fnal, European Commission, Brussels. European Court of Auditors (2017) EU Action on Energy and Climate Change (Landscape Review), Review No 01/2017, European Court of Auditors, Luxembourg. EEA (2001) Reporting on Environmental Measures: Are We Being Effective? Environmental Issue Report No. 25, European Environment Agency, Copenhagen. EEA (2016a) Environment and Climate Policy Evaluation, EEA Report No. 18, European Environment Agency, Copenhagen. EEA (2016b) The Direct and Indirect Impacts of EU Policies on Land, EEA Report No. 8, European Environment Agency, Copenhagen. EEA (2019) Assessing the Effectiveness of EU Policy on Large Combustion Plants in Reducing Air Pollutant Emissions, EEA Report No. 7, European Environment Agency, Copenhagen. European Parliament and Council of the EU (2013) ‘Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’’, Offcial Journal of the European Communities, vol. L354, no. 56, pp. 171–200. Ferraro, P.J. (2009) ‘Counterfactual thinking and impact evaluation in environmental policy’, in M. Birnbaum and P. Mickwitz (eds) Environmental Program and Policy Evaluation: New Directions for Evaluation, vol. 122, Summer, Jossey-Bass, San Francisco, CA, pp. 75–84. Furubo, J.-E. and Sandahl, R. (2002) ‘Introduction: A diffusion perspective on global developments in evaluation’, in J.E. Furubo, R.C. Rist and R. Sandahl (eds) International Atlas of Evaluation, Transaction Publishers, New Brunswick, NJ, pp. 1–23. Gillingham, K., Rapson, D. and Wagner, G. (2015) ‘The rebound effect and energy effciency policy’, Review of Environmental Economics and Policy, vol. 10, no. 1, pp. 68–88.

258 Per Mickwitz Hansen, M.B. and Vedung, E. (2010) ‘Theory-based stakeholder evaluation’, American Journal of Evaluation, vol. 31, no. 3, pp. 295–313. Hildén, M., Lepola, J., Mickwitz, P., Mulders, A., Palosaari, M., Similä, J., Sjöblom, S. and Vedung, E. (2002) Evaluation of Environmental Policy Instruments: A Case Study of the Finnish Pulp and Paper and Chemical Industries, Monographs of the Boreal Environment Research, vol. 21, Helsinki. Hoogerwerf, A. (1990) ‘Reconstructing policy theory’, Evaluation and Program Planning, vol. 13, no. 3, pp. 285–291. Huitema, D., Jordan, A., Massey, E., Rayner, T., van Asselt, H., Haug, C., Hildingsson, R., Monni, S. and Stripple, J. (2011) ‘The evaluation of climate policy: Theory and emerging practice in Europe’, Policy Sciences, vol. 44, no. 2, pp. 179–198. Mickwitz, P. (2003) ‘A framework for evaluating environmental policy instruments, context and key concepts’, Evaluation, vol. 9, no. 4, pp. 415–436. Mickwitz, P., Ollikka, K., Sjöblom, S. and von Troil, C. (2003) ‘The decisions according to the Environmental Protection Act during the two frst years’, Ympäristöjuridiikka, vol. 24, no. 1, pp. 27–47 (in Finnish). Patton, M.Q. (2008) Utilization-Focused Evaluation, 4th edition, Sage, Thousand Oaks, CA. Perrels, A. and Tuovinen, T. (2012) The Effectiveness of Differentiation of the Finnish Car Purchase Tax According to Carbon Dioxide Emission Performance, VATT Research Reports 168, Government Institute for Economic Research, Helsinki. Popper, K. (2003) The Open Society and Its Enemies, Volume Two: Hegel and Marx, Routledge Classics, London. Porter, M. and van der Linde, C. (1995) ‘Toward a new conception of the environment competitiveness relationship’, Journal of Economic Perspectives, vol. 9, no. 4, pp. 97–118. Rogers, P.J., Petrosino, A., Huebner, T.A. and Hacsi, T.A. (2000) ‘Program theory evaluation: Practice, promise, and problems’, in P.J. Rogers, T.A. Hacsi, A. Petrosino and T.A. Huebner (eds) Program Theory in Evaluation, vol. 87, Fall, Jossey-Bass, San Francisco, CA, pp. 5–13. Sanderson, I. (2002) ‘Evaluation, policy learning and evidence-based policy making’, Public Administration, vol. 80, no. 1, pp. 1–22. Sandin, S., Neij, L. and Mickwitz, P. (2019) ‘Transition governance for energy effciency – Insights from a systematic review of Swedish policy evaluation practices’, Energy, Sustainability and Society, vol. 9 no. 17, pp. 1–18. Schoenefeld, J. (2018) Evaluation in Polycentric Governance Systems: Climate Change Policy in the European Union. Doctoral thesis, University of East Anglia. (Available at: https://ueaeprints.uea.ac.uk/69535/ accessed 9.8.2019). Schoenefeld, J. and Jordan, A. (2019) ‘Environmental policy evaluation in the EU: Between learning, accountability, and political opportunities?’, Environmental Politics, vol. 28, no. 2, pp. 365–384. Scriven, M. (1991) Evaluation Thesaurus, 4th edition, Sage, Newbury Park, CA. Stern, E. (2009) ‘Evaluation policy in the European Union and its institutions’, in W.M.K. Trochim, M.M. Mark and L.J. Cooksy (eds) Evaluation Policy and Evaluation Practice, New Directions for Evaluation, vol. 123, Jossey-Bass, San Francisco, CA, pp. 67–85. Vedung, E. (1997) Public Policy and Program Evaluation, Transaction Publishers, New Brunswick, NJ. Vedung, E. (2010) ‘Four waves of evaluation diffusion’, Evaluation, vol. 16, no. 3, pp. 263–277. Weiss, C.H. (2000) ‘Which links in which theories shall we evaluate?’, in P.J. Rogers, T.A. Hacsi, A. Petrosino and T.A. Huebner (eds) Program Theory in Evaluation, vol. 87, Fall, Jossey-Bass, San Francisco, CA, pp. 35–45.

15 The EU in international environmental negotiations Tom Delreux1

Summary guide This chapter analyses the participation and contribution of the EU to international environmental negotiations. It gives an overview of the EU’s status as a partner in these negotiations and as a party to multilateral environmental agreements. In order to grasp how the EU acts as a negotiator at the international level, it is important to understand the internal division of legal competences, the external representation arrangements and the internal coordination process in the EU. This chapter also reviews the role of the EU in international environmental negotiations, the impact that the EU can have on their outcomes and the future challenges confronting the EU as it seeks to exert greater international leadership. It concludes that the EU’s impact on the outcome of global environmental politics is still rather limited. In order to increase its impact, several important challenges will have to be confronted, not least the increasing political contestation of the multilateral system.

Introduction The EU is an important actor in international environmental negotiations. It has even been labelled an ‘infuential’ player (Rhinard and Kaeding, 2006: 1024), a ‘frontrunner’ (Damro, 2006: 175) and a ‘global leader’ (Kelemen, 2010: 335) in this feld. However, the EU does not always fully accomplish its leadership potential; actually, some international environmental negotiations have been major disappointments for it. Notwithstanding this fact, it is diffcult to fully understand the processes and outcomes of international environmental negotiations without taking into account the role played by the EU as an ‘active and central’ actor around the negotiating table (Petri and Biedenkopf, 2020: 36). Also, these international negotiations, in turn, have an infuence on the EU, its internal environmental policies and the extent to which it can be a global actor. Hence, European and international environmental politics and policies are constantly interacting, and thus mutually constitutive. This rest of this chapter is structured as follows. The next section analyses the EU as a partner in international environmental negotiations and as a party to many MEAs. This is followed by three sections which explore the way the EU functions internally when it negotiates externally. First, the legal competence to act internationally is examined. Second, the way the EU is represented in international environmental negotiations is discussed. Third, how a common EU position is developed on a particular DOI: 10.4324/9780429402333-15

260 Tom Delreux issue and to which extent the EU also succeeds in remaining a unifed actor during the international negotiations is explored. The following section considers the impact of the EU on international environmental politics by analysing the role the EU plays in such negotiations. Special attention will be paid to the question of the EU’s leadership in international climate change negotiations. The fnal section presents the conclusions.

Summary points • • •

The EU is a major actor in international environmental negotiations. Developments at the international level have an infuence on the EU, its internal policies and the extent to which it is and can be a global actor. Hence, European and international environmental politics and policies are constantly interacting and hence mutually constitutive.

The EU and international environmental negotiations Although the EU is today widely recognised as an important actor in global environmental politics, the EU has not always been fully accepted and recognised as a partner in the negotiations and as a party to particular MEAs. In the 1970s and 1980s, member states participated in these negotiations separately. It has been a long struggle for the EU to secure its current place in international environmental politics. This struggle ensued because of: the constantly evolving division of competences between the EU and the member states; the lack of precedents (i.e., a multi-levelled actor without a formal status in global environmental politics); general sense of uncertainty that these issues provoked in the minds of the EU’s negotiating partners (Sbragia, 1998). It was only in the 1990s that the EU fully succeeded in establishing itself as an actor in international environmental negotiations (Jupille and Caporaso, 1998; Woolcock, 2012). Nowadays, the EU has an international legal personality, i.e., is able to become a party to MEAs in its own right. This means that the EU, just like third states, can become a subject of the rights and duties of international agreements. The EU has won the right to have the status of a so-called ‘Regional Economic Integration Organisation’ (REIO), a legal concept which allows the EU – and in the future possibly other regional organisations – to act legally at the international level (Kuijper et al., 2013). The EU is nowadays a party to about 60 MEAs (European Commission, 2020), which cover a broad range of environmental domains including air, biotechnology, chemicals, climate change, biodiversity, soil, waste and water. They include Conventions or Agreements (i.e., stand-alone environmental treaties), Protocols (i.e., treaties under the umbrella of an existing MEA and covering one of its aspects more in detail) and Amendments (i.e., treaties that modify an existing MEA). The lion’s share of these MEAs are global, UN-wide agreements, but the EU is also a party to a number of regional environmental agreements or treaties that deal with geographically demarcated issues such as regional seas or river basins. Table 15.1 lists the major MEAs that have been concluded by the EU.

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Table 15.1 Major multilateral environmental agreements to which the EU is a party Agreement

Year adopted

Issue

Convention on Long-Range Transboundary Air Pollution Bonn Convention on the Conservation of Migratory Species Vienna Convention on the Protection of the Ozone Layer Montreal Protocol on the Protection of the Ozone Layer Basel Convention on Hazardous Waste Espoo Convention on Environmental Impact Assessment UN Framework Convention on Climate Change

1979 1979 1985 1987 1989 1991 1992

UN Convention on Biological Diversity UN Convention to Combat Desertifcation Kyoto Protocol

1992 1994 1997

Aarhus Convention on public participation in environmental decision making Rotterdam PIC Convention Cartagena Protocol on Biosafety Stockholm POPs Convention Nagoya Protocol on Access and Beneft Sharing Minamata Convention on Mercury Paris Agreement

1998

Air Biodiversity Air Air Waste Governance Climate change Biodiversity Soil Climate change Governance

1998 2000 2001 2011 2013 2015

Chemicals Biotechnology Chemicals Biodiversity Chemicals Climate change

Source: author’s selection, based on European Commission (2020).

Not only is the EU a party to all major MEAs, but it also participates in international environmental negotiations alongside major powers. In practice, the EU is considered as a ‘normal’ and fully recognised negotiation partner during international environmental negotiation processes, like it is in many other policy domains (e.g., it is allowed to speak and/or table proposals). Many MEAs have been negotiated in the framework of the UN. In a UN context, the EU is formally an observer, not a full member. Legally speaking, the main difference between an observer and a full member is that an observer has no voting rights. In practice, however, this lack of voting rights does not make a big difference, since international environmental politics is characterised by a consensus logic (i.e., formal voting is unusual). Today, the majority of international environmental negotiations are conducted in the context of Conferences or Meetings of the Parties (COPs or MOPs) or other subsidiary bodies of MEAs. COPs and MOPs are annual or bi-annual gatherings of the parties to an environmental treaty and are organised to facilitate follow-up discussions of the further implementation of the treaty. Multilateral climate change negotiations are currently conducted in the COPs to the UNFCCC. Likewise, global negotiations on biodiversity take place in COPs of the UN CBD. As the EU is usually a formal party to the mother treaties under which such COPs and MOPs are organised, it enjoys the same rights and status as the other parties. This means that in almost all day-to-day international environmental negotiations, the EU de facto acts as a fullyfedged negotiation partner.

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Summary points • • •

In the past, the EU struggled to be accepted as an actor in global environmental politics, but its recognition is nowadays uncontested. The EU is a party to all major MEAs, covering a wide variety of issues, including biotechnology, chemicals, climate change, biodiversity, soil, waste and water. The EU is able fully to participate in international environmental negotiations in the relevant COPs and MOPs, mostly as a party to the mother treaty.

Competences for international environmental negotiations The EU’s evolution into a major international environmental actor also relates to the growing scope of environmental competences the EU has gained. Indeed, to be an international environmental actor, the EU frst needs the internal competence to act in a given external environmental domain (see Chapter 3 for an explanation of how these have grown in the last 50 years). The scope of the external environmental competences has been growing in two ways. On the one hand, through various treaty changes, the member states have attributed more and more external competences to the EU level. Those competences, mentioned in the treaties, are called ‘express powers’. Environmental competences – and a fortiori external environmental competences – have only been part of the treaties since the ratifcation of the Single European Act (see Chapters 2 and 4). Besides attributing environmental competences for internal European environmental policy, the SEA also explicitly mentioned the external dimension of environmental policy in Article 130r (currently Article 191 of the TFEU). Besides express powers, the EU gained external environmental competences in a more indirect way. Rulings by the CJEU (see Chapter 7) further increased the scope of the external competences of the EU, including in the environmental area. In the 1970s, a number of cases – the most important one being the ERTA case (Case 22/70) – established the so-called ‘parallelism’ doctrine. This basically means that the EU has the competences to act externally in all areas where it has the competences to act internally (Verwey, 2004). In other words, the EU has the competences to conclude MEAs on all those issues on which it has adopted internal environmental policy. In contrast to express powers, these external competences are called ‘implied powers’. The Treaty of Lisbon attempted to codify the parallelism doctrine in Article 216 TFEU (Schütze, 2015). Environmental competences in the EU – both internal and external ones – are shared competences. Unlike exclusive competences, where member states are no longer allowed to act, shared competences leave some room to the member states for adopting policies as long as the EU has not exercised its competences. The shared nature of environmental competences is stipulated in Article 4 TFEU. Article 191 TFEU explicitly repeats that the EU’s cooperation with third countries in the environmental feld ‘shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements’. The idea that environmental competences are shared competences is important because it implies that the external

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environmental policy of the EU is the responsibility not of the EU institutions alone (like exclusive competences) nor of the member states separately (like national competences). By contrast, the EU’s participation in international environmental negotiations is a joint undertaking of actors at the European and national levels.

Summary points • •

•

The EU has external environmental competences that are express powers, i.e., they are explicitly mentioned in the treaties. The EU also has external environmental competences that are implied powers, i.e., created by the case law of the CJEU and later codifed in the Treaties, which established a parallel relationship between internal and external competences. Environmental competences are shared competences, which de facto implies that the EU and the member states should conduct external environmental policy jointly.

External representation in international negotiations To understand the EU’s representation in international environmental negotiations, a distinction needs to be made between, on the one hand, its representation in negotiations that are intended to result in a legally binding agreement – i.e., an MEA, such as the ones mentioned in Table 15.1 – and, on the other hand, the EU’s representation in negotiations that lead to agreements that are not legally binding, such as COP decisions or the UN’s Sustainable Development Goals . In other words, the expected outcome of the negotiations to a large extent determines how the EU is represented around the international negotiation table, at least when the legal rules are followed. External representation in legally binding MEAs Let us frst consider how the EU negotiates international legally binding MEAs – namely, ‘Conventions’ or ‘Agreements’, ‘Protocols’ and ‘Amendments’. MEAs are so-called ‘mixed agreements’, i.e., international treaties to which both the EU and its member states are party (Eeckhout, 2011). In practice, the EU representation in negotiations leading to a legally binding MEA is a ‘dual’ type (Sbragia, 1998), consisting of an EU part and a member state part. Both parts of the EU representation are organised differently. On the one hand, the Commission negotiates on behalf of the EU on all issues falling under the EU’s exclusive competences (see Chapter 6). This is the result of the combination of Articles 218 TFEU and 17 TEU (Treaty on European Union), which stipulates that in such a situation the EU should be represented by a ‘Union negotiator’ (Article 218 of the TFEU) and that the Commission should act as this Union’s negotiator for EU competences (Article 17 of the TEU). When the Commission is appointed as European negotiator in case of negotiations leading to a legally binding agreement, the Commission receives a formal mandate (formally

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‘negotiating directives’) from the Council, as it is, for instance, also the case when the Commission negotiates international trade agreements. Remarkably, the negotiations on MEAs concerning climate change (on the Paris Agreement but also in the run-up to Copenhagen) were conducted without a formal Council mandate. This was because the Commission believed ‘it could win a legal dispute over competence on climate change in the European Court of Justice, but politically does not dare to pick such a fght’ (van Schaik, 2012: 11). The Commission seems to be satisfed with the (infuential) role it is de facto able to play in the climate negotiations even in the absence of a formal mandate (see below). On the other hand, for international issues that fall within their competence, the member states mostly decide to pool their voices and to designate a common negotiator, who is usually from the rotating Presidency of the Council of the EU (see Chapter 5). Whereas the delegation of negotiation authority to the Commission for exclusive EU competences is a legal obligation, the appointment of the Presidency as the negotiator for member state competences requires a political choice. However, in general, the EU only speaks through the tandem Commission-Presidency when it delivers formal statements or negotiates in formal venues. In less formal settings, the EU’s external negotiation arrangement is characterised by practical considerations (see below). External representation in non-legally binding agreements Having discussed how the EU is formally represented in negotiations leading to a legally binding MEA, let us now focus on the EU’s representation in negotiations that do not lead to a legally binding agreement. Indeed, most of the international environmental negotiations in which the EU currently participates do not intend to produce an MEA, but are rather negotiations on the follow-up and implementation of an existing agreement, mostly taking place in COPs, MOPs or other subsidiary bodies of international treaties. Here, Article 218 TFEU is not applicable because it only relates to the negotiation of ‘agreements’, which is – in line with the Vienna Convention on the Law of Treaties – interpreted as treaties that are legally enforceable and that contain precise obligations and rights of their parties. This means that the EU’s representation in most ongoing international environmental negotiations is not regulated in the treaties. External representation in practice The precise negotiation arrangement in international environmental negotiations usually varies from negotiation session to negotiation session. In practice, ‘dual representation’ – with the Commission and the Presidency taking the foor on behalf of the EU – is used for speaking in public venues, such as plenary meetings of the international conference, or for delivering formal statements. But in other, less visible – but often more important – venues, such as contact groups or working groups, the EU’s external representation is regularly an ad hoc and informal negotiation arrangement. This means that the EU often opts for a representation system that is considered to be the most useful and feasible in a particular international negotiation session. The formal system, which in the case of treaty negotiations is based on the internal division of competences, is often left behind, and the precise arrangement mainly depends on practical and pragmatic considerations.

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A good example of the pragmatic interpretation of the EU negotiation arrangements concerns the deployment of the personal capabilities, expertise and know-how of the various actors in the EU, irrespective of their institutional or national affliation (e.g., member state or Commission). This is for instance evident in the phenomenon of so-called lead countries (or ‘lead negotiators’ in climate change negotiations). Here, member state and Commission representatives are able to ‘take the lead’ in the EU’s external representation. The task to externally represent the EU at the international level is then subject to an informal division of labour between member states and the Commission. One lead country represents the EU in negotiations on a particular issue, whereas another speaks on behalf of the EU in negotiations on another issue. For instance, in the run-up to the 2015 Paris climate conference, the EU was represented in various working groups of international climate negotiations by three lead negotiators (specifcally from the Commission, Germany and the UK), each negotiating on behalf of the EU in relation to a particular set of issues. The actors taking the lead are informally assigned a particular task because of specifc skills or expertise they possess or because they want to be closely involved in the negotiations. In many international environmental regimes, this system has quickly and informally become the accepted practice for conducting international negotiations (Delreux and Van den Brande, 2013; Delreux and Keukeleire, 2017).

Summary points • • •

Legally binding MEAs are mixed agreements, formally negotiated via a system of dual representation. In practice, the EU’s representation in international environmental negotiations is often determined in an ad hoc manner, based on pragmatic considerations. An informal system of lead negotiators and lead countries is often employed, whereby policy makers de facto represent the EU, irrespective of their precise institutional or national affliation.

Internal coordination in international negotiations To understand how an EU position in international environmental negotiations is developed internally and how the internal coordination process functions in the context of such negotiations, a distinction can be made between three stages: before, during and after the international negotiations. First, before the European negotiators leave Brussels for the international environmental conference, the internal coordination process is principally conducted in the Environment Council (for more details, see Chapter 5). Since the Commission attends all Council meetings, it also plays a role in this stage of the coordination process. The Council’s centre of gravity for the EU’s internal coordination is the Working Party on International Environmental Issues (WPIEI), comprising national experts from the member states (with Commission offcials attending). The WPIEI convenes in various

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confgurations, such as the WPIEI Climate Change, the WPIEI Biodiversity or the WPIEI Chemicals. For some international environmental negotiations, the EU coordination is limited to the WPIEI, whereas for other negotiations, the WPIEI only conducts the preparatory work for the Working Party on the Environment (the working party in the Council consisting of the Brussels-based ‘environment attachés’ to the permanent representations of the member states) and for COREPER I (Comité des représentants permanents, i.e., here, the meeting of the deputy permanent representatives of the member states) and the ministerial meeting of the Environment Council. For instance, the EU positions for climate change negotiations take the form of Council Conclusions, adopted by the Environment Council, but technically they are prepared by the WPIEI (and the Working Party on the Environment) and politically by COREPER I. Second, during the course of an international negotiation, daily EU coordination meetings are organised (or in some cases, even more than once a day). In practice, the member states and the Commission usually meet in the morning before the start of the international meetings. These meetings are usually attended by the same people who were present at the preparatory WPIEIs in Brussels and they adopt the working methods of the WPIEI. Yet, when international negotiations have a ministerial session, the ministers of the member states participate in the EU coordination meetings. Coordination meetings have a double function: position development and information sharing (Delreux, 2011). The actors discuss the common lines to follow and they develop and/or refne, if necessary, EU positions. These meeting also fulfl an information function: for many (smaller) member states, which have relatively few people in the international negotiation, it is quite diffcult to follow all the policy developments in detail. The debriefngs by the Commission, the Presidency, the lead countries (if applicable) and even by national offcials who have an offcial function at the international level (e.g., chairing a contact group or being a member of the Bureau) help the other member states to keep up-to-date on the progress in the international negotiations. Moreover, pooling the available information of 27 member states and the Commission arguably strengthens the EU’s negotiation capacity at the international level. EU coordination meetings also suffer from one signifcant disadvantage: they take a lot of time. The time spent in internal coordination meetings cannot be used for building informal contacts with the negotiation partners, e.g., to make the necessary package deals ‘in the corridors’. The argument that the EU spends too long in international meetings ‘negotiating with itself’ is equally applicable to EU external relations in other policy domains (e.g., Elgström, 2007). However, although internal coordination is often time-consuming and cumbersome, it is deemed necessary in order to keep all member states on board, which is also facilitated by ‘on the spot’ coordination (see Box 15.1).

Box 15.1 The EU in international negotiations: ‘on the spot’ coordination Coordination ‘sur place’ not only occurs in EU coordination meetings, but also ‘on the spot’, i.e., in the actual room where the international negotiations are taking place. Usually, behind the European negotiators (the Commission, the

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Presidency and/or a lead country of lead negotiator), offcials from the other member states are seated. Their role is twofold. On the one hand, the member state offcials check that the EU negotiator sticks to the previously agreed EU position. In this respect, Commission, Presidency or lead negotiator offcials sometimes refer to ‘the mothers-in-law’ sitting behind them (Delreux, 2011). On the other hand, this set-up also allows negotiators to coordinate on the spot with the member states, to verify whether a particular intervention would be appropriate, to check whether a certain standpoint is still covered by the EU position or to ask for additional arguments to be used in the negotiations. When the international negotiations reach their end game, they are often conducted in so-called ‘Friend of the Chair Meetings’ or other restricted settings that the member states cannot attend and where the EU is only represented by its negotiator(s).

Just like the system in which lead negotiators are used to conduct the negotiations on behalf of the EU (see above), a similarly informal division of labour among actors in the EU is used in the internal coordination process. Indeed, also here, personal capabilities, expertise and know-how are employed, irrespective of their precise institutional or national affliation. Under the formal umbrella of the Presidency, the work related to the internal development of the EU position is often informally divided among the offcials participating in the EU decision-making process. The offcials who take on these tasks may come from the Commission or from any member state; what matters is their personal contribution to the EU decision-making process. In many international environmental negotiations, such informal processes have become an uncontested and informally institutionalised practice. They allow the EU to divide the work, to make use of all the expertise and know-how available, to involve the member states in the negotiations and to guarantee continuity in the internal coordination process (Delreux and Van den Brande, 2013; Delreux and Keukeleire, 2017). Given these various institutional fora for internal coordination and the shared nature of the external environmental competences, how well does the EU manage to present a coherent message in international negotiations? The answer is quite well. Indeed, these legal complexities have ‘not prevented the EU developing common policies and positions in international environmental negotiations’ and they ‘pose less and less of a problem as the EU decision-making regime has come to be accepted’ (Woolcock, 2012: 117 and 147). However, tensions between the Commission and the member states on who should lead the external representation occur from time to time, with the former arguing for a more Commission-driven system and the latter arguing for a continued role for the member states (for an overview of both sides of the debate, see, respectively, Buck, 2012, and Thomson, 2012). Such discussions were particularly present in the early 2010s shortly after the entry into force of the Lisbon Treaty, which coincided with the aftermath of the Copenhagen climate change conference. In a few instances, these internal discussions hindered the EU’s performance at the international level, particularly in the frst negotiation sessions on the Minamata Convention on Mercury. But the dust now seems to have settled and member states have found (and stuck with) pragmatic solutions on the EU’s external representation.

268 Tom Delreux The EU’s position for international negotiations often strongly relies on the internal legislation that is in force in the EU on the topic in question. The existence of the internal regulatory framework in many environmental subdomains is one of the main reasons why the EU is usually able to fnd a common position. Indeed, ‘common internal policies tend to unify member state interests, so that all member states can be expected to support the internationalisation of the internal level’ (Oberthür, 2011: 673). When issues that are already regulated in the EU are discussed at the international level, the existing legislation, which already implies a compromise between the member states, serves as the basis for the EU’s new external position. The existing legislation is often defned as the ‘red lines’, which may not be crossed by provisions in the MEA. This is because an MEA with provisions that confict with existing EU legislation would imply a renegotiation of this legislation. In such a case, a delicate internal compromise would be put at risk, potentially opening a Pandora’s box of new questions. Third, after a deal on an MEA has been reached at the international level, it still has to be ratifed (or ‘concluded’ in EU jargon) by the EU, before its rights and duties become legally binding on the EU. Importantly, this ratifcation requirement only holds for legally binding agreements and, as a consequence, not for ‘normal’ COP or MOP decisions, or for ‘declarations’. It is precisely this feature of an international environmental agreement, which makes it legally binding. In the EU, ratifcation is the responsibility of both the Council of the EU and the European Parliament, acting on the basis of a proposal by the Commission. Since ratifcation is characterised by a ‘take it or leave it’ logic, the Council and the Parliament cannot amend the MEA further in this stage. This means that after an international negotiation session, the negotiated MEA needs to be accepted by the Council and the Parliament in order to become legally binding for the EU. Finally, because MEAs are mixed agreements to which the EU and the member states are parties, the member states also need to ratify the agreement at their domestic level (generally also with parliamentary approval). National ratifcation is not a legal requirement for the EU to become a party to an MEA, but non-ratifcation by one or a number of member states might politically hinder the EU in follow-up meetings to that MEA.

Summary points • • •

EU positions for international environmental negotiations are determined in the Council, where the WPIEI occupies a central place. During the course of an international negotiation, internal coordination not only occurs in frequent EU coordination meetings, but also via coordination quite literally ‘on the spot’. MEAs need to be ratifed by the Council and the European Parliament, as well as by the member states separately.

The external role of the EU: the vexed question of leadership The EU has been a driving force in many international environmental negotiations, often advocating for stronger and more legally binding measures. Therefore, the EU

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is widely recognised as a leader in international environmental politics (Zito, 2005; Vogler, 2011a; Damro and Ibáñez, 2018). However, the EU’s environmental leadership only really started at the end of the 1980s. The negotiations on ozone (the Montreal Protocol) and waste (the Basel Convention) are considered to have been the frst instances of European leadership. In the 1960s and 1970s, by contrast, it was mainly the US that was the leader in international environmental politics, but since the mid1980s, the US and the EU have been ‘trading places’ (Kelemen and Vogel, 2010). Today, the EU is said to have been a leader in negotiations on the Cartagena Protocol governing biotechnology (Falkner, 2007) and the Rotterdam and Stockholm Conventions covering chemicals (Vogler, 2011b). The EU’s leadership has been particularly evident in international climate negotiations (Wurzel et al., 2017), particularly in the negotiation of and follow-up from the Kyoto Protocol (Groenleer and van Schaik, 2007; Afonis, 2017). However, the EU’s international leadership was badly damaged at the 2009 Copenhagen conference which was widely perceived to have been a diplomatic failure for the EU (Oberthür, 2011; Groen and Niemann, 2013), but it was subsequently restored in the run-up to the Paris conference in 2015 (Oberthür, 2016) (see Box 15.2). The EU’s environmental leadership means that in most cases it is among the players that defend the most ambitious or greenest positions. However, there are important exceptions. The EU sometimes advocates a less ambitious position than other parties, as it was for instance the case in the negotiations on the Cartagena Protocol on Biosafety, the UNECE Protocol on Strategic Environmental Assessment and the Nagoya Protocol on Access and Beneft Sharing on genetic resources (Delreux, 2011).

Box 15.2 International climate negotiations: from failure in Copenhagen to success in Paris? Whereas the EU has been a rather infuential actor in global climate negotiations in the second half of the 1990s and most of the 2000s, the 2009 Copenhagen conference constituted a major setback, when it was excluded from the main deal done between China and the US (Oberthür, 2011). Yet the EU drew lessons from this failure. First, it moderated its ambition in an attempt to adapt to the evolving international negotiation context, i.e., to avoid leading without having followers (Wurzel et al., 2017; Oberthür and Groen, 2018). Second, the EU paid more attention to coalition-making and bridge-building in the international negotiation process, making the EU now more a ‘leader-cum-mediator’ (or ‘leadiator’) (Bäckstrand and Elgström, 2013). Third, the EU started to adopt a more strategic stance on climate change, increasingly treating climate change as a broader foreign policy issue rather than just an environmental one (Schunz, 2019). More attention for bilateral support, particularly to developing countries, and the adoption of climate diplomacy action plans are just two examples of this growing strategic approach to climate change (Davis Cross, 2018; Biedenkopf and Petri, 2019) (see also Chapter 3 for more details). Taken together, these dynamics contributed to the fact that the 2015 Paris conference and the adoption of the Paris Agreement can be considered a success for the EU.

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How can the EU’s overall leadership in global environmental politics and its preference for international solutions to global environmental problems be explained? In the literature, three main reasons are mentioned. First, being a ‘multilateral microcosm of the international system itself’ (Oberthür and Roche Kelly, 2008: 43), the EU has always been in favour of multilateralism and regulatory measures at the international level. This not only holds true in the environmental domain, but it is a general characteristic of the external action of the EU. The EU’s attachment to rules-based forms of multilateralism, both on environmental policy matters and beyond, is increasingly at odds with the sovereignty-focused approaches of, for instance, the US and China (see also Chapter 3). Second, leading on international environmental affairs also contributes to the EU’s aim to be a civilian or ‘soft’ power (as opposed to a military power) (Scheipers and Sicurelli, 2007). Third, the EU’s leading position at the international environmental level can also be prompted by the wish of producers in the member states to maintain a competitive position at the global market. Following this reasoning, the EU aims to create a level playing feld by trying to export (or ‘upload’ – see Chapter 4) its own (relatively stringent) environmental legislation to the international level so that global competitors have to meet the same standards as European producers (Kelemen, 2010). The front-running position of the EU in international environmental negotiations is thus partly based upon an attempt to externalise its existing regulatory framework applicable to the rest of the world (Schunz, 2019). As mentioned above, the argument about the EU’s leadership has mainly been made with regard to international climate change negotiations. However, this claim has also been qualifed in the literature. Some scholars argue that the EU has only been able to attempt leadership (Schunz, 2011), others that the EU has only partially succeeded to be a climate leader (Parker and Karlsson, 2010) and is no longer perceived as the main climate leader by its negotiation partners (Parker et al., 2017), or that the EU has ‘failed’ to show global leadership at some instances (Bäckstrand and Elgström, 2013). However, a key question nevertheless remains: does the EU genuinely make a difference in international environmental politics? Based on an analysis of the EU’s infuence in a number of international environmental fora, Vogler and Stephan (2007) argue that the EU has mostly been able to infuence the agenda; it is much harder to affect the outcome of the negotiations. Therefore, the EU’s overall track record in terms of effectiveness is mixed. Some international environmental negotiations have resulted in disappointments for the EU (such as the aforementioned Copenhagen conference and the 2012 Rio+20 Summit on sustainable development); other negotiations led to outcomes that were in line with the EU’s objectives (such as the negotiations on the Cartagena Protocol on GMOs and the Paris Agreement) but not directly achieved by the EU (Delreux, 2014). Several explanatory factors have played a role here. First, a single EU position contributes to a higher level of effectiveness. Second, the EU’s position relative to the international constellation of interests is important: the EU is more likely to achieve pre-determined goals when its position is not too ambitious and when it has relatively strong bargaining power. Third, how well the EU’s diplomatic engagement is adapted to that international context also matters to a large extent (Torney and Cross, 2018; Groen, 2019).

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Summary points • • •

The EU is traditionally identifed as being a leader in global environmental politics, but nowadays, its leadership role is being questioned. In climate negotiations, the EU has drawn lessons from the Copenhagen conference and started to pay more attention to wider forms of climate diplomacy. The EU has a mixed track record when it comes to infuencing the outcome of international environmental negotiations.

Conclusion The EU is undoubtedly a key player in international environmental politics. It has repeatedly aimed to play a front-runner or leadership role across many different issue areas. Nowadays, it is accepted as a key participant in global environmental negotiations, despite not being a sovereign state. After a long struggle in the 1970s and 1980s, its status as a key participant has been confrmed, both de jure and de facto. Developments at the international level, but also internally, have strengthened the EU as a global environmental actor (see Chapters 2 and 3). On the one hand, the EU’s environmental competences have grown due to various internal treaty changes. The competences it secured have been used to create a larger scope of internal environmental legislation, providing it with probably the most stringent supranational environmental policy system in the world. In the last few decades, the EU has aimed to externalise the resulting set of ambitious environmental policies. On the other hand, the successive enlargements of the EU would themselves have enlarged the bargaining power of the EU, which nowadays represent 27 states, more than 500 million citizens and a vast economic market. However, since the EU’s actual impact on the outcomes of global environmental politics is more limited, the EU’s external environmental policies still face a number of challenges. First, coherence among the member states and the other actors in the EU is a necessary but insuffcient condition for effective multilateral diplomacy. Coherence allows the EU to present a unifed message, not only in the formal negotiations, but also in the diplomatic corridors. Second, coherence is also needed between the EU’s external action in various policy domains (such as development and climate change politics, or trade policies and product standard–related environmental policies) (on the myriad challenges raised by policy integration, see Chapter 12). Third, and probably most importantly, the EU needs to adapt to a changing world in which traditional forms of rule-based multilateralism centred on the UN are increasingly being contested by other large powers (see Chapter 3).

Summary points •

The EU is a key player in international environmental politics and aims to play a front-runner role across many different issue areas.

272 • •

Tom Delreux Today, the EU’s status as a key player has been confrmed, both de jure and de facto. But its current role was not preordained: it was the result of a long internal struggle dating back to the 1970s. The EU’s actual impact on the outcome of global environmental politics is, however, more limited; several important challenges still have to be confronted, not least the evolving constellation of power and the increasing contestation of the multilateral system.

Key questions 1 2 3 4 5

How have external environmental competences been established in the EU? How is the EU represented in international environmental negotiations? Make a distinction between negotiations leading to a treaty and negotiations not leading to a treaty as well as between formal and informal dynamics. Which procedures and dynamics in the internal coordination process guarantee that the member states can be involved in the external negotiation process? How can the EU’s leadership in global environmental politics be explained? How have the EU’s climate leadership ambitions and practices evolved over time?

Guide to further reading •

• •

Comprehensive overviews of the EU’s external environmental policies and its role in global environmental politics can be found in Morgera (2012) and Adelle et al. (2018). Whereas the former approaches the topic from a legal perspective, the latter approaches it from the perspective of political science. Analyses of the internal functioning of the EU in international environmental negotiations are presented in Rhinard and Kaeding (2006), and in Delreux (2011). In-depth analyses of the role of the EU in international climate change negotiations in the 1990s and 2000s (until Copenhagen) are presented in Oberthür (2011), Schunz (2014) and Afonis (2017). The EU’s international role pre- and post-Paris is discussed by Oberthür (2016) and Oberthür and Groen (2018).

Online resources • • •

European Commission – Environment – International Issues: https://ec.europa. eu/environment/international_issues/index_en.htm Institute for European Environmental Policy – Global Challenges and SDGs: https://ieep.eu/work-areas/global-challenges-and-sdgs International Institute for Sustainable Development, Reporting Services – Earth Negotiation Bulletin: https://enb.iisd.org/enb/

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Note 1 I would like to thank Joanne Scott for helpful comments and suggestions on a previous version of this chapter.

References Adelle, C., Biedenkopf, K. and Torney, D. (eds) (2018) European Union External Environmental Policy. Rules, Regulation and Governance beyond Borders, Palgrave Macmillan, London. Afonis, S. (2017) The European Union in International Climate Change Negotiations, Routledge, Abingdon. Bäckstrand, K. and Elgström, O. (2013) ‘The EU’s role in climate change negotiations: from leader to “leadiator”’, Journal of European Public Policy, vol. 20, no. 10, pp. 1369–1386. Biedenkopf, K. and Petri, F. (2019) ‘EU Delegations in European Union climate diplomacy: the role of links to Brussels, individuals and country contexts’, Journal of European Integration, vol. 41, no. 1, pp. 47–63. Buck, M. (2012) ‘The EU’s representation in multilateral environmental negotiations after Lisbon’ in E. Morgera (ed), The External Environmental Policy of the European Union. EU and International Law Perspectives (pp. 76–95), Cambridge University Press, Cambridge. Damro, C. (2006) ‘EU–UN environmental relations: shared competence and effective multilateralism’, in K. Smith and K. Laatikainen (eds), Intersecting Multilateralisms. The European Union and the United Nations (pp. 175–192), Palgrave Macmillan, New York. Damro, C. and Ibáñez, E. (2018) ‘EU external engagement in areas with long-standing internal policies: single market, competition policy and environmental policy’, in C. Damro, S. Gstöhl and S. Schunz (eds), The European Union’s Evolving External Engagement. Towards New Sectoral Diplomacies? (pp. 37–65) Routledge, London. Davis Cross, M. (2018) ‘Partners at Paris? Climate negotiations and transatlantic relations’, Journal of European Integration, vol. 40, no. 5, pp. 571–586. Delreux, T. (2011) The EU as International Environmental Negotiator, Ashgate, Farnham. Delreux, T. (2014) ‘EU actorness, cohesiveness and effectiveness in environmental affairs’, Journal of European Public Policy, vol. 21, no. 7, pp. 1017–1032. Delreux, T. and Keukeleire, S. (2017) ‘Informal division of labour in EU foreign policy-making’, Journal of European Public Policy, vol. 24, no. 10, pp. 1471–1490. Delreux, T. and Van den Brande, K. (2013) ‘Taking the lead: informal division of labour in the EU’s external environmental policy-making’, Journal of European Public Policy, vol. 20, no. 1, pp. 113–131. Eeckhout, P. (2011) EU External Relations Law, Oxford University Press, Oxford. Elgström, O. (2007) ‘Outsiders’ perceptions of the European Union in international trade negotiations’, Journal of Common Market Studies, vol. 45, no. 4, pp. 949–967. European Commission (2020) ‘Multilateral environmental agreements to which the EU is a contracting party or a signatory’, available at: https://ec.europa.eu/environment/international_issues/pdf/agreements_en.pdf (accessed 22 January 2020). Falkner, R. (2007) ‘The political economy of “normative power” Europe: EU environmental leadership in international biotechnology regulation’, Journal of European Public Policy, vol. 14, no. 4, pp. 507–526. Groen, L. (2019) ‘Explaining European Union effectiveness (goal achievement) in the Convention on Biological Diversity: the importance of diplomatic engagement’, International Environmental Agreements, vol. 19, no. 1, pp. 69–87. Groen, L. and Niemann, A. (2013) ‘The European Union at the Copenhagen climate negotiations: a case of contested EU actorness and effectiveness’, International Relations, vol. 27, no. 3, pp. 308–324. Groenleer, M. and van Schaik, L. (2007) ‘United we stand? The European Union’s international actorness in the cases of the International Criminal Court and the Kyoto Protocol’, Journal of Common Market Studies, vol. 45, no. 5, pp. 969–998.

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Jupille, J. and Caporaso, J. (1998) ‘States, agency, and rules: the European Union in global environmental politics’, in C. Rhodes (ed), The European Union in the World Community (pp. 213–229), Lynne Rienner Publishers, London. Kelemen, D. (2010) ‘Globalizing European Union environmental policy’, Journal of European Public Policy, vol. 17, no. 3, pp. 335–349. Kelemen, D. and Vogel, D. (2010) ‘Trading places: the role of the United States and the European Union in international environmental politics’, Comparative Political Studies, vol. 43, no. 4, pp. 427–456. Kuijper, P., Wouters, J., Hoffmeister, F., De Baere, G. and T. Ramopoulos (2013) The Law of EU External Relations. Cases, Materials, and Commentary on the EU as an International Legal Actor, Oxford University Press, Oxford. Morgera, E. (ed) (2012) The External Environmental Policy of the European Union. EU and International Law Perspectives, Cambridge University Press, Cambridge. Oberthür, S. (2011) ‘The European Union’s performance in the international climate change regime’, Journal of European Integration, vol. 33, no. 6, pp. 667–682. Oberthür S. and Groen L. (2018) ‘Explaining goal achievement in international negotiations: the EU and the Paris Agreement on climate change’, Journal of European Public Policy, vol. 25, no. 5, pp. 708–727. Oberthür, S. and Roche Kelly, C. (2008) ‘EU leadership in international climate policy: achievements and challenges’, The International Spectator, vol. 45, no. 3, pp. 35–50. Parker, C. and Karlsson, C. (2010) ‘Climate change and the European Union’s leadership moment: an inconvenient truth?’, Journal of Common Market Studies, vol. 48, no. 4, pp. 923–943. Parker, C., Karlsson, C. and Hjerpe, M. (2017) ‘Assessing the European Union’s global climate change leadership: from Copenhagen to the Paris Agreement’, Journal of European Integration, vol. 39, no. 2, pp. 239–252. Petri, F. and Biedenkopf, K. (2020) ‘Common but differentiated responsibility in international climate negotiations: the EU and its contesters’, in E. Johansson-Nogués, M. Vlaskamp and E. Barbé (eds), European Union Contested. Foreign Policy in a New Global Context (pp. 35–54), Springer, Cham. Rhinard, M. and Kaeding, M. (2006) ‘The international bargaining power of the European Union in “mixed” competence negotiations: the case of the 2000 Cartagena Protocol on Biosafety’, Journal of Common Market Studies, vol. 44, no. 5, pp. 1023–1050. Sbragia, A. (1998) ‘Institution-building from below and above: the European Community in global environmental politics’, in W. Sandholz and A. Stone Sweet (eds), European Integration and Supranational Governance (pp. 283–303), Oxford University Press, New York. Scheipers, S. and Sicurelli, D. (2007) ‘Normative power Europe: a credible Utopia?’, Journal of Common Market Studies, vol. 45, no. 2, pp. 435–457. Schunz, S. (2011) Beyond Leadership by Example: Toward a Flexible European Union Foreign Climate Policy, German Institute for International and Security Affairs, Berlin. Schunz, S. (2014) European Union Foreign Policy and the Global Climate Regime, Peter Lang, Brussels. Schunz, S. (2019) ‘The European Union’s environmental foreign policy: from planning to a strategy?’, International Politics, vol. 56, no. 3, pp. 339–358. Schütze, R. (2015) European Constitutional Law, Cambridge University Press, Cambridge. Thomson, J. (2012) ‘A Member State’s perspective on the post-Lisbon framework for the EU’s representation in multilateral environmental negotiations’, in E. Morgera (ed), The External Environmental Policy of the European Union. EU and International Law Perspectives (pp. 96–112), Cambridge University Press, Cambridge. Torney, D. and Cross, M. (2018) ‘Environmental and climate diplomacy: building coalitions through persuasion’, in C. Adelle, K. Biedenkopf and D. Torney (eds), European Union External Environmental Policy. Rules, Regulation and Governance beyond Borders (pp. 39–58), Palgrave Macmillan, London.

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Part 4

New challenges

16 Is the EU still committed to developing more sustainably? Reinhard Steurer

Summary guide This chapter reviews how the guiding concepts of EU environmental policy making and related governance practices have evolved through time. It starts with the EU’s commitment to sustainable development prior to 2010 and then analyses the subsequent mutation of that concept into the thematically focused concepts of climate policy integration, circular economy and bioeconomy. However, sustainable development never entirely disappeared from the lexicon of EU environmental policy, largely because of the Sustainable Development Goals (SDGs) adopted by the UN in 2015. These kept it alive in a rhetorical form, but largely failed to shape and guide EU policy making in the manner originally hoped. It then reveals how the gradual refocusing of EU environmental policy making onto climate change mitigation prepared the ground for the European Green Deal. Finally, it concludes that the EU’s sustainable development rhetoric has diluted its environmental policy focus for decades, and that the decline of sustainable development was accompanied by a refocusing of the EU environmental policy agenda onto climate action, currently one of the top priorities of contemporary EU policy makers. Although sustainable development and the SDGs do not formally coordinate internal EU policies, they continue to play a role in monitoring and communicating them.

Introduction According to Hall (1993) policy principles play an important role in guiding the design of specifc policies and policy instruments. Chapters 2 and 4 described how the EU has gradually adopted a number of principles to guide and inform the development of its environmental policies. However, not all principles are the same. Some (for example sustainable development and environmental policy integration) are arguably more integrative in their aims than others (e.g., the polluter pays and precaution). Analysing when and how the EU has committed itself to some principles rather than others as well as the real-world interactions between the way in which they are employed helps us to understand better what is particularly distinctive about the EU’s approach to environmental policy making. In the 1970s and 1980s, environmental policies and their conceptual foundations were comparatively parsimonious: they usually prescribed technical solutions (such as DOI: 10.4324/9780429402333-16

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catalytic converters) for mainly regional environmental problems (such as air pollution). Environmental policies were guided by a number of foundational principles (see also Chapter 20), among them the precautionary principle (requiring proportionate precaution in dealing with suspected risks to human health or the environment) and the polluter pays principle (making polluters pay for damages they cause). Things started to change in the 1990s, when global environmental problems such as climate change emerged (Kelly et al., 2012), and the EU responded by adding an ‘integration principle’ (see Chapter 12) to what Hall (1993) would recognise as the normative base of environmental policymaking. While the polluter pays principle can be an essential element of the integration principle, the latter is broader because it aims to prevent pollution (and the polluters paying for it) through environmentally sound policies across all sectors. As explained in Chapter 12, policy integration was frst promoted in the EU via a principle known as environmental policy integration, then by a related concept known as sustainable development (Steurer, 2008; Jordan and Lenschow, 2010; Nordbeck and Steurer, 2016). After 2010, however, sustainable development, in turn, gave way to a variety of integrative concepts, most notably climate policy integration, which was initially addressed by the EU as ‘sustainable growth’ in its Europe 2020 strategy and then in the form of a commitment to very ‘low-carbon economy’ to be achieved by 2050. In addition, the EU has also aimed to promote a circular economy and (until 2020) a bioeconomy. As the frst documents of the von der Leyen Commission suggest, a European Green Deal that is mainly concerned with climate action is now at the very centre of EU policy making. It aims to reduce greenhouse gas emissions until 2030 not by 40% but by between 50 and 55% compared to 1990 levels, inter alia by investing 1,000 billion euros. In addition, it aims to establish ‘carbon neutrality’ until 2050. This implies reducing carbon emissions not by 80% but by more than 90–95%. By reviewing the normative underpinnings of EU environmental policy making from the late 1990s to today, the chapter shows how the rise of sustainable development in the 2000s diluted the original environmental policy focus of the EU in the wake of the intensifying climate crisis. Moreover, it shows how the subsequent decline of sustainable development was itself accompanied by the rise of climate policy integration and the circular economy, two potentially complementary environmental policy concepts. The following sub-section documents the steady rise of sustainable development between 1992 and 2006 and then its fall in political popularity between 2007 and 2010. The chapter then shows how the EU stepped up its climate policy integration agenda, leading the way to the European Green Deal that has moved climate policies from the margins to the centre of the EU’s political agenda.

Summary points • •

In order to understand the evolution of EU environmental policy, scholars need to study how guiding concepts have changed over time. The increasing complexity of global environmental problems, such as climate change, required an integration of environmental policies into other sectors, leading to the development of a series of integrative concepts, including environmental policy integration and sustainable development.

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After its heyday in the 1990s, sustainable development declined in popularity during the 2000s. It was followed by a surge in support frst for climate policy integration and then a circular economy. Both concepts have helped to bring back environmental issues onto the socio-economic policy agenda of the EU.

The rise (1992–2006) and fall (2007–2010) of sustainable development A key driver behind the rise of sustainable development in Europe was the global environmental governance regime agreed at the 1992 UN Rio Earth Summit, the same year in which the EU adopted a weak reference to sustainable development in the Treaty of Maastricht. Among the numerous sets of policy actions asked for in the UN’s Agenda 21 (UNCED, 1992, Chapter 8) was one about adopting ‘a national strategy for sustainable development’. By specifying the purpose of sustainable development strategies, Agenda 21 clearly referred to the classic Brundtlandian defnition of sustainable development dating back to 1987. National policies on sustainable development should, it claims, ‘ensure socially responsible economic development while protecting the resource base and the environment for the beneft of future generations’ (UNCED, 1992: para. 8.7). In June 1997, a follow-up summit (Rio +5) agreed that the formulation of sustainable development strategies ought to be completed in all countries by 2002 (UNGASS, 1997: para. 24). In the same year, the Treaty of Amsterdam formally incorporated sustainable development into the legal foundation of the EU. It stated that the Union ‘shall set itself the following objectives: […] to promote economic and social progress […] and […] to achieve balanced and sustainable development’ (Article 2, TEU). A much stronger reference to sustainable development was added with the new Article 6 (now Article 11 in the TFEU), stating, ‘Environmental protection requirements must be integrated into the defnition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’ (emphasis added). Obviously, this phrase aimed to reconcile the two overlapping concepts of environmental policy integration and sustainable development. However, since sustainable development developed in opposition to rather than in support of environmental policy integration (Nordbeck and Steurer, 2016), the political salience of the latter waned around the turn of the millennium – ironically, shortly after its legal institutionalisation through Article 6. In 1998, the so-called Cardiff Process was launched (see Chapter 12 for details) without being ever properly implemented (Jordan and Lenschow, 2010). Table 16.1 gives an overview of key events in the EU’s pursuit of sustainable development between the 1990s and the 2000s (for a more detailed overview of the history of sustainable development in the EU, see Pallemaerts [2013]). The remainder of this section shows that from around 2000 onwards, it was the EU’s sustainable development strategy that was supposed to promote environmental issues alongside the socioeconomic ‘Lisbon Strategy for Growth and Jobs’ which was initially launched with great fanfare in 2000, but gradually fell into decline. In 2001, the European Commission followed up on the Rio +5 UN summit by adopting a very short, vague and unambitious sustainable development strategy. It was put together by the Commission’s Secretariat General. Since few member states followed suit, the Gothenburg European Council subsequently invited ‘member states to draw up their own national sustainable development strategies’ (European Council, 2001: 4).

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Table 16.1 Key events in the EU’s pursuit of sustainable development Year

Milestone

1987

Brundtland Report

1992

1992

1997

1998 2000 2001–2008

Key issue

Sustainable development is ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’ (WCED, 1987: 43). UN Rio ‘Earth National sustainable development strategies should Summit’ ‘ensure socially responsible economic development while protecting the resource base and the environment for the beneft of future generations’ (UNCED, 1992: para. 8.7). Maastricht Treaty Instead of including an explicit reference to sustainable development, the Treaty referred only to ‘economic and social progress which is balanced and sustainable’ (TEU, Article B) and ‘sustainable and non-infationary growth respecting the environment’ (TEU, Article 2). Amsterdam Treaty ‘Environmental protection requirements must be integrated into the defnition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’ (Article 6, now Article 11, TEU). Cardiff Process Formal commitment to Environmental Policy Integration that has never been implemented. Lisbon Strategy The EU’s Lisbon Strategy pursued economic growth and social cohesion but no environmental goals. Sustainable 2001: the EU adopted vague sustainable development development strategy and Gothenburg Council initiated the strategies in the formulation of national sustainable development EU strategies across Europe, covering all three dimensions of sustainable development; 2006: the EU renewed its sustainable development strategy with little effect on policy making.

Most of them followed up with national strategies, mainly to present some progress at the next international summit on sustainable development – the Johannesburg World Summit in late 2002 (Steurer and Martinuzzi, 2005). In the following years, some member states established quite dynamic sustainable development strategy processes connected to new governance arrangements (such as inter-ministerial cabinets or working groups). Between 2002 and 2007, some of the new strategies (in particular, those in the UK and in Germany) resembled promising new approaches that borrowed from strategic management practices in the private sector (Steurer and Martinuzzi, 2005). However, after a few years it gradually became clear that sustainable development strategies never succeeded in actually coordinating or integrating sectoral policies. In fact, they started as policy integration tools but gradually turned into bookkeeping exercises. Typically, they listed numerous policy options without prioritising certain problems or measures, and they monitored the three dimensions of sustainable development with indicators, such as CO2 or toxic emissions for the environment, GDP growth for the economy and poverty or unemployment rates for social issues (Nordbeck and Steurer, 2016). At EU level, a new strategic coordination approach took shape with the Lisbon Process in 2000. For ten years, this was the main agenda of EU policy making but focused largely on socio-economic issues (Pallemaerts, 2013). Unfortunately, it was largely disconnected from environmental issues covered by the marginalised EUs sustainable

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Table 16.2 Overview of Climate Policy Integration, circular economy and bioeconomy as guiding concepts of EU environmental policy-making Concept

‘Heydays’

Selected milestones

Integration goal(s)

Environmental policy integration

1990s

Cardiff Council Conclusions (European Council, 1998) Sustainable development strategy as Council Conclusions (2002); renewed EU sustainable development strategy (European Council,2006) European Commission (2016)

Environmental protection

Sustainable 2001–2007 Development (2016–) Goals (SDGs)

Links to other concepts

Balance SDGs: links to economic, virtually all social and EU policies, environmental therefore no concerns additional implementation efforts

development strategy. A review of the EU’s vague sustainable development strategy from 2001 was scheduled for 2004, but its renewal was not completed until 2006. Since the Secretariat General focused its attention on the Lisbon Process and ignored calls to merge it with the EU’s sustainable development strategy, both strategies remained alive, but separate. While the Lisbon Strategy was renewed as scheduled in 2005 without integrating environmental issues, a few member states formulated a stronger sustainable development strategy for the EU that was adopted in 2006. Thus, particularly after the 2008 fnancial crisis, the EU engaged in a disintegrated ‘double-track pursuit of sustainable development in the 2000s’ (Steurer and Berger, 2011); environmental issues were largely side-lined in the quickly deteriorating EU sustainable development strategy. During that time, it also became clear that the governance of sustainable development as foreseen in the renewed strategy from 2006 would not become operational. Table 16.2 provides an overview of various sustainable development-related concepts that have been used by the EU.

Summary points • • • •

Sustainable development emerged as a new policy-guiding concept around 1990 through two UN-led initiatives, the Brundtland Report (in 1987) and the Rio Earth Summit (in 1992). During the 1990s, the EU embraced the sustainable development concept slowly and symbolically by including it in its founding Treaties. Between 2001 and 2008, the EU and its member states sought to operationalise sustainable development via policy integration strategies. While the EU sustainable development strategy was marginalised by the Lisbon Strategy on economic growth, most member states turned their own, initially ambitious sustainable development strategies into mere bookkeeping exercises with little practical policy relevance.

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How the EU embraced climate policy integration but ignored the SDGs (2010–2019) Since the EU and an increasing number of its member states abandoned sustainable development as a guiding concept well before 2010, the Secretariat General refused to review or renew the EU sustainable development strategy in the early 2010s (Pisano and Berger, 2013). So, what actually remained after almost a decade of sustainable development governance and policymaking in Europe? Not much more than one tangible and one intangible outcome. First, annual sustainable development monitoring reports produced by the EU’s statistical body (Eurostat) that garner little public attention (see e.g. Eurostat, 2019). Second, sustainable development was nonetheless an awkward reminder about the need to address complex problems such as climate change not via compartmentalised environmental policies, but via a series of integrated sectoral policies that support rather than undermine environmental aims (Nordbeck and Steurer, 2016). The decline of sustainable development in Europe remained unchanged after 2015, when the UN General Assembly adopted the so-called Sustainable Development Goals (SDGs), an integrative world vision for 2030. However, since the SDG agenda includes a stronger follow-up and review framework than the previous Millennium Development Goal framework, the EU was forced to revisit sustainable development somehow, or else risk damaging its carefully curated image as a worldwide leader in environmental and sustainability policies (for more details, see Chapters 3 and 15). The SDG approach followed by the Commission and by most member states is deliberately low-key: they emphasise how their policies already align with the SDGs, report on how existing policies already address the SDGs domestically (European Commission, 2016; Eurostat, 2019), and thus conveniently reframed the SDGs as mainly guiding the operation of the EU’s overseas development assistance (i.e., not internal EU policy making) (European Council, 2015). Consequently, many member states were able to shift responsibilities for sustainable development from their environment to their foreign affairs ministries (Gottenhuber and Mulholland, 2019). In other words, sustainable development was reframed as a concept that mostly related to external and ‘non’ environmental policy areas. Climate policy integration and sustainable growth: the ‘new sustainable development’? Moving away from sustainable development, the EU focused on new environmental priorities between 2010 and 2019: Climate Policy Integration pursued through sustainable growth, circular economy and bioeconomy. Although the UN SDGs have not reversed the demise of sustainable development as a guiding concept in the EU, the Europe 2020 process launched in 2010 integrated environmental issues better than the previous Lisbon Strategy. However, the key guiding concept was no longer environmental policy integration or sustainable development but the more focused integration of climate change mitigation into other policy domains, i.e., climate policy integration (Nilsson and Nilsson, 2005; Adelle and Russel, 2013; for more details, see Chapter 12). Mitigating climate change became the top priority of environmental policymakers around 2007 when climate change featured prominently in public discourses across Europe, until this period was ended by the fnancial crisis in 2008. In 2010, the Lisbon

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and the EU sustainable development strategies were both superseded by the EU’s new ten-year strategy, known as ‘Europe 2020’. From this point on, climate policy integration featured prominently as one of three priorities of Europe 2020 referred to as ‘sustainable growth’ (see Box 16.1 and Figure 16.1). Although ‘sustainable growth’ sounds almost as broad as sustainable development, the 20-20-20 ‘headline targets’ of Europe 2020 reveal its main focus was on energy and climate issues (European Commission, 2011: 15f). Operationalised with the climate and energy package adopted already in 2007, the EU formulated the following goals for 2020: reduce greenhouse gas emissions by 20% compared to 1990 levels; increase the share of renewable energy sources to 20%; and increase energy effciency by 20% (European Commission, 2010: 11). As Figure 16.1 shows, the fve headline targets were implemented through ‘seven fagship initiatives’, among them a ‘Resource Effcient Europe’. Obviously, the EU (in particular DG Climate) operationalised ‘sustainable growth’ quite narrowly as climate-friendly and resource-effcient growth, at least initially. Later on, DG Environment was successful in broadening the sustainable growth priority from a pure climate to a more encompassing environmental priority, e.g., by linking it to a plethora of EU policy documents on the circular economy.

Box 16.1 Sustainable growth and other similar concepts With ‘sustainable growth’, the EU aimed to promote ‘a more resource effcient, greener and more competitive economy’ (European Commission, 2010: 10). Of course, the idea of greening growth (or the economy) is anything but new. It frst emerged during the controversy triggered by the famous report ‘Limits to Growth’ in the early 1970s, and since then, has been repeatedly discussed under different labels, among them smart growth, sustainable growth and ecological modernisation (Machin, 2019). Between 2008 and 2012, the OECD, the UN and the World Bank shifted their foci from sustainable development to green economy/growth concepts (Ferguson, 2015: 22f), at least until the UN adopted the SDGs in 2015.

Priorities Sustainable growth

Smart growth

Inclusive growth

Headline targets Employment

20/20/20 targets

Investments in R&D

Education of young people

Less risk of poverty

Flagship initiatives Innovation Union

Youth on the move

European platform against poverty

An agenda for new skills and jobs

A digital agenda for Europe

Resource efficient Europe

An industrial policy for the globalisation era

Figure 16.1 Environmental policies within ‘Europe 2020’.

286 Reinhard Steurer 2020 climate & energy package: • Timing: Adopted by the European Council in 2007 and enacted in legislation in 2009 • Aim: “to ensure the EU meets its climate and energy targets for the year 2020” • Targets for 2020: • -20% greenhouse gas emissions • 20% energy from renewables • 20% improvement of energy efficiency 2030 climate & energy framework: • Timing: Proposed by the European Commission and adopted by the European Council (with lower targets) in 2014 • Aim: “helps drive progress towards a low-carbon economy” • Targets for 2030: • -40% greenhouse gas emissions, base year 1990 • 27% energy from renewables • 27% improvement of energy efficiency 2050 low-carbon roadmap: • Timing: two roadmaps (on low-carbon economy and on energy) in 2011 • Aim: “The European Commission is looking at cost-efficient ways to make the European economy more climate-friendly and less energy-consuming” • Targets • -40% greenhouse gas emissions by 2030, base year1990 • -60% by 2040 • -80% by 2050

Figure 16.2 Climate policy integration at EU level: three target periods.

The fact that the main EU strategy process now also embraces an environmental priority alongside two socio-economic ones was an achievement compared to the Lisbon Strategy that marginalised the environmental dimension of sustainable development. However, a closer look at Figure 16.2 also reveals that progress was actually quite limited: while climate and energy policies represent one of three EU priorities, they represent only one of fve headline targets and only one of seven fagship initiatives. What looks like an equal representation of the three dimensions of sustainable development in terms of priorities quickly loses balance in favour of the two socioeconomic priorities of EU 2020. Or to put it slightly differently, the deeper we dig into the implementation of Europe 2020, the less signifcant environmental policies (highlighted in bold) appear. The dominance of socio-economic priorities, targets and initiatives in Europe 2020 has been replicated through its governance. On the positive side, it is noteworthy that sustainable growth is subject to a complex, soft governance scheme called ‘the European Semester’ that goes back to the Lisbon Strategy and which organises iterative interactions between the European Commission and the 27 member states. However, a closer look at the European Semester reveals the same failings as Europe 2020: a dominance of budgetary, economic and social policies over environmental ones (European Commission, 2014a: 2). National Reform Programmes (NRPs) that are supposed to implement Europe 2020 in member states (and respective recommendations by the European Commission) confrm this impression: they often ignore

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climate change altogether. Against this background, the European Council (2014: 3f) urged in its mid-term review that ‘the environmental dimension of the Europe 2020 Strategy should be strongly reaffrmed’, e.g., by ‘integrating the resource effciency’s potential for green growth and employment’. In other words: halfway through its tenyear period, the implementation of Europe 2020 resembled the pattern of the Lisbon Strategy: although climate policy integration formally became one of the three key priorities of the EU, it stood once again in the shadow of socio-economic priorities of a different governance architecture. Although DG Environment succeeded in broadening the sustainable growth priority over time (see below), climate policy integration remained the key environmental priority in the EU. This was not only due to the fact that the 20/20/20 target was the sole environmental headline target in Europe 2020. More importantly, the fagship initiative ‘Resource Effcient Europe’ promoted climate policies until 2020, but also a ‘climate and energy framework 2030’ and a ‘low-carbon economy roadmap 2050’ (see Figure 16.2). Although the three climate packages built on each other, their governance was inconsistent, i.e., the farther away the target year was, the more abstract respective governance mechanisms became. Only in 2018 did the EU step up its decarbonisation ambitions for 2030: ‘[t]o meet the EU’s energy and climate targets for 2030, member states need to establish a ten-year integrated national energy and climate plan (NECP) for the period from 2021 to 2030’ (European Commission, 2020b). Member states submitted the frst drafts of their NECPs in mid-2019 and revised them a few months later based on feedback from the European Commission. In the same year, the European Commission (2018a: 3) also adopted a Communication on a ‘climate-neutral economy’ until 2050, but it made clear that [t]he proposed Strategy does not intend to launch new policies, nor does the European Commission intend to revise 2030 targets. It is meant to set the direction of travel of EU climate and energy policy, and to frame what the EU considers to be its long-term contribution to achieving the Paris Agreement temperature objectives in line with UN [SDGs], which will further affect a wider set of EU policies. The rise of the circular economy While the idea of a circular economy is anything but new (see Box 16.3), it is one of the most recent environmental policy priorities of the EU and has mainly been promoted by DG Environment. In politics, the circular economy concept frst emerged in China in 2002 and was its predominant environmental policy concept for many years (Su et al., 2013). In 2011, the European Commission (2011) announced a circular economy within ‘A Resource-Effcient Europe’. In 2014, it adopted a Communication, and in 2015, an action plan (European Commission, 2014b, 2015). According to the Communication: [c]ircular economy systems keep the added value in products for as long as possible and eliminate waste. They keep resources within the economy when a product has reached the end of its life, so that they can be productively used again and again and hence create further value. (European Commission, 2014b: 2)

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Box 16.2 The circular economy: an old idea rediscovered by the EU? Initial traces of the circular economy idea can be found in academic work published in the 1960s. Kenneth Boulding (1966: 303) famously argued that, ‘Earth has become a single spaceship, without unlimited reservoirs of anything, either for extraction or pollution, and in which, therefore, man must fnd its place in a cyclical ecological system which is capable of continuous reproduction of materials’. The idea of limited resources that should be kept in a circular economy loop as long as possible re-emerged in Pearce and Turner’s book entitled Economics of Natural Resources and the Environment (Pearce and Turner, 1990), and more recently, with industrial ecology’s cradle-to-cradle principle (Braungart and McDonough, 2002) (for a systematic overview, see Persson, 2015). The circular economy and cradle-to-cradle concepts have a key idea in common: to avoid waste by keeping materials in use as long as possible. This applies to all kinds of materials, in particular to the excessive use (and waste) of plastics.

Regarding linkages to other concepts, the EU’s understanding of a circular economy is closely aligned with climate change mitigation and resource effciency in the Europe 2020 Strategy (European Commission, 2015: 2), and it also emphasises the overlaps with the bioeconomy concept (see below): The bioeconomy hence provides alternatives to fossil-based products and energy, and can contribute to the circular economy. Bio-based materials can also present advantages linked to their renewability, biodegradability or compostability. (European Commission, 2015: 17) The Commission’s action plan also mentions the need to address two of the SDGs, namely sustainable consumption and production and marine pollution (European Commission, 2015: 13f). While large parts of the Commission have stakes in the sustainable growth priority, the circular economy agenda is mainly driven by DG Environment. This and the comparatively late adoption of the two policy documents explain why respective governance mechanisms were comparatively weak for most of the Europe 2020 Process. Regarding vertical coordination, the Commission will further promote best practices in a range of industrial sectors through the ‘best available technique reference documents’ […] that member states have to refect when issuing permit requirements for industrial installations, and promote best practices on mining waste. (European Commission, 2015: 5) Between 2017 and 2019, the European Commission stepped up its efforts on the circular economy by adopting a plethora of policy documents (among them two implementation reports – European Commission, 2017 2019b) and a few directives. In both directives, reducing plastic waste played an important role. These policies demonstrate that

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the circular economy idea is now at the core of EU environmental policy making, both complementing and supporting climate policy integration as the guiding concept. The EU and the bioeconomy The EU and some member states stressed the importance of biotechnology and life sciences as key aspects of a growing economy from the early 1980s onwards (see, e.g., European Commission, 1993; McCormick and Kautto, 2013: 2591), in particular throughout the Lisbon Strategy from 2000. However, a bioeconomy that goes beyond biotechnology emerged only around 2010 (McCormick and Kautto, 2013). In this broader sense, the ‘bioeconomy comprises those parts of the economy that use renewable biological resources from land and sea […] to produce food, materials and energy’ (European Commission, 2020d). Since this sounds like a reference to an economic sector among many, why is the bioeconomy addressed in this chapter? The EU Bioeconomy Strategy from 2012 answers this question as follows: a wider bioeconomy concept aims ‘to pave the way to a more innovative, resource effcient and competitive society that reconciles food security with the sustainable use of renewable resources for industrial purposes, while ensuring environmental protection’ (European Commission, 2012a: 2). This aim has two aspects. In line with the origins of the bioeconomy concept (still dominant in the US and Canada), it frst implies enhancing the economic scale, effciency and sustainability of key bioeconomy sectors (i.e., agriculture, forestry, fshery and biofuels production), also by employing biotechnology. Second, it also promotes the broader agenda of replacing non-renewable with renewable resources (Staffas et al., 2013) (see Table 16.3). Although this broader understanding of a bioeconomy is closely in line with climate policy integration and a circular economy concept (see above), the linkages between them were surprisingly weak: i) While the frst Bioeconomy Strategy calls for bioeconomy as a key element for smart and green growth in Europe (European Commission, 2012a: 2), the main Europe 2020 document mentions bioeconomy only once and then as something to be built by 2020 through European Innovation Partnerships (European Commission, 2010: 12). ii) While the circular economy strategy recognises the relevance of the bioeconomy, the 2012 strategy on the latter contained not a single reference to a circular economy. Only the renewed Bioeconomy Strategy from 2018 strengthened obvious conceptual linkages, e.g., by identifying ‘[a]ctions leading the way towards a sustainable, circular bioeconomy’ (European Commission, 2018b: 10). In other words, the integration strategies were not themselves that well integrated. Due to its RandD origins, the bioeconomy is not primarily promoted by ‘the usual suspects’, i.e., DG Environment (the key actor behind environmental policy integration and the circular economy) or DG Climate (the key actor behind climate policy integration) but by DG Research and Innovation (see, e.g., European Commission, 2012a,b; 2018b). More recently, units from other DGs (in particular, those concerned with agricultural, forestry and maritime issues) jumped on the bandwagon to promote their own bioeconomy agendas, e.g., with sectoral strategies that aim to go beyond research (Bioökonomierat, 2015). Nevertheless, RandD still dominates the EU’s bioeconomy agenda. Among the policy measures listed in the strategy from 2012 were only a

290 Reinhard Steurer few that were not directly concerned with research, among them the EU directives on energy effciency from 2012 and on renewable energy from 2009 (European Commission, 2012a). While the former has weak conceptual links to the bioeconomy, the latter preceded the Bioeconomy Strategy by several years. Table 16.3 Overview of climate policy integration, circular economy and bioeconomy as guiding concepts of EU environmental policy making Concept

‘Heydays’

Climate policy 2010–2019 integration: 2019– sustainable growth & low-carbon economy European Green Deal

Circular economy

2011– 2019–

Bioeconomy

2010–2019

Selected milestones

Integration goal(s)

Links to other concepts

2008 Climate and Energy Package ; Europe 2020 (European Commission, 2010); Roadmap lowcarbon economy in 2050 (European Commission, 2011); EU 2030 Climate and Energy Framework (agreed in 2015); Climate-neutral economy (European Commission, 2018a); European Green Deal (European Commission, 2019a, 2020a), Investment Plan (2020c) Flagship initiative ‘A Resource Effcient Europe’ (European Commission, 2011); Manifesto for a resource-effcient Europe (European Commission, 2012c); EU Action Plan for the Circular Economy (European Commission,2015); Implementation Reports (European Commission, 2017, 2019b) European Green Deal European Strategy and Action Plan (European Commission, 2010); Bioeconomy Strategy (European Commission, 2012a), Updated Bioeconomy Strategy (European Commission2018)

Climate change mitigation Climate change mitigation

Circular economy (explicit), environmental policy integration (implicit) ‘Circular bio-economy’

Resource effciency, recycling and waste prevention

Sustainable growth, low-carbon economy, bioeconomy (explicit), environmental policy integration (implicit) Bioeconomy, ‘circular bio-economy’

Smart & Biotechnology sustainable in bioeconomy growth (fagship sectors; initiative ‘A promote Resource the use of Effcient renewable Europe’ within biological Europe 2020) resources

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Box 16.3 What is the bioeconomy? In its updated Bioeconomy Strategy, the European Commission (2018b: 4) defned the concept as follows: [t]he bioeconomy covers all sectors and systems that rely on biological resources (animals, plants, micro-organisms and derived biomass, including organic waste), their functions and principles. […] To be successful, the European bioeconomy needs to have sustainability and circularity at its heart. This will drive the renewal of our industries, the modernisation of our primary production systems, the protection of the environment and will enhance biodiversity.

Summary points •

• •

The demise of sustainable development continued throughout the 2010s and remained unchanged after the UN adopted the SDGs in 2015. However, the adoption of the SDGs ensured that sustainable development never disappeared entirely from the EU’s policy rhetoric. From 2008 onwards, the EU shifted its environmental focus from sustainable development to ‘sustainable growth’, which was initially operationalised only as climate change mitigation. The climate focus of ‘sustainable growth’ was later broadened to include other environmental issues, in particular the circular economy and biological resources.

A new dawn for integration? The European Green Deal (2019–) The year 2019 could mark a turning point in EU policy making because it pushed the accelerating climate crisis to the centre of both public and political attention. In the resulting European Green Deal, environmental policies no longer stand in the shadow of its socio-economic agenda; on the contrary, they are all about ‘transforming the EU’s economy for a sustainable future’ (European Commission, 2020a: 2). The Green Deal mainly promotes climate policy integration as follows (European Commission, 2019a, 2020a, b; for further details, see Chapters 12 and 20): • •

Enshrined in a climate law, the EU pledged to become the frst world region that aims for net-zero carbon emissions until 2050, i.e., a reduction of greenhouse gas emissions not by 80% but by 90–95%. To meet this long-term target, the European Commission aims to raise its ambition for cutting 1990 greenhouse gas emissions from 40% to 50 or 55% until 2030 (to be clarifed and added to the climate law in 2020).

292 •

Reinhard Steurer Meeting these targets will require the EU to fundamentally transform its internal policies on energy, industry, buildings, mobility and its common agricultural policy. Since all this will require not only unprecedented regulatory policy changes but also considerable investments, the European Commission (2020b: 1) also adopted an Investment Plan that explores how to mobilise ‘at least EUR 1 trillion of private and public sustainable investments over the upcoming decade’.

•

A closer look at the European Green Deal and the accompanying roadmap suggests that these and other climate policy integration issues now dominate the European Commission’s agenda, complemented by the circular economy concept as key part of the EU’s industry policies, zero pollution and preserving biodiversity (European Commission, 2019a, 2020a). Environmental issues (among them in particular climate policy integration) appear to have moved from the margins to the centre of the main EU strategy for the coming decade. Although it is too early to tell how exactly and to what degree the EU will implement its plans and targets, it represents a remarkable policy change – and one that seemed wholly improbable as recently as 2018. What about sustainable development? Has the European Green Deal crowded out sustainable development after all? No, the ‘rising tide’ of the climate crisis has also lifted the ‘SDG boat’ (not the other way round). Crucially, the role played by sustainable development is still largely rhetorical, although it does involve monitoring and reporting to meet international obligations. Although the Green Deal is clearly dominated by climate policies, the European Commission (2020a: 3) did not forget to emphasise in its investment plan that it ‘contributes to the implementation of the Sustainable Development Goals’, which are ‘at the heart of the EU’s policymaking and action’. To take this commitment beyond rhetoric, the European Commission also integrated the SDGs in the European Semester, the governance scheme to implement the Green Deal in EU member states. From 2020 onwards, NRPs and the Country Reports from the Commission should include references to the SDGs where appropriate; Annexes should also provide monitoring data for a variety of SDG indicators (European Commission, 2020c). In short, although sustainable development and the SDGs in the EU lost any aspiration to actually coordinate policies, they continue to play a role in communicating and monitoring them.

Summary points • • •

The year 2019 may mark a turning point in policy making because it pushed the accelerating climate crisis to the centre of both public and political attention in the EU. The ‘rising tide’ of the climate crisis has lifted the ‘SDG boat’ (not the other way round). Although sustainable development and the SDGs do not actually coordinate internal EU policies, they continue to play a role in communicating and monitoring them.

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Conclusion This chapter has shown how sustainable development emerged and declined as the most important guiding concept of EU environmental policy making between the late 1990s and the late 2000s and discussed what role the concept has played since then. From an environmental point of view, even the heydays of sustainable development had a weak environmental focus. First, sustainable development replaced environmental policy integration as the key guiding concept. While the latter prioritised environmental concerns, the EU’s framing of sustainable development always balanced these against economic and social concerns. Since the latter have traditionally been high on the EU’s policy agenda (see Chapter 4), the balancing approach ended up diluting the EU’s environmental policy focus. Second, sustainable development was marginalised from the start to the end of the Lisbon Process. Ironically, environmental issues seemed to play the least important role in the EU when its key actors talked the most about sustainable development. When sustainable development declined as a guiding concept in the late 2000s, the EU did not return to environmental policy integration but frst narrowed down its focus to one particular aspect – climate policy integration – before broadening it out again to link to the circular economy and bioeconomy concepts. While this constant process of refocusing helped environmental concerns retain political traction, the constant layering of different principles and concepts has not always been that well thought through and synergistic; sometimes, it has been antagonistic and competitive. In the Europe 2020 process that began in 2010, climate policies were fnally made an integrated part of the main strategy as one of three priorities, but they remained marginalised in policy making.

Box 16.4 The various integrative environmental principles and concepts employed by the EU • • •

• •

Environmental policy integration (1990s): environmental concerns must be integrated in all other policies and activities. Sustainable Development (1992–2008): balancing economic, social and environmental issues in order to minimise cross-sectoral trade-offs and maximise synergies. Sustainable growth (2010–2020): reduce greenhouse gas emissions by at least 20%; increase the share of renewable energy sources in our fnal energy consumption to 20%; increase energy effciency by 20% until 2020 compared to 1990 levels. Climate action in the Green European Deal (2020–): reduce greenhouse gas emissions by at least 50% until 2030 compared to 1990 levels. Low-carbon economy (2010–2020): long-term commitment in the Europe 2020 strategy to reduce carbon emissions by 80% until 2050 compared to 1990.

294 • • •

Reinhard Steurer Climate neutrality; climate-neutral economy (2020–): long-term commitment in the European Green Deal to reduce carbon emissions unconditionally by 90% until 2050 compared to 1990. Circular economy (2010–): an economy in which material circulates in the economy as long as possible and re-enters the biosphere safely. Bioeconomy (2010–2019): an economy that optimises the use of renewable biological resources to substitute for non-renewable resources.

The European Green Deal marked a new phase in the EU’s attempt to engage in integrated policy making. While it strives for socially inclusive economic growth, environmental policies have moved from the margins to the centre of the EU’s attention. While the EU always expected climate policy integration not to hinder economic growth, it now expects it to boost growth. In spite of all these developments, the EU continues to relate what it does to sustainable development. The fact that sustainable development still plays a rhetorical role in these recent developments is due to two antagonistic developments. First, within the EU, sustainable development proved to be vague as a policy-directing concept. But second, the concept was revived by the UN in 2015. If it was not for the SDGs, the EU would probably have abandoned sustainable development in its policy-making routines altogether. However, with SDG reporting requirements in place, the EU still monitors sustainable development in the European Semester. The circular and the bioeconomy concepts play more policy-relevant roles in the EU’s industrial policy. With stricter climate targets for 2030 and 2050, an ambitious regulatory roadmap and a 1-trillion-euro investment programme, the European Green Deal holds the potential to change the EU’s highly unsustainable, fossil fuel–dependent development trajectory. Although this looks like an unprecedented turn in the history of EU environmental policy making, the COVID-19 pandemic that locked down much of the EU in the frst half of 2020 posed some immediate challenges to its implementation. Whether the consequential economic and fscal crisis will be interpreted as a need for an even bigger European Green Deal, or as a reason to shift priorities back to socio-economic issues, remains to be seen. The irony is that were the EU eventually succeeds in implementing the European Green Deal as planned, policy making would be more sustainable than it ever was during the heydays of the sustainable development concept.

Summary points • •

The years in which sustainable development dominated were arguably a lost decade for the environment, because the concept did not prioritise environmental issues over socio-economic ones. In the late 2000s, the EU refocused its environmental agenda on climate policy integration. While climate policy integration was always expected not to hinder economic growth, it is now expected to boost it.

Commitment to sustainable development • •

295

With hindsight, Europe 2020 appears as an intermediate step between a period of completely marginalised environmental policy making in the 2000s and an increasingly dominant focus on climate policy integration after 2019. Throughout all this time, EU somehow kept sustainable development alive, but more as a rhetorical term than a principle which decisively steers all internal and external policies.

Key questions • • • • • • •

When did sustainable development emerge on the EU’s policy agenda, and why? In what period and why was sustainable development the main guiding concept of EU environmental policy making? When and how has sustainable development been replaced by other guiding concepts? To what do these other concepts refer? How and why did the relevance of climate policy integration change between 2010 and 2020? What role did sustainable development play in EU policy making after 2010? What infuence have the SDGs had since 2015? How does the European Green Deal ft into the history of integrated EU environmental policy making? Is it more of the same or something manifestly different? What role, if any, is sustainable development playing in the implementation of the European Green Deal?

Guide to further reading • • •

Nordbeck and Steurer (2016) reviewed the use of multi-sectoral strategies and concluded that they have often been ‘dead ends of policy coordination’. Machin (2019) reviews the changing debate about integrated policy making and relates it to the overarching discourse of ecological modernisation. The European Commission’s (2019) European Green Deal is worth reading to understand how it conceptualised integrated policy making.

Online resources • • •

The EU’s 2030 climate and energy Framework: https://ec.europa.eu/clima/policies/ strategies/2030_en The EU Circular Economy Action Plan: https://ec.europa.eu/environment/ circular-economy/ The EU’s approach to fulflling the UN Sustainable Development Goals: https:// ec.europa.eu/sustainable-development/about_en

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17 Governing with multiple policy instruments? Brendan Moore, David Benson, Andrew Jordan, Rüdiger K.W. Wurzel and Anthony Zito

Summary guide Policy instruments are the tools that policy makers use to attain their objectives. The EU pursues its environmental policy objectives mainly by using regulatory instruments, in part because its Treaties constrain its ability to use more distributive and redistributive forms of policy. However, over time, it has adopted a number of ‘New’ Environmental Policy Instruments (NEPIs) such as emissions trading and voluntary agreements. Despite this, policy makers are more likely to govern with a wider range of instruments at national than EU level. Moreover, for various reasons, regulation is likely to remain the preferred instrument of choice at EU level for the foreseeable future. This fnding raises new challenges in relation to the regular calls made for ‘smarter mixes’ of regulatory and non-regulatory instruments in EU environmental policy.

Introduction Policy instruments are the ‘myriad techniques at the disposal of governments to implement their policy objectives’ (Howlett, 1991: 2) (see also Salamon, 1989: 29; Capano and Howlett, 2020). Understanding policy instruments, tools and techniques (similar terms which policy analysts use interchangeably) is key to understanding EU environmental governance, in part because the choice and application of these instruments arguably represents the essence of governing (Hood, 2007: 142–143). For Howlett (2011: 22), ‘[i]nstrument choice … is public policy making … and analysing potential instrument choices … is policy design’ (emphasis in original). Instruments are important because they constitute one of the main links between steering activities within states, policy outcomes and on-the-ground impacts. After all, policy goals without enabling instruments are likely to be a dead letter. Scholars have created a variety of typologies to classify policy instruments (Bemelmans-Videc et al., 1998; Wurzel et al., 2013; Delreux and Happaerts, 2016; Wurzel, Zito and Jordan, 2019). The different categories of policy instrument this chapter uses are set out in Box 17.1. No instrument type is a panacea; rather, each instrument has strengths and weaknesses (Salamon, 1989: 21; Kemp and Pontoglio, 2011: 33–35). Each instrument type also has distinct characteristics, and it is often diffcult to predict what effects an individual instrument – let alone a complex policy instrument mix – will have after adoption (Salamon, 1989: 21, 28, 259). As a result, designing DOI: 10.4324/9780429402333-17

300 Brendan Moore et al.

Box 17.1 The main categories of policy instruments Conceptually, instruments can be sub-divided into a fairly limited number of categories (Salamon, 1989: 14). The existing literature has put forward a wide range of instrument typologies (Wurzel et al., 2013; Wurzel, Zito and Jordan, 2019). Regulatory instruments constitute a relatively prescriptive form of governing, through which public and private actors establish and then implement targets. Failure to meet regulatory targets usually triggers punitive action. Market-based instruments ‘affect [the] estimates of costs of alternative actions open to economic agents’ (OECD, 1994: 17). Eco-taxes and emissions trading schemes, long advocated by economists on cost-effciency grounds, are the most salient market-based instruments in the environmental feld (Wurzel et al., 2013). Informational instruments seek to provide information to social actors with the aim of changing their behaviour (Howlett and Ramesh, 1995: 91). Finally, voluntary instruments are agreements between policy makers and public and private actors who volunteer to change their behaviour.

effective policies involves carefully matching the right tool (or mix of tools) to the right context (Howlett, 2011). In the EU, regulatory instruments dominate, although their relative share has declined in recent years (Holzinger et al., 2009; Halpern, 2010; Wurzel, Liefferink and Di Lullo, 2019: 257–258). More is known about the effectiveness of regulation than the other instrument types and most academic work on the EU concerns the implementation of regulatory instruments. However, advocates of both more and less EU integration have made normative political arguments favouring a more diverse, that is, less regulatory, mix of environmental policy instruments (see Jordan et al., 2003: 12–16; Holzinger et al., 2009: 50–51). Partly in response, modest policy instrument innovation has taken place at EU level as the EU has adopted a limited number of NEPIs, a broad category that includes market-based, informational and voluntary instruments (for more on policy innovation, see Benson and Jordan, 2011; Jordan and Huitema, 2014). The EU ETS, which became the frst supranational trading system when established in 2005, is arguably the most prominent EU-level NEPI in this context. However, the EU has had a decidedly mixed experience with employing voluntary agreements and has failed to adopt any eco-taxes at EU level. The EU’s continuing focus on regulatory instruments challenges some of the early assumptions in the policy instruments literature. For example, Doern (1981) and Phidd and Doern (1992) argued that liberal democratic states generally prefer to employ the least coercive instruments frst and then (and only then) ‘move along the scale’ of instrument types towards regulation as necessary to overcome societal resistance (Howlett and Ramesh, 1995: 159). However, the EU and most of its member states have done precisely the opposite, leaping to the coercive end of the spectrum in the face of relatively little societal interest, let alone resistance. This chapter explores this puzzle by examining the main patterns of EU-level instrument use since the dawn of EU environmental policy in the late 1960s. It investigates how well the EU has learned to govern with multiple types of policy instruments

Multiple policy instruments 301 and the extent to which NEPIs have replaced – or combined with – regulation (Jordan et al., 2005, Wurzel, Zito and Jordan, 2019). It also examines what the changing pattern of policy instruments says about the Union’s general ability to govern effectively. Given space constraints, we mainly address instrument choices; Chapters 13 and 14 discuss the performance or ‘effectiveness’ of particular instruments after they have been adopted. The next section summarises the development of EU environmental policy, noting the most salient trends in instrument use. The following section introduces a number of different approaches to analysing and understanding the selection of instruments, drawn from the governance and policy instruments literatures. Next, we carry out a more in-depth investigation of EU climate change policy. This particular sub-feld of environmental policy has enjoyed a particularly strong growth since 2000, a 20-year period when interest in NEPIs began to grow (Jordan et al., 2010; Van Erp et al., 2019). Given this, climate policy is very much a sub-area where one would expect to fnd the EU governing with both regulatory and non-regulatory instruments. The fnal section assesses what the use of certain environmental policy instrument types reveals about the EU’s broader capacity to govern effectively.

Summary points • • •

Policy instruments are the devices that policy makers employ to put their policy objectives into effect. The choice, calibration and operation of policy instruments are central aspects of governance in all political settings, including the EU. In principle, there are many types of instruments available for governing the EU; in practice, the EU has largely chosen regulatory instruments, despite much animated discussion concerning various alternatives.

EU environmental policy instruments EU environmental policy – defned broadly to include goals, standards and instruments – has evolved considerably since the 1960s (see Chapters 1, 2 and 4). Prior to 1972, common environmental policy measures were mainly concerned with trade and thus had a strong internal market bias (Wurzel, 2008). There was a trickle of new EU regulations – some of which contained environmental protection requirements – but their primary aim was to prevent trade barriers. Between 1972 and 1987, policy development entered an increasingly dynamic phase that produced a more substantial and comprehensive framework of wholly regulatory instruments. Policy making became even more dynamic after the ratifcation of the SEA in 1987. The scope and stringency of instruments continued to grow in the 1990s after the 1992 Maastricht Treaty expanded QMV to almost all environmental issue areas. Nonetheless, the expanded environmental acquis remained largely regulatory in nature. The 1987 publication of the Fourth EAP proposed the adoption of non-regulatory instruments, providing a new opening for those actors who had long advocated their increased use. Proponents partially justifed this move by highlighting the need to improve the implementation of the EU’s regulatory environmental laws (see also Chapter  13)

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or to improve the cost-effectiveness of governing. In this context, NEPIs had an obvious political appeal: they appeared to both lower the cost of regulation on businesses and offer a means to solve the EU’s mounting implementation problems, which by then had started to generate intense political frictions between some member states and the EU institutions, as well as amongst the various Commission Directorate Generals (see Chapter 13). After 1992, environmental policy entered a more contentious phase, as governments became concerned about the mounting costs and intrusiveness of EU action – and particularly regulatory action. In June 1993, the French, German and British governments compiled ‘hit lists’, which proposed the repatriation of more than 100 EU regulations, including 24 environmental ones (for further details, see Chapter 19). In this agenda-setting phase of the policy process, NEPIs could be framed as being more ‘subsidiarity friendly’ than regulation, giving member states more dynamic control over their implementation. In 1992, the Commission subsequently invested considerable political capital in formulating an EU-level carbon dioxide/energy tax proposal, which ultimately failed to secure the interest of member states and was eventually withdrawn (Skjærseth, 2017). Subsequent attempts to govern using multiple instrument types made limited progress due to resistance from industry and national governments. After 2000, climate change emerged as a strong political priority (see Chapters 10 and 16), but advocates of stronger environmental action still struggled to make headway. Having failed to adopt an EU-wide tax, the Commission gradually embraced the idea of trading ‘licences to pollute’ and eventually pushed through the EU ETS, which is discussed in more detail below. Policy instruments remained a live political issue in the EU after 2000 despite, and perhaps because of, the continuing reliance on regulation. The debate intensifed after the Commission published its 2001 White Paper on Governance, which urged the EU to govern using a wider array of instruments. The adoption of the Lisbon Treaty appeared to lead to ‘a signifcant downturn in the adoption of legally binding environmental acts’ (Wurzel, Liefferink and Di Lullo, 2019: 258). Nevertheless, Brexit triggered fresh debate about possible EU-level eco-taxes as the UK has, on sovereignty grounds, often been the most vociferous and consistent opponent of supranational taxes. However, other member states (such as Poland and Spain under Conservative governments) have, on occasions, also resisted eco-tax proposals. The EU: governing with multiple instruments? After more than 50 years of environmental policy development, what is the overall pattern of EU instrument use? The relative share of instruments accounted for by regulation has gradually declined since the 1970s, although it is still easily the dominant instrument of governance (Jordan et al., 2005; Holzinger et al., 2009; Halpern, 2010; Wurzel, Liefferink and Di Lullo, 2019: 257–259). Meanwhile, a prominent NEPI, the EU’s eco-label scheme, has suffered from a low public profle (Wurzel et al., 2013; Wurzel, Zito and Jordan, 2019). This partly refects the strong desire of member states (such as Germany) to protect their long-established and successful national eco-label schemes and partly the lack of interest among European producers and retailers, many of whom have established their own bespoke labelling schemes. Similarly, the Commission’s attempts to develop EU-wide voluntary agreements have generally foundered, only being adopted in fairly coherent policy sectors where a small number of

Multiple policy instruments 303 large producers dominate (such as car manufacturing, see Jordan and Moore, 2020). The European Parliament remains deeply concerned about the lack of external scrutiny for voluntary instruments, especially if the instruments are adopted outside the ordinary legislative procedure (to understand why, see Chapter 8). However, the pattern of choices is somewhat different at the national level within the EU (Jordan et al., 2005, Wurzel, Zito and Jordan, 2019). Some member states have moved their regulation in the direction of greater coerciveness over the last 50 years, whereas others have moved in the other direction (Jordan and Liefferink, 2004). Eco-taxes are relatively common. Voluntary agreements (at least in some states) are much more popular than at EU level, and eco-labels are more numerous in number. Consequently, the existing literature suggests that the best place to look for to quote the title of this chapter – ‘governance using multiple instrument types’ is within individual member states. Over the last 20 years, member states have certainly been the focus of a good deal of academic work on policy instrument selection and design activities (Jordan et al., 2005; van Erp et al., 2019; Wurzel, Zito and Jordan, 2019).

Summary points • • •

There are four main instrument types: regulatory, market-based, informational and voluntary. Over the years, many attempts have been made to employ a wider array of instrument types at EU level. Nevertheless, with some obvious exceptions, regulation remains the main instrument of choice at EU level. Member states tend to have more diverse environmental policy instrument mixes than the EU.

The governance of the EU: a policy instruments perspective After the publication of the White Paper on Governance, academics and practitioners began to examine the various modes and instruments of governance in much fner empirical detail (e.g., Citi and Rhodes, 2006; Jordan and Schout, 2006; Börzel, 2010). At the core of this work was the EU’s move toward further European integration in the context both of greater member state wariness about competitiveness as well as the need to address politically diffcult and contested areas such as climate change (Zito et al., 2019). Consequently, the EU sought to shift from regulatory to more market- and network-orientated governance modes that made greater use of information provision and other tools (Citi and Rhodes, 2006; Jordan and Schout, 2006; Treib et al., 2008). Academics also focused on how instrument use varied across the different governance levels in the EU (Jordan, 2001); in the 2000s, it encompassed the different tools and methods that informed the governing performed at and between the levels (Bähr, 2010; Börzel, 2010; Schout et al., 2010). Perhaps, the most signifcant academic shift in the 2010s was the move by various scholars to view EU environmental governance in a wider global context. Issues such as climate change were increasingly seen in terms of polycentric governance as promulgated by the Ostroms (Ostrom, 2010). Such governance incorporates multiple sources of authority centred on a range of different public

304 Brendan Moore et al. and private actors that operate independently (Jordan et al., 2018; Domorenok, 2019; van Erp et al., 2019). Many hoped that polycentric governance would lead to selforganisation by these diverse actors while simultaneously benefting from an overarching set of international norms and rules (Sabel and Zeitlin, 2008; Jordan et al., 2018). Another important academic debate focused on policy mixes, which some scholars equated explicitly with ‘new governance arrangements’ (e.g., Howlett and Rayner, 2007). Van Erp and colleagues (2019) directly challenged the Tinbergen rule in economics, which states that only one policy instrument should be used to govern a particular policy problem (Tinbergen, 1952). Instead, they argued for the creation of ‘smart mixes’, combinations of policy instruments selected on the basis of considerations such as effectiveness and effciency as well as on their positive synergistic effects (Gunningham et al., 1998; van Erp et al., 2019). Despite various proposals for smarter mixes, instrument choices within specifc sectors and countries largely continued to refect well-entrenched policy traditions and national styles of governing (Capano et al., 2019; Wurzel, Zito and Jordan, 2019). How have academics studied these issues at EU level? There is no single theory of policy instrument choice – let alone a theory of EU policy instruments – that can explain all observed patterns. The early literature tended to study instruments in rather narrow and instrumental terms. When the production of better defnitions and typologies was not the overriding concern, a more normative urge to advocate particular types of instruments tended to motivate academic analysts (a bias which is particularly apparent in the economics literature). One prominent approach to studying EU-level policy making is Majone’s macrolevel analysis of the EU as a ‘regulatory state’ (see Box 17.2). His conceptualisation was directly at odds with the work of scholars who traditionally focused on particular instrument choices at a very micro-level. Thus, Linder and Peters (1989) made one of the most systematic attempts to map out the most salient variables affecting instrument choices at both meso- and micro-levels. Their starting point was the subjective

Box 17.2 To what extent is the EU a regulatory state? Majone (1994) famously argued that the EU governed as a ‘regulatory state’ because the member states have deliberately limited its ability to engage in distributive and re-distributive forms of governing. Majone’s analysis searched for underlying explanations for the use of broad instrument categories, rather than the selection and calibration of specifc instruments. Consequently, it should be thought of as a macro-level theory. Majone cited several factors driving the use of regulation, including the Commission’s desire to extend its policy powers, business demands for a level-playing feld and national ministries aiming to simultaneously adopt environmental protection measures while passing on the costs to industry and/or lower levels of governance. Many of Majone’s predictions have been borne out. For example, subsequent research supported his claim that the growth of the EU’s regulatory state was not fully foreseen by member states (Majone, 1994: 98; Weale et al., 2000: 20). Majone also foresaw the rise of countervailing political pressures to audit, assess and otherwise tame the regulatory state through ‘better regulation’ and impact assessment (see Chapters 6, 11 and 19).

Multiple policy instruments 305 Nonetheless, subsequent scholarship also identifed limitations in his account. First, Scharpf (1996) differentiated between different types of regulation: product regulation and process regulation. Product standards grew particularly quickly because the single market required harmonisation. In contrast, the EU was slower to adopt process standards governing production facilities and processes that typically lay behind national borders (Weale et al., 2000: 35). Second, because Majone’s theory has a macro-level focus, it does not readily account for the selection of particular instruments (although Majone did discuss this topic in earlier work [e.g., Majone, 1976]).

perspective of the policy makers who ultimately make instrument choices. Their choices are a function of several factors. First, Linder and Peters identifed specifc features or attributes of individual instrument types vis-à-vis ‘the problem’ to be tackled (ibid: 45). Second, they highlighted prevailing policy styles (Richardson, 1982), including whether policy tends to be anticipatory or reactive to events and the level of consensus that was sought with affected actors. Policy style was also affected by the nature of the society being governed – generally cohesive or fractured (Linder and Peters, 1989: 50). Third, they identifed how the organisational culture in which those making instrument choices operate affected which were chosen (e.g., with regards to the European Commission, see Page, 1997). Finally, the prevailing problem framing could infuence this process. Regulation is, for example, an obvious way to govern the environment if it is framed in terms of the cross-border trade in products (Holzinger et al., 2009). Scholars have tried to incorporate these macro-, meso- and micro-level variables into broader policy process theories. Three prominent approaches focus, respectively, on the importance of ideas (‘ideational’ approaches), institutions (‘institutional’ approaches) and the chaotic interplay of many different elements (‘episodic’ approaches) (see Capano and Howlett, 2009; Zito et al., 2019). Ideational approaches regard ideas as the main driver of instrument choices: it is often said that policy making is mostly characterised by learning about how particular instruments perform (Howlett and Ramesh, 1993: 15). In these situations, what Linder and Peters (1989) termed the ‘attributes of instruments’ assume much greater importance. However, sometimes, policy failures or crises open a given policy area to substantial changes in thinking (akin to shifts in the policy agenda – see Chapter 10), and with it the possibility of using new instruments. A crucial issue is the precise circumstances under which signifcant shifts in instrument choices are more likely (Hall, 1993; Sabatier, 1998). For example, Rietig (2019) and Domorenok (2019) focus on the importance of learning dynamics and compatible beliefs in the development of EU climate policy. By contrast, institutional approaches argue that the political context in which instrument choices occur is more important. Institutions contain standard operating procedures and norms that facilitate the repeated choice of particular types of instrument. Linder and Peters (1989) emphasised the role of institutionalised cultures in constraining instrument choices. Moreover, instruments generate path dependencies as actors alter their preferences to ft older instruments and understand new problems through the prism of existing instrument choices (Jordan and Moore, 2020). Wurzel, Zito and Jordan (2019), for example, have argued that ‘not so smart mixes’ are hard for the

306 Brendan Moore et al. EU and its member states to avoid because of path dependencies, power asymmetries and unintended consequences, especially during the implementation process. Consequently, institutional approaches suggest that instrument choices should be studied over longer periods of time, rather than via a series of discrete snapshots (Lascoumes and Le Galès, 2007: 7). When institutional contexts change, it provides opportunities for instrument constituencies, i.e., networks of policy actors championing particular instruments, to advocate new ones (Voß and Simons, 2014; Moore and Jordan, 2020). For example, Hofmann (2019) argued that the Aarhus Convention empowered non-governmental environmental organisations by entrenching requirements to grant them greater access to information. Finally, episodic approaches view the policy process as being inherently unstable: preferences are unclear, actors operate under conditions of uncertainty and organisations lack the time to comprehensively assess every instrument’s effectiveness. According to these approaches, the policy process resembles less a rational-linear approach of choosing between the stock of available instruments and more an unpredictable jumble of ideas, policy actors, problems, solutions and decision-making priorities (Kingdon, 1984; Baumgartner and Jones, 1993). Because of the chaotic way in which these different elements interact, success at defning the agenda depends on luck as well as power resources. Thus, instrument choice may be more random, as and when political and institutional opportunities permit. This is why the ‘smart mixes’ school of thought (van Erp et al., 2019) questions whether the instrument selection process can ever be orchestrated (Abbott, 2012), let alone steered in a rational manner. Instead, van Erp and colleagues (2019: 335) argue that issues of instrument selection ‘should be conceived of as experimentalism’ rather than ‘straightforward institutional design’. Increasingly, some public policy scholars have sought to integrate these three factors into more mechanistic approaches that seek to understand at a micro-level the causal relationships that lead to specifc policy instrument design and selection. Capano et al. (2019) have outlined an important mechanistic approach that centres on the contextual factors that spur two mechanisms into action (environmental disasters, etc.): frst-order mechanisms that alter how instruments shape actor behaviour (e.g., renewable energy subsidies); and second-order mechanisms through which the effects of the frst-order mechanism are aggregated, assimilated and responded to by actors (for example, actors learning about environmental benefts).

Summary points • • • •

A thriving literature on instruments has emerged. However, it is mostly concerned with a relatively small subset of new instruments, and the EU is not its main focus. Majone’s theory of the regulatory state substantially illuminates the broader causes and implications of the EU’s heavy reliance upon regulation. However, other theories focusing on the meso- and micro-levels are needed to explain fully the complex instrument mixes now observable in the environmental sector. ‘Smart mixes’ of environmental policy instruments have nonetheless emerged as an important normative goal.

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The instruments of EU climate policy Climate change has been an area of especially rapid policy change at the EU level since the early 1990s. Analysis of the number and types of policy instruments adopted at EU level illustrates this. When the UNFCCC was signed in 1992, the EU had only four climate-related policy instruments. By 2019, 51 climate policy instruments were in force, addressing sectors as varied as industry, energy, transport, agriculture and buildings (see Figure 17.1). The origins of EU climate policy (1990–1999) The EU’s policy response to climate change began in the context of the Fifth EAP, which stated that NEPIs would need to ‘constitute an increasingly important part of the overall approach’ to the environment (European Community, 1993: 71). However, the 1990s were best remembered for the Commission’s unsuccessful attempt to secure support for an EU carbon/energy tax, which collapsed in the face of concerted opposition from some member states in the Council, especially the UK (Skjærseth, 2017). Despite this high-profle setback, the 1990s were in some ways the most active period of EU attempts to govern climate change through non-regulatory means. Of the 14 instruments adopted between 1990 and 1999, more than half were NEPIs (see Table 17.1). The NEPIs adopted in the 1990s included three informational instruments (the Consumer Information Directive on Cars, the Energy Labelling Framework and the EU Eco-label), two market-based instruments (the SAVE funding programme for energy effciency and the ALTENER funding programme for renewables) and three voluntary instruments (on energy effciency for TV/VCRs and dishwashers, and, more prominently, the reduction of CO2 emissions from passenger cars). Despite this furry of policy-making activity, most of these NEPIs were eventually abandoned, with only the Eco-label, the Consumer Information Directive and the Energy Labelling Framework still in force in 2019.

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Figure 17.1 EU climate change policy instruments in force, 1990–2019.

308 Brendan Moore et al. Table 17.1 Instrument types in EU climate change policy (1990–2019) Instrument type Regulatory Market-based Informational Voluntary Overall

Adopted 1990–1999 6 (46%) 2 (15%) 3 (15%) 3 (23%) 14

Adopted 2000–2009

Adopted 2010–2019

In force (2019)

22 (76%) 4 (14%) 2 (7%) 1 (3%)

15 (75%) 4 (20%) 1 (5%) 0 (0%)

38 (75%) 8 (16%) 5 (10%) 0 (0%)

28

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Source: Own analysis, based on the EUR-Lex Database; Dupont (2020); Grantham Research Institute on Climate Change and the Environment and Sabin Center for Climate Change Law (2019).

The regulatory instruments adopted in the 1990s fared much better; all six were still in force in 2019. They included the EU’s early commitments to greenhouse gas reductions and renewable energy, the directives on energy effciency for hot-water boilers and refrigerators and the EU’s greenhouse gas monitoring scheme, through which progress is regularly reported to the UNFCCC. Policy expansion and the shift to regulation (2000–2009) The 2000s were a very active period of EU climate policy making. The Commission seized on climate change as a reason to pursue even deeper European integration. The decade saw the expansion of the EU’s powers in energy governance and the introduction of broad ‘climate and energy’ legislative packages (Jordan et al., 2010). In 2007, the European Council committed the EU to its headline 20-20-20 by 2020 goals: a 20% share of renewable energy, a 20% increase in energy effciency and a 20% reduction in greenhouse gas emissions. In this context, the number of policy instruments increased rapidly, tripling from 12 to 36 instruments between late 1999 and 2009. Unlike in the 1990s, 80% of the instruments adopted between 2000 and 2009 were regulatory (see Table 17.1). They included keystone instruments such as the 2002 Energy Performance of Buildings Directive, the 2005 Ecodesign Directive, the 2009 Renewable Energy Directive, the 2009 Effort Sharing Directive for greenhouse gas reductions and the 2009 Regulation on CO2 emissions from new cars (which replaced the 1999 Voluntary Agreement) (Jordan and Moore, 2020). Although regulatory instruments dominated policy adoption during this period, a number of important NEPIs were nevertheless also created. Arguably the most important was the EU ETS, the world’s largest cap-and-trade system. Such systems are market-based policy instruments that set a limit on overall emissions and distribute tradeable allowances which covered industries must surrender for each tonne of their emissions, thus creating a price for allowances. The EU ETS now covers emissions from large point sources such as electricity generation and steel and cement manufacturing, as well as aviation. Despite its prominence, it struggled to be effective after it began operation in 2005 (Wettestad and Jevnaker, 2016; Moore and Jordan, 2020). Regardless, it remained a keystone instrument of EU climate policy. Revenue from the auctioning of its emission allowances fnanced a number of market-based funding instruments such as the NER 300 Programme, the Innovation Fund and the Modernisation Fund. Other spending instruments were also enacted during the 2000s,

Multiple policy instruments 309 including the LIFE Programme (which expanded to support climate projects in 2000) and climate-related rural development funding under the CAP. The only informational instruments adopted during this period were the Energy Performance Certifcates mandated by the Energy Performance of Buildings Directive. A fnal voluntary agreement was negotiated on water heater energy effciency in 2001 but expired after only three years. A more mature policy feld (2010–2020) Starting in 2008, the EU encountered a ‘conglomerate of crises’, including the 2008 global fnancial crisis and the failure of the 2009 Copenhagen conference to agree a successor to the 1997 UN Kyoto Protocol (Falkner, 2016; Slominski, 2016) (see also Chapter 3). In 2020, the COVID-19 pandemic added a new health crisis to the existing conglomerate. Climate change enjoyed increased importance on political agendas (see Chapter 16) but were also heavily contested, including at EU level (e.g., Skovgaard, 2014). Intense legislative activity continued but was increasingly aimed at updating existing policy instruments (e.g., the EU ETS underwent three major reforms during this period) (Jordan and Moore, 2020). None of the instruments adopted during this time (or indeed since 2007) had been removed as of 2019. Among the instruments adopted between 2010 and 2019, regulation again dominated, making up 75% of the newly introduced policies. Many of these instruments were adopted within broader ‘framework’ regulations, such as the Long Term Renovation Strategies programme (within the 2010 update of the Energy Performance of Buildings Directive) or the Large Company Energy Audits (required under the 2012 Energy Effciency Directive). Policy expanded to cover previously unregulated sectors, such as van emissions (2011), land-use change (2013) and heavy-duty vehicle emissions (2019). In 2018, the Energy Union Governance Regulation was adopted; it sought to formalise EU-level coordination on climate and energy policy and required member states to regularly submit National Energy and Climate Plans to the Commission. Alongside these regulations, new NEPIs were also introduced. None, though, were voluntary instruments, the last EU-level agreement having expired in 2004. However, voluntary agreements were used as part of secondary, that is, implementing legislation. For example, under the Ecodesign Directive, the Commission agreed on a voluntary ecodesign scheme with industry covering advanced set-top boxes (COM(2012) 684). Because these were adopted via secondary legislation (see Chapter 6 for details of the comitology process) and are not within the Ecodesign Directive, we did not include them in this analysis. Similar to the pattern found in the 2000–2009 period, the four market-based instruments were funding related: greening payments from the CAP, the Connecting Europe facility for infrastructure/energy support and the aforementioned ETS-supported Innovation Fund and Modernisation Fund. Summary EU climate policy is not and has never been solely regulatory in its focus. While regulation constituted approximately 70% of all instruments adopted since 1990, the remaining 30% were a diverse mix of market-based, informational and voluntary instruments (see Table 17.2). The EU’s continuing preference for regulation is, however, still as clearly evident as it is in environmental policy more generally, but non-regulatory

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Table 17.2 EU climate change policy: major policy instruments, 1990–2019 Type of instrument

Year Major policy instrument

Regulatory instruments

1992 Greenhouse Gas Monitoring Scheme

Market-based instruments Informational instruments

Voluntary instruments

2001 2002 2003 2004 2009 2009 2012 2018 2003

Electricity from Renewable Energy Directive Energy Performance of Buildings Directive Biofuels Directive Cogeneration Directive Renewable Energy Directive Car CO2 Regulation Energy Effciency Directive Energy Union Governance Regulation EU Emissions Trading System

2013 Common Agricultural Policy: Greening Payments 2018 Innovation Fund 1992 Energy Labelling Framework 1992 EU Eco-label 1999 Car CO2 and Fuel Economy Consumer Information 1999 Car CO2 Voluntary Agreement (Replaced by Car Regulation) 2001 Voluntary Agreement on Water Heater Energy Effciency

Source: Updated from Jordan et al. (2011).

instruments have nonetheless continued to play an important role. This highlights the importance of going beyond counting instrument types and analysing the relative importance and stringency of each specifc policy (Burns et al., 2018; Gravey and Moore, 2018) (on this point, see Chapter 19).

Summary points • • •

In terms of the number of instruments adopted, the most common type of climate policy instrument is still regulation. However, EU climate policy is not ‘mono-instrumental’; one-fourth of the policy instruments in force in 2019 were NEPIs. Voluntary instruments enjoyed relatively widespread use in EU climate policy in the 1990s, but are no longer in force.

Conclusion Building on the broad claim that an instrument-focused approach offers a crucial perspective on governing processes, this chapter began by asserting that any credible attempt to understand the EU’s ability to govern must consider how it selects and deploys policy instruments. Policy instrument choices are anything but incidental; they are both an outcome of intense political struggles and an important source of new forms

Multiple policy instruments 311 of politics and policy at EU and national levels (Jordan and Moore, 2020). The sudden emergence of the EU ETS or the continuing debate about the need for new, EU-wide eco-taxes, such as the carbon border adjustment measure, powerfully underlines the relevance of this point. Moreover, if policy instruments are not adequately designed, the probability that they will be fully implemented will be lower (a broader point also made in Chapter 13). And if instruments are not implemented, policy problems will not be tackled and environmental quality (and social welfare) will suffer. In the case of climate change, the risks associated with policy failure are likely to be catastrophic. Academic interest in instruments and instrument mixes is experiencing a resurgence (e.g., Van Erp et al., 2019). However, given the continued importance of regulation, it remains unclear whether the newest modes and instruments really deserve the analytical attention that they have received. NEPIs have not supplanted regulations on a grand scale, although they have certainly started to supplement them in important ways. Since the Lisbon Treaty came into force in 2009, the EU’s adoption rate for legally binding regulations has slowed while the adoption rate for non-legislative environmental measures has signifcantly increased (Wurzel, Liefferink and Di Lullo, 2019: 258). This trend is particularly evident in relation to climate policy making. In this sub-sector, the EU has successfully ‘imported’ instruments frst used outside Europe (emission trading was originally pioneered in the US) and built on pre-existing instrument choices made at the member state level (e.g., the various attempts to use voluntary agreements and informational devices), but in many ways, it remains a regulatory state. In summary, different combinations of preferences and institutional limits have meant that the EU has used few voluntary agreements in environmental, struggled to use eco-labelling schemes and has been unable to agree EU-wide eco-taxes. There have been conditions in which the EU has actively explored and even adopted nonregulatory instruments, but they have occurred relatively episodically. Voluntary agreements seem easier to adopt when the problem in question encompasses a small number of relatively large actors (e.g., car producers as opposed to farmers). The adoption of some other types of instrument (e.g., taxation) has only intermittently been on the EU’s agenda, but it is again in the Commission’s sights as it seeks to explore President von der Leyen’s political commitment to implement a border-adjustment tax to address greenhouse gas emissions embedded in products from outside the single market (European Commission, 2019: 5). Moreover, the EU’s ability to steer environmental objectives through fnancial incentives – what is sometimes known as ‘green budgeting’ – remains constrained by its limited (re)distributive capabilities (Scharpf, 1996). If one wishes to fnd evidence that policy makers are ‘governing using multiple instrument types’, the best place to look is the 27 member states, not the EU level (Jordan et al., 2005). However, the EU is most certainly not mono-instrumental. For example, EU climate policy is based heavily on regulation but also makes signifcant use of market-based and informational instruments. Finally, this chapter has mainly focused on instrument choices. It is conceivable that fewer instruments overall will be adopted in the future, and that their overall ambition level will be less than in earlier phases of EU environmental policy. In fact, one of the most active areas in EU environmental policy making in the future may be the reformulation and possible dismantling of existing instruments and policies (in relation to which, see Chapter 19).

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Summary points • • • •

An instrument-focused approach offers a revealing perspective on governing processes. Policy instrument choices are anything but incidental and bureaucratic – they are both an outcome of political struggles and an important source of new forms of politics and policy at EU and national levels. The EU essentially remains a regulatory state, but different theories are needed to explain what regulation types are adopted, their precise scope and stringency. The EU is not mono-instrumental, but regulation will likely remain the main instrument of choice among EU environmental policy makers.

Key questions 1 2 3 4 5

What are the main types of policy instrument, and what are their key similarities and differences? How has the pattern of instrument choices in EU environmental policy changed over the past 50 years? To what extent and why do the patterns of instrument selection at EU level differ to those found at the national level? Regulatory instruments are widely employed at EU level. Could the same be said of non-regulatory instruments? What patterns of instrument use did EU climate policy exhibit between 1990 and 2020?

Guide to further reading • •

•

For excellent reviews of the policy instruments literature, see Linder and Peters (1989), Eliadis et al. (2007), Schneider and Ingram (1990), van Erp et al. (2019) and Capano and Howlett (2020). Numerous attempts have been made to describe and explain patterns of instrument use at EU level, such as Jordan et al. (2005), Halpern (2010), Holzinger et al. (2009), Wurzel et al. (2013), Delreux and Happaerts (2016) and Jordan and Moore (2020). For an introduction to the wider – but related – literature on different modes of governance across the EU, see Treib et al. (2008), Citi and Rhodes (2006) and Héritier and Rhodes (2011).

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Online resources • • • • •

European Environment Agency database on climate change mitigation ‘policies and measures’ in Europe: http://pam.apps.eea.europa.eu/ DG Climate Action’s website on the EU ETS: https://ec.europa.eu/clima/policies/ ets_en DG Environment offers a short summary of market-based instruments: https:// ec.europa.eu/environment/enveco/mbi.htm LSE Climate Change Laws of the World Database: https://climate-laws.org/ OECD information on different environmental policy instruments: http://www. oecd.org/env/tools-evaluation/

References Abbott, K. (2012) ‘The transnational regime complex for climate change’, Environment and Planning C: Government and Policy, vol. 30, no. 4, pp. 571–590. Bähr, H. (2010) The Politics of Means and Ends: Policy Instruments in the European Union, Ashgate, Farnham. Baumgartner, F. and Jones, B. (1993) Agendas and Instability in American Politics, University of Chicago Press, Chicago, IL. Bemelmans-Videc, M.-L., Rist, R.C. and Vedung, E. (eds) (1998) Carrots, Sticks and Sermons: Policy Instruments and Their Evaluation. Transaction Publishers, New Brunswick, NJ. Benson, D. and Jordan, A. (2011) ‘What have we learnt from policy transfer research? Dolowitz and Marsh revisited’, Political Studies Review, vol. 9, no. 3, pp. 366–378. Börzel, T. (2010) ‘European governance: negotiation and competition in the shadow of hierarchy’, Journal of Common Market Studies, vol. 48, no. 2, pp. 191–229. Burns, C., Tobin, P. and Sewerin, S. (eds) (2018) The Impact of the Economic Crisis on European Environmental Policy, Oxford University Press, Oxford. Capano, G. and Howlett, M. (2009) ‘The determinants of policy change: advancing the debate’, Journal of Comparative Policy Analysis, vol. 11, no. 1, pp. 1–5. Capano, G. and Howlett, M. (2020) ‘The knowns and unknowns of policy instrument analysis: policy tools and the current research agenda on policy mixes’, SAGE Open, vol. 10, no. 1, pp. 1–13. Capano, G., Howlett, M. and Ramesh, M. (2019) ‘Disentangling the mechanistic chain for better policy design’, in G. Capano, M. Howlett, M. Ramesh and A. Virani (eds) Making Policies Work: First- and Second-order Mechanisms in Policy Design, Edward Elgar, Cheltenham, pp. 2–38. Capano, G., Pritoni, A. and Vicentini, G. (2019) ‘Do policy instruments matter? Governments’ choice of policy mix and higher education performance in Western Europe’, Journal of Public Policy, 40 (3):pp. 1–27. Citi, M. and Rhodes, M. (2006) ‘New modes of governance in the EU: a critical survey and analysis’, in K.E. Jorgensen, M. Pollack and B. Rosamond (eds) Handbook of European Politics, Sage, London, pp. 463–482. Delreux, T. and Happaerts, S. (2016) Environmental Policy and Politics in the European Union, Palgrave Macmillan, London. Doern, B. (1981) The Nature of Scientifc and Technological Controversy in Federal Policy Formulation, Science Council of Canada, Ottawa. Domorenok, E. (2019) ‘Voluntary instruments for ambitious objectives? The experience of the EU Covenant of Mayors’, Environmental Politics, vol. 28, no. 2, pp. 293–314.

314 Brendan Moore et al. Dupont, C. (2020) ‘Defusing contested authority: EU energy effciency policymaking’, Journal of European Integration, vol. 42, no. 1, pp. 95–110. Eliadis, P., Hill, M. and Howlett, M. (2007) ‘Introduction’, in P. Eliadis, M. Hill and M. Howlett (eds) Designing Government: From Instruments to Governance, McGill Queens University Press, Montreal, pp. 3–20. European Commission (2019) ‘The European Green Deal’, COM(2019) 640, European Commission, Brussels. European Community (1993) ‘Towards sustainability: a European Community programme of policy and action in relation to the environment and sustainable development’, European Community, Brussels. Falkner, G. (2016) ‘The EU’s current crisis and its policy effects: research design and comparative fndings’, Journal of European Integration, vol. 38, no. 3, pp. 219–235. Gravey, V. and Moore, B. (2018) ‘Full steam ahead or dead in the water? European Union environmental policy after the economic crisis’, in C. Burns, P. Tobin, and S. Sewerin (eds) The Impact of the Economic Crisis on European Environmental Policy, Oxford University Press, Oxford, pp. 19–42. Gunningham, N., Grabosky, P. and Sinclair, D. (1998) Smart Regulation: Designing Environmental Policy, Clarendon Press, Oxford. Hall, P. (1993) ‘Policy paradigms, social learning and the state: the case of economic policymaking in Britain’, Comparative Politics, vol. 25, no. 3, pp. 275–296. Halpern, C. (2010) ‘Governing despite its instruments? Instrumentation in EU environmental policy’, West European Politics, vol. 33, no. 1, pp. 59–70. Héritier, A. and Rhodes, M. (eds) (2011) New Modes of Governance in Europe, Palgrave, Basingstoke. Hofmann, A. (2019) ‘Left to interest groups? On the prospects for enforcing environmental law in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 342–364. Holzinger, K., Knill, C. and Lenschow, A. (2009) ‘Governance in EU environmental policy’, in I. Tömmel and A. Verdun (eds) Innovative Governance in the EU, Lynne Rienner, Boulder, CO, pp. 45–62. Hood, C. (2007) ‘Intellectual obsolescence and intellectual makeovers: refections on the tools of government after two decades’, Governance, vol. 20, no. 1, pp. 127–144. Howlett, M. (1991) ‘Policy instruments, policy styles and policy implementation’, Policy Studies Journal, vol. 19, no. 2, pp. 1–21. Howlett, M. (2011) Designing Public Policies: Principles and Instruments, Routledge, London. Howlett, M. and Ramesh, M. (1993) ‘Patterns of policy instrument choice: policy styles, policy learning and the privatization experience’, Policy Studies Review, vol. 12, nos. 1–2, pp. 3–24. Howlett, M. and Ramesh, M. (1995) Studying Public Policy, Oxford University Press, Oxford. Howlett, M. and Rayner, J. (2007) ‘Design principles for policy mixes: cohesion and coherence in ‘new governance arrangements’’, Policy and Society, vol. 26, no. 4, pp. 1–18. Jordan, A.J. (2001) ‘The European Union: an evolving system of multi-level governance . . . or government?’, Policy and Politics, vol. 29, no. 2, pp. 193–208. Jordan, A.J., Benson, D., Wurzel, R. and Zito, A.R. (2011) ‘Policy instruments in practice’, in J.S. Dryzek, R.B. Norgaard, and D. Schlosberg (eds) Oxford Handbook of Climate Change and Society, Oxford University Press, Oxford, pp. 536–549. Jordan, A. and Huitema, D. (2014) ‘Policy innovation in a changing climate: sources, patterns and effects’, Global Environmental Change vol. 29, pp. 387–394. Jordan, A., Huitema, D., Schoenefeld, J, van Asselt, H. and Forster, J. (2018) ‘Governing climate change polycentrically: setting the scene’, in A. Jordan, D. Huitema, H. Van Asselt and J. Forster (eds) Governing Climate Change: Polycentricity in Action? Cambridge University Press, Cambridge, pp. 3–25. Jordan, A.J., Huitema, D., van Asselt, H., Rayner, T. and Berkhout, F. (eds) (2010) Climate Policy in the European Union, Cambridge University Press, Cambridge.

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18 Making EU environmental policy more legitimate? Andreas Hofmann

Summary guide Political decisions on environmental policy often create winners and losers. It is therefore of great importance that decision-makers follow procedures that are seen as legitimate. At the same time, the EU has become an increasingly contested venue for decision-making. EU institutions are keenly aware of these constraints and have attempted to improve the democratic quality of decision-making procedures through a broad variety of measures. These have included strengthening the Parliament’s infuence on policy, opening up various stages of the policy-making process to greater civil society participation and creating enhanced opportunities for citizens and environmental NGOs to pursue their rights in court. All of these measures follow different conceptions of democracy, and while individually they have been worthwhile, the diversity of measures used has resulted in growing policy complexity. In addition, some of the response measures may not work well in combination, particularly as some pursue conficting goals.

Introduction The environment is frequently a controversial policy feld. Many environmental conficts play out as confrontations between mutually exclusive interests. Such conficts can be ferce, and winners and losers can often be clearly identifed. As noted in Chapter 9, current environmental conficts do necessarily run along ‘classic’ lines, pitting business corporations against environmental interest groups. They also play out between different social movements. The ‘gilets jaunes’ (yellow vest) protest movement in France started out as a protest against an increase in fuel tax designed to reduce emissions from vehicles and was thus a ‘social backlash against decarbonisation’ (Tagliapietra and Zachmann, 2018). This underlines a central question for policy designers: who should bear the costs of measures that protect the climate and the environment? In order to ameliorate these inevitable conficts over costs and benefts, it is all the more important that decision-making procedures in environmental policy are perceived as legitimate. This is particularly true for decisions taken by the institutions of the EU. The EU is an easy target of anti-elite politics and populist outrage. Decisions are taken at a considerable distance from the individual citizen. Chains of delegation from voters to decision-makers are often long and policy-making procedures opaque DOI: 10.4324/9780429402333-18

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for the average observer. At the same time, the binding nature of EU legislation, combined with strong enforcement mechanisms, ensures that most of its policy measures generally have some concrete impact ‘on the ground’. This is why many ostensibly local conficts about infrastructure projects, habitat protection or pollution have a distinctly EU favour. In fact, national politicians have found it all too easy to exploit this fact, blaming unpopular measures on ‘Brussels’ while claiming credit for the EU’s policy successes (Heinkelmann-Wild and Zangl, 2019). While EU membership is still generally supported, the EU itself has become the target of increasingly polarised public opinion (Hooghe and Marks, 2009). Over the years, the EU institutions have come up with a large variety of measures to render policy-making more legitimate. Indeed, environmental policy has at times been at the forefront of these endeavours. These attempts have not, however, followed a particular blueprint. Rather, they have drawn on many different conceptions of political legitimacy and democracy. The next section discusses the concept of procedural legitimacy and situates it in the larger debate about the EU’s ‘democratic defcit’. In the following sections, the chapter discusses measures to increase the democratic legitimacy of EU policy-making following frst the ideal of representative democracy, second the ideal of participatory democracy and third the ideal of constitutional democracy.

Summary points • • •

Current conficts over climate change mitigation and environmental protection arise because of the need to allocate the costs and benefts of policy measures across society. EU decision-making is in particular need of legitimate procedures because the EU is more remote from the everyday lives of its citizens than its member states. EU institutions have introduced a large number of initiatives to increase the legitimacy of decision-making procedures, which follow different conceptions of political legitimacy and ideals of democracy.

The democratic legitimacy of EU policy-making While the EU has engendered a large literature that analyses democratic quality through the lens of normative political theory, much of the debate has started from empirical observations, in particular of concrete manifestations of dissent (see Box 18.1). The frst such manifestations were the results of the referenda on the Maastricht Treaty in 1992 (Hooghe and Marks, 2009). In countries where referenda were required for ratifcation, margins of approval were much smaller than expected; in fact, a majority of Danes voted against the treaty. Since then, popular votes have repeatedly derailed or delayed prominent EU projects such as the 2005 Constitutional Treaty. The implemented solutions to this problem, often in the form of some concessions to critics and a repeat of the vote, have not improved on the general impression that the EU is a remote and aloof organisation.

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Box 18.1 European integration: from ‘permissive consensus’ to ‘constraining dissensus’? Until the late 1980s, the EU was largely an elite-driven political project that had comparatively little impact on its citizens. Public support for European integration was not seen as crucial in this early period, as European affairs were not high up on voters’ agendas. Nonetheless, public opinion surveys administered by the European Commission since 1974 (the so-called Eurobarometer) demonstrated overwhelming support for EU integration in most member states (but not in the UK). This changed in the 1990s, when newer EU policies (such as on citizenship, a common currency and political asylum) began to gain more voter attention. Public support for these policies, as measured by Eurobarometer, dropped signifcantly and never returned to the levels seen in the 1980s. Political scientists Liesbet Hooghe and Gary Marks coined the term ‘constraining dissensus’ to describe this new state of affairs. They expected further ‘downward pressure on the level and scope of integration’ as ‘party leaders in government worry about the electoral consequences of their European policies’ (Hooghe and Marks, 2009: 21). In addition, European integration has emerged as a salient dimension of partypolitical confict in national political debates (Hooghe et al., 2002). Euroscepticism is now part and parcel of a wider range of anti-cosmopolitan positions in populist party agendas. Often, such positions go hand in hand with scepticism about the human origins of climate change or wider opposition against measures to protect the environment. These developments seem to have accelerated in the last decade. The EU has become an established object of contestation in the wake of successive crises related to sovereign debt in the Eurozone and the allocation of asylum seekers among the member states. It had traditionally been one of the strengths of EU decision-making that a clear identifcation of winners and losers of the integration process was avoided through complex side payments and package deals (Kardasheva, 2013; see also Chapter 11). That is, EU policies have traditionally achieved a high degree of distributive justice (sometimes termed ‘output legitimacy’; see Chapter 20 for further details). Continuing with this approach appears less and less feasible. Public attitude is more attuned to possible distributional consequences, and it is no longer as easy to compensate actual or potential losers. Yet many decisions on climate change and environmental protection have clear distributional implications: the phasing out of lignite mining costs jobs in economically disadvantaged coal mining areas (see Box 18.2); the return of large carnivores (such as the wolf) to western Europe impacts rural areas that already feel left behind by cosmopolitan urban centres; restricting private vehicle traffc in large cities improves local air quality but disadvantages those who travel in from the suburbs. Populist parties have tapped into these concerns and now offer platforms to contest these and other policies. Yet, at the same time, a majority of EU citizens believe that the EU is a more appropriate venue to craft solutions to climate change and environmental problems than the member states themselves (European Commission, 2020: 76). This poses a dilemma: citizens want the EU to act, but EU decision-making is increasingly contentious. Securing the legitimacy of EU climate and environmental policy is therefore of crucial importance in tackling many current challenges.

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Box 18.2 The challenge of allocating the costs of climate change mitigation The EU does not usually mandate specifc measures to combat climate change, but sets overall targets, for example, on greenhouse gas emissions. National governments have some leeway in how to meet these targets. The degree of effort required to do so varies between member states. For example, burning coal to produce electricity emits more carbon dioxide than alternative fuels. Some EU member states rely more on coal for electricity production than others. These countries face the challenge of either phasing out coal or fnding other means of meeting emission targets. In Germany, Poland and the Czech Republic, large deposits of lignite (brown coal) are located in areas with low levels of economic growth that generally do not offer good employment opportunities. Phasing out the coal industry, a large employer locally, exacerbates the structural economic problems in such areas.

When policy has clear distributive implications, one measure of legitimacy is the degree to which potential losers are willing to accept it. Since the outcome will make some people unhappy (i.e., distributive justice cannot be achieved in the eye of every stakeholder), an alternative source of legitimacy lies in the procedure of decisionmaking. The idea of procedural legitimacy implies that the legitimacy of a procedure translates into the legitimacy of the outcome (Nelson, 1980: 505). It fgures prominently in liberal political theory, such as that produced by John Rawls: ‘[a] distribution cannot be judged in isolation from the system of which it is the outcome or from what individuals have done in good faith in the light of established expectations’ (Rawls, 1971: 88). On an individual level, procedural legitimacy implies that procedures that are perceived as fair will produce outcomes that are seen as more legitimate than outcomes produced by procedures that are regarded as unfair. From a societal perspective, this concept is intuitively attractive. If there is no clearly established standard of weighting between otherwise incommensurable goals (such as improving species protection and maintaining a traditional rural way of life), a fair outcome can only be established by a fair procedure. The key effect that is investigated is whether individuals see some merit in a decision even if they dislike its substantive outcome (Grimes, 2006). The assumption is that ‘losers’ who at least accept the decision-making process will show greater acceptance of the outcome and hence willingness to comply with it. Guaranteeing fair procedures should thus increase the resilience of a system that at times produces unfavourable outcomes for important constituents (Tyler, 2006: 107). In EU discourse, the concept of procedural legitimacy has often been discussed under the labels of ‘input legitimacy’ (the aggregation and representation of interests) and ‘throughput legitimacy’ (the quality of governance) (Schmidt, 2013; see also Chapter 20). Input legitimacy has always been a concern of the member state governments who set-up the political institutions of the EU. At frst, they tried to make the EU look more like a nation state. This implied setting up a parliamentary assembly (later called the European Parliament) and successively giving it greater powers (see Chapter 8).

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Box 18.3 Three core conceptions of democracy Representative democracy rests on the idea that citizens delegate decision-making power to representatives chosen in free and equal elections, who, in turn, carry the electorates’ interests over into authoritative decision-making processes. Representatives traditionally gather in parliamentary assemblies that have legislative and budgetary powers. In parliamentary democracies, prevalent throughout much of Europe, parliament elects the government and has the power to dissolve it. Many, but not all parliamentary democracies have two legislative chambers: one representing all citizens and the other sub-national political entities. Participatory democracy shifts the emphasis to the process by which political decisions are taken. Openness to civil society is key. Political decision-making should be transparent, and everyone (at a minimum, those affected by a decision) should have the opportunity to make their opinion heard. Ideally, decision-making should take on the character of deliberation, free from manipulation and power asymmetries, among participants who are open to and respectful towards one another’s arguments. Decisions reached in this manner would be more legitimate and effective, as participants would have little incentive to resist implementation. Finally, constitutional democracy places emphasis on the rule of law. Decision-making follows legally mandated procedures. Deviations from these procedures can be challenged in and eventually voided by the courts of law. Citizens have the power to bring legal challenges against acts of the legislature and public authorities. Decision-making is therefore done under the shadow of judicial review. In addition, constitutional texts and secondary legislation also confer substantive rights on citizens, such as civil rights, labour rights or rights of free movement. Rights offer guarantees to individual citizens, but they also constrain the choices of legislative majorities. Subsequent attempts to equip the EU with the traditional symbols of statehood, such as a fag and an anthem, also follow this line of thought. However, by the 1990s, it had become apparent that such attempts had not ensured the legitimacy of EU decision-making. The distance between voters and EU decision-makers was seen as too great, it was often unclear who was ultimately accountable for decisions and it became clear that the EU was lacking the feeling of community and common history that legitimates national politics. Representative democracy as a sole

Summary points • •

The EU’s traditional reliance on popular policy outcomes (distributive justice or output legitimacy) has become increasingly diffcult to uphold. Where there is no agreement on what a fair policy outcome looks like, justice has to follow from the procedure that is used to reach that outcome.

322 Andreas Hofmann • •

In the EU context, procedural justice has often been discussed in terms of input legitimacy and throughput legitimacy. An increasing dissatisfaction with traditional ideas of representative democracy has brought other ideas to the fore, such as participatory democracy and constitutional democracy.

source of legitimacy increasingly seemed defcient. Other concepts were thus brought to the fore, following several different traditions of political philosophy (Kohler-Koch and Rittberger, 2007: 2). Box 18.3 introduces two alternatives to the classic idea of representative democracy: participatory democracy and constitutional democracy.

The EU as a representative democracy Representative democracy rests on the idea that to make ‘government by the people’ practicable in larger communities, ‘the people’ need to appoint representatives who are authorised to take decisions on their behalf (Weßels, 2007). This has been the dominant conception of democracy for at least the last two centuries and is typically implemented in the form of a parliamentary assembly (or ‘house of representatives’) with legislative and budgetary powers. Since its inception, the EU has striven to emulate this model, with the European Parliament functioning as the embodiment of direct representation of the people (whereas the Council is the representative organ of the member states, see Chapter 5). While the political structure of the EU is complex, the European Parliament follows the blueprint of parliamentary democracy prevalent in most of its member states. But there is one important difference: the European Parliament does not control an EU government. As such, it is more akin to the US House of Representatives than parliaments in many member states. The traditional position in the debate about the EU’s democratic legitimacy was that this was a crucial problem. The history of the European Parliament can therefore be seen as an attempt to remedy this apparent problem by making it look more like a ‘normal’ parliament (Mair and Thomassen, 2010). Its legislative competences, including those for environmental policy, have steadily been expanded to the point where the Parliament is now a co-equal legislator in most aspects of environmental policy, and since 2014, the Parliament has attempted to gain greater infuence over the European Commission (the closest equivalent to an EU government) by nominating ‘Spitzenkandidaten’ for European political parties running in European Parliamentary elections. While the European Parliament sees the European elections as a special source of legitimacy, it is precisely these elections that have been the source of primary criticism voiced against the representative role of MEPs. The argument is that, instead of one election by a ‘European people’, European elections are in essence 27 national elections, where national topics dominate, fringe parties tend to prosper and incumbent governments tend to lose. Under these circumstances, so the argument goes, European elections cannot express the ‘European will’ of the ‘European people’ and hence cannot deliver a secure mandate to adopt specifc EU policies (Van Der Brug and Van Der Eijk, 2007). A central item on the reform agenda, promoted specifcally by French

Legitimate environmental policy 323 president Emanuel Macron, has therefore been the introduction of pan-European party lists for European elections. Empirical research, however, has demonstrated that, despite the ‘second-order’ character of European elections, the composition of the Parliament broadly refects public preferences; that is, the range of policy positions represented by parties is broadly congruent with the preferences of voters, in particular on economic issues (Vasilopoulou and Gattermann, 2013; Dalton, 2017). Peter Mair and Jacques Thomassen have pointed out that this congruence between MEPs and voters might be precisely because European parties do not need to form stable coalitions to support a European government, which instead leaves room for European parties to represent their constituencies (Mair and Thomassen, 2010). In this sense, there is no indication that the European Parliament pursues economic policies at odds with the preferences of the European electorate. However, the same studies have also shown that discrepancies are more pronounced on other dimensions of political confict. For example, on the issue of European integration itself, parties in the Parliament are on average more ‘pro-European’ than voters; on the ‘cultural dimension’ of politics, which distinguishes ‘green/alternative/ libertarian’ positions from ‘traditional/authoritarian/nationalist’ positions (Hooghe et al., 2002), parties in the Parliament tend to take more ‘liberal’ positions than voters. We do not know whether the Parliament is also ‘greener’ than its voters, but as social

Summary points • • •

Efforts to strengthen the European Parliament have largely followed the idea of parliamentary democracy as found in many (but not all) EU member states. Despite the ‘second-order’ nature of EU elections, the policy positions represented by political parties in the Parliament are broadly congruent with the preferences of voters. Giving the European Parliament greater control over an EU government may diminish this congruence.

liberals also tend to favour environmental protection (Hooghe et al., 2002: 983), there is at least reason to suspect so. This is supported by the observation that the Parliament regularly takes a more pro-environmental stance than the Council (Burns, 2019). However, the environmental ambitions of both the Parliament and the EU as a whole appear to have waned in the period since the fnancial crisis (Burns et al., 2020) (see Chapter 8).

The EU as a participatory democracy The debate about the end of the ‘permissive consensus’ contained an element of frustration with the functioning of representative democracy in the EU, precipitating what has been termed a ‘participatory turn’ in thinking about democratic legitimacy (Saurugger, 2010). Greater participation by ‘the public’ in policy-making, the hope

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Box 18.4 Public access to information: the Aarhus Convention The ‘Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’, often shortened to simply ‘the Aarhus Convention’, is an international treaty signed under the auspices of the United Nations Economic Commission for Europe (UNECE). Its signatories include all EU members and the EU itself. In 2003, the EU implemented the frst two goals of the convention (via Directive 2003/4/EC on access to environmental information and via Directive 2003/35/EC on public participation in national permitting processes concerning large construction projects such as roads and power plants). Implementation extended the possibilities for citizens to both request any information on the state of the environment from public authorities and to be informed about plans for large-scale projects so that they can express comments or opinions before any decision is made. The directives also provide for access to justice concerning these provisions: where access to information has been denied or plans withheld, citizens and environmental NGOs have legal standing to take action against such decisions before a national court. In addition, citizens and NGOs can take legal action against large-scale projects where they believe that the projects infringe on national or EU environmental provisions. However, more wide-ranging provisions on access to justice have so far not been implemented in EU law. A Commission proposal that would have allowed NGOs to go to court against public authorities where they infringe on any environmental laws was opposed by many member states. Despite repeated calls by environmental NGOs, the Commission instead issued a non-binding interpretation of existing legislation and case-law (European Commission, 2017).

went, would bring the EU closer to its citizens and narrow a gap that even the enhanced power of the European Parliament was unable to close. This development was buoyed, too, by international trends, not least in the environmental sphere. The Rio Declaration resulting from the 1992 United Nations Conference on Environment and Development stressed the relevance of participation by concerned citizens in environmental decision-making. This principle was further emphasised by the 1998 ‘Aarhus Convention’, to which the EU was a signatory (see Box 18.4). Among the EU institutions, the Commission was the frst to seize the initiative and formulated alternatives to representative democracy at the EU level, starting with a 1992 communication on open structured dialogue with interest groups (European Commission, 1992). As noted in Chapter 17, it adapted this approach for the EU’s ffth EAP in which it signalled a move away from regulatory ‘command and control’ instruments in environmental policy towards softer governance instruments that allowed for greater openness to stakeholders and the public (Holzinger et al., 2006: 407–408). The Commission’s prominent 2001 White Paper on European governance (European Commission, 2001), in turn, explicitly linked the openness of policy-making procedures and the wider involvement of civil society to the goal of more democratic governance, in particular through the promotion of online consultation and discussion

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Box 18.5 Public participation in practice: the Water Framework Directive A prominent example of the more participatory approach in environmental policy is the Water Framework Directive (Directive 2000/60/EC). Designed to gradually increase the quality of all water in Europe, it introduced common standards for water management with strong requirements for stakeholder involvement in both planning and implementation processes. Besides mandating stakeholder involvement in all steps taken at the local level, a ‘common implementation strategy’ provides for various European expert advisory bodies to draw up common defnitions of technical terms and standards for measuring water quality. As these technical documents are largely advisory and non-binding (‘soft law’), management procedures under the Directive are meant to be adaptive rather than hierarchic, with various inbuilt feedback loops (Challies et al., 2017). A recent ‘ftness check’ of the Directive indicated that, although its inclusive governance mechanism had increased the knowledge base of water policy, it was at the cost of greater policy complexity, which, in turn, had made it more diffcult to enforce common standards (European Commission, 2019).

procedures (Kohler-Koch, 2007: 255–257). Such consultations have subsequently proliferated (Quittkat, 2011), and environmental NGOs participate frequently in them to communicate their views on new policy proposals (Bunea, 2014). In fact, EU environmental policy has been a substantial testing ground for such ‘new modes of governance’ (Bäckstrand et al., 2010; see Box 18.5). That the Commission was at the helm of this development is no coincidence. It is arguably the least representative among the major EU institutions. In order to bolster its legitimacy, the Commission has traditionally encouraged the participation of organised civil society in its decision-making processes. Short of staff and with a multitude of responsibilities to discharge, it sought greater input from affected interests to increase the quality of its proposals and foster greater public support (Streeck and Schmitter, 1991: 137). The Commission granted access to the policy-making process through advisory committees and expert groups, creating a constituency that was otherwise lacking. The Commission’s ambitious legislative proposals for species and habitat protection, frst with the 1979 Birds Directive and later with the 1992 Habitats Directive, have been credited as enhancing its openness to civil society interests (Fairbrass and Jordan, 2001: 510–512). In a form of ‘resource exchange’, the Commission provides access to policy-making, whereas the groups provide ‘access goods’ such as technical expert knowledge (Bouwen, 2002: 369). Both types of information can confer greater legitimacy on the policy-making process. The new modes of governance that were tested as alternatives to hierarchical steering engendered a certain amount of enthusiasm among academic observers. Deliberation, it was argued, ‘through open and reasoned argument, free from manipulation and the exercise of power’ (Bäckstrand et al., 2010: 5) would not only produce more legitimate but also higher quality outcomes. And because stakeholders would be more willing to comply with the policy solutions found, it would solve the ‘classic dilemma of democracy versus effectiveness’ (Bäckstrand et al., 2010: 6). Despite the fact that

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deliberation places exacting standards both on the process (‘free from manipulation and exercise of power’) as well as the participants (rational argumentation, respect for opposing positions, soundness of reasoning, acceptance of overriding normsetc (Kohler-Koch, 2013: 181)), participation mechanisms in the EU were not generally found wanting (Kohler-Koch, 2013). But empirical studies found that new modes of environmental policy-making at EU level never completely eclipsed traditional command and control instruments (Jordan et al., 2005), nor could the new instruments be shown to be more effective in securing successful implementation than traditional regulatory approaches (Knill and Liefferink, 2007) (see also Chapter 17). Moreover, as much as the concept of participation fell on fertile ground in the debate about the EU’s democratic defcit, it was never entirely clear whether the EU’s newfound emphasis on civil society really had democratic credentials (Føllesdal, 2003). Previous research has repeatedly demonstrated that opportunities for participation are primarily used by the socio-economically privileged who have a decidedly ‘upper class accent’ (Schattschneider, 1960: 35). In line with these expectations, empirical research has highlighted that the new consultative instruments were hardly used by individual citizens. When citizens did make an input, it had little impact on the policy-making process (Boucher, 2009). Rather, large organised interest groups were the frst to answer the call. Their links to civil society are unclear – the EU never formulated concrete requirements for representativeness (Kohler-Koch, 2013). Consultations in particular were shown to be dominated by business interests, even more so than the overall distribution of interest groups in the EU would predict (Rasmussen and Carroll, 2014). This was not entirely unexpected. Well aware that openness to outside input alone would not automatically lead to equal interest representation, the Commission actively supports and provides both funding and access to underrepresented civil society interests that might otherwise not mobilise (Kohler-Koch, 2007: 268). Environmental groups, for instance, receive substantial funding from the EU (Mahoney and Beckstrand, 2011). At the same time, the multitude of access points have led to an ‘interest overload’ and the Commission has responded by providing selective channels to insider lobbyists that have established a favourable reputation (a system that has been termed ‘élite pluralism’) (Coen, 2009: 149). This might constitute an advantage for established environmental interest groups with long-standing representation in Brussels, who enjoy good access, in particular to DG Environment (see Chapter 9).

Box 18.6 The European citizens’ initiative Since its introduction, there have been 71 registered campaigns under the European citizens’ initiative. So far, only fve have been successful in collecting the required number of signatures. Out of these fve, no less than three addressed environmental issues: one on banning certain pesticides (glyphosate in particular); one on banning animal testing in biomedical and toxicological research; and one on introducing a right to clean water and limiting the privatisation of water services. Since high thresholds for collected signatures have to be met in at least seven EU member states, groups that initiate a campaign need to be well connected transnationally. Environmental groups evidently command such

Legitimate environmental policy 327 organisational capacitates. A successful campaign, however, does not mean that the initiative will necessarily be taken up: the Commission declined to propose changes to EU rules on both animal testing and glyphosate.

Summary points • • •

A ‘procedural turn’ in EU discourse has promoted the openness of EU decision-making procedures to greater civil society input. Various new mechanisms and venues have been set-up to this aim, such as consultations, expert fora and European citizen initiatives. However, there is little assurance that greater openness allows for input that is fully representative of citizen interests; inputs have been dominated by large organised interests.

The Lisbon Treaty introduced another access point to the policy-making cycle. The ‘European citizens’ initiative’ allows campaigns that have collected at least 1 million signatures (certain thresholds need to be met in at least seven EU member states) to force EU institutions to consider certain legislative proposals (Greenwood, 2019). Successful campaigns get to present their proposals in person to Commission offcials and to the European Parliament in public hearings. Thresholds for citizen initiatives have proven high, but environmental issues have been prominent among the few successful campaigns (see Box 18.6).

The EU as a constitutional democracy While the debate about representative and participatory democracy has dominated academic writing about the EU’s ‘democratic defcit’, legal academics have long highlighted constitutionalism as an additional source of legitimacy. They view the history of European integration as an unfolding story of ‘constitutionalisation’ (Weiler, 1999: 19), punctuated by a series of ‘constitutional moments’ (Weiler, 1999: 3) in which both national governments and the CJEU have transformed the EU from an international organisation into a constitutional order. The rule of law is generally seen as an important prerequisite for liberal democracy, and recent threats to the rule of law have been highlighted as a prominent indicator of democratic backsliding in some EU member states (Blauberger and Kelemen, 2017). The EU treaties, which some lawyers regard as a constitutional text, delineate the competences of EU institutions vis-à-vis the member states, prescribe the procedures that are to be followed in decision-making and confer substantive rights on EU citizens. At the apex of the EU legal system stands the CJEU, but national courts also play a crucial role in the application of EU law. Citizens have access to this legal system in order to claim EU rights, against other citizens, against corporations and against public authorities. Rights offer resources to citizens

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and groups that otherwise have little sway over political decision-making and they offer protections against the overreach of legislative majorities and public authorities. Judicial scrutiny of law making moreover assures accountability and increases transparency (Kelemen, 2012). Individual rights are less prevalent in the environmental feld, as the environment is traditionally regarded as a public good (Hilson, 2017: 3). EU environmental law places substantial obligations on public authorities, but as noted in Chapter 7, the EU has stopped short of creating individual rights – such as a right to a clean environment. Nonetheless, EU environmental law over the last two decades has provided a substantial number of procedural rights that have granted greater access to courts (‘access to justice’ is the term often used in this regard) for both citizens and environmental NGOs in order to enforce EU environmental obligations against public authorities. The ratifcation and implementation of the Aarhus Convention (see Box 18.4) in particular constituted a milestone in securing such guarantees. While the most ambitious of Aarhus provisions on access to justice have not been transposed into EU law, CJEU case-law has been very permissive regarding who has legal standing in court cases on environmental confict and what types of actions by public authorities can be challenged. One product of this development has been the opportunity for environmental NGOs to challenge insuffcient action by local authorities to meet EU air pollution standards. Prior to the adoption of EU procedural rights, the German NGO ‘Deutsche Umwelthilfe’, which spearheaded such litigation in Germany, would not have had legal standing to challenge local authorities’ clean air acts. Similar litigation is now under way in many European countries that have traditionally had much more restrictive rule on standing for public interest litigation. Other impediments to the enforcement of EU environmental obligations in national courts, such as cost burdens, have also been alleviated (Hofmann, 2019). Some environmental NGOs now specialise uniquely in legal action to combat environmental degradation and climate change. In addition, the European Commission is spearheading a debate about the introduction of collective forms of litigation (‘collective redress’) that have so far been impossible in much of Europe. As a distant relative to American style class action, such collective redress would make it easier for larger groups of affected citizens to take legal action against infringements by private corporations, such as in the recent Dieselgate scandal (Hofmann, 2018). Critics, however, have highlighted parallels with the EU’s new public consultation regime: access to courts will beneft those who are already well disposed to make their voices heard (Börzel, 2006). Despite recent changes, conditions for access to justice still

Summary points • • •

The EU treaties, interpreted by some lawyers as being akin to a constitutional text, offer procedural guarantees and substantive rights to EU citizens and NGOs. Increased access to courts has given environmental NGOs greater infuence over environmental outcomes. An increased ‘judicialisation’ of environmental confict may decrease the willingness of the protagonists to seek consensual solutions.

Legitimate environmental policy 329 differ greatly between member states (Hofmann, 2019). This means that citizens and NGOs have very different opportunities to turn to national courts to protect the environment. Legal proceedings can still be expensive and require substantial expertise. In addition, not all groups who could potentially engage in litigation will be normatively predisposed to pursue this strategy (Conant et al., 2017). For many, the appropriate channel to exert political infuence is through democratic institutions, not the courts. Moreover, an increased reliance on adversarial mechanisms of confict resolution, such as court proceedings, may also undermine the willingness of the protagonists of environmental confict – citizens, NGOs, public authorities or corporations – to seek consensual solutions.

Conclusions EU climate and environmental policy faces a diffcult task. There is a clear scientifc need to limit greenhouse gas emissions and to protect biodiversity. A majority of EU citizens regard the EU as the most appropriate venue to address these challenges. But solutions have clear distributive implications – someone somewhere will have to shoulder the costs, which are likely to be unevenly distributed across space and time. Public opinion on these specifc matters is increasingly polarised and the EU itself is subject to political contestation. It is therefore of great importance that the decisions taken by the EU are regarded as legitimate. This chapter has shown that the EU has attempted to bolster its legitimacy through various means that have not followed a single clear blueprint. Instead of devising one unifed ideal of European democracy – a more or less impossible task – the EU institutions pursued several different options, each following a distinct democratic ideal. The EU strengthened its representative credentials through a constant expansion of the competences of the European Parliament, its participatory credentials through an increased openness of decision-making procedures to civil society input and its constitutionalist credentials through increased procedural and substantive rights and a successive widening of access to judicial remedies. The net result of all these measures is most likely positive: citizens now enjoy greater representation and opportunities for access. But the multitude of fxes put in place to halt the growth of the constraining dissensus in public opinion also demonstrates a lack of agreement on the roots of the problem. The new measure also added to the complexity of an already rather complex system of EU decision-making and may possibly add to the public’s confusion. There is also no guarantee that the measures taken mutually reinforce one another. Efforts to increase the quality of representation in the European Parliament sit awkwardly with the newly opened channels of participation, whose users have proven to be decidedly unrepresentative of the public at large. Despite the Commission’s efforts to support underrepresented interests, long-standing biases in interest representation are perpetuated by the new participation regime – a point frst made many decades ago (Schattschneider, 1960). Increased access to legal remedies against environmental degradation, in turn, has afforded citizens and NGOs greater infuence over environmental outcomes, but an increased ‘judicialisation’ of environmental conficts risks undermining alternative strategies of dispute resolution. Deliberation essentially requires decision-making processes to be opened up to diverse arguments, thus increasing the possibility of reaching a wide range of potential solutions. The effort invested in this process can easily be frustrated if one

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of the parties, dissatisfed with the outcome, then turns to the courts to challenge the process, the outcome or both. While court procedures also offer opportunities for different perspectives to be heard, their purpose is altogether different – the solution is hierarchically imposed and compromise largely excluded. More fundamentally, research suggests that the EU may be barking up completely the wrong tree (Achen and Bartels, 2016). More sobering empirical accounts on how citizens actually interact with politics have concluded that ‘the task of being a good citizen by the standards of conventional democratic theory is too hard for everyone’ (Achen and Bartels, 2016: 310, original emphasis). Following this argument, citizens do not generally have a great desire to be involved in political decision-making, in particular not in demanding tasks of deliberation on complex issues (Achen and Bartels, 2016: 301). Moreover, their views on representation are also incomplete. Empirical accounts routinely challenge the assumption that citizens have coherent ideological positions and that they can identify political parties that most closely represent these views (Achen and Bartels, 2016: 299). Participatory ‘innovations’, including those foreseen in the EU’s ‘Conference on the Future of Europe’ (Council of the European Union, 2020) (see Chapter 19), favour a decidedly lopsided spectrum of citizens: the well-educated, the well-informed and the well-resourced (Achen and Bartels, 2016: 201–302). Such views may well be too pessimistic, but they do highlight a core insight: there are limits to what the EU can do to increase its own legitimacy.

Summary points • • •

Overall, the measures taken by the EU to increase the legitimacy of its decision-making procedures have increased representation and access. Not all measures, however, are mutually reinforcing: participatory innovations often result in unequal representation and access to justice can undermine fnely crafted processes of deliberation. Some democratic innovations overburden citizens: there are practical limits to what the EU can do to increase its own legitimacy.

Key questions 1 2 3 4 5 6

Why should the EU worry about the democratic legitimacy of its environmental policy-making processes? Which democratic ideals do its recent innovations follow? In what aspects does the EU differ most from national models of representative democracy? What are the drawbacks of increased openness to civil society input in the decision-making process? What measures has the EU taken to increase the opportunities of citizens to use the courts to protect the environment? To what extent do the measures adopted by the EU in order to increase its democratic legitimacy form a coherent whole?

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Guide to further reading • • •

For an empirical investigation of the concept of procedural justice, see Tyler (2006). For an assessment of the potential of participatory democracy to contribute to EU legitimacy, see Kohler-Koch and Quittkat (2013). For a sobering assessment of the empirical underpinnings of democratic theory, see Achen and Bartels (2016).

Of course, many national democracies do not do much better either, but at least they can draw on a large reservoir of refexive loyalty, through citizens’ feeling of identity and shared history. This allows some of their policy processes to go unquestioned. The EU operates outside this frame of reference, and it does not command a large reservoir of loyalty, except perhaps among a comparatively small group of committed Europeans. This implies that for big questions, such as who should bear the costs of climate change mitigation, national governments and administrations must own the solutions and abstain from blame games, even where the policies have been crafted by them in an EU setting. Supranational representation, civil society participation and access to judicial remedies are important steps towards legitimating EU decision-making, but their contributions may be more marginal than the EU likes to think.

Online resources • • • •

European Commission portal on public consultations: https://ec.europa.eu/info/ consultations_en Homepage of the European citizen’s initiative: https://europa.eu/citizens-initiative/ home_en European Commission information on the Aarhus Convention and EU environmental policy: https://ec.europa.eu/environment/aarhus/ Aarhus Convention compliance committee: https://www.unece.org/env/pp/cc.html

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332 Andreas Hofmann Burns, C. (2019) ‘In the eye of the storm? The European Parliament, the environment and the EU’s crises’, Journal of European Integration, vol. 41, no. 3, pp. 311–327. Burns, C., Eckersley, P. and Tobin, P. (2020) ‘EU environmental policy in times of crisis’, Journal of European Public Policy, vol. 27, no. 1, pp. 1–19. Challies, E., et al. (2017) ‘Governance change and governance learning in Europe’, Policy and Society, vol. 36, no. 2, pp. 288–303. Coen, D. (2009) ‘Business lobbying in the European Union’ in D. Coen and J. Richardson (eds) Lobbying in the European Union, Oxford University Press, Oxford, pp. 145–168. Conant, L., et al. (2017) ‘Mobilizing European law’, Journal of European Public Policy, vol. 25, no. 9, pp. 1376–1389. Council of the Europan Union (2020) Conference on the Future of Europe: Council Position, 9102/20. Dalton, R.J. (2017) ‘Party representation across multiple issue dimensions’, Party Politics, vol. 23, no. 6, pp. 609–622. European Commission (1992) An Open and Structured Dialogue between the Commission and Special Interest Groups, SEC/92/2272. European Commission (2001) European Governance – A White Paper, COM(2001) 428. European Commission (2017) Commission Notice on Access to Justice in Environmental Matters, C(2017) 2616 fnal. European Commission (2019) Fitness Check of the Water Framework Directive and the Floods Directive, SWD(2019) 439 fnal. European Commission (2020) Special Eurobarometer 501. Attitudes of European Citizens towards the Environment. Fairbrass, J. and Jordan, A. (2001) ‘Protecting biodiversity in the European Union’, Journal of European Public Policy, vol. 8, no. 4, pp. 499–518. Føllesdal, A. (2003) ‘The political theory of the White Paper on Governance’, European Public Law, vol. 9, no. 1, pp. 73–86. Greenwood, J. (2019) ‘The European citizens’ initiative: bringing the EU closer to its citizens?’, Comparative European Politics, vol. 17, no. 6, pp. 940–956. Grimes, M. (2006) ‘Organizing consent: The role of procedural fairness in political trust and compliance’, European Journal of Political Research, vol. 45, no. 2, pp. 285–315. Heinkelmann-Wild, T. and Zangl, B. (2019) ‘Multilevel blame games: Blame‐shifting in the European Union’, Governance, online early view. Hilson, C. (2017) ‘The visibility of environmental rights in the EU legal order’, Journal of European Public Policy, vol. 25, no. 11, pp. 1589–1609. Hofmann, A. (2018) ‘Is the commission levelling the playing feld?’, Journal of European Integration, vol. 40, no. 6, pp. 737–751. Hofmann, A. (2019) ‘Left to interest groups? On the prospects for enforcing Environmental Law in the European Union’, Environmental Politics, vol. 28, no. 2, pp. 342–364. Holzinger, K., Knill, C. and Schäfer, A. (2006) ‘Rhetoric or reality? “New Governance” in EU Environmental Policy’, European Law Journal, vol. 12, no. 3, pp. 403–420. Hooghe, L. and Marks, G. (2009) ‘A postfunctionalist theory of European integration: From permissive consensus to constraining dissensus’, British Journal of Political Science, vol. 39, no. 1, pp. 1–23. Hooghe, L., Marks, G. and Wilson, C.J. (2002) ‘Does left/right structure party positions on European integration?’, Comparative Political Studies, vol. 35. No. 8, pp. 965–989. Jordan, A., Wurzel, R. and Zito, A. (2005) ‘The rise of “new” policy instruments in comparative perspective: Has governance eclipsed government?’, Political Studies, vol. 53. No. 3, pp. 477–496. Kardasheva, R. (2013) ‘Package deals in EU legislative politics’, American Journal of Political Science, vol. 57, no. 4, pp. 858–874.

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19 New policy dynamics in more uncertain times? Viviane Gravey and Andrew Jordan

Summary guide The dynamics of environmental policy making in the EU have always been in fux. After the heyday of relatively rapid policy development in the 1980s and 1990s, recent history has undoubtedly witnessed a sharp reduction in the number of new policy proposals and more criticism of existing rules and procedures. Are these new policy dynamics symptomatic of the growing maturity of the sector or an indication of declining political ambition? This chapter examines whether EU environmental policy is currently expanding, declining or staying broadly the same. It introduces different methods for measuring the direction and ambitiousness of policy change and applies them to specifc examples of policy change. Finally, it discusses how and why two recent crises – the frst economic (austerity) and the other political (Brexit) – have pushed environmental policy into more uncertain times which have challenged established dynamics in the sector. It concludes that while EU environmental policy has proven highly resilient to dismantling in the past, continuing political support for strong action in the future is not a given.

Introduction The last two European Commissions (Barroso II, 2009–2014; Juncker 2014–2019) saw the environment move down the political agenda (Čavoški, 2015; Peterson, 2017). Barroso’s second term focused on addressing the Eurozone crisis, while Juncker’s term was built on a pledge to prioritise European ‘added-value’ in ten priority areas, only one of which had an environmental angle, and otherwise reduce the size of the EU’s legislative programme (Bassot and Hiller, 2019). Conversely, the early days of the von der Leyen Commission witnessed environmental concern returning to the very top of the EU’s agenda, with eye-catching plans for nothing less than a European Green Deal (see Chapters 12 and 16). But the heightened political status of environmental issues was very quickly undermined by the onset of the COVID-19 pandemic, which negatively impacted on the health of European citizens and pushed the Eurozone back into recession. This chapter analyses how the dynamics of environmental policy making have adjusted to these more uncertain policy times. More specifcally, it examines whether and to what extent EU policy is expanding, dismantling or staying broadly the same. Analysing policy dynamics over long periods of time is more diffcult than frst appears. DOI: 10.4324/9780429402333-19

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For example, take the sharp fall in the number of new policy items adopted under the Juncker Commission. Did this imply that the EU had suddenly became less ambitious on environmental matters? Or did it indicate that the environmental acquis had become such ‘a mature body of legislation’ (Burns, Eckersley, and Tobin, 2019, p. 12) (see also Chapter 20), that there were no remaining policy gaps to fll – and that the main legislative task was to update existing policy items? Or perhaps the main political priority, as underlined in the three most recent Environmental Action Programmes, is not policy expansion for its own sake, but the implementation of existing policy (see Chapter 13). In a famous essay in 1972, Anthony Downs posited that environmental policy the world over follows fve main phases. He termed this the ‘Issue Attention Cycle’ whereby after a new policy problem has been detected and ambitious policy responses have had time to bed in, the mounting cost of implementation gradually reduces both public and government motivation to act (Downs, 1972). The last phase, the post-problem stage, he characterised as a ‘twilight realm of lesser attention or spasmodic recurrences of interest’ where public attention declines, although not as far down as the original level (Downs, 1972, p. 40). Which stage is EU environmental policy currently at? As long ago as 2008, Wurzel argued it had moved past maturity, with the 1990s described as a period of ‘sedate’ policy development, although the 2000s showed signs of ‘selective activism’ specifcally on climate change–related issues (Wurzel, 2008). If true, selective activism would arguably be marked by at least some policy expansion (i.e., the adoption of new policies and/or the updating of existing policies), albeit not across the board. But selective activism may also involve some dismantling, i.e., the cutting, removal or weakening of existing policies (Jordan, Bauer, and Green-Pedersen, 2013) in parallel to expansion. But selective activism is not the only alternative to maturity. We know from the US experience that ‘maturity’ can be followed by something very different – gridlock – where old, ambitious policies remain in place, often after efforts to dismantle them falter, and new problems are not addressed (due to insuffcient cross-partisan support for new policies). With the higher (i.e., federal) level gridlocked, the onus falls on other, perhaps more local, levels of government and private actors to take up the slack (Sousa and Klyza, 2017; Vogel, 2003). This chapter reviews the rapidly growing literature on long-term policy dynamics in the environmental sector, encompassing policy expansion, dismantling and/or stasis (Burns, Tobin, and Sewerin, 2019). The following section sets out the analytical indicators of change that academics have developed to measure the magnitude and direction of change since the early 1990s. The third section then reviews what might be driving the policy dynamics, especially any attempts at dismantling existing EU environmental policies. The fourth section applies these insights to make sense of the unfolding impact of two recent major events – namely, the post 2008 Eurozone crisis and Brexit – on environmental policy dynamics. The fnal section concludes.

Summary points • •

After 50 years of more or less steady policy expansion, in recent years, there has been a sharp fall in the adoption of new EU policies, in the context of multiple crises at EU level. For some, this fall indicates that the environmental acquis is mature and secure – and that the EU’s focus should turn to improving implementation.

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Viviane Gravey and Andrew Jordan For others, it shows the acquis is past its prime and/or should be reformed, and/or that EU lacks political ambition and should adopt new policies. In order to assess whether policy is expanding, contracting or staying broadly the same, this chapter analyses the historical dynamics of policy change and explores what drives EU political actors to support, or oppose, higher levels of environmental ambition.

Capturing the dynamics of policy change The decline in the production of new environmental policy at EU level has been explained in the literature in three different ways. One explanation is that environmental policy has matured to the point where most environmental challenges are being addressed. Another is that the EU is still ambitious, but only selectively so. Thus, while some areas of environmental action have become more ambitious, others are being ignored and/or have become less ambitious. A third explanation is because of a growing polarisation of environmental politics, the EU has succumbed to political gridlock. Exploring these different explanations requires us to delve into the basic nature of policy as well as the political context in which specifc policies are debated and adopted. Howlett and Cashore (2009) distinguish between policy ends and policy means, which can each be subdivided in further sub-categories based on different levels of abstraction (from what are the general goals to what are the specifc settings of policy instruments on the ground). Conversely, Bauer and Knill (2012) suggest two indicators: density (the number of policy instruments in a given policy area) and intensity (covering both ambition and scope, i.e., whether the policy instrument is narrowly or broadly targeted). This same typology of density and intensity can be itself further subdivided – hence, in their Index of Climate Policy Activity, Schaffrin, Sewerin, and Seubert (2014) break down intensity into six categories: policy integration, scope, targets, budget, implementation and monitoring. Most studies, however, have measured changes in density and intensity. Building on these studies, the remainder of this section looks at the density and intensity (scope, ambition and budget) of EU environmental policy. While a mature acquis would imply limited changes in density and intensity, as well as limited political demands for policy change, gridlock is likely to be characterised by a failure to expand and/or dismantle policy. Finally, selective activism would see both expansion and dismantling being successful in different sub-areas of the environmental acquis. The density of policy A frst step is to agree what the stock of environmental policy actually constitutes. After 50 years of steady policy expansion, this question is actually more diffcult to answer than one may casually think. Formally, the acquis communautaire covers the Treaties, legislation adopted by European institutions, the evolving case law of the CJEU (see Chapter 7), political declarations adopted by the EU and any international agreements to which the EU is signatory (see Chapter 15). Searching through the EU legislation database, EUR-lex, yields over 1,000 binding legislative acts in the environmental area. This fgure is already less than the whole acquis as it does not cover

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Figure 19.1 EU environmental policy in 2020 – legal types and responsible institutions. Source: based on Eur-Lex.

international and EU Treaties, nor CJEU case law. Delreux and Happaerts (2016) approximate the acquis by measuring a subset of EU environmental legislation (only directives and regulations) and they fnd about 400 relevant texts in 2014. Searching EUR-lex for all environmental directives and regulations in force in 2020 (see Figure 19.1), we fnd 466 relevant legal texts. Critically, many of these either predate the use of the ordinary legislative procedure in environmental decision making (i.e., legislation adopted by the Council of the EU only) or cover implementation legislation produced by the European Commission (delegated and implementing acts) and adopted under different comitology procedures. This lower fgure of 466 nicely illustrates the growing importance of delegated and implementing acts in the environmental sector (Burns and Tobin, 2020) (see also Chapters 6 and 8). DG Environment equates the environmental acquis to an even smaller subset. In the context of enlargement negotiations, the acquis – understood as the rules that prospective member states need to integrate into their own legal orders before becoming members – is limited to a vague reference to ‘over 200 pieces of EU environmental legislation’ (DG Environment, 2020). Looking at Chapter 27 of the ongoing enlargement negotiations with the Western Balkan countries, we fnd less than 200 legal texts covering ten areas of environmental action (see Table 19.1). Although the overall scale of EU environmental policy is open to discussion, the overall scope of EU environmental action is at least quite clear, ranging from noise pollution to industrial pollution control and action on climate change. But it also shows the limits of tracking environmental action solely by measuring the density of policy. Hence, in the environment enlargement chapter, the two largest bodies of legislation cover, on the one hand, waste, with 70 pieces of legislation, and, on the other hand, chemicals and GMOs with 47. Conversely nature protection only has nine pieces, and climate change eight. These large numbers do not of course imply that the EU

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Table 19.1 The contents of the EU’s environment enlargement chapter Categories of the EU environmental acquis

Number of legal instruments

Horizontal legislation Air quality Waste Water quality Nature protection Industrial pollution control Chemicals and GMOs Climate change Noise Civil protection

11 25 70 9 9 4 47 8 1 9

TOTAL

193

Source: Adapted from Env.net.

considers waste issues to be any more important than say climate change, nature protection, water and air quality combined. Rather, these relatively large numbers also speak to the highly technical nature of these areas, covering a number of industries, sectors and business activities. Armed with a measure of density, analysts can then start to measure the relative change in the acquis over time, where increases denote policy expansion and cuts indicate policy dismantling. But as Figure 19.2 shows, both can happen at the same time. For example, the replacement in 2008 of the 1996 Air Quality framework Directive (96/62/EC) and three out of four of its daughter directives with a new framework directive (2008/50/ EC) was a mixture of policy dismantling and expansion. Therefore, while measuring density furnishes important insights into policy change, it may actually tell us very little about changes in policy ambition. This is why measuring policy intensity is equally critical. The intensity of policy As with density, there are different ways to measure intensity (see Box 19.1), as well as different ways in which to measure changes in intensity (i.e., either relative or absolute

8 6 4 2 0 -2

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Figure 19.2 The density of EU air quality policy, 1980–2020. Source: based on data from European Commission, 2020a

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Box 19.1 Where next for EU air quality policy? How we defne and measure policy dismantling has a direct impact on whether we fnd evidence of it or not. This issue, well known amongst social policy scholars as ‘the dependent variable problem’, has been discussed in recent accounts of environmental policy dismantling at EU level. Thus, when studying the level and scope of 20 air policy instruments, Steinebach and Knill (2017, p. 438) characterised the overall pattern of policy development between 1980 and 2014 as one of ‘continuous policy expansion’, with only very limited small-scale policy dismantling events in the early 2000s. Conversely, Gravey and Moore (2018) studied the policy ambition of four key EU directives addressing air quality issues and found a sharp fall of policy ambition after 2002 with respect to the Ambient Air Directive. Yet, if we consider the methods used in these two analyses, the results are actually not contradictory. Thus, Steinebach and Knill found that overall, newer generations of EU policy instruments were more ambitious. But Gravey and Moore judged the EU’s policy ambition against international standards, i.e., while the EU’s policy had become more ambitious, it had failed to keep pace with World Health Organisation guidelines which became ‘markedly more stringent due to new research on the health impacts of air pollution’ (2018, p. 30). Sometimes, dismantling is only thought of as encompassing the active removal of legal protections from the acquis. But a failure to keep up with international standards is an example of another, more subtle form of dismantling – what Bauer and Knill (2012) term ‘dismantling by default’ (whereby policy settings are not adjusted upwards despite new scientifc knowledge).

changes). Absolute measures use a scale of intensity against which each piece of policy is graded. A number of variations in this approach have been developed in the literature. For example, Burns and Carter (2010) developed a fve-point typology measuring whether European Parliament amendments furthered or hindered greater ecological modernisation. This has since been updated to produce a fve-point scoring table ranging from negative to high environmental ambition and applied to all stages of the legislative process, from the initial proposal to fnal legislation (Burns, Eckersleyet al., 2019). Alternatively, instead of ranking intensity as a whole, Schaffrin et al. (2014) proposed breaking down intensity into six different sub-indicators (integration, scope, targets, budget, implementation, monitoring) which are, in turn, graded 0 or 1. The overall policy ranking using their Index of Policy Activity is made up of the sum of each of these indicators, allowing comparison between, for example, policies with a high dedicated budget and policies with a clear monitoring process. Conversely, relative rankings (see, e.g., Gravey and Jordan, 2016) track how new legislation compares to its predecessor – is it more or less ambitious? Is the budget allocated greater or smaller? Has the scope widened or narrowed? Both approaches have advantages and disadvantages. Absolute rankings provide an amalgamated grade (where, for example, increases in budget can offset decrease in implementation), while relative rankings can provide a fner-grained measure of the precise direction(s) of policy change that only really apply to quite mature bodies of policy.

340 Viviane Gravey and Andrew Jordan In summary, studying the dynamics of EU policy changes is still in its early days and methodological diversity is to be expected, and even welcome, as it allows analysts to capture better the complexity of policy change (although it can produce apparently puzzling results, see Box 19.1). But having measured policy change, we are still left with an even bigger puzzle: why do the policy actors introduced in Part II of this book seek to achieve expansion or dismantling at EU level?

Summary points • • •

There is a growing scholarly interest in the analysis of environmental policy change, including measuring its magnitude (minor or major change) and direction (expansion, stasis or dismantling). In practice, expansion, dismantling or stasis is not always clear-cut and can even occur simultaneously, greatly complicating the task of understanding long-term policy dynamics. When comparing the results of different studies, we need to be aware of their respective methodological choices.

What drives policy change? Measuring policy change opens the door to more probing analyses of what ultimately drives policy dynamics at EU level. A useful starting point is to consider that each piece of the environmental acquis has a dual identity. First, it is a piece of policy, and as such, policy expansion and dismantling dynamics may differ from what exist in other policy areas such as social protection or health. Second, it is a piece of EU policy, and as such, policy expansion and dismantling dynamics may play out differently than at the member state level. Table 19.2 Four typical criticisms of EU environmental policy

Europhile

Eurosceptics

Critics of environmental action

Proponent of greater environmental action

Actors in favour of continued European integration who may be content with current levels of environmental ambition but who oppose environmental expansion to distract from other issues facing the EU (i.e., migration, Brexit, economic downturn) Actors who oppose both environmental actions irrespective of the level of governance (for example, climate sceptics) and European integration

Actors who see the future of European integration as a ‘green Europe’, with strong environmental ambition and further environmental integration reinforcing each other’s Actors who are opposed to the EU and want either less, or radically different form of European integration but support high environmental ambition irrespective of the level of governance

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This duality further informs how EU-level actors engage in environmental policy making. Thus, different DGs of the European Commission will engage differently, as will the various political party groups in the European Parliament (see Chapters 6 and 7 for more details). Bringing these two characteristics (sector and level of governance) together allows us to draw an EU environmental policy discontent matrix (see Table 19.2) which differentiates between criticisms that focus on the policy (a specifc piece of EU legislation, i.e., targeting the environmental dimension of EU environmental action) and those that focus on the polity (the EU, i.e., targeting the European dimension of EU environmental action). Crucially, supporters of European integration and supporters of environmental action may not perfectly overlap (see Table 19.2). Thus, critics of EU environmental policy can be actors who: • • •

•

oppose both environmental action and European integration (e.g., the UK Independence Party is sceptical both of EU integration and climate change) (Reed, 2016). are wary of European integration but support environmental action at a more local or global level (e.g., La France Insoumise political party supports a profound ecological transition, but much less European integration). support continued European integration, but do not think environmental action should be a priority at EU level – e.g., the second Barroso Commission’s decision to focus on addressing the Eurozone crisis at the cost of most other policy priorities (Gravey and Jordan, 2020). support continued European integration, but think that EU environmental action does not go far enough, e.g., many members of the Green 10 or the Greens/EFA MEPs (see Chapters 7 and 9).

The broader implication of Table 19.2 is that in order to understand policy dynamics at EU level, we need to draw both from the literature on environmental policy change, in particular dismantling, and on EU decision making. What drives policy dismantling? In his seminal work on policy dismantling, Paul Pierson argued that it is chiefy an exercise in blame avoidance (Pierson, 1994). While governments may be keen to cut public expenditure and social policy benefts, they will try to avoid being blamed by voters for doing so, e.g., blaming it on an external crisis or a different level of governance (such as the EU) or delaying the costs until well in the future (e.g., by building a long implementation phase into a given policy). Bauer and Knill (2012) used this basic insight as a starting point to consider environmental policy dynamics. Health and social policies typically produce diffuse costs – taxation is normally spread across the whole of society – but targeted benefts (focused on retired people, unemployed people, etc.), who can easily mobilise to oppose cuts and/or demand greater policy ambition. This is what drives the politics of dismantling in relation to Welfare State reform. Conversely, environmental policies tend to produce concentrated costs – targeting specifc industries or polluting activities – but diffuse benefts (broader society benefts from cleaner air and more biodiversity), making it more diffcult to organise public support for policy expansion and/or against policy dismantling. Hence, environmental policy dismantling can be expected to be driven by credit claiming, not

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Table 19.3 Four policy dismantling strategies

Dismantling decision

No dismantling decision

Blame avoidance (low visibility)

Credit claiming (high visibility)

Dismantling by arena-shifting For example, delegating policy responsibility to another agency or level of governance without transferring adequate funding. Dismantling by default For example, failing to update existing legislation despite knowing it is outdated or faulty

Active dismantling For example, agreeing new law which reduces the scope, level or density of policy Symbolic dismantling For example, promising to dismantle without following through, e.g. commissioning a report into cutting red tape

Source: Adapted from Bauer and Knill (2012).

blame avoidance. Politicians may fnd they can win support from key industries by cutting environmental protections without losing the support from voters, especially if they are distracted by other, more immediate issues such as jobs and the economy. From David Cameron’s infamous ‘get rid of all the green crap’ comments (Carter and Clements, 2015) to the US Environmental Protection Agency’s decision to suspend the enforcement of environmental laws during the COVID-19 pandemic (Milman and Holden, 2020) (see also Chapter 20), politicians frequently offer to relax environmental rules when industries ask for policy support. Bauer and Knill (2012) identifed four ideal types of policy dismantling strategy, based on either political action or inaction (see Table 19.3). Bauer et al. expected environmental policy dismantling to be pursued principally through either active or symbolic dismantling strategies, that is, for politicians to openly call for cutting or weakening environmental policy, but not always follow up these announcements with actions to deliver on them. Whether this hypothesis still holds in Europe, where environmental action has wide and growing popular support, is debatable (Burns, Tobin et al., 2019). We explore this question in the next section. What drives policy dismantling at EU level? In his work, Pierson (1994) compared two systems: the US and the UK. He found that it was comparatively easier to dismantle policies in a majoritarian system such as the UK, in which a Prime Minister with a large majority faces very few veto players, than in the US federal system which has a clear separation of powers and is thus riddled with veto points (see Chapter 11). Conversely, the high numbers of veto players in the US made it relatively easy to avoid blame for policy dismantling, whereas the UK government had nowhere to hide from voters. Building on this approach, Gravey and Jordan (2016) have argued that we can expect policy dismantling to be an uphill challenge in the ‘hyperconsensual’ EU system, in which policy change can only be achieved with intensive cooperation in and between the European Parliament and the Council (see Chapter 11 for further details). This means that in the EU, as in the US, it is much easier to block new legislation (i.e., stopping the fow of legislation) than unpicking and cutting existing rules (cutting the stock of legislation). Existing explanations of the dynamics of EU environmental policy making – either noting maturity, selective ambition or gridlock (see Table 19.4) – start from a discussion

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Policy dynamics in more uncertain times Table 19.4 The dynamics of EU environmental policy making: three competing characterisations Maturity

Current level of EU environmental action is broadly supported. Stasis prevails with limited expansion or dismantling. Environmental action is not a political priority, nor is it the focus of political contestation Both policy expansion and policy dismantling are attempted but fail. Environmental acquis experiences stasis, even though the need for environmental action becomes increasingly politicised and divisive Some parts of the environmental acquis experience expansion, while others are ignored or dismantled. Political debates focus on which areas of the acquis should be prioritised, and which can be compromised to deliver on other political objectives

Gridlock

Selective activism

of policy density and of falling numbers of new environmental legislation. The Juncker Commission reduced new legislative activity back to the level of the early 2000s (see Figure 19.3), but the fall was not evenly shared. If we consider the ordinary legislative procedure fles which involved the ENVI Committee in the European Parliament (thus covering both environment and health, see Chapter 8), we observe a marked reduction in its activity. Critically, the reduction predates Juncker: ENVI’s activity as both a share of the European Parliament’s activity and in absolute terms has fallen constantly since the late 1990s. This reduction in new policies is surprising if we recall that one popular characterisation of the EU likens it to regulatory state (see Chapter 17). This gives the European Commission a strong vested interest in maintaining – and even expanding – the acquis.

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Figure 19.3 EU environmental policy: the fall in legislative output, 1999–2020. Source: European Parliament Activity Reports

0

344 Viviane Gravey and Andrew Jordan Indeed, initial calls for dismantling in the 1990s were met with what can best be described as symbolic dismantling (see Table 19.3). Hence, the Commission, at the behest of member states such as the UK, France and Germany, created lists of policies to be revised and published reports on how EU legislation complied with the principles of subsidiarity and proportionality, but did not actually remove existing policies or even slow down the production of new ones (Gravey and Jordan, 2020). But the picture started changing in the 2000s – calls for environmental policy dismantling not only came from outside the Commission but also from within, with a growing divide between DG Environment on the one hand and DG Competition (led by Commissioner Verheugen) on the other. Yet the Commission remained pro-policy expansion. Thus, writing in this period, Löfstedt (2007, p. 436) contended that ‘if the Commission was serious about promoting Verheugen’s agenda, Commission offcials would soon be out of a job’. In recent years, the automatic assumption that the Commission will always support policy expansion and oppose dismantling has been further undermined. In their study of air and water policy dismantling from 1980 to 2014, Steinebach and Knill (2017) found that reduced policy ambition did not come from the legislators refusing to agree new policy proposals, but from the Commission failing to draft new proposals. In other words, far from being a policy entrepreneur advocating expansion at every opportunity, the European Commission had, they claimed, morphed into a stout defender of the status quo. In the face of increased popular awareness and scientifc knowledge about the health impact of air and water pollution, its failure to produce new proposals was not, they argue, simply evidence of political stagnation. It is instead an example of dismantling by default, whereby insuffcient or faulty policies were left unchanged. The central role played by the European Commission in EU decision making (see Chapter 6) renders EU environmental action particularly vulnerable to a form of selective activism whereby only some issues make it to the top of its political agenda. The pivotal role of the European Commission This shift in the European Commission’s views can be explained in two complementary ways: by noting changes within its internal structures; and by exploring changes in the context in which it operates. Under Barroso and Juncker’s leadership, the Commission went through a process of presidentialisation, with a reinforcement of the Secretariat General and Presidency’s power over the policy DGs (Kassim, Connolly, Dehousse, Rozenberg and Bendjaballah, 2017). This took the form of greater use, frst, of both impact assessments and ex post policy evaluations (see Chapter 14 for more details on both), and second, of political checks that every policy proposal put forward ftted with the political priorities of the Commission President. Such gatekeeping was exemplifed by work done by the very frst Vice-President of the European Commission, Frans Timmermans, in the Juncker Commission; all new policy proposals were carefully vetted by his team before being put to a vote in the College of Commissioners, thus opening the way for selective activism (Peterson, 2017). The impact that presidentialisation had on the Commission’s legislative agenda was crucially dependent on the President’s personal political priorities, themselves heavily impacted by wider political context in Brussels. Critically, in his period in offce, when the EU appeared to be in crisis, the Commission did not always call for ‘more Europe’. He deemed that the Commission’s role was to be the Guardian of the Treaties, not the

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Guardian of the acquis. Thus, dismantling policies is an option if it helps to sustain the overall European integration project. This pattern continued in the von der Leyen Commission, which pledged where necessary to ‘cut EU red tape’ (Gravey and Jordan, 2020). This prioritisation of continued European integration over increasing environmental policy ambition can be detected in the Five Scenarios for a Future of Europe published by the Juncker Commission in 2017 (see Box 19.2). These paid scant attention to either environment or climate action. While the Commission was careful not to favour any single scenario, Scenario 4, which sees the EU ‘delivering more and faster in selected policy areas while doing less elsewhere’ (European Commission, 2017, p. 22), directly echoed the Juncker Commission’s pledge to be ‘big on the big things and small on the small things’. It is noteworthy than in Scenario 4, environment and climate are not amongst the ‘big’ things the EU should focus on. And fnally, considering the three different explanations of

Box 19.2 Where next? Five possible EU futures In March 2017 the Juncker Commission published a White Paper setting out Five Scenarios for the Future of Europe. It commemorated the 60th anniversary of the Treaty of Rome and rejected a binary (i.e., more or less Europe) view of the future. The fve scenarios were: 1 2 3 4 5

Carrying on: The EU focuses on delivering its positive reform agenda. Nothing but the Single Market: The EU is gradually re-centred on the Single Market. Those who want more, do more: The EU allows willing member states to do more together in specifc areas. Doing less more effciently: The EU focuses on delivering more and faster in selected policy areas while doing less in others. Doing much more together The EU decides to do much more together across all policy areas.

These scenarios offer different possibilities with regards to policy expansion and dismantling. Scenario 4 would, for example, see both take place; Scenario 2 would see extensive dismantling of ‘non-essential’ policies; and Scenarios 3 and 5 would see expansion, though only for some member states. Scenario 2 in particular would threaten the EU environmental acquis with a ‘strong focus on reducing regulation at EU level’, leading to increasing differences in environmental standards across the EU, accompanied by the EU being ‘no longer represented’ in international negotiations on issues such as climate change. In Scenario 4, the environment is presented as an area for less, not more, action, with a move away ‘from detailed harmonization towards a strict minimum’. The EU’s Climate Leadership is excluded from all but Scenarios 5 and 1. These scenarios were indicative of the Juncker Commission priorities and are not binding on its successor.

346 Viviane Gravey and Andrew Jordan EU environmental policy dynamics (see Table 19.4), the Five Scenarios correspond to ‘maturity’ where most, if not all, political ambition is reserved for non-environmental matters.

Summary points • • • •

EU environmental policies have been be challenged on many grounds, including their ‘Europeaness’ and their environmental ambition. The diffuse benefts and concentrated costs that are often generated by environmental policy actions may lead politicians to try to claim political credit amongst critics by pledging to dismantle green rules. Nevertheless, actually dismantling EU policies has often been a slow, uphill battle given the need to achieve consensus amongst myriad of actors, including the European Commission which is a pivotal actor. Recent developments have nevertheless demonstrated that the European Commission has a more ambivalent attitude to dismantling the environmental acquis than has historically been the case.

EU environmental policy-making in times of crisis As the EU wrestles with the Coronavirus pandemic and its unfolding economic consequences, what will this crisis mean for environmental action? Will we see a green recovery, with a strong European Green Deal? Will we instead see different member states pulling the EU apart? Or will we see a recovery focused on narrow economic indicators? While it is too early to reach frm conclusions, we can learn from the EU experience in handling two recent crises: the post-2008 economic and fnancial crisis and the political crisis of Brexit. This section reviews research on them both in the light of our three competing characterisations of policy change (see Table 19.4) – namely, maturity, selective activism and gridlock – building on our understanding of the criticisms commonly levelled at EU environmental policy. Economic austerity While the economic crisis did not originate in Europe, it had long-lasting impact on the economic health and welfare of many countries in and outside the EU in the decade following 2008. When considering its impact, we need to distinguish between the fow of new legislation and the stock of environmental policy, i.e., the acquis. Starting with the fow, in response to the crisis, the Commission decided to prioritise policies that were strictly targeted at addressing the economic crisis and/or lessening its impact (Knill, Steinebach, and Fernández-i-Marín, 2020). This became clear under the second Barroso Commission (2009–2014) during which new policies aimed at cutting plastic waste was delayed (ENDS Europe, 2013). This stance was reaffrmed at the start of the next (i.e., Juncker) Commission (2014–2019) which pledged to focus on ‘the “big things” like jobs and growth’, and not ‘present proposals that do not contribute to

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these priorities’ (European Commission, 2014, p. 2). Comparing policy proposals tabled by the two Barroso Commissions, Burns, Eckersley et al. (2019, p. 3) found a clear ‘crisis effect’ characterised by a decline in the amount of EU environmental legislation brought forward and in the ambition of ‘new legislation’. However, not all sub-sectors of environmental policy making were affected in the same ways; while there were fewer environmental policy proposals overall in Barroso’s second term, the number of climate proposals rose sharply. Similarly, Gravey and Moore (2019) found that while ‘old’ policy areas such as air quality stagnated or even experienced dismantling (see Box 19.1), climate policy increased in both density and ambition. Beyond climate change, another rare example of selective activism was the adoption of a new regulation on invasive species in 2014 (Justo-Hanani and Dayan, 2020). However, as noted above, selective activism can in principle entail both limited expansion and dismantling. In other words, while limited expansion may well describe environmental action through the legislative process, a different picture may emerge in the post-legislative process, which in the EU corresponds to comitology (see Chapter 6 for details). This is broadly what happened after 2008. So, while during the legislative process, both the Council and Parliament voted to increase the ambition of some of the Commission’s proposals (Burns, Eckersley et al., 2019), in the post-legislative process, the Commission ‘hidden away from legislative procedures’ was able to weaken environmental policy ambitions (Pollex and Lenschow, 2020, p. 32). Pollex and Lenschow’s main fnding – that dismantling happens ‘through the back door’ of delegated and implementing acts in the feld of sustainable consumption – was confrmed by the work of Burns and Tobin (2020, p. 13), who found that ‘comitology policies were less ambitious on average during the crisis era’. Considering both the reduced fow of new legislation and the drop in infringement action against member states failing to implement the environmental acquis (on this, see also Chapter 13), Knill et al. (2020, p. 375) argued that ‘the Commission has clearly given up its former role as an environmental policy entrepreneur’. This was also evident in the Commission’s attitude to the stock of environmental policy – both Barroso II and Juncker Commissions increasingly engaged with existing environmental legislation through the prism of cutting regulatory burdens and costs, not increasing ambition (Gravey and Jordan, 2020). Finally, analyses of the impact of the crisis on EU environmental policy also need to consider the interplay between EU and national policies. Comparing the direction of environmental policy change in EU and non-EU countries, Burns, Tobin et al. (2019) found that ‘the EU can act as a safeguard against policy dismantling and insulate against changes in government’, but such ‘safeguarding’ is far from universal as EU-supported austerity policies in Greece profoundly undermined Greece’s ability to implement and apply EU environmental policies (Lekakis and Kousis, 2013). Thus, EU environmental policy in the aftermath of the crisis is best characterised as exhibiting bursts of selective activism but longer periods of dismantling via the back door of comitology. Brexit and its aftermath The UK’s withdrawal from the EU occurred via three sets of negotiations: the renegotiation of the UK’s membership prior to the 2016 referendum; the 2016–2019 withdrawal negotiations; and the post-2019 negotiation of the future relationship. All three

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had an environmental dimension. As Chapter 5 argued, member states can be both leaders and laggards in different areas of environmental policy at the same or even different times. Prior to Brexit, the UK hindered EU policy expansion in some areas (fracking, soil, air quality) but supported it in others (climate change, the greening of the CAP and fsheries policy) (Hilson, 2018). Beyond specifc policy areas, the UK was, however, often in the vanguard of a group of member states criticising the environmental acquis on the grounds of both subsidiarity (arguing certain environmental issues, such as soil protection and carbon taxation, were best dealt with by member states directly) and proportionality (arguing EU rules were placing unnecessary burdens on private actors). As such, it came as no great surprise that the EU’s regulatory powers were criticised in the period prior to the 2016 EU referendum (Gravey and Jordan, 2020). The then UK Prime Minister, David Cameron, negotiated a New Settlement with the EU, seeking concessions in four main areas (economic governance, competitiveness, sovereignty and immigration) which he hoped to use to convince UK voters to remain in the EU. On competitiveness, he demanded a review of the entire acquis to check whether it complied with subsidiarity and proportionality, as well as an agreement by the Commission to work on establishing specifc regulatory burden reduction targets (Poptcheva and Eatock, 2016), which critics had long suspected would weaken existing environmental policies (Gravey and Jordan, 2020). Both points were included in a draft European Commission declaration as part of the New Settlement. But the UK voted to leave, precipitating a massive crisis in UK and EU politics. During the frst few months of the von der Leyen Commission, the EU appeared intent on continuing on the same path with or without the UK. Her Commission was not bound by David Cameron’s New Settlement, yet still decided to deliver on one of the new settlement promise (specifc regulatory burden reduction targets) by phasing in a ‘one in, one out’ policy, whereby ‘every legislative proposal creating new burdens should relieve people and businesses of an equivalent existing burden at EU level in the same policy area’ (European Commission, 2019b). This raised concerns amongst environmental NGOs in Brussels, who felt it was ‘incompatible’ with the EU’s pledge to increase its climate efforts (Green10, 2019). However, maintaining existing EU environment standards quickly rose to prominence once Brexit negotiations got underway (covering the UK’s withdrawal from the EU and its future relationship with the EU). So-called level-playing feld provisions emerged as a particularly contentious point, particularly given that the EU had by that point, committed to adopt and implement an ambitious package of new legislation contained in the European Green Deal. The EU wished to lock the UK into existing EU environmental protections mechanisms, whereas the UK preferred a looser arrangement whilst still preserving tariff- and quota-free access to the EU’s single market. After protracted negotiations on the withdrawal, the two sides were only able to bridge their differences by adopting, in late 2019, a non-binding Political Declaration (European Commission, 2019a), which outlined the commitments, both legal and political, that could eventually inform the wording of a subsequent treaty specifying the future trading relationship between them (Jordan, Gravey, Moore, and Reid, 2020). As Box 19.3 reveals, the Political Declaration recognised the strong environmental dimension of the playing feld between the two sides. As Chapters 2 and 3 explained, EU environmental policies had originally developed to underpin the EU’s Single Market, arguably creating the world’s largest and most sophisticated level-playing feld.

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Box 19.3 Brexit and the environment: the 2019 Political Declaration XIV. LEVEL PLAYING FIELD FOR OPEN AND FAIR COMPETITION 77. Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing feld. The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties. These commitments should prevent distortions of trade and unfair competitive advantages. To that end, the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters. The Parties should in particular maintain a robust and comprehensive framework for competition and state aid control that prevents undue distortion of trade and competition; commit to the principles of good governance in the area of taxation and to the curbing of harmful tax practices; and maintain environmental, social and employment standards at the current high levels provided by the existing common standards. In so doing, they should rely on appropriate and relevant Union and international standards, and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement. The future relationship should also promote adherence to and effective implementation of relevant internationally agreed principles and rules in these domains, including the Paris Agreement. (European Commission, 2019a) Once the Declaration had been struck, negotiators moved on to discuss what form the new level playing feld should take, at which point the interlinking of environmental ambition and fair competition re-emerged as key sticking points in the negotiations, alongside state-aid rules and fsheries – a somewhat ironic turn of events as the environment was only a footnote in Cameron’s New Settlement and was barely mentioned at all during the highly emotive 2016 EU referendum campaign. The EU’s insistence on the need for common environmental rules was formalised when it published its formal negotiating mandate, which not only called for a form of environmental policy stasis (or, to quote the jargon, ‘dynamic alignment’ between the two parties), but a commitment to further policy expansion: the envisaged agreement should uphold the common high standards in the areas of State aid, competition, state-owned enterprises, social and employment standards, environmental standards, climate change, and relevant tax matters (…) the envisaged partnership should commit the Parties to continue improving their respective levels of protection with the goal of ensuring high levels of protection [in these areas]. (European Commission, 2020b) (emphasis added).

350 Viviane Gravey and Andrew Jordan This demand went well beyond what Boris Johnson’s UK government wanted – a standard, free trade agreement in which both sides enjoyed full regulatory autonomy (Jordan et al., 2020). In summary, both crises exhibited elements of environmental neglect (stasis and dismantling attempts characterised both the non-climate parts of the acquis during the economic crisis and the UK’s New Settlement) and ambition (continued climate policy expansion during the economic crisis, strong commitment to an environmental levelplaying feld in Brexit negotiations). Both confrmed that the EU can be somewhat hypocritical in both supporting and undermining its environmental ambitions to suit its political priorities (Knill et al., 2018). Thus, the Commission – the EU institution which seemed prepared to loosen environmental protections during the economic crisis – subsequently sought to monitor in fne detail the maintenance of environmental policy and governance protections within the UK to ensure that they did not regress after Brexit. The UK, perhaps understandably, argued that no other EU trade agreement attempted to bind another trading partner so closely to the environmental acquis, while the EU emphasised that the UK’s economic size and geographical proximity meant that it was unreasonable to treat it as a conventional trading partner (Box 19.3).

Summary points • • •

Austerity at EU and national levels revealed the fragility of the EU environmental policy ambitions, which appeared to narrow down to climate change and reviewing and possibly updating existing legislation. The exogenous shock of Brexit witnessed a renewed commitment by the EU to maintain a level-playing feld with the UK, built on both parties maintaining high environmental standards. Both crises usefully revealed that the EU’s political support for environmental protection is actually quite variable; at times, it veered between downplaying the need for new policy protections and then suddenly advocating them.

Conclusions After decades of almost uninterrupted legal constitutionalisation and policy expansion, EU environmental policy fnds itself challenged by the same crises that engulfed other areas of European integration – the global fnancial crisis, Brexit, which saw a member state leave the EU for the frst time, and COVID-19 to name just three. In order to understand how they have impacted EU environmental action, this chapter has reviewed the rapidly growing literature on broader EU policy dynamics, investigating three competing explanations: maturity, gridlock and selective activism. It reviewed the different methods for understanding policy dynamics, encompassing, amongst other things, different tools for measuring policy density (the number of policies or policy instruments) and policy intensity (the scope and ambition of policy). It then investigated whether, over time, these two indicators have increased (policy expansion), decreased (policy dismantling) or stayed the same (policy stasis). It revealed

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that over the last 50 years, the environmental acquis has not steadily expanded and become ambitious over time – a story that dominated early academic accounts of EU environmental policy (see Chapter 4 for details). In fact, the overall picture has been long, more complicated and hence diffcult to interpret; dismantling, expansion and stasis have occurred at the same time and even within the same policy instrument. However, clear and unambiguous examples of policy dismantling have been conspicuously rare over the last 50 years, with EU environmental policy characterised mainly by a mix of stasis and limited expansion. These fndings offer stronger support to the ‘selective activism’ explanation outlined above. Alongside tools to measure what is happening to policy, recent research has also sought to explain why changes have happened. This chapter identifed four ideal types of criticism that are repeatedly levelled at EU environmental action. The ideal types highlighted how critics can be organised alongside not one, but two cleavages (pro/anti-European integration and pro/anti-environmental action). It further discussed how the consensual nature of EU decision-making systems actively hinders dismantling, although the European Commission is nonetheless a critical actor. When it shifts position, it alters the fow of new legislation. Finally, it investigated the impact of both Brexit and the global fnancial crisis on EU environmental action. It showed how, in both cases, selective activism had eventually prevailed, albeit with some ‘back door’ dismantling through post-legislative (or comitology) instruments (what Chapter 11 discusses as transnational decision-making processes) together with a narrowing down in the focus of environmental ambition to more climate mitigation-related issues. Critically, recent research on both crises has confrmed that the European Commission is not an environmental policy entrepreneur by default; instead, it pursues further environmental ambition when it is aligned with its broader political agenda, thus confrming that the current dynamics of EU environmental policy are those of ‘selective activism’. Thus, while the very recent burst of environmental ambition that bore the European Green Deal was welcomed by environmental NGOs, it was narrower in scope (mostly about climate, not environmental issues more broadly) than previous periods of environmental activism. Time will tell whether the levels of political commitment required to put it fully into practice are maintained across the EU institutions and all 27 member states.

Summary points • • •

When describing and explaining the long-term dynamics of EU environmental action, we need to be able to measure the magnitude and direction of policy change. Support for and opposition to environmental action at EU level can be understood as varying along two dimensions: the Europeanness (or otherwise) of the EU and whether it is pro (or anti) environmental protection. The EU’s continued environmental ambition is not a given; recent dynamics have revealed fuctuating levels of support even within the European Commission.

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Key questions 1 2 3 4

Why has measuring policy change proven so diffcult? Illustrate your answer with examples drawn from the existing academic literature. Over the last ten years or so, has EU environmental policy expanded, contracted or stayed the same? To what extent and why do you agree with the claim that the EU should focus more of its political energies on implementing and updating existing policies, as opposed to developing new ones? In your view, which crisis event is likely to have the most long-lasting impact on EU policy-making dynamics: austerity, Brexit or COVID-19?

Guide to further reading • • •

Burns et al. (2019) offer a detailed account of how the 2008 economic crisis impacted environmental policy ambition in Europe, both at EU level and in its member states. A special issue of the journal Environmental Politics (Volume 28, 2019, Issue 2) entitled ‘The Future of EU Environmental Politics and Policy’ offers a comprehensive overview of recent academic work. Bauer and Knill (2012) summarise the existing literature on welfare state dismantling and apply it to a number of cases of policy dismantling in the social and environmental policy felds in the US and Europe.

Online resources • • •

European Commission: Better Regulation, why and how: https://ec.europa.eu/ info/law/law-making-process/planning-and-proposing-law/better-regulationwhy-and-how_en Corporate Europe Observatory: ‘Better Regulation’: corporate-friendly deregulation in disguise? https://corporateeurope.org/en/power-lobbies/2016/06/ better-regulation-corporate-friendly-deregulation-disguise Brexit and Environment: A network of academics analysing the impact of Brexit on the environment: https://www.brexitenvironment.co.uk/

References Bassot, É., and Hiller, W. (2019). The Juncker Commission’s Ten Priorities: An End-of-term Assessment. Brussels: European Parliament. Bauer, M. W., and Knill, C. (2012). Understanding policy dismantling: An analytical framework. In M. W. Bauer, A. Jordan, C. Green-Pedersen, and A. Héritier (Eds.), Dismantling Public Policy (pp. 30–51). Oxford: Oxford University Press.

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Burns, C., and Carter, N. (2010). Is co-decision good for the environment? An analysis of the European Parliament’s green credentials. Political Studies, 58(1), 123–142. Burns, C., Eckersley, P., and Tobin, P. (2019). EU environmental policy in times of crisis. Journal of European Public Policy, 1763, 1–19. Burns, C., and Tobin, P. (2020). Crisis, climate change and comitology: Policy dismantling via the backdoor? Journal of Common Market Studies, 1–18. Burns, C., Tobin, P., and Sewerin, S. (Eds.). (2019). The Impact of the Economic Crisis on European Environmental Policy. Oxford: Oxford University Press. Carter, N., and Clements, B. (2015). From “greenest government ever” to “get rid of all the green crap”: David Cameron, the conservatives and the environment. British Politics, 10(2), 204–225. Čavoški, A. (2015). A post-austerity European Commission: No role for environmental policy? Environmental Politics, 24(3), 501–505. Delreux, T., and Happaerts, S. (eds) (2016). The evolution of EU environmental policy. In T. Environmental Policy and Politics in the European Union London: Macmillan. (pp. 12–40). DG Environment. (2020). Enlargement. Retrieved from https://ec.europa.eu/environment/ enlarg/index_en.htm Downs, A. (1972). Up and down with ecology – The ‘issue-attention cycle’. The Public Interest, 28, 38–50. ENDS Europe. (2013). Green measures blocked by top EU offcial – Sources (01/03/2013). ENDS Europe. Retrieved from http://www.endseurope.com/30858/green-measures-blocked-bytop-eu-offcial-sources European Commission. (2014). Commission Work Programme 2015 : A new start. Brussels: European Commission. European Commission. (2017). White paper on the future of Europe. Brussels: European Commission. Retrieved from https://ec.europa.eu/commission/sites/beta-political/fles/ white_paper_on_the_future_of_europe_en.pdf European Commission. (2019a). Revised text of the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom as agreed at negotiators’ level on 17 October 2019, to replace the one published in OJ C 66I of 1. Retrieved from https://ec.europa.eu/commission/sites/beta-political/fles/revised_political_declaration.pdf European Commission. (2019b). The working methods of the von der Leyen Commission: Striving for more at home and in the world. Brussels. Retrieved from https://ec.europa.eu/ commission/presscorner/detail/en/ip_19_6657 European Commission. (2020a). Air Quality - Existing Legislation. Retrieved from https:// ec.europa.eu/environment/air/quality/existing_leg.htm European Commission. (2020b). Recommendation for a COUNCIL DECISION authorising the opening of negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland. Brussels: European Commission. Retrieved from https://eur-lex. europa.eu/legal-content/en/TXT/?uri=CELEX:52020PC0035 Gravey, V., and Jordan, A. (2016). Does the European Union have a reverse gear? Policy dismantling in a hyperconsensual polity. Journal of European Public Policy. Gravey, V., and Jordan, A. J. (2020). Policy dismantling at EU level: Reaching the limits of ‘an ever-closer ecological union’? Public Administration98(2), 349–362. Gravey, V., and Moore, B. (2019). Full steam ahead or dead in the water? European Union environmental policy after the economic crisis. In C. Burns, S. Sewerin, and P. Tobin (Eds.), The Impact of the Economic Crisis on European Environmental Policy (pp. 19–41). Oxford: Oxford University Press. Green10. (2019). VdL’s ‘one in, one out’ policy ‘incompatible’ with climate efforts. Retrieved from https://www.transportenvironment.org/news/vdl’s-‘one-one-out’-policy-‘incompatible’climate-efforts

354 Viviane Gravey and Andrew Jordan Hilson, C. (2018). The impact of Brexit on the environment: Exploring the dynamics of a complex relationship. Transnational Environmental Law, 7(1), 89–113. Howlett, M., and Cashore, B. (2009). The dependent variable problem in the study of policy change: Understanding policy change as a methodological problem. Journal of Comparative Policy Analysis: Research and Practice, 11(1), 33–46. Jordan, A., Bauer, M. W., and Green-Pedersen, C. (2013). Policy dismantling. Journal of European Public Policy, 20(5), 795–805. Jordan, A., Gravey, V., Moore, B., and Reid, C. (2020). Research Paper on the Level Playing Field Commissioned By Friends of the Earth. Norwich: Brexit & Environment. Justo-Hanani, R., and Dayan, T. (2020). Environmental policy expansion in the EU: The intriguing case of bioinvasion regulation. Journal of Environmental Policy and Planning, 22(3), 315–327. Kassim, H., Connolly, S., Dehousse, R., Rozenberg, O., and Bendjaballah, S. (2017). Managing the house: The presidency, agenda control and policy activism in the European Commission. Journal of European Public Policy, 24(5), 653–674. Knill, C., Steinebach, Y., and Fernández-i-Marín, X. (2020). Hypocrisy as a crisis response? Assessing changes in talk, decisions, and actions of the European Commission in EU environmental policy. Public Administration, 98(2), 363–377. Lekakis, J. N., and Kousis, M. (2013). Economic crisis, troika and the environment in Greece. South European Society and Politics, 18(3), 305–331. Löfstedt, R. E. (2007). The ‘Plateau-ing’ of the European better regulation agenda: An analysis of activities carried out by the Barroso Commission. Journal of Risk Research, 10(4), 423–447. Milman, O., and Holden, E. (2020, March 27). Trump administration allows companies to break pollution laws during coronavirus pandemic. The Guardian. Retrieved from https:// www.theguardian.com/environment/2020/mar/27/trump-pollution-laws-epa-allowscompanies-pollute-without-penalty-during-coronavirus Peterson, J. (2017). Juncker’s political European Commission and an EU in crisis. Journal of Common Market Studies, 55(2), 349–367. Pierson, P. (1994). Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment. Cambridge: Cambridge University Press. Pollex, J., and Lenschow, A. (2020). Many faces of dismantling: Hiding policy change in nonlegislative acts in EU environmental policy. Journal of European Public Policy, 27(1), 20–40. Poptcheva, E.-M., and Eatock, D. (2016). The UK ’s “New Settlement” in the European Union – Renegotiation and Referendum. Brussels: European Parliament. Reed, M. (2016). ‘This loopy idea’ an analysis of UKIP’s social media discourse in relation to rurality and climate change. Space and Polity, 20(2), 226–241. Schaffrin, A., Sewerin, S., and Seubert, S. (2014). The innovativeness of national policy portfolios – Climate policy change in Austria, Germany, and the UK. Environmental Politics, 23(5), 860–883. Sousa, D. J., and Klyza, C. M. G. (2017). “Whither we are tending”: Interrogating the retrenchment narrative in U.S. Environmental policy. Political Science Quarterly, 132(3), 467–494. Steinebach, Y., and Knill, C. (2017). Still an entrepreneur? The changing role of the European Commission in EU environmental policy-making. Journal of European Public Policy, 24(3), 429–446. Vogel, D. (2003). The hare and the tortoise revisited: The new politics of consumer and environmental regulation in Europe. British Journal of Political Science, 33(04), 557–580. Wurzel, R. K. W. (2008). Environmental policy: EU actors, leader and laggard states. In J. Hayward (Ed.), Leaderless Europe (pp. 1–26). Oxford: Oxford University Press.

Part 5

Conclusion

20 EU environmental policy at 50 Retrospect and prospect Andrew Jordan, Viviane Gravey and Camilla Adelle

Summary guide Over the last 50 years, environmental protection has emerged as one of the front-ranking objectives of the EU. Today, the EU has some of the world’s most ambitious and comprehensive protection policies. This chapter begins by summarising the main characteristics of EU environmental policy. Second, it refects on the challenges that the advocates of EU action overcame to build such a signifcant environmental role. It then analyses how and why the focus of policy making in recent decades has shifted away from securing the EU’s legal authority to act, to more managerial priorities such as ensuring that existing policy is fully implemented and insightfully updated. Finally, it looks forward and identifes what is likely to challenge policy makers in the coming decades as the EU attempts to implement its bold Green Deal policies in the aftermath of the COVID-19 global pandemic. Economic expansion is not an end in itself. Its frst aim should be to enable disparities in living conditions to be reduced. It must take place with the participation of all the social partners. It should result in an improvement in the quality of life as well as in standards of living. [P]articular attention will be given to intangible values and to protecting the environment, so that progress may really be put at the service of mankind. (Statement from the Paris Summit, 19–21 October 1972) (Bulletin of the European Communities, October 1972, No. 10)

Introduction With this bold statement, the heads of the then 12 member states formally instigated a process of developing a common EU-wide environmental policy. Although some minor environmentally related items of policy were already on the EU’s statute book in 1972, most environmental policies in Europe had until then been developed by states acting independently in their own distinctive national settings. While extensive and wide-ranging, these national policies did not fully address the increasingly transboundary nature of many environmental problems. The Paris meeting aimed to promote more coordinated environmental action. Shortly afterwards, the Commission began to steer the EU towards the European Council’s vision of a more sustainable Europe – one that still seems remarkably visionary today, some 50 years later. In 1972, other supranational bodies such as the OECD and UN were also embarking on similar journeys. But since then, the EU has moved further and faster than they DOI: 10.4324/9780429402333-20

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have towards a pattern of deep and enduring policy coordination. Today, environmental policy is a front-ranking political objective of the EU. It is also a relatively mature area of EU activity, which is ‘broad in scope, extensive in detail and often stringent in effect’ (Weale et al., 2000: 1). In many sub-areas of policy, which touch upon all levels of governance from the international right down to the street level, the EU is an advocate of high environmental standards. According to the EEA, they constitute ‘the most comprehensive set of environmental standards in the world’ (EEA, 2019: 61). The chapters of this book have charted the EU’s environmental ‘journey to centre stage’ (Haigh, 2016), pinpointing the key actors, institutions and processes of environmental policy making. The key actors include DG Environment, the Environment Committee of the European Parliament and the EEA, around whom orbit a number of other actors, including interest groups, scientifc organisations and governmental bodies. The main institutions are both legal – chiefy the founding treaties and the main items of environmental law and policy – and procedural. Finally, new processes of policy making have been established which allow the EU to absorb political demands for collective action and fashion them frst of all into policy outputs (laws, rules and policies) and, eventually, environmental improvements on the ground in the 27 member states. The main aims of this concluding chapter are threefold. First of all, it summarises the main characteristics of EU environmental policy, emphasising those which most strongly distinguish it from international and national policy. Second, it characterises the EU as a complex, multi-levelled environmental governance system and identifes key challenges that advocates of greater EU action had to overcome since 1972. It reveals how and why their focus has shifted on from securing the EU’s political and legal authority to act, to more managerial priorities such as ensuring that policy is fully implemented and insightfully evaluated. Third, it considers if EU environmental policy is now a system in equilibrium. Finally, it looks forward and identifes future challenges, including implementing the EU’s bold European Green Deal in the aftermath of the global COVID-19 pandemic.

Summary points • • •

EU environment policy formally commenced at a meeting of heads of state in 1972. Over the next 50 years, the EU made far greater strides in developing coordinated protection policies than other broadly comparable supranational organisations such as the OECD and the UN. This chapter summarises the main characteristics of EU policy, outlines the challenges that the EU had to overcome to develop a role in the environmental sector and explores some of the challenges that may emerge in coming decades.

The main characteristics of EU policy Over the last 50 years, environmental protection has been transformed from a rather discrete, ‘niche’ activity (Lenschow, 2020: 297) to a signifcant and wide-ranging policy sector in its own right, with distinctive actors, institutions and policy processes.

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As it developed and matured, EU environmental policy has assumed certain defning characteristics, that differentiate it from policies developed at national and international levels. Without wishing to be exhaustive or to over-state the uniqueness of EU policy, the chapters of this book have revealed that it is: •

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Broad in its aims and focus: its four overarching objectives are very succinctly stated in the Lisbon Treaty (TFEU, Article 19) (see Box 1.3). The focus of its protection activities is correspondingly wide-ranging, encompassing very specifc sub-sectoral concerns such as waste, air and water pollution, through to those that impinge heavily on cognate sectors such as genetic modifcation, biofuels, carbon capture and storage and access to environmental information. In that respect, the cross-sectoral reach of EU environmental policy is little different to most national policies in the industrialised world. Actively informed by (and has been engineered to give substantial effect to) a set of overarching policy principles: these principles, which include the polluter pays, prevention and policy integration, are also well-established in UN law. But the EU has given them quasi-constitutional status, through enshrining them in its founding treaties (Benson et al., 2019), and used them to build seven comprehensive action programmes and many hundreds of items of law and policy. In fact, some of the principles have become almost synonymous with the EU. They include ‘precaution’, ‘subsidiarity’, ‘sustainability’ and ‘environmental policy integration’. In a sense, they are the EU’s ‘specialisms’ (Chapter 12) that embody its particular philosophy of environmental protection. Relatively ad hoc in nature: in spite of its breadth, scale and scope, EU policy is largely the product of ‘political action but not of political design’ (Weale et al., 2000: 488). It is an intricately embroidered ‘policy patchwork’ (Chapter 4) that emerged incrementally over time, rather than in response to a master plan drawn up in Brussels. Where problems spanned political borders or involved a clear trade dimension, the value added of EU involvement was more obvious and common policies were adopted relatively quickly. But many issues, which are now actively governed by the EU, have never exhibited a strong trade dimension: zoos, bathing and drinking water quality, waste water treatment, nature protection and renewable energy supplies for example. This feature has long puzzled scholars as other supranational organisations such as the UN do not ordinarily involve themselves in directly governing such local matters. Mainly regulatory in nature: despite many attempts to engage in policy instrument ‘innovation’ (Chapter 4), the EU still operates mainly as a ‘regulatory state’. The lack of a legal base in the treaties supporting fscal measures has certainly helped to retard the use of environmental taxes, as has political resistance from vested interests. Voluntary agreements have been trialled but not extensively employed at EU level. Nevertheless, the EU still has many more policy instruments in its toolbox than other international organisations. Ambitious with respect to both its scope and its effect: one of the most fundamental weaknesses of international policy is that it struggles to rise above the lowest common denominator of state preferences. But over the last 50 years, the EU has sought to go well above and beyond the lowest common denominator of member state preferences (see Chapters 4 and 11) and adopt policies that ‘aim at a high level of protection’. In fact, this aim is enshrined as a treaty objective (TFEU, Article

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Andrew Jordan et al. 191 (2)). The EU has done so for various reasons, including the entrepreneurial activities of actors such as the Commission and the Parliament, expansive rulings by the CJEU and the campaigning activities of environmental interest groups. A powerful determinant of national policy and politics within Europe: the frst few items of EU policy may have landed on ‘virgin ground’ in the member states (see Chapter 7), but nowadays, almost all new policy development in Europe is determined in or involves the EU (Börzel and Buzogány, 2019). It is impossible to understand the environmental policy of any of the member states without understanding EU policy (Haigh, 2000), as the two have become inextricably intertwined. Europeanisation is the process through which EU-level policies affect and transform domestic policy and political systems. Scholars have shown that every member state has been deeply Europeanised by the EU since 1972, even the socalled environmental leader states (Chapter 5) that originally encouraged the EU to adopt high standards. In states with less well-developed environmental policies, the combined EU effect since 1972 has been even greater (Jordan and Liefferink, 2004). Crucially, EU policy creates a set of minimum standards which member states of all levels of ambition and internal capacity fnd diffcult to regress from when, as often happens, political and economic conditions change (see Chapter 19). Finally, the EU does not simply Europeanise policy objectives and standards: it also disseminates policy processes such as impact assessment and ex post evaluation (Chapter 14), as well as, via its agencies such as EEA, the basic raw materials of policy development: scientifc knowledge, monitoring data and best practices (Chapter 6). Remains fexible enough to allow member states to maintain some distinctive national approaches: while core aspects of national policy have become more similar through their interaction with EU policy, there has been no long-term convergence towards a standard ‘EU-inspired’ model or policy blueprint. The 27 member states routinely ‘customise’ EU policy requirements (Chapter 13) in noticeably different ways, but not to an extent that hinders trade. Despite what some Eurosceptics may think, ‘Brussels’ is not all powerful – there is a basic and fundamental ‘diversity in unity’ (see Chapter 4), which is facilitated by the widespread use of a specifc type of policy instruments know as a directive, which dictate the ends to be achieved rather than the precise means of policy. Maintaining or adopting more stringent national measures remains possible in some cases (see TFEU, Article 193). Affects standards in other parts of the world: the EU is an international actor in its own right and a party to around 60 international environmental agreements – a right which was ‘hard won’ (see Chapter 15). Even today, the EU has no formal voting rights in the UN. International environmental diplomacy is, moreover, only one of several ways in which the EU seeks to give effect to its Treaty-based commitment (TFEU Article 193 (1) to address international environmental issues). Although its international ambitions have regularly overstretched its policy delivery capabilities (Adelle et al., 2018: 356) and there have been ‘major disappointments’ along the way (see Chapter 15), the EU has learnt to deploy a wide array of different levers, such as its ‘market power’ (Damro, 2012), to push other parts of the world to align with its preferred environmental standards – giving effect to what is sometimes known as the ‘Brussels effect’ (Bradford, 2020) (see also Chapter 3). On occasions, its efforts have triggered political disputes with some of its trading partners such as the US (in relation to plans to include international aviation in the EU ETS) and Canada (which objected to the EU’s policies on tar sands)

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(see Chapter 9). Soft and market power have also been repeatedly deployed much closer to home to infuence environmental practices in aspiring member states via the formal mechanism of EU enlargement (Pollack et al., 2015: 477). Are nevertheless heavily infuenced by international policy processes. For example, Chapter 16 noted that the conclusions of the 1972 Paris summit (quoted above) were a response to the world’s frst UN environmental conference held in Stockholm in June 1972. Similarly, the EU landmark ETS – the world’s largest emissions trading system – would not have been created had the EU not previously signed up to an international (Kyoto) protocol in 1997 (Chapter 17). International and EU policies are in other words ‘mutually constitutive’ (Chapter 15). Aware of the potential political potency of this, the Commission has repeatedly sought out international agreements on matters such as the SDGs, in the hope that they would also boomerang back into the EU and foster political pressure for more ambitious internal policies (Jordan and Moore, 2020). Has been relatively effective: EU policy has delivered many important policy successes. But the EEA’s most recent fve yearly state of the environment report began by emphasising that the EU must nonetheless confront environmental problems of ‘unprecedented scale and urgency’ (EEA, 2019: 9). Time and time again, the scale and speed of human development has overtaken the EU’s policy achievements (see also Selin and Van Deveer, 2015: 310). What is or is not done in the next ten years will be of ‘decisive importance’ if the EU wishes to implement the vision that lies at the heart of its Green Deal (EEA, 2019: 9). Relatively popular with EU citizens: unlike some other policy areas, the basic rationale for EU involvement in environmental protection is widely understood and appreciated by the public. Eurobarometer polls regularly attest to the relatively high levels of support for EU-level action (Eurobarometer, 2017), particularly on issues related to climate change (Eurobarometer, 2019). Although the public’s support is not unconditional – on which more below – it nonetheless represents a signifcant and somewhat surprising achievement, given the relative remoteness of Brussels from national politics and the relatively limited effect that public opinion has in shaping EU policy agendas (see Chapter 10).

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Summary points • • • •

As it matured, EU policy assumed a number of unique characteristics, which differentiate it from international and state policy. These characteristics include policy that is: broad in focus; informed by guiding principles; mainly regulatory; and ambitious in scope and effect. Nowadays, EU policy is a powerful determinant of national policy and politics within Europe, but fexible enough to allow differences in national approach. Although less fully accomplished than its internally focused policies, the EU also has signifcant ambitions (and policies) to infuence environmental quality outside Europe.

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Environmental policy at 50: a stocktake The EU as a system of multi-level governance Having summarised the main characteristics of EU environmental policy, what about the wider political system in which it is embedded? As noted above, the EU does not ft easily into the conventional categories used by policy analysts, being neither a sovereign state nor a relatively toothless international organisation. Today, there are still the same basic levels of governance that existed in 1972 (i.e., international, national and sub-national), but the EU now constitutes a distinct level of governance in its own right. Moreover, at this new level, there are actors present that did not even exist in 1972. It may not always mean a great deal to those living outside the Brussels ‘bubble’, but it is politically signifcant that the environment has its own designated ministerial forum – the Environment Council (see Chapter 5). The European Parliament too has its own committee dealing with environmental affairs, and the EU has an agency – the EEA – based in Copenhagen, whose main task it is to collect and disseminate environmental knowledge. It is immensely important in politics to have strong institutional anchor points such as these, when national policy agendas are in constant fux (see Chapter 10). In addition to these anchor points, there are many other actors who, while being attentive to EU-level activities, principally operate at a national level (e.g., national ministries and agencies, national parliaments and political parties). Finally, the chapters of this book have also identifed another set of actors that moves seamlessly between all the levels (environmental lobby groups and national civil servants, for example, as well as internationally oriented businesses and lobbyists, see Chapter 9). If the EU is not a state or an international organisation, what kind of political system is it? The term that is often used to describe it is a system of ‘multi-level governance’. As Börzel (2010: 191) and others have helpfully pointed out, the EU has hierarchical powers, including the ability to fne member states and withdraw their voting rights, but generally chooses not to use them. In other words, the governance of the EU operates in the ‘shadow of hierarchy’ (Börzel, 2010: 209). Green political theorists have long debated the form that the modern state should adapt to be environmentally optimal (Dobson, 2000). Many believe that states are too big and ponderous to deal with local matters, but too small and puny to deal with problems that span borders. Some maintain that in the EU, Europe has gradually settled on the best combination of both forms – the ‘closest real-world approximation’ that we have to a genuinely ‘green state’ (Eckersley, 2004: 251).

The ‘process of becoming’: challenges overcome In Chapter 1, we noted that the EU has always been a work in progress – a ‘process of becoming’ (Laffan et al., 2000: 193). One point which emerges from the chapters in Part I is that over the last 50 years, this process has often been against the odds. First of all, EU policy originally lacked an uncontested basis in the Treaty of Rome (see Chapters 2 and 4 for further detail). This forced the Commission to rely on an ad hoc strategy of purposeful opportunism, i.e., focusing on the mundane technical task of how to harmonise standards in an emerging single market, rather than grand policy planning. Fifty years on, lawyers would prefer the acquis to be more neatly and logically organised around a set of clear underlying legal principles (Lee, 2014). But some messiness was arguably inevitable, given the Commission’s necessarily incremental working strategy. Although things eventually changed in the 1980s, environmental

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protection still does not enjoy the same status in the treaties as that of free trade (Chapter 7). When the two have conficted, the latter has generally been treated as the overriding priority. Crucially, EU policies which restrict trade are ‘always very carefully defned and bounded’ (Sbragia, 2000: 223). The second challenge was how to overcome the need for unanimous agreement in the Council (Deters, 2018: 317). This may not sound particularly important, but it is something that continues to hold back other supranational bodies such as the UN. The Commission responded by pushing for European ‘integration by stealth’ (Majone, 2009) – i.e., focusing on the detailed technical content of new legislative proposals whilst at the same time pushing for treaty changes, which eventually introduced more majority voting (see Chapter 1 for details) (Zito et al., 2019: 187). It is a measure of how far this process of constitutionalisation had progressed by the 2000s that the most recent amendment – the 2009 Lisbon Treaty – had relatively limited effect on most aspects of EU environmental policy making (but see Chapter 15). It is telling that this edition of the book is the frst not to include a chapter dedicated to explaining the effects of recent treaty changes. Nevertheless, there are still some important sub-areas of environmental policy where the EU’s role is not completely accepted – and hence the Council operates on the basis of unanimous voting. These include land use planning, green taxation and the selection of energy supplies. Third, there has never really been a strong, EU-wide party–political coalition pushing for stricter environmental policies (Chapter 4). The Greens have been the most consistent champions and have enjoyed repeated electoral success in Northern states and of course in the Parliament itself (Chapter 8). But even today, they have very little presence in the southern and the eastern parts of the EU (in the 2019 Parliamentary elections, not a single Green MEP won a seat in the ‘EU 12’ or Italy). Many EU policies have, however, imposed signifcant adaptation costs on some member states as well as powerful actors such as businesses (Chapter 9). Policies that do this tend to foster political opposition against themselves, eventually slowing down or halting new policy adoption. But by acting stealthily and employing consensus-forming strategies (e.g., delaying the imposition of costs into the future, using side payments and engaging in package dealing – see Chapter 10), pro-environmental actors have been able to expand the stock and scope of EU environmental policy measures. In fact, many actors that initially opposed EU action – the water, waste and energy supply industries to name just three – eventually benefted massively from the greater investor confdence that EU policies provided, and now actively support greater EU action. In other words, strong policies have, through time, created new political dynamics supporting a higher level of protection. In the policy sciences, this phenomenon is known as policy feedback (Jordan and Moore, 2020). Fourth, the EU has always had – and in all probability will continue to have – a strongly ‘economic bias’ (Chapter 2), focusing strongly on the removal of barriers to trade (see Chapters 9–11). Even after 50 years of steady policy expansion, EU environmental policy makers still enjoy much weaker enforcement powers than those working in the trade and competition sectors (see Chapter 7). At a general level, policy theory – and specifcally Anthony Downs’ account of political agenda setting (see Chapter 19) – suggests that economic factors repeatedly disrupt and retard policy expansion. However, pro-environmental actors have nonetheless managed to invent strategies to spot and exploit synergies between environmental protection and the pursuit of economic growth – such as via the ideological framings of ecological modernisation and ‘green growth’ (Chapters 9 and 16). As Chapter 10 made clear, framing a new policy proposal

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in such terms has become a tried and tested agenda-setting tactic within Brussels. For example, in 2011, DG Environment (2011) produced a consultancy report that sought to calculate the net social costs of not implementing EU environmental rules. But other areas of EU action, such as biodiversity protection or access to information, have found it harder to reframe their ideas in more politically tractable ways, hence the emerging debate about the bio-economy and ecosystem services (Chapter 16). Starting in 2004, the EU was confronted by two further challenges which together forced a more fundamental reappraisal of both the means and the ends of policy. First of all, the number of member states began to change quite signifcantly. The EU has repeatedly expanded in the past 50 years, from just 6 states in 1957 to 27 in 2020, although mostly for ‘non-environmental’ reasons. Each new wave of entrants increased the economic, social and administrative diversity of the EU, but somehow EU environmental policy continued to march onwards. With regards to the frst enlargement (in 1973, when the UK, Ireland and Denmark joined), the environment was hardly salient at all (Selin and Van Deveer, 2015: 322). The 1981 enlargement (to include Greece, Portugal and Spain) raised more signifcant environmental issues but these did not signifcantly disrupt the steady rhythm of EU environmental policy expansion. And the next (1995) enlargement – when the Nordic member states and Austria joined – arguably strengthened the group of environmentally progressive states in the Council (see Chapters 2 and 5). However, the 2004, 2007 and 2013 enlargements were quantitatively and qualitatively very different, rapidly increasing the size of the EU (from 15 to 28 member states) and signifcantly altering internal power dynamics (see Chapters 2 and 4). Relatively quickly, the EU was transformed from an economically relatively homogenous West European club to one that is now truly pan-European, encompassing states at very different level of industrial development. Initial fears that such a sudden increase in diversity would immediately lead to institutional paralysis were not borne out, however. Indeed, the associated growth in the EU’s combined ‘market power’ arguably strengthened the EU’s hand in international negotiations on the environment, on trade and other matters (see Chapter 15). Nevertheless, the post-2004 enlargements have undoubtedly impacted the internal political dynamics of policy making, raising doubts as to whether the traditional and mostly informal methods of manufacturing consensus – package dealing, side payments, fuidity in matters of external representation (see Chapters 10 and 15), etc. – are still ft for purpose. In the Council, a new subgroup – the Visegrad Group – formed and began to retard the pace and scope of climate and energy policy making. The Group’s determination to water down the EU’s 2008 climate energy package was an early harbinger of what was to follow (see Chapter 5). In 2019–2020, the Group again made its presence felt, delaying the EU’s attempts to adopt a net zero greenhouse gas reduction target (by 2050) and complicating the adoption of a new interim reduction target for 2030 (the existing target of 40% was adopted before the signing of the Paris climate Agreement). However, it is an open question as to whether recent enlargements signifcantly worsened the EU’s overall implementation record; research reported in Chapter 13 reveals that the compliance records of the post-2004 member states may be as good if not better than the EU-15’s. Nevertheless, whether or not the EU still has, in the light of these experiences, the political appetite to absorb more member states, e.g., from the Western Balkans, is a very salient question indeed. Meanwhile, the size of the EU changed again in 2020 when, for the very frst time, a member state (the UK) departed the EU. Before Brexit, the EU had only ever enlarged.

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Although the EU only reduced by one state, the UK was an especially large and economically powerful one. When the shock result of the EU referendum was announced in 2016, it prompted a great deal of fevered speculation that it might embolden other states to head towards the exit door, culminating in a gradual unravelling of the whole Union. At the time of this writing, this has not happened. Indeed, the EU-27 have managed to maintain unity throughout the politically fraught exit negotiations and on into the negotiation of a new trading agreement. As Chapters 5 and 19 made clear, Brexit will eventually feed through to and infuence EU-level policy-making dynamics (the UK was an especially consistent advocate of stronger climate policies and better regulation-type initiatives). But in the meantime, most of the uncertainty has been around the future scope and stringency of UK policy and governance as the country attempts to establish a new relationship with the EU and other trading partners. The second additional challenge was the long period of economic austerity that unfolded in the wake of the 2008 fnancial crisis. The EU’s willingness to engage in international environmental leadership certainly faltered in the wake of the crisis, most spectacularly at the Copenhagen Climate Summit. After 2009, the EU struggled to agree more ambitious emission reduction targets (Jordan and Moore, 2020), some claiming that to do so would encourage large industries to re-locate to states with lower standards (‘carbon leakage’). Environmental groups warned that the various bailouts provided to indebted member states and business sectors such as car manufacturing would help to lock in dirty sources of energy and unsustainable, road-based patterns of transport. It is widely accepted that the frst new (Juncker) Commission after the crisis gave far less political emphasis to environmental issues than its predecessors (Burns and Tobin, 2016), prompting fears that environmental policy as a whole would not simply stagnate, but go into reverse. During the Juncker Commission, the environment and fsheries Commission portfolio were merged, major new proposals (on soil protection and a circular economy) were withdrawn and fundamental evaluations of keystone policies (namely, the nature directives) were announced with an eye towards reforming them. And there was a marked decline in the number and stringency of new environmental policies adopted after 2008 (Wurzel et al., 2019; Burns et al., 2020). But as Chapter 19 made clear, there was no signifcant dismantling of existing policies.

Summary points • • • •

The EU has constructed a multi-levelled system of environmental governance which is unique in the world. While the EU has access to relatively strong hierarchical powers, they are rarely deployed in practice; EU governance generally operates in the shadow of hierarchy. Over time, EU policy has overcome a number of challenges, including the absence of a secure basis in the Treaty of Rome and the need for unanimity in the Council. After 2004, the EU confronted two additional events which heavily challenged established dynamics of policy making: persistent economic austerity and repeated alterations in EU membership (including Brexit).

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The EU: an environmental governance system in equilibrium? Environmental policy enters a new era? In the period since the publication of the third edition of this book (2013), the EU has adopted a number of signifcant new policies and initiatives, for example: •

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On sustainable fnance, a detailed ‘taxonomy’ of what constitutes green investments, as part of a wide package of legislative measures aimed at fostering fnancial sector involvement in and channelling capital towards more sustainable economic measures. In time, the EU hopes to use this taxonomy to determine ‘green labels’ for green bonds and other investment products. An extensive package of new climate and energy policy measures to deliver on the EU’s 2030 framework. These included revisions to many existing directives on, for example, emissions trading and renewable energy (RED II) (Jordan and Moore, 2020). Interestingly, the new emissions trading directive provides for the creation of a new environmental fund (the Modernisation Fund), replenished from the auction of emission allowances, to support low-carbon energy projects. A circular economy action plan to ensure that resources are used more intensively. Launched in 2020, it includes proposals for six new directives on waste and a new strategy on plastics. One important theme of the plan is to extend existing ecodesign rules beyond energy performance to cover other aspects such as durability and repairability (i.e., to address the throwaway society). A high-profle Directive on single use plastics – making it illegal to market plastic cutlery and expanded polystyrene cups (see Box 10.1) – and a Regulation on CO2 emissions form lorries. The share of the EU’s greenhouse gas emissions from the transport sector is projected to rise in the future and this new law is the frst time that lorries have been subject to binding greenhouse gas emission controls at EU level.

In addition to these, in December 2019, the Commission launched, with great fanfare, a European Green Deal that aims to put the EU on a new growth trajectory (COM (2019) 640, fnal). The detailed contents were summarised in Chapters 12 and 16, but amongst the most eye-catching elements were a series of what the Commission promised would be ‘deeply transformative policies’ (COM (2019) 640, fnal: 4), including: • •

•

A new Climate Law – which will set the EU on a path to become the frst climate neutral continent in the world, i.e., requiring all emissions to be reduced effectively to zero within 30 years (i.e., 2050). A proposal to tighten the existing 2030 emission reduction target to 50% and possibly 60% to ensure that the EU is frmly on track to be the world’s frst climate-neutral continent by 2050. By 2021, all relevant existing climate-related policy instruments will be reviewed and where necessary revised in light of this challenging new target (COM (2019) 640, fnal: 4–5). A ‘green oath’ – to ensure that all future policy proposals ‘do no harm’ to the environment (COM (2019) 640, fnal: 19). These new policy proposals will address signifcant ongoing biodiversity loss, promote environmentally friendly farming (‘Farm to Fork’) and signifcantly reduce the use of polluting chemicals.

Finally, the Commission proposed a brand new (eighth) EAP setting out a road map for ‘decisive further action in the EU and globally (…) that gives back to the planet

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more than it takes’ (COM (2020) 652 fnal: 1). EAPs have often been criticised as more aspirational than transformative. But the new programme sets clear targets for the EU (covering climate neutrality, the delivery of a just decarbonisation transition and the UN SDGs) and, critically, offers new tools to hold the EU accountable for fulflling them. These tools include a new monitoring mechanism and a pledge to comply fully with the Aarhus Convention (see Chapter 18), which will make it possible for interest groups to challenge EU decisions which have general, not only individual, scope (on the crucial issue of legal standing, see Chapter 7). … or a system in equilibrium? The European Green Deal was as puzzling as it was impressively presented, because it emerged at a time when many observers thought that EU environmental policy had attained a state of political and institutional equilibrium, which beftted a middle-aged organisation. If the initial phases of policy making (described in Chapter 2) were dominated by the youthful urge to build institutions, occupy new policy niches and establish a legal toehold, the ‘high period of EU environmental policy ambition [was] over’ by the mid to later 2010s (Burns et al., 2019: 3). In the third edition, we already noted the marked reduction in the output of new legislation after 2004; those policies that were adopted tended to incorporate greater fexibility, allowing member states to integrate at different speeds (Deters, 2018: 321). Suddenly, the salient political issues were not whether the EU should be involved, but more procedural ones such as how it should act, with whom and for what purpose (see also Chapters 10 and 19). Matters such as openness, transparency, policy coordination, policy implementation and ex post evaluation have long concerned national-level policy makers. Their growing salience at EU level did not imply an end to environmental politics, but suggested that a more managerial kind of politics had gradually taken over. There were several notable features of the more managerial politics that took root in the 2000s and 2010s. They stemmed from a recognition that after decades of policy expansion, greater effort probably should be devoted to ensuring that the acquis remained up to date. The Commission responded by establishing new processes for these purposes – impact assessment, ftness checking and so on – which turned out to be every bit as political as the initial phases of EU policy environmental policy. Second, the more managerial politics took root because several actors had adapted their own preferences and strategies to changing external events. For instance, the Council arguably became more split, particularly along an East–West axis, with particular sub-groups emerging and blocking agreement when it did not suit their interests. The European Council has begun to take a more active interest in environmental and particularly climate policy making, reducing the scope for the EU institutions to act on their own initiative. The EU institutions are themselves also exercising more self-restraint, resulting in shorter, more ‘selective’ bursts of policy activism (Chapter 19). The Commission is arguably not as entrepreneurial as it once was (Deters, 2018: 321). It probably realises that it does not always have to be entrepreneurial – its basic competence to act has more or less been accepted by the other actors. In fact, recently, it offered to share some of its agenda-setting power with the Parliament (Chapter 6). Meanwhile, the Parliament also became a more fragmented legislature making it harder to build internal coalitions favouring new policy action. It is also using its own hard-won powers more selectively (see Chapter 9).

368 Andrew Jordan et al. Understanding and implementing transformative policy change So, what changed in the late 2010s to facilitate the unexpected emergence of the Green Deal? Agenda-setting theories, neatly summarised in Chapter 10, offer some important clues. First of all, in 2019, there was a sudden burst of public interest in environmental issues, following a series of high-profle school strikes initiated by the teenage activist Greta Thunberg and public marches in many European capitals which were attended by many hundreds of thousands of people. Other radical activist groups such as Extinction Rebellion began to alter the framing of climate change from highlighting the business opportunities to underscoring the fact that they represented an urgent almost existential crisis. Other environmental groups extended this framing to issues such as biodiversity loss and plastic waste in oceans, using the same crisis-laden terminology. In its 2019 state of the European environment report, the EEA predicted that the EU would fall well short in fulflling the goals identifed in the Seventh EAP. In spite of progress in some areas, it underlined the need for a suite of new policies that generated faster and more transformative change in the underlying systems of food production, transport and energy supply (see also Eurostat, 2019). Second, the EU came under greater pressure to live up to the international commitments to deep decarbonisation that it had entered into at the 2015 Paris conference, illustrating yet again the politically potency of the inside-outside dynamic outlined above and in Chapter 15. Third, on the back of these developments, the Green political parties did spectacularly well in the May 2019 European elections, increasing their seats by 50%, which for a period, made them the fourth largest political grouping in the Parliament. This ‘green wave’ forced Ursula von Leyen to pivot towards environmental issues to secure her election as the next Commission President. As part of her pitch, she even placed the environment at the top of her list of political priorities during her term in offce (2019–2024). Once elected – and within the frst 100 days – her Commission published the European Green Deal outlined above, which made repeated references to the need for ‘deeply transformative’ policies (COM (2019) 640, fnal: 4). In fact, on her very frst day as President, she told world leaders that the Green Deal was ‘Europe’s new growth strategy’ which would not simply set the EU on a radical new course, but drive a new wave of economic development that bound the whole continent closer together. It was heady and relatively novel stuff – the mere idea that a Commission President would make such bold promises would have seemed completely far-fetched even a few years earlier. Suddenly, the environment and climate change were being presented not just as important aims of EU action, but the most important aims towards which all other sectors would align. She likened it to putting the frst man on the moon (Nicolas, 2019) – immensely challenging, but feasible if there was suffcient political will. The sudden change from managerial to transformational ‘man on the moon’ politics and policy making certainly poses signifcant analytical challenges for EU scholars. Over the last 50 years, EU environmental policy has adopted a range of different forms. Alongside, the standard legal instruments of policy (Directives, Regulations, etc.), there are now myriad secondary laws (delegated acts) (Lee, 2014) as well as methods of open coordination such as the NECPs that are less hierarchical than legal harmonisation. Add in the fact that all these policy forms can potentially move in a more or less ambitious/stringent direction, and it becomes clear why academics are struggling to comprehend the changing scope and ambition level of EU policy.

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For example, in seeking to determine whether policy is being dismantled, should they count the number of policy items or assess their stringency or concentrate on how they are being implemented (Chapter 19)? To complicate matters still further, how should they assess the effects of environmental policy beyond the EU’s borders – a signifcant policy phenomenon (EEA, 2019) but one that is fendishly complex to study across space and time (Adelle et al., 2018)? It does not help that the EU’s infuence is projected externally via a mixture of interacting policy mechanisms (development assistance, internal policies, forms of technical assistance, free trade agreements, etc.), which affect different parts of the world at different rates (Kettunen et al., 2020). In short, as the scale and reach of EU environmental policy has grown, so has the analytical diffculty of describing and explaining it.

Summary points • • •

The more managerial politics of the 2000s and 2010s were characterised by the discussion of seemingly technical issues such as policy refnement and updating. By contrast, the Commission presented the European Green Deal as a ‘man on the moon’ strategy to shift the EU onto a radically different growth trajectory. It arose from an unexpected confuence of different factors: more urgent scientifc warnings of imminent environmental crises; the rise of new, radical action groups; and mounting public concern.

Looking to the future: emergent challenges and opportunities The EU’s apparent determination to embark on a new growth strategy certainly poses a number of immediate, practical challenges. This section examines what these are likely to be, starting with the most immediate and obvious of all (how will the EU achieve what it now wants to do?). Then, it moves on to examine questions of a more existential nature (e.g., the EU’s relationship with its citizens and, ultimately, its ultimate purpose in life). Crucially, the newer challenges are themselves layered on the existing challenges outlined above – greater internal differentiation, economic austerity, etc. The frst and perhaps most obvious immediate challenge is ensuring that the EU has the capacity to deliver on the sweeping policy promises contained in the Green Deal. The Commission’s initial Communication pointedly referred to the need to harness ‘all policy levers’ (COM (2019) 640, fnal: 4), including entirely new instruments such as a carbon border adjustment tax to prevent carbon leakage and meet some of the projected costs of the EU’s unprecedented, multi-billion Euro COVID-recovery plan (see Chapter 6 for details). We have already noted that EU policy is still largely pursued via regulatory means. Crucially, when they have been employed, the alternatives have not always outperformed regulation (the voluntary agreement on car emissions being a good example, see Jordan and Moore, 2020). The EU has also innovated in the way that it has adopted new policy-making procedures (Impact Assessment, for example)

370 Andrew Jordan et al. and/or governance processes to cover issues in which its competence is contested (e.g., the use of the Open Method of Coordination in the area of climate change adaptation and climate/energy planning). But does it genuinely have the capacity to transform whole systems of production and consumption commensurate with net zero emissions? Regulation will probably have an important part to play in the way the EU responds, but its limitations are well known and diffcult to overcome (Chapter 17). In spite of repeated efforts to address the situation, something as apparently straightforward as implementing the existing stock of laws and policies stubbornly remains the ‘Achilles’ heel’ of EU policy (Chapter 13), as the EEA and many others have repeatedly pointed out (EEA, 2019: 423). The Green Deal also makes bold promises to deliver greater cross-sectoral policy coordination – another challenge that the EU has repeatedly struggled to overcome since 1972 (see Chapters 12 and 16). The second challenge relates to whether the EU has the capacity to fulfl ambitious environmental and climate objectives in an era of persistent economic constraint. In the early 2000s, European leaders tried to improve the economic competitiveness and productivity of the EU as part of a concerted effort to keep pace with the rising economic powers of Brazil, India and, most of all, China. After the start of the fnancial crisis in 2008, environmental policy began to be portrayed as an expensive luxury and, as noted above, new policy ambitions were signifcantly scaled back. In the late 2010s, the political appetite for policy expansion began to recover, resulting in the European Green Deal. But no sooner had this been launched, than the EU succumbed to another economic crisis, related to the COVID-19 pandemic. Initially, the Commission sought to use the pandemic to entrench support for a Green Deal-led recovery, underpinned by a massive fnancial recovery package. Signed off by the European Council after marathon talks in July 2020, the package supplemented the EU’s normal seven-year spending plan (MFF) with up to euros 750 billion of borrowed money (dubbed ‘Next Generation EU’) that will be handed out to member states in the form of grants and loans. Crucially, at least 30% of the MFF will be devoted to spending that supports climate change. The plan is that the Next Generation EU will be partly paid for via the sale of ETS emission allowances and, possibly, the proceeds from the Carbon Border Adjustment Tax. Nevertheless, it remains to be seen whether the political consensus that originally bore the Green Deal and COVID-19 recovery packages can be maintained into the future, particularly if job losses and costly economic impacts begin to stack up. Or to put it slightly differently, will the Green Deal mark a new phase of EU environmental policy making, or the continuation of existing dynamics? The answer to this question will become apparent as the EU starts to work through the fne detail of implementing both. Third, there is the ongoing challenge of ensuring that the EU remains democratically legitimate. No system of governance – let alone a young, multi-levelled one with relatively insecure democratic foundations – can possibly hope to endure unless it is seen as legitimate by its citizens. As discussed in Chapters 2, 4 and 18, the EU began life as ‘an elitist project’, supported by an implicit acceptance amongst the public that deeper European integration was an inherently good thing. Environmental policy has benefted greatly from the Monnet Method of integrating ‘by stealth’ (Weale et al., 2000: 488). There is mounting evidence to suggest that citizens have become disillusioned with this way of working. After 2000, turn-out at European parliamentary elections declined signifcantly and anti-EU political parties began to emerge. Some

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argue that the passive consensus in favour of ‘more Europe’ has been replaced by a ‘constraining dissensus’ (Hooghe and Marks, 2008). So what is to be done about it? One option is to concentrate on producing more of the policy outputs that citizens appear to care about. This is what political theorists term ‘output legitimacy’ and it is what EU environmental policy makers have arguably spent the past 50 years building up. As noted above and in Chapter 18, Eurobarometer polls regularly cite the environment as one of the most popular of all the EU policies. However, it is an open question whether output legitimacy is capable of underpinning the delivery of something as broad ranging and ambitious as the European Green Deal, particularly if it impinges on the daily lives of EU citizens. While a radical shift to low-carbon technologies maybe a source of growth and jobs for the Eurozone as a whole, it will inevitably cause disruption in areas that are heavily reliant on the production of fossil fuels such as coal or vehicles powered by internal combustion engines. In practice, legitimacy has at least two faces or sides (Scharpf, 1999). Another way to enhance the legitimacy of the EU may therefore be to focus more on the input side, for example, by involving citizens directly in EU decision making. Hix (2008) is of the opinion that the EU could and should do more to legitimise itself by undertaking institutional reforms which politicise issues that affect the lives of its citizens, and thus draw more of them into its orbit. In theory, this idea sounds very appealing. The Treaty of Lisbon went some way towards strengthening the input side by empowering the European Parliament and allowing citizens to directly petition the Commission to legislate in new areas (the European Citizen Initiative, see Chapter 18). Steps have also been taken to make EU activities more open and transparent. However, the chapters of this book have revealed that EU is also incredibly complicated; to be fair, a good deal of environmental policy making is concerned with very dry technical details. Communicating the complexity but also the importance of EU policy to citizens is hugely challenging. In the past, policy complexity tended to favour special interest groups who mobilised in Brussels and Strasbourg to secure selective benefts for their members (Hix, 2005: 407). Complexity also allows politicians to hedge their bets by playing blame games (Chapter 18), i.e., claiming the credit for EU policies that deliver, but blaming the EU when things go wrong. Environmental lobby groups tend not to engage in such games, but nor do they always satisfactorily explain the role or importance of the EU to their supporters (see Chapter 9). Consequently, when the EU does environmental things well, many of its citizens (and not simply those in the UK) fail to notice. At present, EU environmental policy is scoring relatively well in terms of output legitimacy, but is evidently still fnding it diffcult to shake off some of the habits of the past. Its automatic refex is, when challenged, to act stealthily to adopt new policies. In the Environment Council, for example, a very high percentage of policy dossiers are agreed without any open discussion. Even the Parliament – the EU’s only directly elected institution – uses informal trilogues to avoid policy dossiers becoming stuck in long and drawn-out conciliation negotiations. The role of the plenary is then restricted to rubber stamping what has been agreed behind closed doors. The fourth and fnal challenge is probably the most existential of all: to decide what is to be the main purpose and hence direction of EU integration. From its inception in the 1950s, the EU has been an elite political project to repair war-torn Europe. EU environmental policy originally emerged as a reaction to the overly economic nature of those foundational ideals. After 50 years of more or less continuous development, environmental policy makers have managed to establish environmental protection as

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one of a number of front-ranking objectives of the EU, now formally enshrined in the founding treaties and supported by a powerful network of environmental committees, ministries and agencies, as well as pressure groups and political parties. Given the rather unfavourable starting conditions that pertained in 1972, this must count as a signifcant achievement. But sterner tests arguably still lie ahead. More and more people have started to question the EU’s ultimate purpose, in much the same way as heads of state did in Paris 50 years ago. In the late 2010s, an alternative vision – broadly speaking environmental sustainability – long promoted by the environmental sector was grasped by the Commission, reformulated into a European Green Deal and presented as a ‘moonshot’ vision for the entire EU to aim for. The Commissioner charged with overseeing its implementation, Frans Timmermans, has admitted that it demands nothing less than a ‘tectonic shift in the way our society is structured’ (Financial Times, 2020). Time will tell whether the EU is capable of rising to such a momentous challenge. One thing is clear though: whatever eventually emerges from the EU’s efforts, they will have wide-ranging and potentially long-lasting impacts on those who live within and well outside its borders.

Summary points • • • •

The EU’s apparent determination to embark on a ‘new growth strategy’ requires it to overcome a number of signifcant challenges that are well known and long running. These include employing different types of policy instruments, addressing implementation gaps and integrating an environmental dimension in the operation of all policy sectors. Sustainable development requires more than the mere adoption of greener technologies; delivering a European Green Deal will also challenge the EU’s already contested democratic legitimacy to act. Regardless of how well the EU performs, its actions will have wide-ranging and long-lasting impacts well beyond its borders.

Key questions 1 2 3 4 5

What are the defning characteristics of EU environmental policy? In what ways is EU environmental policy similar to policies found at the national level within and outside the EU? How does the current, COVID-19-dominated phase of environmental policy making differ from previous phases? What challenges – big or small – are likely to emerge in the next 50 years or so, and how likely are they to be overcome by EU and national-level policy makers? Which do you think are likely to be the most diffcult challenges, and why?

EU environmental policy at 50

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Index

Aarhus Convention 115, 122–3, 306, 324, 328, 367 acquis communautaire 51–2, 54, 60, 101, 159, 189, 198, 228, 232–3, 301, 335–7, 338, 345–8, 350, 362 advocacy coalition 178 agencies, of the EU 98; see also European Environment Agency agenda setting 97, 169, 174, 183, 206; and interest groups 159, 180; as a political process 170; characteristics of in the EU 174; in the European Commission 97, 98, 105; theories of 171, 363 aims of (EU environmental policy) 8 air quality 28, 100, 118, 159, 174, 230, 319, 338–9; see also dieselgate scandal Amsterdam Treaty 2, 4, 25–7, 29, 102, 281–2; see also Treaty of Amsterdam animal welfare 44, 326–7 Austria 24, 82, 87–9, 207, 364 Barroso, José Manuel 94, 102–4, 334, 341, 346–7 Baumgartner, Frank 171, 173, 306 Belgium 122 better law making 99 better regulation 96, 158, 181, 243, 247, 249, 253, 304, 365 biofuel 36 Birdlife International 151, 155–6 Birds Directive 18, 117–8, 122–3, 134, 325 Brexit 39, 63, 76, 84, 128, 336, 364; impact on EU environmental policy 88, 302, 347–9, 365; impact on UK environmental policy 347–9, 350, 365; see also UK Brundtland Report 207, 282–3 budget (of the EU) 99, 190, 43; see also green budgeting Bulgaria 139 business: and ecological modernization 148–9, 160; and REACH policy 149, 154; associations 97, 147, 150, 161; chemical industry (CEFIC) 154; defnition of 147;

groups 148, 151, 153; key groups 154; lobbying 141, 151, 365; political power of 157; sub-sectors of 62, 147 Canada 39, 177, 247, 289, 360 car emissions 174, 188–9, 194, 226, 369; see also dieselgate scandal carbon capture and storage 208, 359 carbon leakage 365, 369 Cardiff Process 78, 207, 213, 215, 281 Central and Eastern European countries (CEEC) 24, 42, 86–7 chemicals policy 14, 19, 35–6, 133, 260, 337, 366; see also REACH policy China 36, 39, 269, 270, 287, 370 circular economy 159, 280, 283–4, 287–9, 288–9, 290, 292, 365–6 civil protection 338 civil society 6, 150, 222, 233, 321, 324–6, 329 Climate Action, DG 41, 94, 96, 151, 181, 209, 214, 248; see also DG Climate Action climate change 1, 5, 28, 41, 320, 338; adaptation to 41–2, 85, 95, 370; and energy package 85; and international negotiations 38, 41, 76, 79, 82, 85, 101, 132, 141, 260–1, 265–6, 345; and the Lisbon Treaty 8, 37; emergence on the EU agenda 28–9, 128, 169, 208–9, 284, 368; EU policy on 85, 139, 307, 320, 338; instruments of in the EU 41, 307–10; mitigation 36, 41–2, 210, 284, 288, 290, 320; public attitudes to 139, 161, 169, 170, 178, 213, 215 climate policy integration 208, 279–80, 283–7, 289–90, 291–5 Collins, Ken 134, 136 comitology 62, 150, 194–6, 197, 337, 347 Committee of Permanent Representatives (COREPER) 79 Common Agricultural Policy (CAP) 134, 207, 292, 310 Common Fisheries Policy (CFP) 115, 177, 208, 348

376 Index Common Market 14, 16–7, 21, 23–4, 29, 94, 149 competence 53, 322, 370; importance of in the EU 53, 328; sharing of 209, 211; to act externally 38, 101, 262–4, 267, 271; to act internally 38; Council, EU see Council of Ministers Council of Ministers 18, 21, 23, 25, 29, 98, 178, 196, 207; Environment Council 83, 84, 88, 89, 188, 199, 362, 371; formations of 77–9, 82; General Affairs and External Relations Council 77, 83; voting in 80–1 Covid-19 pandemic 42, 99; EU response to 42, 99, 161–2, 294, 334, 350, 369, 370 criticisms (of EU policy) 340–1 Cyprus 27 Czech Republic 76, 82, 131, 139, 190, 320 decision making 56, 76, 80, 84, 186, 192, 196; delegated acts 194–6, 198, 234; disjointed types of 77; procedures in the EU 22, 23, 26, 29, 183, 317, 369 democracy 317–8, 322, 323, 327, 329; main conceptions of 321 democratic defcit (the) 245, 318, 326, 327 Denmark 5, 13, 20, 81–2, 87–8, 177, 188–9, 364 deregulation 96, 101, 158; see also dismantling DG Climate Action (DG CLIMA) 94–6, 101, 151, 285, 289 DG Enterprise (DG ENTR) 95 DG Environment (DG ENV) 94, 95–6, 102, 136, 151, 178, 181–2, 213, 287–90, 337, 358 dieselgate scandal 87, 132. 191, 194, 226, 328 dismantling (of policy) 9, 52, 54, 57, 60–1, 338–9, 347, 350–1; causes of 341–3 Earth Summit 281–2, 283 Eastern Europe 15, 24, 42, 64, 86–8, 130, 190; see also Central and Eastern European countries eco-label 302–3, 307, 310, 311 ecological modernization 131, 148, 160–1, 180, 285, 295, 339, 363 economic austerity xix, 130, 158, 334, 346–7, 365, 369 economic growth 114, 131, 250, 282–3, 294, 320, 363 eco-taxes 27 effectiveness of policy 45, 52, 60, 254, 270, 300, 301, 304, 306; and democracy 325; and policy evaluation 242–3, 250–1; of tool mixes 44; emissions trading 8, 28, 36, 40, 95, 140, 162, 208, 300, 310, 361, 366; see also EU emission trading system energy policy 44, 62, 95, 139, 208–9, 212, 214, 309, 364, 366; effciency 158, 189–90, 209, 212, 285–6, 307–10; nuclear 201–2

energy security 97, 158, 212 Enterprise and Industry, DG see DG Enterprise Environment, DG see DG Environment Environment Council see Council of Ministers Environmental Action Programme 13, 15, 18; frst 13, 15–6, 18, 22, 53, 207; fourth 301; ffth 25, 53, 247, 307; sixth 247; seventh 159, 247, 254, 368; eighth 367 environmental impact assessment (EIA) 40, 58, 115, 118 environmental policy integration 6, 26, 62, 84, 181, 203–4, 278–80, 282, 284, 293, 359; aim of 205; history of in the EU 206, 253; instruments of 206; understandings of 206 Estonia 80, 82 EU-12 363 Eurobarometer poll(s) 139, 213, 319, 361, 371 European Citizens’ Initiative (ECI) 326–7 European Commission 13, 38, 93–4, 105; administrative structure of 94–5, 102; and agenda setting in the EU 97; and policy implementation in the EU 99, 104; and political leadership in the EU 94–5; Environment Commissioners 136, 197; roles and functions of 97; Secretariat General of 95, 99, 103, 281, 283 European Community (EC) 3, 38 European Council 5, 28, 56, 62, 76 European Court of Auditors 248 European Court of Justice 5, 38, 101, 110; and the rights of citizens and environmental organizations 114–5; environmental court cases 112; innovative rulings by 116, 120; political judgements by 122; role in balancing economic and environmental interests 120; structure and functions of 110–112 European Economic Community (EEC) 1, 2, 3, 95 European Environment Agency (EEA) 97, 159, 248, 360, 362; policy evaluations by 248; reports by 159, 207, 361, 370; European Environment Bureau 151, 155–6 European External Action Service 39, 83 European integration xix, 15, 26–7, 56, 149, 204; theories of 53 European Neighbourhood Policy 40 European Parliament 5, 21, 23, 128–9, 142, 371; and Brexit 128; and climate change 141; and the dieselgate scandal 132; and the European Commission 98; and the European Court of Justice 112; and the isoglucose ruling 135; and the ordinary legislative procedure 137; composition of 129–30, 132–3; Environment Committee of 133–5, 358, 362; future challenges

Index confronting 140; powers of 135; temporary committee on Climate Change 132 European Peoples’ Party (EPP) 129, 131, 134, 138 European Union 1–3; theories of 52–3, 65 Europeanisation 5–7, 63–5. 175, 360 Euroscepticism 93, 101, 105, 319 Eurozone xix, 334, 371; crisis 334–5 expert groups (of the European Commission) 325 external EU environmental policy 5, 7, 33–4, 45, 364, 369; effectiveness of 44–6; evolution of 37–8; main tools of 38–40 Finland 24, 82, 87, 89, 207, 245, 247 fsheries see Common Fisheries Policy ftness check(ing) 100, 159, 181, 325, 367 foods policy 182 focusing events 174, 179–180, 183 founding treaties (of the EU) 2, 4, 7, 175, 358–9, 372 framing 172, 173, 176, 179; in agenda setting 176, 179 France 76, 82, 100, 105, 188, 318 free trade agreements 34, 39, 369; between the EU and non-European countries 42, 44 with the UK 350 Friends of the Earth Europe (FoEE) 151, 156 General Affairs and External Relations Council (GAERC) 77, 83; see also Council of Ministers Germany 5, 20, 58, 76, 82, 87, 89, 113, 177, 188, 191–2, 233, 247, 249, 303, 320, 344 GMOs 119, 172, 230 governance 2, 3; EU as a system of 3, 358; multi-level 3, 6, 9, 51, 55, 234, 242, 244, 260, 362, 370; soft modes of 60; White Paper on 151, 302, 324 Greece 21, 188, 227, 347, 364 green budgeting 207, 311 Green Deal (European) 28, 95, 162–3, 203, 208–10, 213–6, 279–80, 291–2, 358, 361, 367–8; and external EU policy 41–2, 46; the implementation of 369–72; origins of 141–2 Green Group (in the European Parliament) 55, 133, 142 green growth group 177 Green MEPs 106, 129, 130–2, 341, 363 Green 10 151, 156, 341 Greenpeace 115, 151, 155–6, 160 Group of the Progressive Alliance of Socialists and Democrats (S&D) 106, 129, 131, 134 habitats, natural 43, 58, 118, 123, 318; see also Habitats Directive 325 Habitats Directive 325

377

High Representative for Foreign Affairs and Security Policy 41, 85 Hungary 76, 82, 100, 130, 139, 231 Impact Assessment 96–7, 181, 207, 214, 242, 254, 304, 344, 360, 368–9; contested benefts of 97 IMPEL (network for the implementation and enforcement of environmental law) 104, 233–4 implementing acts 191, 194–5, 198, 337, 347 informational instruments 62 integrated pollution control, Directive on 40, 244 interest groups 54, 58, 147–9, 358–9, 371; alliances between 160–2; boom in 151; defnition of 147; formation of 149; fragmentation of 153; infuence of 157–8; lobbying by 149–51; size of 155 internal market 4, 8, 111, 135–6, 173, 181–2, 228–9, 301; see also Common Market international environmental policy 15, 38, 359, 361; EU leadership of 268–70; EU negotiation of 260; EU representation in 263–5; main policies that the EU is a party to 261 Ireland 13, 131, 190, 247, 364 isoglucose ruling (by the Court of Justice of the EU) 135 issue frames 135, 171, 173–4 Italy 101, 188, 191, 231, 363 Jones, Bryan 171, 173 Juncker, Jean-Claude 95, 103, 150, 209, 334–5; neglect of environment policy 101–2, 141, 161, 253, 345–6 Just Transition Fund 190 Kingdon, John 170, 179, 184 Kyoto Protocol 64, 261, 269, 309, 361 laggard states 5, 87–8, 89, 177, 188–9, 190–1, 228, 236, 348 land use planning 140, 363 Latvia 82, 131, 229, 231 leader-laggard policy dynamic 75, 87–9 leader states 5–5, 54, 56, 82, 84–5, 87–9, 360, 370 legislative proposals 97–8, 100, 141, 363 legitimacy (of the EU) 9, 52, 80, 318–20, 329–30, 371–2; main types of 319–21 Lisbon Strategy 85, 281–3, 286–7, 289 Lisbon Treaty see Treaty of Lisbon Maastricht Treaty see Treaty of Maastricht Majone, Giandomenico 304–5, 363 market-based instruments 300, 307–9, 309–11 mercury 261, 267; international policy on 267

378 Index mixed agreements 64, 263, 268 Monnet, Jean 370 Monnet method, of EU integration 370 multilateral environmental agreements 33–4 multi-level governance 3, 6, 9, 51, 55, 234, 242, 244, 260, 362, 370; see also governance net zero greenhouse gas emissions 190, 364, 370 Netherlands, the 5, 20, 27–8, 82, 87–8, 177, 227 new environmental policy instruments 8, 299, 300–2, 307–10; see also new modes of governance new issues 174, 181–2 new modes of governance 325 non-governmental organizations (NGOs) see interest groups nuclear power 179, 190 open method of coordination 370 ordinary legislative procedure (OLP) 27, 80–1, 136–7, 191–2, 196, 337 Paris Agreement (on climate change, 2015) 28, 41–2, 261, 269–70 Paris Summit (1972) 13, 14, 16, 85, 357 plastics 37, 176; disposable 175–6; EU policies on 176, 181, 288, 346; single-use 181, 366 Poland 76, 82, 139, 190, 196, 227, 302, 320 policy coordination 6, 42, 56–7, 205–6, 358, 367, 370; horizontal 62–3, 95; vertical 62, 288; see also environmental policy integration policy dismantling 9, 52, 54, 57, 60–1, 338–9, 350–1; in the EU 341–3, 344; in the US 342 policy dynamics 2, 6, 27–8, 29, 334–5, 340–6, 350–1; measurement of 336–40 policy evaluation: and the impact problem 242; approaches to 243–6; demand for 247–8; key actors in 248–9; of EU climate policies 249; practices in the EU 249–54; public participation in 252 policy formation 246 policy formulation 61–2, 96, 98, 103, 158, 243 policy implementation 6, 44, 59, 94, 99–100, 220–1, 367; and enforcement 223–4; main actors involved in 226; member state perspectives on 232–4; monitoring of 104; patterns of 227; perspectives on 221, 225; politics of 225–29; solutions to problems in the EU 234–6; stages in 222–3 policy innovation 192, 300 policy instruments 8, 52, 60, 62, 211, 225, 234, 236, 300–1, 369; academic study of 303, 304–6; choices in the EU 307–9; defnition of 300–1; main categories of 300; ‘new’

types of 28, 60, 234, 305, 326; of EU climate policy 307–10; use in the EU 301–3 policy integration 4, 11, 26, 62, 78, 203–5, 279– 83, 293–4, 359; climate policy integration 208, 279–80, 283–7, 289–90, 291–5; history of in the EU 206–10; instruments of 206–7; measurement of 212; see also environmental policy integration policy learning 36, 243 policy making 186–8; defnition of 186; intergovernmental 188–91; patchwork nature of 192; stages of 186; supranational 191–4; transnational 194–98 political agenda(s) 6, 29, 169–70, 351, 363; characteristics of in the EU 174–82; defnition of 169, 170–1; frames and venues 171–74 polluter pays principle 280–1, 359 populism xviii, 128–9, 130, 138, 318–9 populist political parties 129, 130, 319 Portugal 21, 82, 131, 227, 231, 364 precautionary principle 4, 8, 22, 117, 124, 19, 279–80, 359 Presidency 7, 76–9, 99, 264, 264–7; of the Council 7, 76–9, 80–3; of the Environment Council 83–5; role in international diplomacy 264–7; rotating 56, 81–3 problem-solving capacity, of the EU 13, 57, 224, 236 process regulation 305 product regulation 305 public consultation, main instruments of 159, 328, 331 public opinion, role in agenda setting 170–1, 174, 178–9, 183, 318–9, 329–30, 361 public participation 2, 242, 324, 325 qualifed majority voting (QMV) 4, 23, 24, 29, 80–1, 189–90, 195–6, 270 REACH policy 35, 133, 159; see also chemicals policy recurring issues 181 referendum (on the UK’s membership of the EU) 347–9, 365 regulation 300, 301–2; command and control type of 324–6; EU’s reliance on 302, 303, 304–5, 306; smarter forms of 234; regulatory competition 57–9, 192 regulatory standards 52, 57, 59, 181 regulatory state 53, 304–5, 311, 343, 359 renewable energy 102, 150, 180, 208–9, 212, 285, 308, 359, 366 Scharpf, Fritz 58, 305 Secretariat General of the European Commission 95, 99, 103, 281, 283

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379

self-regulation 25, 150, 158 Single European Act 2, 3, 5, 20–1, 37, 181, 191, 204, 207, 262 Single Market 35, 38–9, 189, 305, 345, 348, 362; see also internal market Slovenia 81, 82, 229–31 soft modes of governance 60; see also new governance; new modes of governance Spain 21, 82, 115, 131, 179, 190, 231, 247, 302, 364 Stockholm Conference (1972) 15 Stockholm Convention 182, 269 Strategic Environmental Assessment 207, 269 structural funds 247 subsidiarity 22, 60, 86, 175, 196, 302, 344, 348, 359 sustainability 95, 140, 205, 215, 284, 359, 372 sustainable consumption 288, 347 sustainable development: and climate policy integration 284–54, 7, 8, 26, 37, 55, 158, 207–9, 279–80, 292, 293–5, 372; and unsustainable development 215; rise and fall of in the EU 281–2 Sustainable Development Goals 176, 250, 263, 279, 283–4, 292 Sustainable Development Strategy 281, 284; frst (2001) version 208, 283; national level strategies 282; renewed version (2006) 283 sustainable growth 85 Sweden 24, 82, 87–8, 89, 131, 139, 207, 231, 247, 251

Treaty of Nice 4, 27 Treaty of Rome 2, 4, 16, 53, 362; see also Treaty on the Functioning of the European Union Treaty on the Functioning of the European Union 2, 31, 37 trilogue 80, 98–9, 136–8, 140, 371; see also European Parliament

tar sands 360 Timmermans, Frans 95, 209, 213, 344, 372 trade union(s) 148, 153 transparency (in lobbying) 150 Transparency Register 147, 150, 152, 153, 164 Treaty of Amsterdam 26, 281 Treaty on European Union 2, 37; see also Treaty of Maastricht Treaty of Lisbon 2, 3, 7, 27, 37, 85, 89, 115, 124, 209, 359, 363 Treaty of Maastricht 2, 3, 4, 25–7, 29, 282, 318

waste policy 18–9, 40, 53, 78, 113, 117–20, 122, 232, 269, 288, 290, 337–8, 359, 363, 366, 368 Water Framework Directive 45, 182, 193, 325 water policy 325, 344 Wild Birds Directive see Birds Directive World Summit on Sustainable Development (2002) 282 World Trade Organization (WTO) 58, 104 World Wide Fund for Nature (WWF) 151–2, 155–6

United Kingdom (UK) 13, 15, 20, 53, 58, 63, 84, 88, 192, 307, 341, 342, 364–5, 371; and Brexit 76, 130, 347–50; see also Brexit United Nations 14, 15, 38, 208 United Nations Conference on the Human Environment 15, 324; see also Stockholm Conference United Nations Framework Convention on Climate Change (UNFCCC) 38, 141, 208, 261, 307–8 urban wastewater treatment, Directive on 111, 231, 359 USA 35, 43, 45, 177 venue shopping 173, 175 Visegrad Group 64, 76, 88–9, 139, 177, 364; see also Central and Eastern European countries voluntary agreements 241, 299, 300–3, 308–10, 311, 359, 369 von der Leyen, Ursula 28–9, 41, 95, 98, 105–6, 209–13, 280, 311, 334–5, 348, 368